§ 3.38 p.m.
§ Report received.
§ Lord Dubs moved Amendment No. 1:
§ Before Clause 1, insert the following new clause—
§ POWERS OF DETENTION
§ (". In sub-paragraph (1) of paragraph 16 of Schedule 2 of the 1971 Act (detention of persons liable to examination or removal) for the words "under the authority of an immigration officer' there shall be substituted the words—
- "(a) for a period of up to seven days, under the authority of an immigration officer; or
- (b) for any other period, under the authority of an adjudicator upon application by an immigration officer,"").
§ The noble Lord said: My Lords, in any democratic country that believes in and practises the rule of law it is an extreme step to deny anyone their liberty. That is why Parliament has always been concerned to ensure that there are adequate safeguards before anyone is kept in a prison or detention centre, thus losing their freedom. Yet there is one group of people—asylum seekers—who are detained without any judicial process and lose their liberty simply on the decision of a Home Office official. Those are people against whom there are no criminal charges and who are therefore completely innocent.
Locking up such people as an administrative act without a judicial safeguard cannot be right. At any point in time there are between 600 and 700 people detained under the Immigration Act powers, the majority being asylum seekers. However, the total number detained may reach several thousand. It is not pleasant being detained. Judge Tumim, when he inspected Campsfield House Detention Centre in February 1995, was quite shocked and said in his report,
Detention without a time limit, no matter how reasonable the physical conditions, is extremely stressful. When combined with an uncertain future, language difficulties, a perceived or real lack of information and the fact that some detainees appeared to be terrified at the prospect of being deported, the stress increases".
§ I remind your Lordships of how we treat other people in Britain who are detained in prisons or other places, such as police stations. Under the Police and Criminal Evidence Act, which is the main legislation in this area, the longest period that anyone can be detained without charge is 96 hours. Even then the police must obtain the approval of the court for the detention to continue beyond 36 hours and again beyond 72 hours.
§ I turn to the Prevention of Terrorism Act. Here the maximum time that anyone can be detained without charge is seven days. In contrast, asylum seekers can be detained indefinitely with no prospect of a charge at all. In practice, their detention may vary from a few weeks to a year or longer. What options do those people have at the moment? They can return to their country of origin, which is a potentially dangerous process if they are liable to face persecution. Small wonder that several have committed suicide rather than face the risk of returning. An alternative is that they can apply for bail. At first sight that would seem to be the answer, but in practice very few bail applications succeed when taken up by asylum seekers. The reason is, I understand, that the sums demanded average about £2,000 and that is quite beyond the reach of asylum seekers and their friends. That means that in practice there is no effective bail system for asylum seekers. But even if there were, I suggest that that would be no substitute for having a proper judicial process to determine that detention is appropriate.
§ I turn briefly to what happens in other countries. Thanks to the efforts of the Refugee Council which did some research on the practice in nine European countries, I can say that there is a judicial process determining the detention in each one of those countries. Perhaps I may take a moment to give a few examples. In the Netherlands an appeal against a decision to detain may be taken to the district court. In Italy an asylum seeker can appeal to the relevant tribunal. In Denmark 460 any foreign detainee is brought before a judge within three days of detention and the court will decide the length of time that the asylum seeker will be detained. In Belgium a judicial appeal can be brought against a decision to detain. In Finland any decision to detain must be reviewed by a court within five days. In Sweden there must be a review of the decision to detain after two weeks. In Portugal any decision to detain must be confirmed by a judge within 48 hours and similarly in France, Germany and Spain.
§ Each one of those countries has a judicial safeguard as regards detaining innocent people against whom there are no charges and who happen to be asylum seekers. But I argue that what we do in this country should not depend on what is done by others. After all, we have a longer tradition of democracy, natural justice and the rule of law than any of the countries I have mentioned.
§ My amendment is extremely simple and modest. If it is accepted, it will mean that an asylum seeker is to be detained for no more than seven days, other than when that further detention is authorised by an immigration adjudicator. In other words, the Home Office will have to go to an adjudicator and put its case if it wishes to detain an asylum seeker beyond seven days. An adjudicator, well-experienced in matters of asylum anyway, will then have to decide whether the Home Office has justified the detention.
§ Therefore, the amendment does not challenge the principle that asylum seekers may be detained; it simply says that there should be judicial safeguards. When this matter was raised at Committee stage, the Minister suggested that such a safeguard would impose more burdens on the Home Office and be excessively bureaucratic. The answer to that is this. I am aware that the Home Office already carries out detailed reviews of persons detained and that authority for detention beyond a certain period has to be decided at quite a senior official level. Therefore, my amendment would not significantly increase the burden on the Home Office. It simply means that the judgment about an individual case as regards continued detention, which is now made by Home Office officials, will have to be considered and approved by an immigration adjudicator. But even if my amendment, if accepted, were to increase the burden on the Home Office, I argue that there is a price to be paid for justice and the rule of law. It is surely wrong that asylum seekers have fewer rights than criminals and fewer than suspected terrorists. That cannot be the way in which we wish to treat these people. I ask the House to support this amendment. I beg to move.
§ 3.45 p.m.
§ Earl Russell
We are dealing here with detention without cause shown. The main reason why detention without cause shown is egregious is that it is detention which cannot be judicially controlled by any legal process. If no cause is shown, one cannot decide whether the cause is sufficient. If it is done to British subjects it is illegal by a long tradition of measures stretching back to the Habeas Corpus Act of 1679 and The Petition of Right of 1628. The question is whether it is also in any sense illegal if it is inflicted on people within our shores who are not British subjects.
461 There are two legal authorities which might possibly bear on this point. The first is Article 5 of the European Convention on Human Rights:Everyone has the right to liberty and security of person. No one shall be deprived of his liberty…save in accordance with a procedure prescribed by law".I am aware that the present Home Secretary does not have a great affection for the European Convention on Human Rights. That is a debate which we need not enter now. For the time being it is a legal obligation accepted by this country. It seems to me that there is good sense in the view that, so long as we agree to be bound by a legal obligation, we should keep it. As recently as the beginning of this Parliament that was an observation which Ministers used to make frequently. So I ask the noble Baroness: has the Home Office taken any legal advice on the question of whether its policy of detention infringes Article 5 of the European Convention?
The second authority to which I wish to refer is Article 16(1) of the UN Convention on the Status of Refugees. I remind the House that that is not merely an international obligation. It is incorporated in British law by Section 2 of the Asylum Act 1993, which your Lordships may remember we passed not that long ago. So it is binding on us by our own authority. We agreed with it.
Article 16(1) provides,a refugee shall have free access to the courts of law on the territory of all contracting states".I am aware that a case can be argued on both sides as to whether that clause condemns what the Home Office does at present. I am aware that in certain circumstances access to the courts exists and is valued. But the question is whether the effect of this procedure of detention without cause shown is to exclude such access in relation to the causes of the detention and whether, therefore, it is contrary to Article 16(1) of the UN Convention on the Status of Refugees.
I am not a lawyer. I would not wish to give any ex cathedra opinion on this point. But I would like to know whether the Home Office has taken legal advice on this point and, if it has, whether we can discover what the advice says.
§ Lord Renton
My Lords, no doubt my noble friend Lady Blatch will be answering that particular question and others. Meanwhile, perhaps I may venture to point out that although these amendments are moved with good intentions, there are various fallacies underlying them. I come first to the point made by the noble Earl, Lord Russell, about Article 5 of the European Convention on Human Rights. I confess that I am one of those who has wanted it to become part of our law and administered by our courts. I shall just repeat what the noble Earl said and hope I have got it right; namely, that nobody should be detained except by a procedure 462 prescribed by law. This Bill, and others which went before it, do just that. They prescribe a procedure by law, which is not necessarily a judicial procedure.
§ Earl Russell
My Lords, I am most grateful to the noble Lord for giving way. Can he help me on this point: does it prescribe a procedure or only a power?
§ Lord Renton
My Lords, clearly, this is a procedure for the exercise of a power. I hope that that answers the noble Earl. It cannot be otherwise.
I return to the point I was making. We have a procedure here which Parliament has prescribed. It is prescription by law. That brings me to the opening remarks of the noble Lord, Lord Dubs, who said that asylum seekers can be detained merely by immigration officers instead of by judicial process. I wonder whether he is aware, because he made a tremendous amount of party protest over this matter, that it is a procedure which has been followed by Labour governments for years as well as by Conservative governments.
When people come here as immigrants, the immigration officers do not have an easy task. There is a great variety of people to be examined. Some have passports; others do not. Some want to stay here for a long time, perhaps to obtain employment; others do not, and want to come merely to visit. Their passports may have to be marked for a particular period when they remain. But if someone comes here seeking asylum and happens to have no justification for it, or the reasons are very doubtful, under the present law—as I say, it has been the case for a long time—the immigration officer has to detain the person.
Eventually, under the 1995 Act and previous legislation, a judicial process can be invoked. The Bill is largely concerned with strengthening and improving that judicial process. But, fundamentally, it is not something that ought to be changed. Indeed, it is rather significant that the amendment says that there may be detention,for a period of up to seven days, under the authority of an immigration officer".So there it is. It is just a question of the time anyway. At present, the time is unlimited until the judicial process can be invoked. That is not a very long time because the judicial process can now be invoked at a reasonably early date. In any event, the noble Lord, Lord Dubs, has said in the amendment that it shall be up to seven days.
The suggestion that this matter should be handed over to adjudicators—it is assumed that they will have a quasi-judicial function to perform—brings one to the question of whether there would be enough adjudicators to deal with the very large numbers of people who now come here trying to claim asylum. I confess that I do not know how many adjudicators there are, but I know that they are not numerous. In the nature of things, we would not expect them to be numerous. But their numbers would have to be increased if there were an appeal after seven days to an adjudicator. That would perhaps hold up the whole process of getting the matter 463 considered fully by a judicial process, which is contrary to what noble Lords who wish to have the amendment are proposing.
With great respect, I do not think this matter has been sufficiently thought through, but I shall be very interested to hear what my noble friend has to say.
§ The Lord Bishop of Ripon
My Lords, this amendment does not challenge the principle that asylum seekers should be detained but there are many people, in the Churches particularly, who are concerned about lengthy periods of detention without trial and without time limit. There is nothing more hopeless than someone being detained with an uncertain future. My own experience as bishop to prisons teaches me that despair is both psychologically damaging to the individual and extraordinarily stressful. So the Churches would want to support the amendment. Of course it will cost more, as the noble Lord, Lord Dubs, said, but justice is at stake here and we believe passionately that it should be observed.
§ Lord Hylton
My Lords, at the Committee stage I moved and withdrew two small amendments bearing on this point. It seems to me that Amendment No. 1 is a far, far superior one, and I very much welcome and support it.
§ Lord Milverton
My Lords, I rise to say how I feel about this amendment since the noble Lord, Lord Dubs, kindly wrote me a letter. Although I would like to, I am afraid that I cannot support it. Therefore I am a churchman who would perhaps be in a minority. I am afraid I do not agree with the right reverend Prelate. On the whole, I believe that Her Majesty's Government are doing their best to put right a situation and therefore my noble friend the Minister would have to answer very badly for me to agree with the amendment. I am sure she will not.
I do not believe that people from abroad, whatever their situation or condition, should feel that they can just come to this country and take up residence ad hoc before a final decision is made on whether they should be able to stay. I do not believe that an immigrant or asylum seeker coming here is in the same position as anyone in this country who has found him or herself in criminal proceedings. Let other countries do how they think, but there are only so many human beings a country can absorb, whether here or elsewhere. There are our own people to consider, whatever their origin—not just us whites, Europeans, but whether they be Asian, African or from other ethnic groups. They must be considered too. I believe that Her Majesty's Government have not been narrow, awkward or difficult in this Bill. I am afraid that I cannot respond in a way that the noble Lord, Lord Dubs, would like me to respond.
§ 4 p.m.
§ Baroness Blatch
My Lords, this amendment is very similar in intent to Amendments Nos. 134 and 137A tabled during the Committee stage of the Bill. I shall be 464 resisting the amendment but I intend to rely on many of the arguments I used during the Committee stage because they still apply and still have force.
Under the current powers in the 1971 Act a passenger who is required to submit for examination by immigration officers may be detained on the authority of the immigration officer pending the examination or a decision on whether to grant him leave to enter. Once seven days have elapsed from the date of his arrival in the United Kingdom it is open to the detained passenger to apply to an adjudicator for release on bail—so there is the right of challenge. With the exception of my noble friends who have spoken in this debate, most people have spoken as though there is no right to challenge and no right to apply for bail. But there is, and in the same timescale as suggested by the amendment. The adjudicator will review the case in accordance with tried and tested procedures and will decide whether release on bail is appropriate in all the circumstances of the case.
I am aware that a number of noble Lords are concerned that asylum seekers in particular will be deprived of their liberty for an indefinite period without judicial process. That is simply not the case. I make no apology for repeating that since the coming into force of the 1971 Act—my noble friend Lord Renton made the point that it has been on the statute book for a long time and has been administered by many governments, including the government of noble Lords opposite—a passenger detained pending further examination has been able to apply for bail after he has been detained for seven days. That will remain the case and provisions which the Government have included in the Bill will radically expand the opportunities to apply for bail.
The amendment seeks to remove that established procedure and replace it with a completely new arrangement. Instead of the detained applicant seeking bail from an adjudicator, the immigration officer would have to seek an adjudicator's authority to maintain detention.
I mentioned earlier that this amendment is similar in intent to amendments tabled in Committee. However, it differs in the way that it is expressed, and the wording of the amendment would cause me some difficulty even if I was sympathetic to the intentions behind it. It provides the immigration officer with a power to authorise detention of a period of seven days, but it does not make clear whether this is the initial period of seven days following arrival in the United Kingdom, as is currently the case in the 1971 Act, or any period of seven days. That is not made clear in the amendment. That ambiguity is mirrored in the authority which is granted to the adjudicator to confirm detention "for any other period".
I have already asked for the indulgence of the House in repeating comments I made during Committee, and I will now do so again because this is an important point. Decisions to detain are not taken lightly and are subject to regular review by the Immigration Service. Requiring an immigration officer to seek the authority of an adjudicator to maintain detention would undermine the integrity of the on-entry control and 465 would create an inefficient, and for the reasons I have just given, ambiguous system. Such a system would place considerable extra burdens on the Immigration Service—I take issue with the noble Lord, Lord Dubs, on that point—and the already hard-pressed appellate authority without producing any obvious benefits.
We have recognised that there are difficulties with the current arrangements for detaining people under powers in the 1971 Act. The principal difficulty is that certain groups of people detained under those powers are denied the right to seek bail. It is for that reason that we have taken measures in this Bill to ensure that the right to apply for bail is available to all. The noble Lord, Lord Dubs, made reference to guidelines on the detention of asylum seekers issued by the United Nations High Commissioner for Refugees when we debated the question of detention in Committee. The noble Lord focused on the second of those guidelines and I hope he will bear with me while I quote it. It refers to,the right to challenge the lawfulness of the deprivation of liberty promptly before a competent, independent and impartial authority, where the individual may present his arguments either personally or through a representative.I believe that that describes the bail system which will be in place if the additional rights to apply for bail which are contained in this Bill are accepted in full.
I turn now to the point made by the noble Lord, Lord Dubs, about the Police and Criminal Evidence Act. The period of up to seven days may be necessary to allow inquiries to be made of embassies and other sources of information, but that is a maximum. It may not be necessary to use all of those seven days. Very few asylum seekers are detained—in fact, just 1 per cent. are detained and they can apply for bail at any time after the seven days.
I refer now to the European Convention on Human Rights. I know that my noble friend has a view on such things, but the convention is not part of domestic law. However, the Government are satisfied that the Immigration Act 1971 conforms to the provisions of the convention. We are satisfied that the detention of asylum seekers under that Act is compatible both with the European Convention on Human Rights and the United Nations Convention on the Status of Refugees. Perhaps I may advise the noble Earl that it is not the normal practice of government to disclose the content of legal advice that they have received or sought. The right to challenge after seven days is provided for in the Bill. I therefore regard the amendment as unnecessary.
