Asylum (Designated States) Order 2010

My Lords, I, too, thank the Minister for introducing the order and for explaining the effect of putting a country on the white list, which, as he said, already applies to 24 other countries. A person from those countries on the list whose application for asylum is unsuccessful no longer has the right of appeal. The last time we had a designated states order was July 2007, when I asked, for the second time, whether the Government had considered the use of the power to designate states in respect of straight people only, given that so many countries tolerate hate speech and violence against homosexuals or even pass explicitly anti-gay legislation, such as the Bill in Uganda, which President Obama has described as ““odious””. I had no answer on either occasion, so I try for the third time to persuade the Minister to agree that subsection (5C)(h) would allow the Secretary of State to designate a state for persons of a given sexual orientation if he considers that appropriate and, further, that the persecution of gays in some states would fully justify this use of the power. Before I turn to the two states covered by this order, let me deal with the statistics that the noble Viscount, Lord Bridgeman, requested. They are already available, as the Minister may remind us, on the Home Office website, although they are slightly difficult to find—I had to ask the assistance of the Library this morning in locating them. Although Kosovo became independent on 7 February 2008, as the Minister explained, it is not distinguished separately in the figures; presumably, it is included under Serbia and Montenegro. Is it the intention to separate out the Kosovo figures? Why was that not done immediately Kosovo became independent? As regards Korea, the figures show a substantial inflow of asylum applicants, curiously enough peaking in the third quarter of all the past few years that I have looked at. For example, in quarter 3 of 2009 there were 3,630. I shall deal later with the reason why some of these people apply to the UK for asylum. On Kosovo, the European Union Rule of Law Mission in Kosovo, EULEX, is the largest civilian mission ever launched under the common security and defence policy, with about 3,000 personnel. Its central aim is to assist and support the Kosovo authorities in the rule of law, specifically in the police, judiciary and customs areas. There is also a UN mission, UNMIK, with a budget of over $200 million, and the Secretary-General has a special representative, who told the Security Council last month that, "““Northern Kosovo … remains a flashpoint. Relations between the Kosovo Serb and Kosovo Albanian communities there remain tense””." The SRSG reported ““positive news”” on the relocation by the EU and USAID of 140 Roma families on a heavily lead-contaminated site in northern Mitrovica to more suitable residential accommodation, but all the people on this site need immediate medical attention. They also need to be part of a social inclusion plan that addresses the problems of minority IDPs from a human rights perspective and deals effectively with the equally poisonous inter-ethnic environment that affects the Roma in Kosovo in particular. A state that needs such huge inputs from international agencies but still has not solved many of its own human rights problems does not appear at first sight to be one in which the Secretary of State can be satisfied that there is no serious risk of persecution, particularly of minorities. The Parliamentary Assembly of the Council of Europe reported last October that the UNHCR was recommending against the return of existing Roma refugees and it urged member states not to return failed Roma asylum seekers to Kosovo until the UNHCR considered that it was safe to do so. Here, again, I appeal to the Minister and ask whether the Government have considered exercising the powers in subsection (5C)(h) of the parent Act to designate the state of Kosovo in relation to persons of a particular ethnic orientation so that Roma may be exempted from this order. On Korea, we have one major concern. At some point in 2008—perhaps the Minister can give the exact date—the UKBA began refusing the asylum claims of North Korean nationals on the basis that they had or were entitled to South Korean nationality and that, irrespective of the risk in North Korea, they could safely be returned to South Korea. A major country guidance case on the legality of this approach is due to be heard by the tribunal in April or May 2010. I have given the Minister notice of the case and of the reference to it. The arguments are that North Koreans do not automatically qualify for South Korean citizenship and that it is not lawful to compel them to take up a new nationality just to relieve the UK of its refugee convention obligations. By way of analogy, the Home Office does not expect all Jewish asylum seekers to apply for Israeli nationality under the law of return before it has substantively determined their claims. Therefore, it should not expect North Korean nationals automatically to apply for South Korean nationality. Alternatively, even if North Korean nationals are automatically also nationals of South Korea de jure, their nationality is not effective because the South Korean authorities put considerable practical barriers—such as those in relation to obtaining passports—in the way of accessing safety in South Korea. I am oversimplifying an extremely complex set of legal arguments and we understand that the Home Office has instructed counsel from Blackstone’s to present its case at the tribunal. That is a very unusual move at this stage in litigation, but cases have been won by Refugee and Migrant Justice before immigration judges in the last month or so, on precisely the same arguments, for clients who would have been caught by the certification provisions had the designated states order been in force at the time. It is therefore a matter of considerable concern that the UKBA is proposing to add South Korea to the white list at this time, before the current litigation on behalf of North Koreans has been settled. I recognise that designation orders are not meant to be retrospective. No doubt the Minister will repeat the assurances that the noble Viscount asked for and which were given on this point in another place, but what happens if the test case is successful? The courts would then have decided that North Koreans are not returnable but the Government will say that Parliament has decided that they are because they are de jure South Korean nationals. We ask for an undertaking that, if we pass this order, it will not apply to asylum seekers asserting North Korean nationality.