§ 1. A person subject to immigration control may seek to enter or prolong his stay in the United Kingdom by applying for asylum as a refugee or may otherwise indicate a fear of being required to return to his country of origin or habitual residence. All such cases are referred to in these rules as 555 "asylum applications". An asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer to the Home Office. All asylum applications will be determined by the Secretary of State in accordance with the provisions of the United Nations Convention and Protocol relating to the Status of Refugees. Until such a case has been determined by the Secretary of State no action will be taken to require the person's departure from the United Kingdom.
§ 2. A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that—
- (a) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
- (b) he is a refugee, as defined by the Convention and Protocol; and
- (c) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain), in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
§ An application which does not meet these criteria will be refused. The Secretary of State may decide not to consider the substance of a person's claim to refugee status if he is satisfied that the person's removal to a third country would be consistent with the United Kingdom's international obligations. More details are given in paragraph 11.
§ Grant of asylum
§ 3. If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter the Immigration Officer will grant limited leave to enter; if leave to enter has been granted (whether or not the leave has expired) or where a person has entered without leave the Secretary of State will vary the existing leave or grant limited leave to remain.
§ Refusal of asylum
§ 4. If a person seeking leave to enter is refused asylum the Immigration Officer will then resume his examination to determine whether or not to grant him leave to enter under any other provision of the Immigration Rules. If a person who has been refused leave to enter applies for asylum and that application is refused, leave to enter will again be refused and removal will proceed, provided that the applicant remains ineligible for admission under the Immigration Rules.
§ 5. When a person in the United Kingdom is notified that asylum has been refused he may at the same time be notified of removal directions or served with a notice of intention to deport, as appropriate. When a person with limited leave is refused asylum the leave may be curtailed if he does not meet the requirements of the rules under which leave was granted. Before any decision to deport is reached, full account will be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph [164 of the Immigration Rules HC 251].
§ Consideration of cases
§ 6. A failure, without reasonable explanation, to make a prompt and full disclosure of material factors, either orally or in writing, or otherwise to assist the Secretary of State to the full in establishing the facts of the case may lead to refusal. This includes failure to comply with a notice issued by the Secretary of State requiring the applicant to report to a designated place to be fingerprinted, or failure to complete an asylum questionnaire, or failure to comply with a request to attend an interview concerning the application.
§ 7. In determining an asylum application the Secretary of State will have regard to matters, which if no reasonable explanation is adduced, may damage an asylum applicant's credibility. Among such matter are:
- —that the applicant has failed to apply forthwith upon arrival in the United Kingdom, unless the application is founded on events which have taken place since his arrival in the United Kingdom;
- —that the applicant has made false representations, either orally or in writing;
- —that the applicant has destroyed, damaged or disposed of any passport, other document or ticket relevant to his claim;
- —that the applicant has undertaken any activities in the United Kingdom before or after lodging his application which are inconsistent with his previous beliefs and behaviour and calculated to create or substantially enhance his claim to refugee status;
- —that the applicant has lodged concurrent applications for asylum in the United Kingdom or in another country.
§ If the Secretary of State concludes for these or any other reasons that an asylum applicant's account is not credible, the application will be refused.
§ 8. The actions of anyone acting as an agent of the asylum applicant may also be taken into account in regard to the matters set out in paragraphs 6 and 7.
§ 9. If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused.
§ 10. Cases will normally be considered on an individual basis but if an applicant is part of a group whose claims are clearly not related to the criteria for refugee status in the Convention and Protocol he may be refused without examination of his individual claim. However, the Secretary of State will have regard to any evidence produced by an individual to show that his claim to refugee status should be distinguished from those of the rest of the group.
§ Third country cases
§ 11. If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless:
- a. the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory or a third country, to make contact with that country's authorities in order to seek their protection; or
- b. there is other clear evidence of his admissibility to a third country.
§ Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant.
§ 12. In any case where it appears that an asylum applicant could be sent to a third country under the terms of paragraph 11 the Secretary of State may nevertheless decide exceptionally to consider his claim to refugee status substantively.
§ Previously rejected applications
§ 13. When an asylum applicant has previously been refused asylum in the United Kingdom and can demonstrate no relevant and substantial change in his circumstances since that date his application will be refused.
§ 14. When an asylum applicant has come to the United Kingdom from another country which is a party to the United Nations Convention Relating to the Status of Refugees or its Protocol and which has considered and rejected an application for asylum from him, his application for asylum in the United Kingdom may be refused without substantive consideration of his claim to refugee status. He may be removed to that country, or another country meeting the criteria of paragraph 11, and invited to raise any new circumstances with the authorities of the country which originally considered his application.557
§ Rights of appeal
§ 15. Where asylum is refused the applicant will be provided with a notice informing him of the decision and of the reasons for refusal. The applicant will be given a copy of any interview notes and any other documents referred to in the refusal decision. At the same time that asylum is refused the applicant may be notified of removal directions or served with a notice of intention to deport, as appropriate. The notice of refusal of asylum will also explain any rights of appeal available to the applicant and will inform him of the means by which he may exercise those rights.").
§ The noble Lord said: It may be for the convenience of the Committee if I introduce my remarks on Amendment No. 71 not only by repeating my thanks to the Government for the Instruction that they put down earlier this afternoon but also by explaining the purpose of the amendment, the amendments to it in the name of my noble friend Lord Clinton-Davis and the noble Lord, Lord Bonham-Carter, and subsequently Amendment No. 90 that introduces a new schedule on procedure rules. As will be obvious, we have consulted very widely on the Bill. We have consulted those who are concerned not only with the welfare of immigrants and asylum seekers but those organisations concerned with the application of the law in matters of asylum and immigration. We have consulted organisations such as Justice and the Law Society who are concerned with the application of the law in general. The view almost universally expressed to us is that this Bill—which after all is quite a short, clear Bill—is not adequate for the parliamentary scrutiny that it deserves because the real meat of the Bill is not contained on its face. The real meat comes first in the Immigration Rules, which are an administrative matter and do not come before Parliament at all, and, secondly, in the procedure rules, which are the subject of the negative instrument procedure and will be laid by the Lord Chancellor's Department.