§ Lord Dubs
My Lords, I thank noble Lords who have participated in this debate. I have listened carefully to what they have said and I should like briefly to deal with the main points that have been raised. It is true that the legislation which gave the power to detain individuals has been on the statute book since 1971. It was certainly there throughout the period of office of 466 the 1974–79 Labour Government. I did not make a single party political point in my speech, but what has happened more recently is that the Government have felt it necessary to detain far more asylum seekers than was the case in the 1970s when, on Home Office figures, very few asylum seekers came to this country, with the result—
§ Lord Renton
My Lords, the noble Lord must face up to the fact that there has been a vast increase year by year in the number of people seeking asylum, and the consequences are inevitable.
§ Lord Dubs
My Lords, I accept that there has been a significant increase in the number of individuals seeking asylum in this country and in other West European countries. In fact, the increase has been greater in some other countries. I was going to say that this Government then increased significantly the facilities for detention. They opened Campsfield House. Haslar Prison in Gosport was converted for the purpose. There are also wings available at Rochester, and a number of other prisons and detention centres were opened specifically for this purpose. The Government's policy was to increase the number of people who would be detained. Although very few people were detained in the earlier period of the implementation of the 1971 Act, the numbers are now significant, which gives more point to the amendment. However, I accept the noble Lord's point that the principle applied under previous governments also and, in so far as it did, I am being critical by implication of what happened in earlier days as well as of what is happening today.
What my amendment suggests would not in any way weaken the power of the Government to detain individuals where that is appropriate. There may well be instances where detention is appropriate. I do not believe that it will be appropriate to detain the number of people who are being detained today, but I can see that there may be some occasions when it would be appropriate. The Minister herself said that only a small percentage of all asylum seekers are detained. Inevitably, however, a Home Office official or an Immigration Service officer has to decide whether detention is appropriate for any individual asylum seeker. The Home Office has to make such decisions whenever anybody arrives here for asylum or for other reasons, so the process already exists. I understand from meetings that I had years ago with Home Office Ministers that the Home Office is careful to scrutinise the continued detention of every individual to make sure that there are good reasons for the detention.
My amendment seeks simply to demand that the Home Office makes that information available to an adjudicator who can then determine whether the continued detention is appropriate. Adjudicators are appointed by the Lord Chancellor. They are judicial figures who have experience in dealing with immigration appeals. They are therefore recognised experts in the business and are obviously the appropriate persons for the task.
467 I turn now to the question of bail, which the Minister spent some time arguing was the main reason why my amendment is unnecessary. Even if there is an effective bail system, my key point remains: there should be a judicial process before anybody loses their liberty. That is what the present system for detaining asylum seekers denies.
§ Baroness Blatch
My Lords, with the leave of the House, may I say that the noble Lord has just said that that process is denied to somebody being detained before they lose their liberty. The noble Lord's amendment refers to seven days after a person is taken into custody. Is the noble Lord suggesting that there has to be a judicial process even before an individual can be put into custody, which, in the case of such detainees, is only ever done for very good reasons? There is no difference between the timescale in the noble Lord's amendment and mine. The difference between our two points of view is that the noble Lord is insisting that in every single case the immigration officer must apply for a judicial review after seven days whereas we are giving the person who is detained the right to challenge being kept in custody after seven days.
§ Lord Dubs
My Lords, there is a difference between bail and the procedure that I am talking about. I am referring to the same process that any criminal in this country is entitled to under the Police and Criminal Evidence Act. Any person held under the Prevention of Terrorism Act has a right which is denied to asylum seekers. That right is concerned with how long people are detained before they are charged. These people are not charged, and there is no judicial process at all. The Minister has said that bail provides a way out. It may be a way out. I ask the Minister how many asylum seekers have managed to get bail in these circumstances. The Minister will agree that the sums demanded are normally in the region of £2,000. If the sum demanded for release is too large for bail to be effective that is not a bail system but merely a token system that does not work.
I apologise for repeating myself but I do so lest there be any misunderstanding. I suggest that, as under the Police and Criminal Evidence Act or the Prevention of Terrorism Act, if someone is to be detained under immigration Act powers beyond seven days—it can be within seven days—the Home Office should go to the adjudicator and state the reasons why in its view detention is appropriate in those circumstances. The adjudicator may agree that it is appropriate for the person to continue in detention, or he may disagree and say that an insufficient case has been made out. It is called justice; it is the system practised by the courts on most occasions. I believe that that is a system which adjudicators are well qualified to follow to provide some basic rights.
The bail system is still there but it is very much at the end of the line. It does not work. If the bail system worked I would not be bothering the House with this amendment. However, the bail system does not work. The simple procedure in this amendment would work. It would not undermine immigration 468 control or the system operated by immigration officers, but they would have to go to the adjudicator instead of merely senior officials to say why detention should continue.
This is such a simple device that I expected the Minister to be more sympathetic to it. I cannot understand why she refuses to accept the amendment. It provides a modicum of justice. In many ways, we live in an unhappy world. In this country we have certain standards. Surely, it is right that those standards should apply to all individuals whether they are humble asylum seekers or others. It is extraordinary that we give fewer rights to asylum seekers, who are innocent of any criminal matter, than to criminals under the Police and Criminal Evidence Act or the Prevention of Terrorism Act. We are not prepared to give the same rights to asylum seekers. The Government's system of immigration control would not be dented by this amendment but would remain intact. It would introduce a little bit of justice into the process of detaining asylum seekers. I should like to seek the opinion of the House.
§ 4.13 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 102; Not-Contents, 125.470
|Division No. 1|
|Addington, L.||Harris of Greenwich, L.|
|Archer of Sandwell, L.||Hayman, B.|
|Ashley of Stoke, L.||Henderson of Brompton, L.|
|Attlee, E.||Hilton of Eggardon, B.|
|Avebury, L.||Hollis of Heigham, B.|
|Bath, M.||Hooson, L.|
|Beaumont of Whitley, L.||Howie of Troon, L.|
|Birk, B.||Hylton, L.|
|Blease, L.||Inchyra, L.|
|Borrie, L.||Irvine of Lairg, L.|
|Bruce of Donington, L.||Jay of Paddington, B.|
|Carmichael of Kelvingrove, L.||Jeger, B.|
|Carter, L.||Jenkins of Hillhead, L.|
|Clancarty, E.||Jenkins of Putney, L.|
|Cledwyn of Penrhos, L.||Judd, L.|
|Cocks of Hartcliffe, L.||Kilbracken, L.|
|Dahrendorf, L.||Kirkhill, L.|
|David, B.||Lincoln, Bp.|
|Dean of Beswick, L.||Listowel, E.|
|Desai, L.||Lockwood, B.|
|Diamond, L.||Lovell-Davis, L.|
|Donaldson of Kingsbridge, L.||McIntosh of Haringey, L.|
|Donoughue, L.||McNair, L.|
|Dormand of Easington, L.||McNally, L.|
|Dubs, L.||Mallalieu, B.|
|Eatwell, L.||Mar and Kellie, E.|
|Ezra, L.||Masham of Ilton, B.|
|Falkender, B.||Mason of Barnsley, L.|
|Falkland, V.||Mayhew, L.|
|Gainsborough, E.||Merlyn-Rees, L.|
|Gallacher, L.||Methuen, L.|
|Gladwin of Clee, L.||Milner of Leeds, L.|
|Gould of Potternewton, B.||Monkswell, L.|
|Graham of Edmonton, L. [Teller.]||Nicol, B.|
|Greene of Harrow Weald, L.||Ogmore, L.|
|Hamwee, B.||Peston, L.|
|Prys-Davies, L.||Simon of Glaisdale, L.|
|Rea, L.||Southwell, Bp.|
|Redesdale, L.||Stallard, L.|
|Richard, L.||Strabolgi, L.|
|Robson of Kiddington, B.||Strafford, E.|
|Rochester, L.||Thomas of Walliswood, B.|
|Rodgers of Quarry Bank, L.||Thomson of Monifieth, L.|
|Russell, E [Teller]||Thurlow, L.|
|Sainsbury, L.||Tonypandy, V.|
|Sandwich, E.||Turner of Camden, B.|
|Scanlon, L.||Whaddon, L.|
|Seear, B.||White, B.|
|Serota, B.||Williams or Crosby, B.|
|Sewel, L.||Williams of Elvel, L.|
|Simon, V.||Williams of Mostyn, L.|
|Aberdare, L.||Howe, E.|
|Abinger, L.||Hylton-Foster, B.|
|Ailsa, M||Inglewood, L.|
|Alexander of Tunis, E.||Kenyon, L.|
|Astor of Hever, L.||Kinnoull, E.|
|Balfour, E.||Kitchener, E.|
|Belhaven and Stenton, L.||Knollys, V.|
|Beloff, L.||Laing of Dunphail, L.|
|Blatch, B.||Lane of Horsell, L.|
|Bledisloe, V.||Lauderdale, E.|
|Boardman, L.||Lindsey and Abingdon, E.|
|Boyd-Carpenter, L.||Liverpool, E.|
|Brigstocke, B.||Long, V.|
|Brougham and Vaux, L.||Lucas, L.|
|Butterworth, L.||Lucas of Chilworth, L.|
|Caldecote, V.||Lyell, L.|
|Campbell of Alloway, L.||McColl of Dulwich, L.|
|Campbell of Croy, L.||Mackay of Clashfem, L.|
|Carnock, L.||[Lord Chancellor]|
|Chalker of Wallasey, B.||Mackay of Drumadoon, L.|
|Chesham, L [Teller]||Macleod of Borve, B.|
|Clanwilliam, E.||Marlesford, L.|
|Clark of Kempston, L.||Merrivale, L.|
|Courtown, E.||Mersey, V.|
|Craigavon, V.||Miller of Hendon, B.|
|Cranborne, V [Lord Privy Seal.]||Milverton, L.|
|Crathorne, L.||Mottistone, L.|
|Cuckney, L.||Mountevans, L.|
|Cullen of Ashbourne, L.||Mowbray and Stourton, L.|
|Cumberlege, B.||Munster, E.|
|Dacre of Glanton, L.||Murton of Lindisfarne, L.|
|Davidson, V.||Nelson, E.|
|De Freyne, L.||Newall, L.|
|Dean of Harptree, L.||Norfolk, D|
|Denham, L.||Northesk, E.|
|Denton of Wakefield, B.||O'Cathain, B.|
|Dixon-Smith, L.||Onslow, E.|
|Downshire, M||Oppenheim-Barnes, B.|
|Eden of Winton, L.||Orkney, E.|
|Ellenborough, L.||Oxfuird, V.|
|Elles, B.||Park of Monmouth, B.|
|Elliott of Morpeth, L.||Pearson of Rannoch, L.|
|Elton, L.||Peel, E.|
|Feldman, L.||Pym, L.|
|Ferrers, E.||Rankeillour, L.|
|Finsberg, L.||Rawlings, B.|
|Fraser of Carmyllie, L.||Renton, L.|
|Fraser of Kilmorack, L.||St Davids, V.|
|Gardner of Parkes, B.||Saltoun of Abernethy, Ly.|
|Goschen, V.||Seccombe, B.|
|Hailsham of Saint Marylebone, L.||Shaw of Northstead, L.|
|Harding of Petherton, L.||Soulsby of Swaffham Prior, L.|
|Harlech, L.||Strange, B.|
|Harrowby, E.||Strathcarron, L.|
|Hayhoe, L.||Strathclyde, L [Teller]|
|Henley, L.||Strathmore and Kinghorne, E.|
|Hesketh, L.||Swinfen, L.|
|HolmPatrick, L.||Swinton, E.|
|Terrington, L.||Tugendhat, L.|
|Thomas of Gwydir, L.||Weatherill, L.|
|Thomas of Swynnerton, L.||Wise, L.|
|Trefgarne, L.||Wynford, L.|
|Trumpington, B.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.21 p.m.
§ Clause 1 [Extension of special appeals procedures]:
Lord Ashbourne moved Amendment No. 1A:
Page 1, line 9, at beginning insert ("Subject to subsection (1A) below").
§ The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendment No. 4B. The intention of these amendments is to give persons who have been forced to undergo involuntary abortion or sterilisation, or have been persecuted for failure or refusal to undergo such a procedure, the right to asylum in this country. They would also give persons in danger of compulsory abortion or sterilisation the right of appeal.
§ China is the only country where it is illegal to have a brother or a sister. By that I mean couples are permitted one child only. The amendment is not controversial. Almost all Britons, whatever their views on the moral and political questions surrounding abortion, regard forced abortion and forced sterilisation as particularly inhuman violations of their fundamental rights. Indeed in recent parliamentary replies to Questions tabled by my noble friend Lord Braine, Her Majesty's Government condemned such practices.
§ The Government of the People's Republic of China routinely compel women to abort their "unauthorised children". The usual method is intense coercion, using all the economic, social and psychological tools a totalitarian state has at its disposal. When those methods fail, women are taken physically to abortion mills, often in handcuffs, and forced to have abortions. That sometimes happens very late in the pregnancy, even up to the time of birth. The baby's skull is crushed with forceps or lethal chemical shots are administered into the soft part of the skull.
§ Forced abortion was rightly construed to be a crime against humanity at the Nuremberg war crimes tribunals, and yet today it is being used pervasively throughout the People's Republic of China.
Perhaps I may remind noble Lords that we are talking about a country where children are declared illegal just because they do not fit into a certain quota that has been established and promoted by the government. A report entitled Human Rights Violations Resulting from Enforced Birth Control issued last June by Amnesty International states:
Couples who have a child above the quota are subject to sanctions, including heavy fines".
It talks also about psychological and physical pressure; it talks about degrading treatment; it talks about the use of handcuffs; it talks about the use of detention. That report from Amnesty International, an organisation
which takes no position on the defence of the unborn, strongly condemns China's horrendous practice of forced abortion and forced sterilisation. The report continues:
In December 1993 a district court in Guangzhou reportedly sentenced a man to 10 years' imprisonment and three years' deprivation of political rights for his part in a 'save the babies and save the women campaign' which had assisted 20 women to give birth in excess of the plan. The court reportedly claimed that by his actions he had entered into rivalry with the party and state, and had therefore committed counter-revolutionary crimes as well as jeopardising social order".
That man got 10 years in prison because he tried to defend some women and babies in China against that evil practice.
§ But why am I talking so much about China? noble Lords may be asking. Noble Lords must be thinking that we surely have enough problems of our own. But those flagrant abuses of human rights, wherever they occur, must be resisted by the international community. Is this not an excellent opportunity for this country to take a lead in the fight against that tyranny and injustice?
§ Noble Lords may be saying to themselves, "Will that not allow a flood of Chinese to come into this country?" I know that noble Lords are concerned about a flood of people coming in, and rightly so, because the Government have to strike a balance, and that is not easy. As my noble friend the Minister has already said, every case is looked at individually. I welcome that, but I would seek to set noble Lords' minds at rest, because we have a precedent in the United States where both during the Reagan regime and the Bush regime legislation was passed similar to that I am seeking to introduce with these amendments.
§ During that period the number of people allowed into the United States varied between 100 and 200 per annum. That is not a big figure. It is for noble Lords to judge, but 100 to 200 per annum does not strike me as a flood of people coming into this country. Even if the experience of the United States were not repeated in this country, and I am misleading the House, which I am not seeking to do, it would be a simple matter to put a quota on the numbers allowed in. All the Government would have to do would be to say, "We limit the quota to, say, 500". The first 500 get in and then the choppers come down.
§ Lord McIntosh of Haringey
My Lords, before the noble Lord sits down surely it would not be a simple matter to impose a quota. If the amendments were incorporated into the Bill, they would, I believe and hope, be an obligation on government and a quota would go against such an obligation.
§ Lord Ashbourne
My Lords, I am grateful to the noble Lord for that intervention. If I have misled the House I must apologise. I shall take back that side of the argument. The House will judge for itself of course, but if the number was between 100 and 200 in the United States, it does not seem likely there would be a flood of applicants. In any event, every applicant is looked at individually. They have to meet the criteria in order to get in.
Last year, the Subcommittee on International Operations and Human Rights, chaired by US Congressman Chris Smith, held hearings on "Coercive 472 Population Control in China". The subcommittee heard testimony from Dr. John Aird, the former research specialist on China at the US Census Bureau. He testified that the policy:continues to rely on coercive measures to reach its objective, and therefore victims of these measures will probably continue to seek asylum in other countries".I take this opportunity to pay tribute to Congressman Smith and Miss Maggie Wynne, director of the Pro-Life Caucus in Congress, for their sterling work in drawing attention to these human rights abuses.
