European Agenda on Migration — House of Commons, 2015-12-14
Topic: Immigration
William Nigel Paul Cash (Conservative, Centre-right): I am extremely grateful to the Minister for those remarks The UN convention on refugees was incorporated into EU law by virtue of the charter of fundamental rights, so when the European Court of Justice implements EU policies, it interprets key passages such as the right of migrants to claim asylum if they reach EU territory, under article 18 of the charter, and the non-refoulement prohibition on removal to an unsafe state, under article 33 of the UN convention. There is therefore interaction between the 1951 UN convention and the charter of fundamental rights As the Minister will know only too well, the European Scrutiny Committee looked at the problem of the charter of fundamental rights in the last Parliament and came to the conclusion that we should override it. I do not want to go back into that debate too much, but I remind him that the previous Labour Government were completely against the incorporation of the charter into the Lisbon treaty. Furthermore, the noble Lord Goldsmith, who was the then Prime Minister Tony Blair’s envoy, sought and achieved a protocol that, on the face of it, excluded the charter of fundamental rights from UK legislation. We argued about that in the European Scrutiny Committee at the time, and I and other members of the Committee warned that it would not stick. Sure enough, as usual—I say "as usual" with regret—our prediction was right, and the European Court of Justice is now applying the charter of fundamental rights within the scope of European law. That is part of the problem, because as I have said, the charter incorporates the UN convention on refugees and all the definitions that go with it. As I said, I believe that those definitions must be reviewed, but they cannot be reviewed if they are part of the charter, which is applied by the European Court of Justice For practical purposes, the whole issue is caught up in the acquis communautaire. That is causing an enormous problem of interpretation and a logjam in the ability to deal with migration policy. I freely admit that a lot of this is a bit complicated, but unfortunately many people over the years have failed to understand that European Council and Council of Ministers meetings are not just about people sitting around and deciding to tweak education policy or transport policy, as Cabinet meetings might be in relation to domestic legislation. Decisions at those meetings lock the United Kingdom into legal obligations that can be removed only by the unanimity of all member states. That is the problem—it is a legal and political system, and it affects the issue of whether people are refugees or migrants I have no less sympathy for genuine refugees than anybody else. I have devoted a great deal of my time in the House to international development issues such as sanitation and water and people who are in refugee situations, but the current problem is not the same thing. It is not about having policies that we can rearrange and adjust; it is about the fact that we are being driven into a deeper acquis. That needs to be said in this debate, because the charter of fundamental rights means that the human rights dimension of the current problem, including the definition of refugees and asylum seekers, is locked into the acquis. In my opinion, that is one reason why so few of them are being dealt with appropriately As the Minister and I, and all of us, know only too well, the UK is not part of Schengen, but we are part of the Dublin regulation, which means that EU states and other UN convention signatories are obliged to allow for asylum claims as of right if a migrant reaches EU territory. However, the UN convention is not specific about how that obligation needs to be disposed. Arguably, to claim asylum under the convention, a refugee needs to arrive directly from the state from which they are fleeing. In practice, that can mean that an applicant has not been processed elsewhere en route. We are now dealing with 900,000 people, and the scale of the situation is as much of a problem as anything else Under the convention and the charter of fundamental rights, frontier states are not—I repeat not—allowed to block the entry of those with a genuine right to claim asylum. The question of setting up a border fence—as I said earlier, there is more barbed wire in Europe than at any time since the cold war—is extremely uncertain in law. The non-refoulement prohibition in the UN convention on the removal of an asylum seeker to an unsafe state can also be interpreted in different ways, including so as not to exclude removal to a safe third state or safe recent transit state. I want to get this on the record, because it is important that the Government look at it all carefully when they get the opportunity to do so. As I said, the charter of fundamental rights is subject to the European Court of Justice, whereas the United Nations convention is only a convention. We are dealing with a complicated legal situation, which I believe is generating even more problems from the European Union Although I accept entirely that this motion is merely one that "takes note", many of the things that I have said have not been incorporated in the motion. I say with great respect to the Minister and to the Minister for Europe that some of these issues are difficult and intractable, but they none the less relate to the Schengen area and have a continuing and ongoing effect on the UK. I say that because as long as we remain part of this European Union—the Minister will accept that I do not think we should any more—we do not alter the fact that we are affected by these things. This migrant issue, with all the tragedies it involves for those who are drowning in the Mediterranean and with the great deal of problems that come from fake passports, jihadists and so on, makes the situation even worse. I simply say to the Minister that he should not think I am asking him to reply to all these points this evening, as I am sure he will not have the chance to do so. Will he, however, please take note of the fact that there are other arguments than those contained in the motion?