Dr. Aird concluded that the one thing that other nations can do is to:lower the barriers to asylum for Chinese fleeing the family planning program, which would cost relatively little".That is what the amendment seeks to achieve and I commend it to the House. I beg to move.
§ 4.30 p.m.
§ Lord Braine of Wheatley
My Lords, I warmly congratulate my noble friend Lord Ashbourne on bringing forward this amendment. I hope that it will come as no surprise to any of your Lordships to learn that I fully intend to give him my full, unqualified support. I join my noble friend in paying a warm tribute to United States Congressman, Chris Smith, and to Maggie Wynne, director of the Pro-Life Caucus in Congress. With great skill and dedication they have highlighted the tragedy and the scandal of enforced abortion in China. Civilised people everywhere should be grateful to them for that.
Surely, enforced abortion is the cruellest and most barbaric abuse of human rights imaginable. I understand that last year one distinguished authority on China informed the United States Congress that there had been frequent and credible reports of direct physical coercion of that kind in China including, although not limited to, the arrest of pregnant women and forcing them to attend abortion clinics. There has also been incarceration of pregnant women until they submit to abortions and forcible attendance at so-called study sessions away from their families until they agree to submit themselves to sterilisation or abortion.
As regards the methods used, I am advised that they involve crushing the skulls of infants with forceps during delivery or the injection of iodine, alcohol or formaldehyde into their soft spots so that they are born dead. Secondly, they involve imprisoning husbands where necessary in order to force their wives to accept these appalling treatments; cutting off food, water, electricity and wages for couples who refuse to comply; confiscating their furniture and livestock; and even demolishing their homes.
The amendment, so ably moved by my noble friend Lord Ashbourne, provides asylum for those unfortunates who have been forced to undergo involuntary abortion or sterilisation—procedures involving the utmost cruelty. I hope that when my noble friend the Minister replies she will indicate her willingness to accept our amendment. Otherwise, I feel bound to say, in the face of the evidence it is inconceivable to me that anyone in this House—indeed, in Parliament as a whole—will support such 473 appalling cruelty. Therefore, in this debate I hope that we shall speak and act as one on this grave and distressing matter.
§ Earl Russell
My Lords, I have put my name to the amendment. Some noble Lords may be a little surprised that I have done so. I do not believe that it will surprise any noble Lord to learn that my views and those of the noble Lord, Lord Braine, on abortion are not identical. However, our views on forced and involuntary abortion are identical. That is the hub of the common ground between us.
I believe in a world in which people are allowed to follow their own consciences, provided that they do no harm to others. Whatever may be said, often truly, at conferences on population control, I believe that people's own reproductive systems and their use of them are matters which are very much for themselves. Applying coercion is, to say the very least, intrusive. In many of the cases involved it is worse than intrusive. It is an assault and an infliction of a grave physical injury. I believe that those who face such dangers may well be said to have a well-founded fear of persecution. For that reason I am happy to put my name to the amendment.
§ The Duke of Norfolk
My Lords, I too put my name to the amendment. I did so because I recognise that there is the problem of enormous population explosions in places such as China, which I toured for three weeks. As was said most ably by those who have spoken so far, I believe in man's freedom of action and conscience. If a government are going to force population control, they must obtain the willingness of the people.
China brought in population control in 1979. Apparently it reached its peak in 1983 when there were 21 million sterilisations and 14 million abortions. I believe that that is the most disgraceful and inhumane way of allowing a nation to live. I thoroughly support the amendment.
§ Baroness Williams of Crosby
My Lords, I believe that we should not select our forms of human injustice. The noble Lords, Lord Ashbourne and Lord Braine, and the noble Duke the Duke of Norfolk are right in seeing the issue as part of a spectrum of unacceptable behaviour against the individual. Let us admit that in respect of this matter all of us are to some extent hypocrites. The scale of the population challenge which threatens the world makes us hypocrites. However, as the noble Duke said, there is a sharp distinction between the education of people in controlling the size of their families and the use of violent methods to compel them not to bear to full term the children which they fully intend and wish to have.
I might not have intervened in the debate had I not attended the fourth World Women's Conference of the United Nations at Beijing last autumn. I cannot and will not give your Lordships chapter and verse because I am not prepared to put certain people in that country at very grave risk. I can say that I am absolutely certain that what has been described by the noble Lords, Lord Ashbourne and Lord Braine, is consonant with what is happening in that country.
474 I understand and sympathise with the great difficulties that the Government might have in accepting the amendment. But I wonder whether they can give us the assurance that if people flee to this country on the grounds that they have been, effectively, tortured—that is the proper word—by having their full-term child ripped from them and killed, sometimes before their very eyes, they will consider that as coming within the definition of torture. I believe that any woman, certainly any mother, will understand that to see her baby killed before her eyes is a form of torture as profound in its psychological and other effects as the kinds of torture that we shall be discussing in the next group of amendments.
§ Baroness Seccombe
My Lords, as a mother I am appalled by the atrocities that have taken place and I am grateful to noble Lords for bringing them before the House today. However, my understanding is that there are procedures in place which would pick out such cases. I would be grateful if my noble friend the Minister would confirm that. Does she believe that isolating such cases on the face of the Bill will make for more difficulties?
§ Baroness Gardner of Parkes
My Lords, I believe that the Bill must already cover this situation. I believe that we all feel sympathy for the cases which have been outlined and I certainly agree that it would be a form of torture and should be so considered.
The other side of the coin is that if anyone were able to have an abortion voluntarily in an entirely different country, she may then come here and complain that she was forced to have that abortion. That would be a different situation because the Government would have to be satisfied that the abortion genuinely took place against that person's will. But if it has been done forcibly, it must qualify as a form of torture and must be already covered by the Bill. While I have every sympathy for the case that is being put forward, I think that the amendment is unnecessary and I hope that the Minister will confirm that that is so.
§ Lord Avebury
My Lords, I believe that the definition of torture extends to cruel, inhuman and unusual treatment or punishment. If that is the case, surely compulsory sterilisation and abortion are included within that definition. A person who has been subjected to that inhuman treatment would thus qualify as an asylum seeker and be given refuge in this country.
I hope that that is the case because I believe that the evil to which noble Lords have drawn attention is very real. While I share with my noble friend Lady Williams anxieties about the population explosion, I am equally at one with noble Lords opposite who say that any form of compulsion in this matter is a gross violation of human rights. I am sorry to say that it is one of the matters of which the People's Republic of China has been guilty over the years and which has been overlooked by the West and by those who are so keen to cast aspersions on the human rights performance of many other countries.
I know that the noble Lord, Lord Braine, will agree with me about the case of Tibet where there has been, over the years, an attempt to commit the gross crime of ethnicide; that is, to remove the cultural, religious, ethnic and other distinctions between the Tibetans and their Chinese 475 colonial masters. One way in which that has been done has been by the use of compulsory sterilisation and abortion to a greater extent in Tibet than has been the case in the rest of the People's Republic of China.
I know that evidence has been presented on that matter to the Select Committee of another place. It was difficult for it to investigate the matter because the Chinese do not want anybody to know what is happening there. But in the long run, the danger is that by policies of migration and enforcement of special birth control procedures within the autonomous region of Tibet, the existence of the Tibetans as a separate people will ultimately be extinguished, in the same way as the Mongolians have already been and the East Turkestanis are on the way to being extinguished.
Therefore, noble Lords have raised an extraordinarily important feature of human rights violations in China. I hope that the Minister will give us the assurance which is sought in relation to anybody who appears on our doorstep claiming to have suffered either from compulsory abortion or sterilisation, whether it be in the People's Republic of China or elsewhere.
We must not forget that a few years ago, a vast programme of compulsory birth control was instituted in India. People were forcibly sterilised in that country and that ultimately led to the fall of the government. Therefore, it is not the People's Republic alone which should be put in the dock, although it is by far the greatest culprit regarding that crime in the world today. Therefore, I hope that the Minister will be able to give us the assurance for which she has been asked.
§ Lord Carr of Hadley
My Lords, I support the noble Baroness, Lady Williams of Crosby, when she says that to categorise the evils referred to in this amendment as torture would be both effective and the best way in which to deal with the matter in this Bill.
§ Baroness Rawlings
My Lords, of course no one could question the horror of forced abortion and sterilisation. We have heard of those horrors from my noble friends Lord Braine and Lord Ashbourne. However, it may be that we should not use this Bill in order to condemn the law of China. Should the UK and other countries feel that the Chinese human rights record in that area is unacceptable, that should be dealt with by international bodies which could have a real effect on the Chinese Government to change their policy.
Do we really want those horrors dealt with? I genuinely believe that we do; and I know that I do. Therefore, I urge the Minister to have this matter raised in an international forum so that something can be done. But I repeat that I do not think that this Bill is the most effective method by which to do that.
§ Viscount Caldecote
My Lords, if the Minister can give an assurance that this appalling situation is already covered in the Bill, then I could not support the amendment. On the other hand, if it is not covered, I would strongly support the amendment and I believe that it should be inserted into the Bill.
476 The problem of numbers could be covered by inserting an amendment at a later stage to give the Secretary of State power to have a quota or to include in the Bill an amendment with the numbers involved.
§ Lord Mottistone
My Lords, I support the principle of this amendment. I agree with the noble Lord, Lord Carr, that the amendment should be included in the definition of torture at Clause 12(2).
§ 4.45 p.m.
§ Baroness Blatch
My Lords, I am most grateful to my noble friend Lord Ashbourne who kindly wrote to me after he tabled the amendment, providing some background information on the reasons behind the amendment. Of course, I have written to him to explain our approach to those issues.
The subject of this debate—people who against their will undergo abortion and/or sterilisation or who have been persecuted for their failure or refusal to undergo such dreadful procedures—is one which touches everyone in this Chamber.
I begin by setting out our general approach to asylum claims based on these grounds. The first point to make is that forcible abortion or sterilisation would in most circumstances constitute cruel and inhuman treatment. Obviously each case has to be considered on its merits. But subject to that, I can confirm that we would not remove a pregnant woman in circumstances where there was a likelihood that she would be subject to forcible abortion, until after the birth of the child.
Nor would we remove an asylum seeker if it was likely that he or she would be subject to forcible sterilisation. In such cases, we would be likely to grant either asylum or, if it was not entirely consistent with the United Nations convention, exceptional leave, depending on whether the fear was based on one of the reasons specified in the 1951 Convention, and thus amount to persecution; that is, for reason of race, religion, nationality, membership of a particular social group or political opinion. I am sure that all noble Lords would agree with me that a particular social group is probably the criterion under which these offences would fall.
Secondly, treatment inflicted on an asylum seeker in the past would obviously be an important clue to what might happen to them in the future. So if there was convincing evidence that a woman who was now pregnant had previously been subjected to forcible abortion, that might well tend to lend credence to her claim that this would happen to her again if she returned to her country.
Thirdly, forcible abortion or sterilisation might well be regarded as amounting to torture. So if it was likely that an asylum seeker had been treated in this way they would be very likely to qualify for the exemption from the accelerated appeal procedure, under the terms of the safeguard on torture which the House will be debating today.
Fourthly, the 1993 Act makes clear that a well-founded fear of persecution on grounds of political opinion qualifies an applicant for asylum. Opposition or resistance to a population control policy may qualify as a 477 political opinion depending on the circumstances, although this may not be so in a case of purely personal non-compliance.
We must of course consider each case on its individual merits. Nevertheless, I would hope that my noble friends and noble Lords who have spoken in the debate have found those remarks reassuring.
Having said all that, however, I must make clear that cases of the kind I have just discussed are at present not often encountered. What is more common is for people to claim asylum on the grounds that their country has a strict population control policy; that they wish to have another child; and that they would face difficulties in doing so if they returned home.
However, perhaps I might also say that all of us in this House have views about abortion. My views are much closer to those of my noble friends Lord Braine and Lord Ashbourne, but there will be noble Lords in this House who would take another view. However, this is not the appropriate Bill; nor do I believe it is the time to use the Bill for changing our policy on abortion. What we are talking about here are people who undergo the most horrendous ordeal of being subjected to having to lose a baby in these awful circumstances against their will and it is claimed that that is an activity which is widespread within that country and possibly condoned by the authorities.
§ Lord McIntosh of Haringey
My Lords, I wonder whether the Minister would allow me to intervene? In her remarks so far she has referred only to those parts of Amendment No. 4B which refer to involuntary abortion or sterilisation. The amendment goes on to talk about,other resistance to a coercive population control programme".Do her remarks equally cover that? It seems to me to be rather different from the thrust of the debate we have had so far.
§ Baroness Blatch
My Lords, I did in fact touch on that issue; resistance to population control can take many forms. I believe that China has huge population problems, which indeed were the subject of much debate at the world conference which was held recently and which my noble friend Lady Chalker attended. If people resist the policy simply because they argue against it, I would regard that as possibly not grounds for asylum in this country. On the other hand, if their resistance took the form of somebody who was pregnant saying, "I don't want an abortion", it is a very different matter if that abortion is then forced upon them.
It is also my understanding that there are financial incentives for a family producing only one child and of course there may be financial disincentives for having more than one child: one can object to that. However, if having become pregnant and taken the consequences of having a fiscal policy work against them in the case of a second or subsequent child, then I do not believe they should lose their human rights simply because they have suffered the consequences of whatever the fiscal policy might be.
478 However, claims of this nature—and by that I mean the kinds of cases I had been talking about before the diversion—are nearly always made by men and by a number of applicants who are not married. In such cases we look at the claim in the light of the totality of evidence. We would not, of course, grant asylum if the fear of prosecution is not a credible one, and when we do decide to refuse a claim of this nature our decisions are upheld on appeal in the great majority of cases. However, claims of this nature are considered carefully on their individual merits, and where there is a real threat that the person or spouse would be at significant risk of forcible abortion, asylum or exceptional leave would be granted.
Nevertheless we must distinguish between such meritorious claims and others. Much will depend on the pressures or sanctions that might be faced in each individual circumstance. For example, we would be unlikely to accept a claim as valid merely because of the applicant's claimed wish to have another baby and the fear of facing difficulties in doing so, such as those I have mentioned already: fiscal penalties or disincentives. In the light of that account of our policy, let me explain why I oppose the amendment. It seems to me to be both unnecessary and undesirable. That was a point made by my noble friend Lady Gardner of Parkes. It is unnecessary because cases of the kind referred to in the amendment would be unlikely to be certified. The first part of the amendment refers to forcible abortion or sterilisation. As I have indicated, if that genuinely had been forcibly inflicted it could well be regarded as torture and could therefore attract the exemption from the accelerated procedure which the House has already adopted.
The second part of the amendment refers to the point raised by the noble Lord, Lord McIntosh, namely, the case of someone who has been persecuted for refusing to undergo such treatment and resisting a coercive population programme. However, in cases where it is established that persecution has taken place, as defined by the 1951 convention, asylum is unlikely to be withheld. Moreover, if asylum or exceptional leave is not granted such a case would be unlikely to be certified. The certification procedures are designed specifically for cases which are straightforward and manifestly unfounded. Moreover, I do not think it is helpful to single out the particular issue of coercive population measures and to make specific provision for it on the face of the Bill.
The noble Baroness, Lady Williams, raised the point about singling out one form of torture, or being selective about one form of torture. Those who have a well-founded fear of persecution owing to their country's population control practices should be considered in exactly the same way as those claiming fear of persecution on any other grounds. If we make specific provision for each of the circumstances which may lead to persecution, we may end up with unwieldy and, I believe, unmanageable legislation. That is why the 1993 Act is based firmly on the general principles set out in the 1951 convention. It is the convention 479 which defines this country's international obligations towards refugees and which the legislation is designed to implement.
China has been mentioned, and it is important for me to refer to it. In 1995 the United Kingdom received 790 applications for asylum from Chinese nationals. In the same period 690 decisions were taken on Chinese applications. Of those, 10 were granted asylum and a further 15 were granted exceptional leave to remain. Almost all appeals by Chinese nationals were dismissed last year. The Chinese population control programme, commonly known as the "one child per couple" policy, features regularly in asylum applications from that country. It has been in force in China since 1981. The policy is based on a programme of public education, encouraging minimum marriage and child-bearing ages, together with the promotion of birth control, abortion and sterilisation. To enforce that policy there is in China, we understand, a system of penalties and bonuses to encourage people to accept the programme's guidelines. Penalties, although including the withholding of social services and demotion, typically involve fines for unauthorised births. The United States State Department report of March 1996 stated that the Chinese Government do not authorise the use of physical compulsion to submit to abortion. However, Chinese officials of course admit that instances of forcible abortion or sterilisation do occur and that is why we continue to look at each case carefully on its individual merits because, whether or not the government officially condone it, we consider it important to do so.
At present almost all such claims are made by men who have left China on their own and who wish to avoid the financial penalties imposed by the Chinese authorities for breaching the programme's guidelines. Those fines are frequently far smaller than the sums of money applicants claim to have paid to travel to the United Kingdom. Moreover, when the claims are considered against the totality of the evidence available, they are often found to lack credibility. Despite the assurances I have given to the House today about our approach to genuine claims of this type, we find that most such claims are at present refused and that our decisions are upheld at appeal in the very great majority of cases.
The purpose of our asylum procedures is to identify genuine victims of torture and other forms of persecution under the guidelines. I want to say unequivocally that certainly some of the examples we have heard about in our debate today would fall squarely in that category. I am therefore grateful to my noble friend for giving us the opportunity to set out our general approach to asylum claims of this kind. I hope that my noble friends Lord Ashbourne and Lord Braine and others who have spoken have been able to derive some reassurance from my remarks and that they will feel able to withdraw their amendment. Failing that, if the amendment is pressed, I hope that the House will 480 agree with me that singling out one form of torture among all others on the face of the Bill would not be desirable.
§ Lord Ashbourne
My Lords, I am most grateful to everyone who has spoken on this amendment and of course to the Minister for her reassurances. I am still not completely reassured. I have some doubts about the sort of case when a woman who is having a baby is allowed to come here and have her baby in this country and then, afterwards, is returned to China and suffers the most appalling persecution after she goes back. I would have felt more comfortable if my noble friend the Minister had reassured me on that point. However, in the circumstances, I shall read carefully what has been said. I am most grateful to my noble friend for her response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 5 p.m.
Baroness Blatch moved Amendment No. 2:
Page 1, line 14, after ("which") insert ("(a)").
§ The noble Baroness said: In moving the above amendment I shall speak also to Amendments Nos. 3, 5, 14, 18 and 19. During Committee the House adopted an amendment to Clause 1 which was designed to provide a safeguard for victims of torture. The provision has now been incorporated in the current print of the Bill as sub-paragraph (2). The sub-paragraph exempts asylum applicants from having their appeal accelerated if they can show a reasonable claim that they have been the victim of torture in the country in which they claim to fear persecution, or if that country has a recently documented record of torture.
§ During a subsequent debate, on 30th April, I made clear that, although we believe our procedures provide good protection for genuine refugees and that the Bill will preserve that position, the Government have accepted—and I was very ready to accept—the wish of the House that there should be a safeguard for victims of torture on the face of the Bill. The amendments I have tabled for today honour that undertaking.
§ On the same occasion, however, I indicated that we intended to seek some necessary adjustments of the provision on torture, in order to reduce the scope that we believe it would currently offer for evasion of our procedures by applicants who are not victims of torture and are not at risk of it.
§ Our amendments reflect the outcome of discussions which I have had with the right reverend Prelate the Bishop of Liverpool, who your Lordships will recall moved the amendment in Committee which led to the adoption of sub-paragraph (2). I am very glad that the right reverend Prelate has felt able to put his name to the amendments, as indeed have two of the other signatories of the original amendment, the noble Duke, the Duke of Norfolk, and the noble Lord, Lord Runcie. I should point out to your Lordships that both the right reverend Prelate the Bishop of Liverpool and the noble Lord, Lord Runcie, are unavoidably absent from the House this afternoon.481
§ Our amendments have the following effects. First, as I have indicated, they retain the principle that applicants who have been tortured in the country from which they are seeking asylum should be exempt from the accelerated appeal procedure for which Clause 1 makes provision.
Secondly, the amendments clarify the test of probability to be applied in assessing whether the applicant has indeed been a victim of torture. At present, Paragraph (5A) applies to an applicant who,
can show a reasonable claim",
that he has been tortured. The Government agree with the intention behind that phrase, but in order to bring out the meaning more clearly we propose that the exemption should apply,
where the evidence establishes that there is a reasonable likelihood",
that the applicant has been tortured in the country concerned.
§ Next, our amendments provide—and this is an additional safeguard which sub-paragraph 2A does not at present provide—that in order to certify an appeal by an applicant who claims to have been tortured, the Secretary of State will have to state in terms in the certificate that he does not accept that the applicant qualifies for exemption. The Secretary of State will thus be compelled to address the issue of torture directly and say whether or not he accepts that aspect of the asylum claim.
§ In addition, it will be open to the applicant to challenge the certificate at appeal. If the adjudicator concludes that it is reasonably likely that torture has occurred, his ruling to that effect will result in the certificate being overturned, thereby restoring the applicant's avenue to the immigration tribunal. Moreover, where an adjudicator judges that it is necessary in the interests of justice for the appellant to have more time in which to prepare his appeal, it is already open to the adjudicator to grant an adjournment for that purpose.
§ Finally, the amendments remove the separate exemption for applicants whose country of origin has a recently documented record of torture. The Government consider that such an exemption is unjustified and damaging, because it would enable large numbers of asylum seekers to evade having their appeal accelerated by simply pointing to incidents of misconduct by the police or security forces in their country, no matter how isolated or irrelevant to their own circumstances. Information about conditions in the country or origin are, as a matter of course, taken into account by the Asylum Directorate in assessing asylum claims, and such issues can of course be raised by the appellant before the adjudicator during the appeal. In many cases, that information will be entirely material to the individual case, but in some cases it will not be material to the case.
§ In Committee I spoke of the importance that the Government attach to ensuring that those genuinely at risk of torture are identified and protected. I have placed in the Library a memorandum which sets out the 482 procedures followed by the Asylum Directorate in considering such applications. The memorandum also reports on the outcome of discussions which we asked officials to conduct earlier this year with the Medical Foundation for the Care of Victims of Torture.
§ The Government believe that the amendments that I have tabled will enable us to ensure that the position of genuine victims of torture is indeed safeguarded, while preserving the effectiveness of the provisions in Clause I which are designed to enable unfounded claims to be dealt with quickly and effectively. I commend them to your Lordships.
§ There are other amendments grouped with Amendment No. 2, but I reserve my position to respond to them until they have been spoken to by the individual proposers. I beg to move.
§ Baroness Williams of Crosby
My Lords, it may be for the convenience of the House if, when contributing to the debate, I also refer in advance to Amendment No. 4A which is directly related to government amendments mentioned by the Minister. I should like to begin by saying that the debate just held regarding the possibility of some people involved in coercive attempts to try to abort children being brought within the category of being tortured is absolutely crucial in terms of the outcome of this debate.
If the definition of what constitutes torture and the extent and scope of it is so narrowly defined that few can get within it, the assurance received by the noble Lords, Lord Braine and Lord Ashbourne, will not be worth a great deal. On the other hand—and I put this in terms of pleading for some further illumination and elucidation from the Minister—if torture is defined in ways that really do include people who have been tortured or who are at grave risk of being tortured, then the noble Lords, Lord Braine and Lord Ashbourne, have received a valuable reassurance. In other words, it is crucial that the basic principle can sustain the cases that we are now discussing and those discussed in the previous debate.
The debate becomes very much more acute when we consider that the People's Republic of China will be taking over Hong Kong next year and will have control over many citizens who have no experience whatever of being compelled to have only one child. Indeed, many of them have been British citizens until very recently and have looked to this country for the protection of their rights. Therefore, this debate is of the greatest moment for all Members of the House.
I should like, first, to thank the Minister and the Government for going some way to meet the decision made by this Chamber in Committee with regard to the issue of torture. As the noble Baroness explained, the first part of the amendment which was carried in Committee has been met at least to some extent by the Government. However, I have one question with regard to sub-paragraph (a). It is a question that I believe a number of other noble Lords will be raising. The phraseology used in the Government's new amendment refers to the country to which a person is to be sent. It refers to someone who has been tortured, and then says 483 that he would not normally be returned to that same country. However, the original terminology used referred to,the country in which he is claiming to fear prosecution.I shall briefly explain to your Lordships why that matters. If someone who been tortured can no longer be returned to the country in which he was tortured but could be returned to a neighbouring country or one in close association with that country and might then be sent on, we will not have achieved a very satisfactory safeguard.
I shall give a clear example. There is some reason to believe that at least some of those who have escaped from the ruthless regime in Zaire have been returned to that country by Belgium when they have passed through that country as a third country. It has not proved to be a safe country.
As regards sub-paragraph (a) of new paragraph 5(2), will the Minister assure the House that someone would not be returned to a country in which they are likely to be tortured, as compared with the country in which they were tortured? On the face of it, the wording seems to suggest that it is possible.
I turn to sub-paragraph (b). In the original amendment, noble Lords will recall that sub-paragraph (b) referred directly to a person who claims to fear persecution in a country which has a recently documented record of torture. The House will be aware that there are, alas, real examples of that. I need only refer to Myanmar, which used to be called Burma. The name was changed. Perhaps that is as well because great damage has been done to the rich history of that country. The other example is our fellow Commonwealth country, Nigeria, which still has under house arrest its most distinguished former son and president, Dr. Obasanjo.
The Minister says that the original wording in the amendment passed by this House in sub-paragraph (b) is too loosely worded. Will she consider accepting the wording in Amendment No. 4A which deliberately attempts to tighten up the provision by referring directly to a systematic pattern of torture of the kind that has been clearly recognised and indicated by the United Nations Committee against Torture and the United Nations Special Rapporteur? The amendment refers to an extensive practice of torture, not a single instance. It refers to,a consistent pattern of gross, flagrant or mass violations of human rights",not a single instance. It is not just one policeman getting out of hand, but a pattern which is adopted, sustained and consistently pressed by the Government of that country.
It is relatively easy to state which countries they are. It is relatively easy to look up the statements made by the United Nations Special Rapporteur on Torture. We plead—we press very hard because we are clear that it was the intention of noble Lords when they passed the amendment in the first place—that no one who is a victim of torture, with clear evidence of torture, should 484 be returned to a country which consistently practises torture. If we do not have that safeguard, we have very little.
I wish to raise one other issue. I am concerned by the phrase that the noble Baroness used about evidence being credible or not credible. I fully accept that in some cases the evidence does not bear out the case of the person seeking asylum. But the Minister will be aware of the case of Mr. Igbinidu who has now been detained for a year at Campsfield Detention Centre in Oxford. No fewer than four of the most eminent medical experts in this entire country have signed a letter to The Times. They state:It was subsequently possible to secure documentary surgical and psychiatric evidence of torture and its psychological and traumatic sequelae".I shall not detain the House for more than a moment but I read one sentence from the view of the Reader in Trauma and Orthopaedics who examined Mr. Igbinidu, who is still being detained at Campsfield. It is a test of credibility. It states:There are marks compatible with him having had needles stuck into his [sexual organ]. The big toe injury is compatible with his toe having been stamped on. The scars on the knees are compatible with him having to walk on his knees. The scar on his eyebrow is compatible with him having been hit with the butt of a gun. The bruise on the back of his occiput is compatible with his head having been driven against a wall…In my opinion…this man has been tortured and his story is compatible with the injuries in all verifiable areas".That is signed by Doctor C.J.K. Bulstrode, Reader in Trauma and Orthopaedics at the University of Oxford Radcliffe Centre.
That seems to me to be a very strongly argued case for the medical evidence of torture in the case of that one person. I quote it because that case is still not found credible by the Home Office. We need assurance from Ministers at the Home Office in line with what they told the House—we fully appreciate it and are grateful for that—that such evidence would be accepted. If that kind of evidence is not accepted, I do not know what would be.
§ Lord McIntosh of Haringey
My Lords, I speak to Amendments Nos. 4A and 15. The Minister has been notified that we wish these to be debated together with the amendments which stand in her name and those of other noble Lords. I preface my remarks by expressing my appreciation to the Minister for the efforts she has taken to reach agreement on the definition of torture: first, for recognising that the view of the House in Committee had to be given expression in legislation; and, secondly, for the negotiations into which she entered with those who had put their names to the original amendments. I am grateful to the noble Baroness for writing to me yesterday to explain the amendments that she has put down.
It is, therefore, with some regret that, together with the noble Baroness, Lady Williams, we have had to dissent from two aspects of the amendments which the Minister so ably moved and spoke to. To that extent, although we shall not oppose them because they form an alternative to the amendments which were carried in 485 Committee, nevertheless we shall seek to persuade the House that the provisions would be improved with the addition of Amendments Nos. 4A and 15.
As regards the way in which the amendments have to be formulated, this is an enormously complicated matter. One of our amendments would have been pre-empted by one of the Government amendments, and had to be drafted in a different way. It is, formally, in conflict with what will be agreed, I am sure, in the Government's amendments. The other amendment has had to be put down as an amendment to one of the Government amendments. However, let me assure the Minister and the House that we are not trying to play games with the amendments. We seek to ensure that the best possible solution to the acknowledged problem of torture is found in the legislation.
There are two problems with the Government amendments. First, the amendments leave out sub-paragraph (b) which refers to,a person who is claiming to fear persecution in a country which has a recently documented record of torture".We take the point that that is too wide and too vague. A recently documented record of torture could apply to a large number of countries where there has been torture but it has not been on a systematic scale. Therefore, sub-paragraph (b) of Amendment No. 4A refers more specifically to,a consistent pattern of gross, flagrant or mass violations of human rights, or where the findings of the United Nations Committee Against Torture or the United Nations Special Rapporteur on Torture suggest the existence of an extensive practice of torture".I believe that that provides the protection which the Minister seeks against claims on the basis of torture where torture is not of the essence in the claim, and where the Government might wish to apply the accelerated procedure.
The amendments will have to be voted on as we come to them in the Marshalled List. They cannot be moved now. However, Amendment No. 15 is an amendment to Amendment No. 14 to which the Minister has already spoken. Officials have assured me that it is the intention of Amendment No. 14 that torture in the country from which the claimant is seeking asylum will count in this amendment. The Minister did not make any point of that when she introduced the amendments. However, we are puzzled by the phrase in Amendment No. 14 concerning the,likelihood that the appellant has been tortured in the country or territory to which he is to be sent".It seemed to us that the thrust of the amendments which were put forward and were voted on in Committee was, as the wording then was,claiming to fear persecution in a country".In other words, that refers to the past and not the future.
Therefore we have proposed an amendment which, without removing any of the words of Amendment No. 14, states that the likelihood should be,that the appellant has been tortured in the country or territory from which he has come or to which he486 has been sent. The noble Baroness, Lady Williams, has given an example of Zaire and Belgium, and of the possibility that someone might be sent to a country where there is no torture but might still have been a valid applicant for asylum because he had already been tortured in Zaire. Indeed, there is the further possibility as regards Zaire and Belgium; namely, it is known that Belgian authorities have simply taken someone off a plane from London and put him straight onto a plane to Kinshasa. That is the extreme case.
We want to have it recognised—as I am sure the Chamber intended at Committee stage—that the validity of the application for asylum is that someone has been tortured in the country from which they came. That is the significant issue and that is why we have proposed the additional words to Amendment No. 14 in our Amendment No. 15.
Let me recapitulate. We are grateful for what has been done. We are sure that it has been done in good faith and we well understand why the noble Duke, the Duke of Norfolk, and the right reverend Prelate the Bishop of Liverpool have put their names to the government amendments. We sympathise with that. We shall not vote against those amendments but we shall seek to have them sharpened and tightened up in the form of Amendments Nos. 4A and 15.
§ The Duke of Norfolk
My Lords, when the Minister replies I hope that she will cover the case to which the noble Baroness, Lady Williams, referred. The noble Baroness referred to the case of the Nigerian, Abiodun Igbinidu, who has been detained in Oxfordshire for over a year. His medical examination has been carried out by Oxford and Cambridge dons who agree that he shows terrible signs of having been tortured. Why can he not be given asylum here? Why is he still detained? I hope that the Minister will cover that case.
§ Lord Avebury
My Lords, I wish to raise a couple of points. Is there any reason why Amendment No. 14 is confined to cases where there isa reasonable likelihood that the appellant has been tortured"?Why does the amendment not take into account the possibility that the appellant may be tortured if he is sent back? I can think of individual cases where this might well occur, for example where someone escapes from a country where he has witnessed atrocities committed by the security forces. He reaches another country and applies for asylum. If he is sent back, there is a good chance that he will be treated in the same way as those in the incident that he witnessed.
The situation in south east Turkey is an illustration of that. There are many people who have knowledge of the atrocities that have been committed in villages of Kurdistan, where 3 million people have been displaced from their homes, many tens of thousands have been killed, and thousands more have been taken into custody and tortured. There are people there who have knowledge of those incidents. Those people sometimes manage to escape to the outside world. Is it not fairly clear that if those people were sent back they would be 487 detained on account of the knowledge they possess and it is likely that they would be tortured, even if they had not already suffered torture in the past?
I refer to my noble friend's Amendment No. 4A where she advocates that a person should not be fast-tracked if he claims,to fear persecution in a country in which there is a consistent pattern of gross, flagrant or mass violations of human rights".That is a more restrictive criterion than that in the original amendment. Nevertheless, I fear that the noble Baroness may still reject it on the grounds that an individual claimant coming from such a country may have no grounds for thinking that he would be persecuted in that way. The fact that there is a pattern of,gross, flagrant or mass violations of human rightsin Nigeria—which my noble friend mentioned—or in Burma, or in other parts of the world that one can think of, does not necessarily mean that one person arriving at Heathrow is legitimately in fear of that kind of persecution.
I have been thinking about a matter as my noble friend spoke. I hope I may suggest that we might ensure that immigration officers and other people who have to deal with these matters possess a much more thorough knowledge of the situations in the countries of origin than they have at present. I know that frequently those who come from the countries which yield refugees claim that the Home Office briefings are inadequate. Just the other day I received a letter from someone in Somalia who said that the situation in his country had been distorted. However, I must add that he did not explain his criticisms in detail. I hope that we shall have an opportunity to deal with this issue at a later stage when those matters have been properly explained.
The other day I asked the Foreign Office for a copy of the latest report of the UN rapporteur on torture, and to my great surprise—I already had a copy but I wanted an additional copy to lay on the table at a reception that the Parliamentary Human Rights Group was giving for the UN rapporteur—after some weeks' delay I was sent a copy of the 1995 report which he issued in January of that year. Every single year when we ask for the reports of the UN rapporteur we have great difficulty in getting them from Geneva. There seems to be some hang-up in the transmission of those documents from the UN human rights centre in Geneva to the Foreign Office and then to the Home Office in London. If we have great difficulty in obtaining the documents, those who have to use them must experience an even greater problem. I suggest that copies of the annual report of the UN rapporteur on torture be made available to those who have to consider those applicants who claim to suffer from torture to enable them to refer to what the rapporteur has said about a particular country, whether it be Turkey, Burma or Nigeria. I am afraid that most of them are extremely ignorant of the circumstances in the country of origin, and that might be a step towards what my noble friend is trying to achieve.
§ 5.30 p.m.
My Lords, I, too, am puzzled by the fact that Amendment No. 14 appears to refer only 488 to past torture. If a person was tortured in the past, but has no lively fear of torture in the present, the provision would apply. It would not, however, apply if by the skin of one's teeth one managed to get on an aeroplane and leave the country without being tortured while one's colleagues were less lucky and were presently rotting in some cell and being tortured. That seems very curious.
It seems particularly curious in the light of the debate on the previous amendment. If—as they obviously are—the appalling abortions that have been mentioned are torture, the lady who has been aborted or sterilised in the past comes within the terms of the provision, even though she now has no baby to be aborted and cannot be sterilised if she returns. The lady who is currently pregnant but never had an abortion forced upon her in the past is not someone who was tortured in the past and therefore has to be returned to have the new abortion. It is very curious that we are concerned only with past torture, not with the present, certain, lively risk of torture if a person is returned.
§ Lord Carr of Hadley
My Lords, for the past 10 years I have had some connections with the Medical Foundation for the Care of Victims of Torture. Those connections led me, first, to be moved with great admiration for the amazing work done by members of the profession in seeking to heal the bodies and minds of victims of torture. But, more relevant to our discussions today, it made me realise as I never had before the full dimensions of what it means to have suffered torture and the effects on both the mind and the body. I suspect that people who have not been near to torture do not appreciate, as I previously did not, that one of the effects is an inability on the part of the person to talk about the experience or to act quickly in relation to it. If there is one class of people who should never be subjected to any sort of fast-track procedure, it is the victims of torture.
Therefore I most warmly welcome these amendments, and I praise my noble friend Lady Blatch for bringing them forward. It is absolutely right that torture should be on the face of the Bill in the way it now is, although it was not included in the Bill as first drafted. I am deeply grateful, as I am sure is the whole House.
I want to say to my noble friend that I believe there are matters of substance in the amendments raised by the noble Lord on the Front Bench opposite and by the noble Baroness, Lady Williams. It is not clear whether the exact form of the amendments is appropriate. I find it very difficult to see how they all fit together.
One aspect of my noble friend's Amendment No. 14 worried me the moment I saw it; namely, the reference is to torture in the past. The words used are: "has been tortured". It means that the person concerned could not be returned to any territory in which he or she had been tortured in the past, but on the face of it gives no safeguard that someone will not be sent back to a territory where there would be a real danger of their being tortured even though they had not previously been tortured in that territory. That point needs to be dealt with, either in the terms proposed or in other terms that my noble friend may consider more effective.
489 My concern was increased on reading the letter in The Times from Sir Richard Doll and others, to which reference has been made. It underlines that, whatever may be the intentions of officials in this area, the pressures upon them are very great. It is over 20 years since I was Home Secretary. I remember then being extremely worried at the sheer pressure of the huge number of cases that we struggled to deal with. It still happens in the office in Croydon. It seemed to me that, even given the conscientious attempts of the most dedicated officials in the world, under such an enormous volume of work mistakes could easily occur. Therefore we have to examine the issue very carefully and provide what safeguards we can.
While I most warmly welcome the amendments in the Minister's name, I hope that she will give serious attention to the further doubts that have been raised. I suspect that her intention is to cover the worries that we have; however, I am not altogether satisfied that they are fully covered in her amendments as they stand at the moment.
The Lord Bishop of Southwell
My Lords, I agree with the remarks of the noble Lord, Lord Carr. It seemed from my reading of the debate in Committee that the right reverend Prelate the Bishop of Liverpool spoke very strongly on the question of a person being returned to a country where he fears persecution. That was the very nub of his remarks. That reference does not occur in Amendment No. 14.
Many of us greatly appreciate the intervention of the noble Baroness, Lady Blatch, in bringing this amendment before the House. However, there is concern that it should be interpreted along the lines of the earlier debate. I hope that the Minister will be able to give the House that assurance so that we are able to support the amendment that stands in her name, alongside that of the right reverend Prelate the Bishop of Liverpool.
It is also important to bear in mind all that has been said about the tragic case of Mr. Igbinidu, who has now been in detention for over a year. Most of us are concerned about a person who is proven to have been tortured. That is now without doubt. In spite of overwhelming and expert evidence as to the truth of his story, the long-standing and accepted practice in our nation of receiving and supporting those who legitimately seek asylum on account of torture and repression may well be in jeopardy. In the light of that concern it is appropriate that an objective test of a record of torture, independently authenticated by the United Nations, as is included in Amendment No. 4A, is very much to be welcomed. I hope the Minister will be able to give us an assurance that all that was discussed and agreed at Committee stage in this House will be covered by Amendment No. 14.
§ Lord Boyd-Carpenter
My Lords, as one who has not taken part in the debate, I intervene for only a moment to express my admiration and gratitude to my noble friend Lady Blatch for the way in which she has handled what was clearly a very sensitive, delicate and important matter. There was strong feeling in the House.
490 That was understandable in view of the appalling aspects of certain issues that arise. The way in which my noble friend appears to understand that, and yet at the same time to understand the necessity of keeping the provisions in proper legislative form was very remarkable. I express my gratitude to her and my admiration for her over that.
§ Baroness Blatch
My Lords, I thank my noble friend for his comments. Thanks also need to be shared by those who have engaged in this process of iteration and I am grateful in particular to the right reverend Prelate the Bishop of Liverpool.
Amendment No. 4A seeks to retain an exemption based on human rights violations in the country of origin. That is both unjustified and potentially very damaging to the Bill. The noble Baroness, Lady Williams, has proposed that, in addition to an exemption for victims of torture, asylum applicants should be excluded from the accelerated appeal procedure if their country of origin has a consistent pattern of human rights abuses or an extensive record of torture. I note that she states that her proposal would tighten up the wording of subparagraph (2)(b) so as to meet the concern that it would enable a very high proportion of applicants to avoid the accelerated appeal procedure. But it is clear that Amendment No. 4A would severely undermine the impact of the proposals in Clause 1.
First, the conditions in the country of origin will of course have to be taken into account in any case in assessing an asylum claim based on torture. We have only recently discussed China where we all know and have an understanding that terrible acts of torture take place. I made it absolutely clear that if asylum applicants meeting those conditions applied, they would be seriously considered for asylum purposes. But at the same time, people are returned to China who are not in danger and whose cases were not credible on application.
If, despite our having taken them into account, the applicant is unable to establish a reasonable likelihood that he has been tortured, I see absolutely no logic or justification in nevertheless providing him with an exemption from the accelerated appeal procedure. In other words, the proposal would provide an additional exemption for applicants who, by definition, were unable to establish a claim of torture, notwithstanding their country's poor record. I cannot discern a convincing argument for the proposition that an asylum seeker who has not himself been tortured, and whose claim on individual consideration is found to be manifestly unfounded or to qualify for certification under one of the other headings in Clause 1, should be exempted from having his appeal accelerated.
Secondly, the argument that asylum seekers who have experienced torture in the past may be especially vulnerable, and in particular may be suffering from traumatic effects which make it desirable to allow more time for them to prepare their appeal, cannot be advanced in support of the proposal that the Bill should exempt asylum seekers from having their appeal accelerated if they have not been tortured.
491 We already take full account of our extensive information about conditions in countries. The fact that we are granting asylum or exceptional leave to remain at a much higher rate than average to nationals of countries such as Afghanistan, Iran, Iraq, Somalia and former Yugoslavia shows that that is so. Last year the refusal rate for those countries ranged from 50 per cent. down to as low as 5 per cent. compared with a refusal rate for all nationalities of nearly 80 per cent.
But the evidence shows that some countries with very poor human rights records nevertheless generate large numbers of unfounded asylum claims. Many of those countries are also subject to powerful economic migratory pressures. It simply does not follow from the existence of abuses in a country that the individuals who seek asylum here are always or often genuine refugees or would genuinely be at individual risk if returned. Last year, for example, between 92 per cent. and 99 per cent. of claims from Algeria, Nigeria, Turkey and Zaire were refused. The high refusal rates for those countries cannot be attributed to a climate of disbelief in the Home Office, as some of the Bill's opponents would have us believe. If the Home Office were refusing large numbers of genuine refugees, it would be losing large numbers of cases at appeal. But the fact is that last year only 1 per cent. of appeals by Algerian nationals against refusal of asylum were allowed. For Nigeria the figure was 2 per cent., for Turkey 8 per cent. and for Zaire 8 per cent.
§ 5.45 p.m.
§ Earl Russell
My Lords, the noble Baroness invoked the refusal rate for Zaire. Is she aware that many people believe that that refusal rate is the result of a mistaken country assessment?
§ Baroness Blatch
My Lords, if I had the brief before me that I had for my Question this afternoon, I would be able to give the noble Earl a quote from a reputable organisation based in Zaire which follows up returns from this country whose asylum appeals have failed. It has not found those cases wanting. If it had, it would not be reticent in letting us know about them. However, I owe the noble Earl a reply to his specific point and I shall certainly give him that.
The noble Baroness's amendment would mean that, for certain nationalities, asylum appeals could not be accelerated even if it were apparent after proper individual consideration that they were manifestly unfounded. The amendment would significantly and unjustifiably restrict the availability of the accelerated appeal procedure. It would greatly reduce the impact of Clause 1, both as a deterrent against abusive appeals and as a means of enabling such appeals to be processed more quickly. I do not believe that that would be in the wider interests of those genuine refugees who seek asylum in this country.
Amendment No. 4A has a further important drawback. It introduces enormous scope for uncertainty. Who is to decide whether a country fits the proposed criteria of a consistent practice of human rights abuse or an extensive practice of torture? There are, as I have already said, many countries with poor human rights.
492 Every asylum appellant would claim that his country failed the test. There would be a continuing state of uncertainty about which nationalities were exempt from certification and which not. That would severely damage the purpose of Clause 1.
I remind the House that it would be quite mistaken to think of the accelerated appeal procedure as removing the applicant's right to a fair hearing of his case. Nothing could be further from the truth.
§ Earl Russell
My Lords, I apologise to the noble Baroness for intervening again. I should like to know why certification under this clause would be more difficult than the certification the noble Baroness's department already proposes under Clause 1.
§ Baroness Blatch
My Lords, I am talking about certification under Clause 1. That is the whole purpose of the amendment. We are talking about Clause 1. We are extending the categories to whom it applies, hut the certification procedure in Clause 1 is exactly the same.
In practice, even if one assumes minimum administrative delay, certification will mean that the appeal should be disposed of in around four weeks from the initial decision. That is a more than adequate period in which to expect an asylum applicant to exercise his appeal. In all cases, of course, the initial consideration by the Home Office will already have involved the applicant having an opportunity to explain his fear of persecution at an interview and to make additional representations afterwards. Certified claims will still attract a right of appeal to an independent adjudicator before the applicant can be returned to his country of origin.
The Government accept that we should provide a statutory safeguard where there is a reasonable likelihood that an asylum applicant has been a victim of torture. We believe it is possible to combine that with maintaining the effectiveness of our proposals in Clause 1 for dealing more quickly and effectively with unfounded asylum claims. But the amendment proposed by the noble Baroness, Lady Williams, would provide an exemption for asylum applicants regardless of whether they are or even claim to be victims of torture. Notwithstanding the assurances about the scope of this proposal, it would significantly and unjustifiably restrict the availability of the accelerated appeal procedure in a way which would reduce its impact both as a deterrent against abusive appeals and as a means of enabling such appeals to be processed more quickly. Amendment No. 4A would damage the Bill and invalidate the purpose of Clause 1.
Torture, whether physical or psychological, is by its nature likely to be sufficiently serious to constitute persecution. Our aim is to ensure that genuine victims of torture are identified and protected. Information about country of origin, including consistent patterns of serious violations of human rights, is always taken into account.
§ Lord Avebury
My Lords, does the noble Baroness accept my suggestion that the text of the report on torture of the UN rapporteur on a particular country 493 should always be available to an immigration officer who is considering an application for asylum on the grounds of torture from that country?
§ Baroness Blatch
My Lords, again, let me repeat myself from the question I had earlier. All those sources of information are available to those who are charged with having to make judgments about individual applications.
Medical evidence supporting a claim of torture is always given very careful consideration. I shall return in due course to the specific case referred to a moment ago. Staff receive detailed and comprehensive training in how to interview asylum seekers and on how to assess claims. The training raises awareness of the barriers that genuine refugees may face in describing their experiences to officials. We all know that this is a particularly sensitive area. The United Nations High Commissioner for Refugees and other independent bodies contribute to the Asylum Directorate's training. Caseworkers work closely to the United Nations High Commission for Refugees' handbook.
We are anxious that our procedure should attract confidence. That is why we asked officials earlier this year to hold discussions with the Medical Foundation for the Care of Victims of Torture, which was prayed in aid by my noble friend Lord Carr. As a result of that, if the medical foundation asks for an extension of time to enable a medical report to be prepared, we have undertaken to consider that carefully. Such a request will not be refused except at senior executive level and for very good reason.
If the Home Office has concerns about any aspect of a medical foundation report on a case, we will normally discuss the concerns with the foundation before reaching a final decision. The foundation has also been supplied with a contact number in the Immigration Service for detained cases. Caseworkers already have access to the foundation's guidelines for examining victims of torture.
Amendment No. 15 proposes a drafting change to subsection (5)(a) which the government amendment would insert into Clause 1. We have proposed that the exemption should apply if the applicant has been tortured in the country or territory to which he is to be sent. The noble Baroness proposes that we should also include applicants who have been tortured in the country from which they have come. Indeed, I believe it is not an addition but a substitution for those words.
§ Lord McIntosh of Haringey
My Lords, Amendment No. 15 is an addition to Amendment No. 14. There is no substitution.
§ Baroness Blatch
I hope I will be able to explain to the noble Baroness why we have difficulties with the amendment. First, the proposed additional words are not very precise. Do they mean the country from which the applicant travelled immediately prior to arriving in the United Kingdom, or are they intended to refer to the applicant's country of origin? If we accepted the proposal in principle, we would want a more precise form of words. Perhaps I may again use Zaire as an 494 example. Almost all Zairian applicants come to us through a third safe country. They come to us from Belgium because there is no direct route into the United Kingdom. That is an important point and would need to be clarified.
Secondly, I do not see the logic of exempting a victim of torture if the country where he was tortured is different from the country to which he is to be sent. Let us take, for example, an Indian national who has been working in Iraq and who seeks asylum here on the grounds that he was tortured in that country. He would have a very weak case. We would be likely to refuse his claim on the grounds that we intended to remove him to India where he did not claim to fear persecution. We would wish to certify his claim on the grounds that he was a national of a designated country and that would be a clear case of a manifestly unfounded asylum claim. Again, I can see no reason why we should be prevented from certification because of what happened to that applicant in Iraq.
Perhaps I may respond to one or two of the points that were raised. All noble Lords would agree that the Asylum Directorate has a difficult and painstaking job to do. I believe that the directorate and the adjudicators who hear appeals do it very well. However, the noble Baroness, Lady Williams, suggested that the benefit of the doubt should be given even if the evidence does not bear out the claim. If we are to experience proper control, firm and fair, of the system, a policy of not securing evidence to support a claim would prove very difficult indeed.
I was asked specifically about Mr. Igbinidu. The gentleman has failed so far to satisfy the Secretary of State and the special adjudicator that he had a well-founded fear of persecution in Nigeria. He also failed to obtain leave to appeal to the Immigration Appeals Tribunal. Further evidence, including medical reports—I hope that noble Lords and indeed the right reverend Prelate will accept this point—was only received on 12th June. This is new evidence and it has only come to light since 12th June. It has been submitted to my right honourable friend the Secretary of State. He is examining the totality of the evidence in Mr. Igbinidu's case and a decision will be made, we hope as soon as possible.
It is true to say that there has been a great deal of conflicting evidence and I have read most of the literature on the case. It would not be proper for me to discuss the detail of the further evidence today but I can assure the House that if Mr. Igbinidu does not meet the test of qualification under the 1951 convention we will of course, given the weight of the evidence that is now before us, also consider whether there are grounds for exercising discretion to allow him to remain exceptionally. I shall keep the House informed on that point.
I was asked by the noble Baroness, Lady Williams, and others to clarify the scope of torture. I have made clear that the term "torture" can indeed apply to any severe form of physical and indeed psychological abuse deliberately inflicted to cause suffering. I have also made clear that forcible abortion or sterilisation could 495 indeed constitute torture and therefore fall within the scope of the exemption proposed in the amendments I have tabled.
The noble Lord, Lord Avebury, and the noble Viscount, Lord Bledisloe, said that the government amendment did not protect people who had not yet been tortured but would be tortured if they returned to their country of origin or the country where they believed they had been persecuted. If we were satisfied that a person would be tortured if returned to the country of origin and that the torture would constitute persecution for a convention reason, we would grant asylum. If an applicant faced torture but not for a convention reason he would of course be granted exceptional leave to remain.
I hope that the amendments standing in my name will be accepted by the House and that the other amendments will be resisted.
On Question, amendment agreed to.
Baroness Blatch moved Amendment No. 3:
Page 1, line 15, at end insert ("; and
(b) sub-paragraph (5A) below does not apply").
§ On Question, amendment agreed to.
§ [Amendment No. 4 had been withdrawn from the Marshalled List.]
Baroness Williams of Crosby moved Amendment No. 4A:
Page 1, line 15, at end insert—
("( ) Nothing in this paragraph shall be construed as applying to—
§ The noble Baroness said: My Lords, I shall not detain the House for more than a moment or two. I wish to make a couple of comments which may explain why I feel obliged to take the opinion of the House on this amendment.
§ I wish to make it plain first of all that the amendment does not give anyone the right to stay in this country. It merely lets them take the longer track which enables them to have time to adduce evidence. Nothing in my amendment—an amendment supported also by others—would give the right to anyone to stay in Britain unless they were able to show the immigration authorities, and if necessary the adjudicator, that they had made out their case.
§ The point made by the noble Lord, Lord Carr, and the noble Duke, the Duke of Norfolk, that victims of torture are rarely able to get their case together in a matter of days is at the very heart of this amendment. To mention an additional, very moving case, the author of Some Other Rainbow, our own John McCarthy, was detained for many months in Iraq, as noble Lords will recall. He specifically said to Members of this House only 496 yesterday that he, as a victim of detention, fear and torture, would have been unable to put his case together in a matter of days. Therefore, the first point I wish to make as strongly as I can is that nothing in Amendment No. 4A would force or oblige the authorities to accept someone who could not make out his case. It merely gives him the right to make that case, and a victim of torture cannot make a case in a matter of days.
§ The second point I wish to make is that the case of Mr. Igbinidu bears that out precisely. There was earlier evidence about his torture and that was waved aside by Home Office officials, no doubt because they thought it did not carry sufficient credibility. It was only when Mr. Igbinidu's lawyers went to the highest levels of medical practice in this country that evidence was adduced that the Minister has now said she will consider again. It would have taken Mr. Igbinidu weeks to get that additional evidence, which he now has. Under the fast-track procedure there is not the remotest chance that he could have made out a case that he had been tortured, as medical experts of the level of Professor Doll and others now strongly believe to be the case.
§ The third point I wish to make is that I am sure, in the light of the very helpful response of the Minister to the earlier amendment that was passed by the House, that we are entitled to ask for a similar response to this amendment, for it reflects the will of the House. Therefore, it is not unreasonable for me to press the matter in the hope that the noble Baroness will decide at Third Reading to respond to this amendment, which is concerned with the possibility of future torture, in the same very helpful way as she responded to the amendment addressing the past history of torture. I see no incompatibility between the two. I beg to move.
§ 6.2 p.m.
§ On Question, Whether the said amendment (No. 4A) shall be agreed to?
§ Their Lordships divided: Contents, 93; Not-Contents, 117.498
|Division No. 2|
|Addington, L.||Donoughue, L.|
|Archer of Sandwell, L.||Dormand of Easington, L.|
|Ashley of Stoke, L.||Dubs, L.|
|Avebury, L.||Falkender, B.|
|Bath, M.||Falkland, V.|
|Beaumont of Whitley, L.||Gainsborough, E.|
|Berkeley, L.||Gallacher, L.|
|Birk, B.||Gladwin of Clee, L.|
|Blackstone, B.||Graham of Edmonton, L.|
|Broadbridge, L.||Greene of Harrow Weald, L|
|Carr of Hadley, L.||Gregson, L.|
|Carter, L.||Hamwee, B.|
|Clancarty, E.||Harris of Greenwich, L.|
|Cledwyn of Penrhos, L.||Haskel, L.|
|Clinton-Davis, L.||Hayman, B.|
|Cocks of Hartcliffe, L.||Hilton of Eggardon, B.|
|Dahrendorf, L.||Hollis of Heigham, B.|
|David, B.||Hooson, L.|
|Dean of Thornton-le-Fylde, B.||Howie of Troon, L.|
|Desai, L.||Hylton, L.|
|Diamond, L.||Hylton-Foster, B.|
|Donaldson of Kingsbridge, L.||Inchyra, L.|
|Irvine of Lairg, L.||Norfolk, D. [Teller.]|
|Jay of Paddington, B.||Ogmore, L.|
|Jeger, B.||Peston, L.|
|Jenkins of Hillhead, L.||Prys-Davies, L.|
|Jenkins of Putney, L.||Rea, L.|
|Judd, L.||Redesdale, L.|
|Kilbracken, L.||Richard, L.|
|Lincoln, Bp.||Rochester, L.|
|Lockwood, B.||Rodgers of Quarry Bank, L.|
|Lovell-Davis, L.||Russell, E.|
|McGregor of Durris, L.||Sandwich, E.|
|McIntosh of Haringey, L.||Seear, B.|
|McNair, L.||Sewel, L.|
|McNally, L.||Southwell, Bp.|
|Mallalieu, B.||Stoddart of Swindon, L.|
|Mar and Kellie, E.||Strabolgi, L.|
|Mayhew, L.||Stafford, E.|
|Merlyn-Rees, L.||Thomas of Swynnerton, L.|
|Meston, L.||Thomas of Walliswood, B.|
|Methuen, L.||Turner of Camden, B.|
|Milner of Leeds, L.||White, B.|
|Mishcon, L.||Williams of Crosby, B. [Teller.]|
|Monkswell, L.||Williams of Elvel, L.|
|Nicol, B.||Winston, L.|
|Aberdare, L.||Hayhoe, L.|
|Abinger, L.||Henley, L.|
|Alexander of Tunis, E.||Holderness, L.|
|Archer of Weston-Super-Mare, L.||HolmPatrick, L.|
|Astor of Hever, L.||Howe, E.|
|Balfour, E.||Inglewood, L.|
|Belhaven and Stenton, L.||Jeffreys, L.|
|Birdwood, L.||Kenilworth, L.|
|Blatch, B.||Kenyon, L.|
|Bowness, L.||Keyes, L.|
|Boyd-Carpenter, L.||Kingsland, L.|
|Brougham and Vaux, L.||Kinnoull, E.|
|Butterworth, L.||Laing of Dunphail, L.|
|Cadman, L.||Lane of Horsell, L.|
|Campbell of Croy, L.||Lauderdale, E.|
|Carnock, L.||Leigh, L.|
|Chalker of Wallasey, B.||Lindsey and Abingdon, E.|
|Chelmsford, V.||Liverpool, E.|
|Chesham, L. [Teller.]||Long, V.|
|Clanwilliam, E.||Lucas, L.|
|Clark of Kempston, L.||Lucas of Chilworth, L.|
|Coleraine, L.||Lyell, L.|
|Colwyn, L.||McColl of Dulwich, L.|
|Courtown, E.||Mackay of Clashfern, L.|
|Craigavon, V.||[Lord Chancellor.]|
|Cranborne, V. [Lord Privy Seal.]||Macleod of Borve, B.|
|Crathorne, L.||Marlesford, L.|
|Crickhowell, L.||Merrivale, L.|
|Cumberlege, B.||Mersey, V.|
|Dacre of Glanton, L.||Miller of Hendon, B.|
|Denham, L.||Milverton, L.|
|Denton of Wakefield, B.||Montgomery of Alamein, V.|
|Dilhorne, V.||Mottistone, L.|
|Dixon-Smith, L.||Mountevans, L.|
|Downshire, M.||Mowbray and Stourton, L.|
|Dudley, E.||Munster, E.|
|Eden of Winton, L.||Murton of Lindisfarne, L.|
|Elliott of Morpeth, L.||Nelson, E.|
|Elton, L.||Newall, L.|
|Finsberg, L.||Northesk, E.|
|Flather, B.||O'Cathain, B.|
|Fraser of Carmyllie, L.||Onslow, E.|
|Gisborough, L.||Oppenheim-Barnes, B.|
|Glenarthur, L.||Oxfuird, V.|
|Goschen, V.||Park of Monmouth, B.|
|Hanson, L.||Peel, E.|
|Harris of Peckham, L.||Rankeillour, L.|
|Harrowby, E.||Rawlings, B.|
|Rennell, L.||Strathmore and Kinghorne, E.|
|Renton, L.||Sudeley, L.|
|Saint Albans, D.||Teviot, L.|
|St Davids, V.||Thomas of Gwydir, L.|
|Seccombe, B.||Trumpington, B.|
|Shaw of Northstead, L.||Tugendhat, L.|
|Stewartby, L.||Vinson, L.|
|Strange, B.||Wedgwood, L.|
|Strathcarron, L.||Wilcox, B.|
|Strathclyde, L. [Teller.]||Wynford, L.|
|Strathcona and Mount Royal, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.10 p.m.
§ [Amendment No. 4B not moved.]
§ Baroness Blatch moved Amendment No. 5:
§ Page 1, line 16, leave out sub-paragraph (2).
§ On Question, amendment agreed to.
§ [Amendments Nos. 6 and 7 had been withdrawn from the Marshalled List.]
§ Earl Russell moved Amendment No. 7A:
Page 1, line 21, at end insert—
("( ) Nothing in this paragraph shall apply to a person who has a claim in support of which the evidence adduced establishes that there is a reasonable likelihood that the appellant has been raped or seriously sexually assaulted, or there is evidence of the systematic use of rape as a means of waging war or exercising control in the country or territory to which she or he is to be sent.").
§ The noble Earl said: My Lords, this amendment, like that on which the House has just voted, is not designed to give anyone a right to stay here permanently. It is designed simply to provide an exemption from the procedure of fast-tracking. It is designed to give time for evidence to come forward, to give time to allow people to tell their stories, and to give time to assess rather more fully than might otherwise be the case the credibility of stories which have been told.
§ Before I go any further, I should like to thank the noble Lord, Lord Mishcon, for drawing my attention to a defect in the wording. In the event of the Minister wishing to accept the amendment, I hope that we shall be able to agree to tidy it up. The word "or" in the fourth line of the amendment should read "and". That conjunction is crucial to the amendment because it establishes the link between its two halves.
§ The first part of the amendment is plain enough. The use of rape as a weapon of war and of ethnic cleansing and persecution has been amply documented in the press in recent times. It is an atrocity. I use that word advisedly and technically and I do not think that any noble Lord will disagree with it. It is also something about which, notoriously, the victims find it extremely difficult to tell their stories. I have known cases in which that has been so and the difficulty was patent, serious and acute. If overcome, it was overcome only very slowly and with great effort. That may be inconvenient, but it is a fact—and because it is a fact we must live with it.499
The link between the two sections of the amendment and the reason why it is crucial that it should read "and" not "or" is the issue of credibility. As the noble Baroness has been saying all afternoon, it is crucial to assess the credibility of an individual's story and, as I have been replying all afternoon, in assessing the credibility of an individual's story, we need to have an accurate picture of the country and the context from which that story comes. Stories are much more easily credible coming from some contexts than from others. That is why it is important to the credibility of one alleging that rape has been used against her—I suppose that I should add "against him" because that happens also—that in that country,
there is evidence of the systematic use of rape as a means of waging war or exercising control in the country or territory to which she or he is to be sent".
§ The Minister may reply, as she did on the previous amendment, that there is some ambiguity about which country is being referred to. If I go too deeply into that, I shall anticipate a great deal of the argument that we shall need to have on the Question of Clause 2 stand part, but since some of it was raised in Committee, I shall touch on it briefly now. The Minister said just now that most of the asylum seekers coming from Zaire have come through Belgium. The noble Baroness will be familiar with the case of ex parte Bostam (which was discussed in Committee) from which it emerged that many of the people returned to Belgium under the safe third country procedure were in fact sent straight back to Zaire. Unless the noble Baroness can establish that the third country to which the person is returned is one wherein they shall be able to remain, that will be a purely technical distinction and probably of no effect. When we send people back, the likelihood is that it will end up as a matter of refoulment, going right back to the original country of origin. Therefore, I do not think that there is any mileage to be made out of trying to argue that distinction.
§ This is a serious amendment. It deals with an abuse which is serious and which is, across the world as a whole, probably more widespread than the abuse dealt with in the amendment in the name of the noble Lord, Lord Ashbourne—that is, forced abortion, sterilisation and population control.
§ I agree with what the Minister said about not making too many categories of legislative drafting. As one of my academic colleagues said about criminal statutes in the 18th century, "People who had their turnips stolen demanded the death penalty for stealing turnips, not remembering that the catastrophe which happened this year to their turnips might happen next year to their potatoes". If we are to adopt the approach which the noble Baroness suggests, we would have needed Amendment No. 4A which the House has just decided not to adopt. Since the House has decided not to adopt that amendment, that route of dealing with the problem is blocked off. Therefore, I think that we need this amendment as a second best. I beg to move.
§ 6.15 p.m.
§ Lord Renton
My Lords, the noble Earl has put forward his case with great clarity. I am not surprised 500 that he had to mention the deletion of the word "or" and its substitution by the word "and". There is, alas, rape and sexual assault in every country in the world—including, I am sorry to say, our own—and without that substitution a woman would only have to come here and show that she had lost her virginity, and because the amendment specifies only that there must be "a reasonable likelihood" that she had been raped or sexually assaulted, that would not be difficult for her to prove.
However, in addition to proving that, the woman would now have to show that in the country to which she is to be sent,there is evidence of the systematic use of rape as a means of waging war or exercising control".I am surprised by the inclusion of the word "he" in the amendment because, as I understand it, men are not raped.
I have travelled in every continent except the Arctic and the Antarctic and have visited over 40 countries, but until this evening, when I read this amendment and heard the speech of the noble Earl I had never heard of,the systematic use of rape as a means of waging war or exercising control in the country or territory".That may be my ignorance, but I had never heard of it. I do not know whether other noble Lords have heard of that, but it would be interesting to be told in which countries it is known and established that that occurs. Quite frankly, I have serious doubts about it.
§ Lord Avebury
My Lords, has the noble Lord not heard of the systematic mass rapes perpetrated by the Serbs in Bosnia?
§ Lord Renton
My Lords, I did not regard that as part of waging war but as an abuse of the circumstances which the war had created. It was not a method of waging war; indeed, it was counterproductive. The energies of those who waged war would have been much better spent in fighting the war in the ordinary way.
There are serious doubts about the amendment. Rape and sexual assault take place frequently in the world. Assume that the systematic use of rape as a means of waging war or exercising control applies to a large part of the world. Theoretically, enormous numbers of women can come here and remain for those reasons. I find that totally unrealistic. I very much hope that the Government will resist the amendment.
§ Lord Dubs
My Lords, I make two brief comments. I support the point made by the noble Lord, Lord Avebury. The evidence which emerged from the tragic war in the former Yugoslavia is that many Bosnian Moslem women were raped by Serb soldiers or Serb military personnel as a way of terrifying the Moslem population so that it would leave the area and ethnic cleansing could be achieved. When I worked at the Refugee Council that body helped to provide accommodation under a Home Office scheme for Bosnians who had fled from that territory and had been accepted by this country. I had the opportunity to speak to a number of Bosnian women who in a dramatic, 501 tragic and painful way described how they had been brutalised. I fear that rape is used as an instrument of war to achieve military ends, in that case the removal of the civilian population from those parts of Bosnia that the Serbs wanted to occupy.
There is evidence that rape can be committed against men as well as women. Indeed, the concluding words of the amendment areto which she or he is to be sent",thereby acknowledging that rape can be perpetrated against men as well as women, although it happens more frequently to the latter. I believe that this amendment is worthy of support, particularly if "or" is replaced by "and".
§ Lord Hylton
My Lords, Bosnia has been mentioned in this context. I believe I am right in saying that there were some cases from adjoining areas of Croatia as well. Much of the documentation of the facts was carried out by a distinguished Englishwoman, whose name I do not have with me and who was, I believe, the head of an Oxford college. Much of the rehabilitation of such victims has been carried out in this country. Training has been provided to citizens of the former Yugoslavia so that they may carry out rehabilitation on the spot in that country. I welcome the amendment and support it.
§ Baroness Blatch
My Lords, Amendment No. 7A would insert an exemption for victims of rape and serious sexual assault, or where there is evidence of systematic use of rape in the country of origin.
It may be helpful if I begin by setting out the Government's general approach to claims based on rape. There is no doubt that assaults of this kind are by their nature so serious that, like torture, they are likely to amount to persecution if inflicted for a convention reason. As with torture, whether the applicant meets the criteria of the 1951 Convention in order to qualify for asylum, will depend on the circumstances. Rape or serious sexual assault imposed by agents of the state, or in circumstances where the state is unwilling or unable to afford protection, is likely to constitute grounds for asylum provided it has been inflicted because of the applicant's race, religion, nationality, political opinion or membership of a social group.
In other cases rape may be inflicted as a random act of violence in a country undergoing civil war. In cases of this kind, which are not systematic, the applicant may not qualify for asylum. But it is our policy to grant exceptional leave to applicants where there are strong compassionate circumstances, and these typically include cases where the state of conflict in a country is such that it would not be safe or humane to return people to it for the time being. For example, there is strong evidence that rape has been inflicted systematically during the war in Bosnia as a means of suppressing and driving out opposing ethnic communities. It has been the case for some time now that we invariably grant asylum or exceptional leave to applicants from Bosnia.
502 The first part would provide an exemption for victims of rape and serious sexual assault, similar to the exemption which the Bill will provide for victims of torture. I do not favour this proposal. In some cases, torture may indeed take the form of rape or sexual assault. To that extent, rape victims will qualify for the exemption we are already providing. But I do not believe that it is sensible to attempt to itemise in primary legislation all the many different forms of man's inhumanity to man. What about people who have had their families shot in front of them? What about asylum applicants who arrive here after incarceration for years on end in horrendous conditions? I regret that many other examples of torture and persecution can be cited. To single out any one on the face of the Bill would, I believe, be undesirable.
We are all concerned to ensure that our procedures safeguard genuine refugees and victims of inhumanity. The way to achieve that is through ensuring the quality and fairness of our procedures and our staff. To itemise special cases in primary legislation is not the answer. The second part of the amendment would provide an exemption based on conditions in the country of origin. We have already discussed this concept fully in the context of the provision on torture. The arguments against this approach which I have set out in that context apply in the same way to Amendment No. 7A. I assume that the noble Earl is not linking this amendment to Amendment No. 20, as I was originally informed might be the case. I hope that for the reasons I have given this amendment will not be accepted.
Finally, the noble Earl referred to the position of Zairians in Belgium. We do not consider that the judgment of the High Court in the case of Bostam and others establishes that Belgium is unsafe as a third country. In that case the judge was concerned with the way that the adjudicators in those cases had considered evidence of the Belgian eight-day rule. The Belgian interior ministry has explained to us how the eight-day rule operates in practice, and I do not believe that it poses a barrier to asylum seekers who wish to claim asylum when they return to Belgium. I emphasise that the eight-day rule will no longer be an issue for most Belgian cases once appeals in third country cases cease to have a suspensive effect. The majority of applicants who transit Belgium do so in less than three days. We anticipate that most applicants will be returned within eight days of originally entering Belgium.
With regard to the allegations of malpractice in respect of Belgium's removals to Zaire, we are not aware of any substantial evidence to the effect that Belgium is failing to comply with its obligations under the convention in respect of asylum seekers from Zaire, or indeed of any other nationality. I hope that the amendment will not be pressed.
§ Earl Russell
My Lords, before I say anything else, I reassure the noble Baroness that I do not intend to press this amendment, if for no other reason because of the defect in the wording to which I have already drawn attention.
503 I should like to dispose of one point which is a little extraneous to the main thrust of the amendment. I refer to the debate about Belgium as a third country. It is my contention—I have explained it to the House before and will not waste words on it—that there is no such thing as a country that is safe for everybody. The safety of a country can be judged only in relation to a particular applicant.
The noble Lord, Lord Renton, was dissatisfied with the words "reasonable likelihood". But the standard of proof, in accordance with the ruling of the Appellate Committee of your Lordships' House in Sivakumaran, is not beyond reasonable doubt; it is a matter of probability. The wording of the amendment was aimed at achieving the same standard of proof as laid down in Sivakumaran. If the noble Lord suggests that we have failed to do this perhaps we ought to go away and try harder. If we are in line with the standard of proof that the law at present accepts, that, I should have thought, is all right.
Male rape does happen. I regret to say—I think it was about 18 months ago—there was a case reported on the London Underground, of all improbable places. I am grateful to the noble Baroness for confirming that. I am not aware of any case where it has yet been used as a systematic weapon of war, but I always hesitate to say that abuses of power cannot possibly happen. If male rape exists, its use as a weapon of war might exist. It would be foolish not to cover it in the amendment.
As for the use of rape as a systematic weapon of war on Bosnia, the noble Lord, Lord Dubs, said almost everything that needs to be said. I shall just add the name for which the noble Lord, Lord Hylton, was reaching. It is Dame Anne Warburton who has since become a distinguished member of the Nolan Committee and head of a Cambridge College.
The noble Lord, Lord Renton, said also that the effect of the amendment would be that people would remain here. I thought that I had explained that that was not the effect of the amendment. It is only that they should follow the ordinary, rather slower procedure for hearings instead of going on to the fast track. The argument here is not about remaining—that is a matter of justice and to be established in individual cases; it is a matter of how the cases are heard.
The Minister said, and I agree with her, that a random act of violence does not enable you to claim asylum because you are a rape victim. The reason for that is good and obvious. If you have been a victim of a random act, it does not make you less safe in your country than you would be anywhere else.
The key issue here, which is why the state of the country is vital, is the issue of the credibility of the person who alleges that rape has been used against her or, as it might be, him. That is where the question of the country assessment is vital. I beg the Minister's pardon for saying it, but the main other country where there is suspicion, and at present I would not put it any higher, that rape is being used by the armed forces as a systematic weapon of terrorising opposition is Zaire. I have about a dozen cases in my files. That is not 504 enough to entitle me to say more than "suspicion", but that suspicion does exist, and it would be as well that it should be verified.
The amendment links the attempt to procure a proper assessment of the country with the issue of the credibility of the individual applicant. That I think is right. Again, I agree with what the Minister said about the dangers of itemising everything in primary legislation. I have listened to the noble Lord, Lord Renton, and I have read his report. I have seen the point made in other academic contexts. I accept it fully. I should have greatly preferred the amendment in the name of my noble friend Lady Williams. If that had been carried, I would not have moved this one. Since it has not been carried, I am left with very little option, but I do not intend to push it to a vote. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 6.30 p.m.
Lord Dubs moved Amendment No. 8:
Page 2, line 7, at end insert ("without giving a reasonable explanation of his failure to do so").
§ The noble Lord said: My Lords, I should like to say a few words also about Amendment No. 16. These amendments seek to provide some safeguards as regards the removal of asylum claimants to safe third countries.
§ Amendment No. 8 is concerned with when an individual arrives possibly with a forged passport. The purpose of the amendment is to prevent the authorities coming down harshly on that individual, because the amendment would give the asylum seeker an opportunity to give a reasonable explanation of his failure to have made the authorities immediately aware of his documentation.
Amendment No. 16 is concerned with late claims. Article 31 of the UNHCR convention, to which reference was made in Committee on this issue, states:
The contracting states shall not impose penalties on account of their illegal entry or presence on refugees who come directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".
§ There may be instances when individuals have a good explanation for why their documents are not in order, and why they failed immediately to inform the officer of that fact. It may well be that individuals are just not aware of the significance of that, or want some time in which they can make their claim, and prefer to do so when they can obtain advice from members of their own communities, or legal or other help. There are good reasons why people might wish to delay.
§ An asylum seeker might arrive in the UK on a false passport and the forgery be undetected. The asylum seeker passes through immigration control, and the following day may apply for asylum at Lunar House and admit that the passport is false. In that case, despite the fact that the asylum seeker had volunteered information that the passport was false, if refused, the case will fall into the accelerated procedure, since the person 505 produced an invalid passport to the immigration officer, and failed to inform the officer of that fact on first arrival.
§ If there is a good reason for that position, it seems unreasonable that the asylum seeker should be treated in the way that he would be if the amendment were not accepted. The words, "without giving a reasonable explanation", are moderate and sensible.
§ There may be other instances—Amendment No. 16 may deal with them—when asylum seekers may be arrested and charged with having false documents and convicted, often with a recommendation for deportation. That may happen to people whose false documents have been detected, possibly while they are in transit; that is to say, individuals who had no intention of claiming asylum in the UK, but whose documents were detected in transit. As the UN convention protects only persons coming directly from a third country, an asylum seeker who is travelling from one country to another may have no option, to prevent deportation, but to claim asylum in the UK.
§ Those are complicated situations. They may not affect many people, but they affect enough. I am looking for the House to accept an amendment which enables the person to show good cause why the claim was not made earlier. Those are safeguards against the way in which Clause 1 will deal with those individuals. I know that we discussed them at some length in Committee, but Amendment No. 16 is somewhat different from the one we had before us then. I beg to move.
§ Baroness Williams of Crosby
My Lords, before the Minister responds, perhaps I may add a word or two to the remarks of the noble Lord, Lord Dubs. There are one or two subsequent amendments which deal with the same issue. To sum up, the issue is that some people—they are often people from the most threatened countries—travel with false documents. There are some cases which will be familiar to the Minister and the House where people have endured the most extreme conditions. They are unable to leave their country with valid documentation. They would not be able to obtain it because they are seen as opponents or critics by the country concerned.
I fully appreciate the point that such people should make it clear as early as possible that they have come under a false document; and that they should be honest with the immigration authorities. There is a later amendment that I have tabled which refers to someone who, on all other grounds, would be accepted as an asylum seeker, save only that his or her documents are not valid. I wonder whether the Minister would refer to that issue. I am sure that she, being experienced in these matters, will appreciate that people who travel with false documents often come from the very countries which are the most serious in terms of the way that they treat their dissidents, their critics and the people who are trying to organise democratic opposition. I hope that on 506 those grounds alone people would not be refused asylum if, on all other grounds, they could satisfy the authorities of the validity of their claims.
§ Baroness Seccombe
My Lords, I appreciate the fact that many people may travel with false documents and I believe that the immigration authorities would understand that. However, it seems to me strange that if people are coming to this country as a place of refuge they do not see it as a safe place and somewhere where they can declare immediately that their documents are false. It leads to a difficulty of not taking action as provided in the Bill.
§ Baroness Blatch
My Lords, new sub-paragraph (4)(b) would allow us to certify a refused claim if the applicant produced a false passport on arrival without informing the immigration officer that it was not valid. When a false document is produced it takes courage to lie one's way through that. One must pretend and convince people that the document is not false. That is another form of courage which is summed up by people who produce false documents.
The amendment proposes that a certificate should not be applied if an applicant gives a reasonable explanation for failing to inform the immigration officer that his passport is false. We debated fully an identical amendment tabled by the noble Lords, Lord McIntosh and Lord Dubs, during Committee. I explained in detail then why I was unable to accept the terms of the amendment. Nothing that I have heard in debate today has led me to conclude otherwise.
We have consistently made clear that we expect asylum seekers to be completely honest and frank with our immigration authorities on arrival in this country. As my noble friend Lady Seccombe said, this is the place on entry which they have come a long way to find. Having arrived here it is in their own interest that they should be honest about their documentation. We entirely accept the point made by the noble Baroness, Lady Williams, that often there will be a need to travel with false documentation in order to leave a country quickly and safely.
Dishonesty and concealment damage credibility. We accept that in principle there might be circumstances where a genuine refugee would need to use false papers in order to flee a country in which he had a genuine fear of persecution. Under the Bill, no adverse consequences arise for the asylum seeker merely because he presents an invalid, forged or stolen passport on arrival here, provided that the applicant declares the forgery to the immigration officer. But what is unacceptable, and casts doubt on credibility, is an attempt to pass off a fake identity or forged passport as genuine. It is the dishonesty inherent in such an attempt which triggers the accelerated appeal procedure. That is why we are unable to accept this amendment.
I do not believe it would be right to indicate on the face of the Bill that there may be a reasonable explanation for a blatant attempt to deceive an immigration officer. Those presenting false papers to our immigration officers are after all not doing so out of necessity. By definition, they have already fled the 507 country in which they claim to fear persecution and have arrived at their chosen place of safety. Such deception cannot be condoned.
Like the rest of Clause 1, sub-paragraph (4) will not prejudice the consideration of the asylum claim on its merits. If the claim is valid, asylum or exceptional leave will be granted regardless of document deception used on arrival. And the Bill will not penalise the genuine asylum seeker who has to travel on false papers, provided that he is honest and declares the false papers on arrival.
The noble Lord, Lord Dubs, prayed in aid Article 31 and our reference to it in a previous debate. I reject the argument that sub-paragraph (4)(b) as currently drafted is contrary to the terms of Article 31 of the 1951 UN Convention. Article 31 states that refugees shall not be penalised on account of their illegal entry provided they present themselves without delay to the authorities and show good cause for their illegal entry and presence.
First, the issue of a certificate comes into play only after the claim has been considered fully and on merit and has been found to be invalid. By definition, therefore, the Secretary of State has concluded that the applicant is not a refugee under the terms of the convention.
But, secondly, applying a certificate to a refused asylum claim, thereby triggering an accelerated appeal procedure, cannot be construed as imposing a penalty in terms of Article 31. As I have said on many occasions, all claims will still be considered on merit in the usual way. And all applicants will still have an appeal to an independent adjudicator if the claim is refused. This is a perfectly adequate procedure in such cases and cannot be termed a penalty. Moreover, those who enter or attempt to gain entry using false papers would have had ample opportunity to present themselves to the UK authorities to apply for asylum when examined by an immigration officer on arrival. It is the dishonesty inherent in deceiving the immigration officer that triggers the certificate if the claim is refused.
I turn to Amendment No. 16, which would prevent the certification of claims under sub-paragraph (5)(c)(i) and (ii) if the applicant can show good cause why the claim was not made earlier. We debated this issue at length in Committee and the Committee divided on and rejected an amendment with almost identical consequences for all four sub-paragraphs of sub-paragraph (5)(c). I am surprised that the noble Lords have sought to reopen a proposal which the Committee voted down when it rejected Amendment No. 19. I am still unable to accede to the terms of the amendment and I will explain why.
However, I must begin by pointing out that the amendment is defective. First, it does not signal properly that it is intended to apply to sub-paragraph (5). Secondly, even if that is disregarded, it would disapply sub-paragraph (5) in all cases where the claim was lodged after refusal of leave to enter or after a court had recommended deportation and where the applicant had shown good cause for not having claimed earlier. This means that we would not be able to certify an asylum claim by such an applicant even if it met other 508 certification criteria, such as being manifestly fraudulent. That would not be sensible and cannot have been the intention of the noble Lord in presenting the amendment.
Turning now to substance, the underlying intention behind the amendment is unnecessary and undesirable. First, under the Bill as drafted, a certificate will be available only where the claim has been fully considered and rejected. If it is found to be a valid claim, asylum or exceptional leave will be granted despite the circumstances in which the claim was submitted. But, if the claim is not well-founded, the fact that it was submitted only after refusal of leave to enter or after a court has recommended deportation will almost invariably justify a certificate. As I have already said, we expect that a genuine refugee would apply for asylum at the earliest opportunity. We need to send a clear signal that abuse of the asylum procedures in order to frustrate enforcement of our immigration laws will be met robustly.
Sub-paragraph (5)(c)(i) affects only people who have attempted unsuccessfully to enter the country, have been found not to meet the requirements of our immigration rules and make an asylum claim to fend off the enforcement of those rules. I do not believe that we should insert into the Bill an open invitation to late applicants to provide excuses for their failure to claim earlier. Many would seek to do so. This would unnecessarily complicate the handling of cases. And most importantly, it would blunt the deterrent message we are trying to send; namely the message that blatantly abusive claims will be dealt with robustly.
Sub-paragraphs (4) and (5) address growing forms of abuse of our asylum procedures. That is an area of abuse and must be recognised as such. These amendments are undesirable for the reasons I have given. They will not address those incidents of abuse and therefore not only is Amendment No. 16 defective but it is not acceptable to me on behalf of the Government.
§ Lord Dubs
My Lords, I thank the Minister for her detailed explanation although I am bound to say that it does not give a great deal of comfort.
It is not right to say that a late claim is an abusive claim. The majority of late claims, however undesirable the Minister may find them, are most likely to be made through ignorance, through not knowing the situation in this country or through being rather naive in the approach to officialdom here. I do not believe that late claims are abusive. Nor do I believe that many people who come with forged documents do so with an intention to deceive. The claims may be perfectly proper claims in terms of individuals having a well-founded fear of persecution even if they are made late through ignorance, uncertainty, insecurity or for the many reasons which cause people not to deal with British officialdom as expeditiously as the Government would wish them to.
Having said that, I know that the Minister is not to be persuaded. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 9 to 12 not moved.]
Lord McIntosh of Haringey moved Amendment No. 13:
Page 2, line 24, leave out from ("fraudulent") to ("; or") in line 25.
§ The noble Lord said: My Lords, this amendment was moved in Committee but the Minister's reply was so unsatisfactory that we felt that it was necessary to return to this issue.
§ The point about the words which we seek to delete is that they are so extreme. The whole of subsection (5) provides opportunities for certification for the accelerated procedure and paragraph (5)(d) states that it applies if the claim is manifestly fraudulent or any of the evidence adduced in its support is manifestly false. It is the words "any of the evidence" which really stick in our throat.
§ Clearly, if the bulk of the evidence, the thrust of the evidence, adduced in support was manifestly false, then the application would be fraudulent. But there are many cases—and some were raised in Committee—when some of the evidence, and not necessarily an important part of it, could be false. But that does not mean that the application itself is fraudulent. It may simply mean that a mistake, and often an unimportant mistake, has been made. For example, a newspaper report submitted in good faith could have errors; it could be unreliable or exaggerated. A foreign government might misinform people about the fate of relatives in detention or witnesses may prove to be unreliable. All those fall within the words which Amendment No. 13 seeks to delete but they do not affect the genuineness of the application.
If the application is manifestly fraudulent perhaps it is legitimate to use the accelerated procedure, but not if any part of the evidence is manifestly false. Indeed, the UNHCR handbook deals with this issue at paragraph 199 which states:
Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility",
not the claimant's responsibility,
to evaluate such statements in the light of all the circumstances of the case".
It is not just the UNHCR which thinks in that way. The Government's background paper to the Bill is very clear and helpful. It would be useful if the Minister could confirm what is said in that background paper, which refers to,
unequivocal evidence that the information which he had given to support the claim was false: for example, where it is established that the alleged events forming the basis of the claim have not taken place, or where documents submitted to support the claim (for example, arrest warrants or newspaper articles) are found to be forged or counterfeit".
§ The briefing suggests that information submitted verbally would not be included and that if an applicant submitted a genuine newspaper article that contained an error that would also not lead to a fast-track appeal. Therefore, the Government's own briefing and their own interpretation of this clause in the legislation show that 510 the language of the clause is too extreme. The way to deal with that extremism and the language of the Bill is to take out those few words. I beg to move.
§ Baroness Williams of Crosby
My Lords, perhaps I may add one further argument to the argument made so ably by the noble Lord, Lord McIntosh. Many people in this House have experience of intelligence services and such bodies, some of which operate for very dubious governments. The assurance which I seek concerns the possibility of someone who finds that so-called evidence is added to his case against his wishes and without his knowledge by some agent of his government.
For example, if it were the case that somebody wished to put forward evidence "in support of the case" with the real intention of undermining the case, because the evidence was false and was adduced from some part of that government's embassy which might be very out of sorts with the person seeking asylum or refugee status, and the person concerned did not wish to adduce that evidence in his support, would that fall within the present terminology of the Bill?
Perhaps I may refer, as an example, to Boss, the organisation of the old South African government. Evidence was provided by that organisation, not at the wish of the person concerned and not with his understanding or knowledge, but in order to damage him. It is crucial that such evidence should not be taken into account as a basis for refusing the application. I should be grateful if the noble Baroness will give that assurance.
§ Lord Monson
My Lords, the noble Lord, Lord McIntosh, may be right to claim that the paragraph as it stands goes too far, but is it not possible that his amendment goes too far in the opposite direction? Would not a reasonable compromise be to replace the word "any" with the word "most"?
§ 7 p.m.
§ Earl Russell
My Lords, I do not think that that is the answer because we want to know whether a person has a well-founded fear of persecution. Under international law, if a person has a well-founded fear of persecution he is entitled to refugee status since no other evidence is material. That is all that we want to find out. Admissibility of evidence must be directed to that end to which the whole investigation is directed.
This amendment covers a case to which we have referred many times before, where people enter the country by means involving some element of deception and then claim asylum in this country. I know that the noble Baroness regards that as an improper procedure. We have had a good many exchanges about that. I thank the noble Baroness for the letter which she wrote to me on this subject between the stages of the Bill, but since she said in that letter that she is unable to understand my position I hope that I shall be forgiven for explaining it further.
My understanding is that under international law it is perfectly in order for people to enter a country, even if the means by which they do so includes deception, and 511 then to claim asylum in country. I rely on Article 31 of the UN convention. Last time I mentioned it in Committee the noble Baroness challenged me to produce it. She said she could not understand how it came to have that meaning. With the leave of the House, I should like to read the relevant words and then the comments of the UNHCR upon them. The relevant words are:The contracting states shall not impose penalties on account of their illegal entry or presence on refugees who come in directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in that territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".As I understand those words, if people entered the country and then claimed asylum and could show that claim to be good under international law ratified in this country by the 1993 Act, and incorporated, that would wipe out any element of deception. It seems to me that the clause in the Bill which this amendment would delete goes contrary to that. Since the Committee stage, I have discovered that my interpretation of Article 31 is the same as that used by the UNHCR and therefore, correct or not, it is one which deserves a hearing. The UNHCR says that,Article 31 exempts refugees coming directly from a country of persecution from being punished on account of their illegal entry or presence, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".It also says—and this is in answer to another point made by the noble Baroness in Committee—that the word "refugee" in that context must be understood not only in terms of those whose claims have been accepted but of those who are making claims, becauseonce their claims have been examined they may prove to be refugees entitled to benefit from Article 31".The UNHCR also says—and this relates to another argument that we have had, but I may as well deal with this matter now and avoid coming back to it later—the term 'coming directly' covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection could not be assured. It is clear from the travaux préparatoires"—I should add that under international law the travaux préparatoires can be used under principles rather like those of Pepper v. Hart to elucidate the meaning of the legislation—that the term also covers a person who transits an intermediate country for a short time without having applied for or received asylum there".I deal now with the draft of the convention, and stress that these are still the words of the UNHCR. It introduced the term, "coming directly"not to exclude those who had transited another country, but rather to exclude those who 'had settled temporarily' inanother country, which is a very different case.
Those are good reasons, I think, for saying that the words in the Bill to which we object are contrary to international legal obligations confirmed by an Act of Parliament passed in the lifetime of this Parliament. I know it is normally a legal principle that in a conflict between two Acts of Parliament the later will take precedence. But it will be a difficult principle to apply in this case because the noble Baroness has reaffirmed 512 many times that it is not the intention of this Bill to undo our obligations under the UN convention, which the noble Baroness says that we accept. I may say that I am very pleased to hear her say that.
So any court construing this Act would be bound to construe it in the light of the UN Convention on Refugees, as laid down in this country by the 1993 Act. Therefore it is something that may come within the jurisdiction of the British courts as well as the International Court of Justice. In these circumstances it might be a considerable saving on the Home Office's legal Bills to accept this amendment here and now.
§ Baroness Blatch
My Lords, sub-paragraph (5)(d) enables the certification of a claim in which manifestly false evidence has been submitted. I listened carefully to the concerns expressed about this provision but I have not found them convincing. Indeed, much of what the noble Earl has been talking about has been travelling and entry, and not about fraudulent evidence adduced in support of a case. The amendment does not affect the first leg of sub-paragraph (5)(d), which would enable us to certify a claim where, for example, it was established that the alleged events forming the basis of the claim have not taken place. The amendment would remove the ability to certify refused applications where part of the evidence is found to be false. It is not unusual for applicants to submit forged evidence, such as a forged arrest warrant purporting to show that the applicant was detained by the authorities in his own country.
A deliberate attempt to deceive the Home Office by the submission of false evidence cannot be condoned. The Immigration Rules already provide that the submission of false evidence may damage credibility. We will not necessarily certify where part of the evidence is found to be false. The key test will be that the false evidence relates to the main basis of the claim. Even where this is the case, the claim will still have to be considered in the usual way, of course. If the claim qualifies for asylum despite the forging of part of the evidence, asylum will be granted. Where such claims are found not to meet the criteria for refugee status, it is entirely right that the false evidence submitted purely to bolster the unfounded claim should result in a refusal and also attract a certificate.
If the adjudicator considers that the evidence is not manifestly false he can set the certificate aside at the appeal hearing, even if he goes on to uphold the refusal of asylum, and in such circumstances the appellant's avenue of appeal to the tribunal would be reinstated. The fact that an applicant has travelled to this country using false papers could not in itself trigger certification under sub-paragraph (5)(d). The Bill clearly refers to evidence adduced in support of a claim and therefore if the applicant claims asylum in his true identity, sub-paragraph (5)(d) could not possibly come into play. However, it could apply if the applicant maintained the false identity or nationality shown on the false travel document for the purposes of pursuing his asylum claim. In that case, if asylum was refused we would want to certify the case; and rightly so.
513 To answer a particular point raised by the noble Baroness, Lady Williams, when she raised the case of a third party and prayed in aid MI5, this particular measure would only apply to evidence adduced by the applicant and not by a third party.
Perhaps I might repeat to the noble Earl, Lord Russell, that this amendment is concerned with false evidence and not with illegal entry. A claim itself may not be fraudulent but the evidence adduced to support it could be fraudulent, and that is why one has to take one with the other. Both parts of sub-paragraph (5)(d) should be retained. The second part will send a clear message that any attempt to deceive the United Kingdom authorities by concocting false evidence will be met robustly. I urge your Lordships to reject the amendment.
§ Lord McIntosh of Haringey
My Lords, the Minister, at greater length, made not much more than the point which was made by the noble Lord, Lord Monson. The noble Lord said that if I objected to the word "any" it might be replaced by the word "most". If it were so replaced—and I considered that option—the effect would be that most of the evidence adduced in support of the claim is manifestly false. To me, that means that it is a manifestly fraudulent application. I thought I was doing the same thing, but in fewer words than the legislation, that the noble Lord, Lord Monson, was recommending me to do. However, I find the Minister's reply to be of the kind which I would describe as "stonewall". She is relying on assertion and her own interpretation of the English language, rather than on what the Bill actually says. She said in response to the noble Baroness, Lady Williams, that the intention is to apply this to evidence adduced by the applicant rather than by any third party. I have to say that the Bill does not say that. If that is what it means then it should say so, and evidence by a third party should be excluded from the terms of sub-paragraph (d).
The Minister made no serious attempt to deal with the charge which was the basis of my moving the amendment in the first place. The sub-paragraph refers to "any of the evidence". That means any evidence adduced, however little; in other words, a single error in a newspaper article could bring the application within the terms of sub-paragraph (d) and, therefore, cause the claim to be what the Government call "certified" and what we call "fast tracked". The Minister has given a thoroughly unsatisfactory answer to the question. If it were not for the time of the evening, I would certainly seek the opinion of the House. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch moved Amendment No. 14:
Page 2, line 26, at end insert—
("(5A) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent.").
§ The noble Baroness said: I spoke to this amendment when moving Amendment No. 2. I beg to move.514
§ [Amendment No. 15, as an amendment to Amendment No. 14, not moved.]
§ On Question, Amendment No. 14 agreed to.
§ [Amendment No. 16 not moved.]
§ [Amendment No. 17 had been withdrawn from the Marshalled List.]
Baroness Blatch moved Amendments Nos. 18 and 19:
Page 2, line 30, after ("which" insert ("(a)").
Page 2, line 31, after ("applies") insert ("; and
(b) sub-paragraph (5A) above does not apply,").
§ [Amendment No. 20, as an amendment to Amendment No. 19, not moved.]
§ On Question, amendments agreed to.
The Earl of Courtown
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that the Report stage begin again not before 10 minutes past eight.
§ Moved accordingly, and, on Question, Motion agreed to.