§ When one reads the Committee stage proceedings in another place—it is not a practice that one readily recommends to anyone who does not have to do it —one realises that honourable Members in considering these matters had great difficulty in getting at the guts of the subject about which they wished to speak. As I said, the meat of what ought to be in the Bill is not there. What we have done is to table in Amendments Nos. 71 and 90 the draft Immigration Rules as they presently exist and the rules for procedure. The purpose is to illustrate the extent to which, in our view, the rules conflict with the 1951 convention and the other conventions which your Lordships have agreed not to write into the Bill. What we then propose to do with Amendments Nos. 71 to 86 is to illustrate point by point those matters in the Immigration Rules which in our view conflict with the convention and with what we wish to see in Immigration Rules applied under the Bill.
§ I appreciate the concern that may be felt at the risk of lengthening a Bill by amendments such as these. I see the noble Lord, Lord Renton, in his place. If the amendments are accepted the Bill will probably be doubled in length, but I believe that that is a price worth paying if it subjects to parliamentary scrutiny 558 the very important ways in which in practice immigration officers determine applications from refugees or, as the Bill puts it, asylum seekers.
§ The concerns are probably best expressed by the Refugee Legal Centre, formerly the refugee unit of the United Kingdom Immigrants Advisory Service, the body that the Government propose should be responsible for handling appeals from asylum seekers. The centre has expressed the view that many of the rules are inconsistent with the convention and that if they are not subjected to proper parliamentary scrutiny and if some of the fundamental flaws are not addressed the new system will be beset with problems from the day that the legislation comes into force. It has also expressed the view that the decision-making criteria in the rules appear to be closely modelled on those contained in the resolution of the European Community Ministers of 30th November 1992 on manifestly unfounded claims. They are so widely drawn that they have attracted criticism from the United Nations High Commissioner for Refugees as well as from Amnesty International. Both believe that many genuine refugees will have their claims deemed manifestly unfounded and therefore excluded from any serious consideration without there being adequate investigation of substantive claims. The Refugee Legal Centre has expressed the view that the tight deadlines and expedited procedures will need to be counterbalanced by strong procedural safeguards that should be guaranteed by the Immigration Rules. That is partly a matter for the Immigration Rules and partly for the rules of procedure that we will be debating later in the Committee proceedings.
§ The clear view of all expert witnesses—those involved in the implementation of the law and in the representation of asylum seekers—is that these matters should be debated in Parliament. We have adopted this procedure for doing so. I invite the Committee at this stage to accept that we move on to consider the amendments to the amendment. When those amendments have been disposed of we can return to consider the draft asylum rules as a new schedule to the Bill in a form which, I hope, we will be prepared to put formally to the decision of the Committee. I beg to move.
§ [Amendment No. 72, as an amendment to Amendment No. 71, had been withdrawn from the Marshalled List.]
Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 73:
In paragraph 1, after ("Refugees") insert ("the United Nations Convention against Torture, the United Nations Convention on the Rights of the Child and the European Convention of Human Rights.").
§ The noble Lord said: In moving Amendment No. 73, it will be for the convenience of the Committee if we discuss with it Amendments Nos. 75, 76 and 77. I can take this group of amendments quite shortly because we have already discussed in relation to the Bill many of the issues that are germane. We are now dealing with the practice; it is the practice that matters for the reasons that my noble friend Lord McIntosh outlined. We say that the purpose of the amendments is to cause the rules to come into line with the 559 principles adumbrated before; otherwise, if we do not discuss these matters now we will not have an opportunity to discuss them. Our concern is that as far as the practice is concerned for those considered to be at risk there should be full and proper protection. I beg to move.
§ Lord Renton
At this stage I shall speak to Amendments Nos. 73, 76 and 77 only. With deep respect, I should have thought that the amendments should be regarded as being out of order, because the Committee has already made a decision on the reference to "convention" in Clause 1, and schedules to a Bill have to be consistent with what has gone previously in the clauses. If in the schedule we are going to add to Clause 1 in the way the Committee has recently decided, after a Division, not to act, then it could not be right to try to bring in the same issue as an amendment to a schedule. I know that in this place we do not have the same strict rules of procedure or the same great discretion given to the Chair—I address my remarks to the Deputy Chairman—and so, in view of the decision taken on Clause 1 by the Committee, I should have thought that the amendment to the first schedule should not be made.
§ Lord McIntosh of Haringey
May I be clear about what the noble Lord is saying? Is he referring to Amendment No. 73 only or to all the amendments to Amendment No. 71?
§ Lord Renton
I started by saying that I was speaking only to Amendments Nos. 73, 76 and 77, which have just been spoken to by the noble Lord, Lord Clinton-Davis, as amendments to the new schedule.
I was going to say only that I had assumed that the purpose of the noble Lord, Lord McIntosh, moving Amendment No. 71 was to give us an opportunity to discuss the draft asylum rules. He explained that that was what he wanted to do. I do not believe that many people would seriously propose that the practical and administrative points covered by the rules should be included in primary legislation. The asylum rules will form part of the Immigration Rules made under the 1971 Act. Those rules and any subsequent changes to them will be laid before Parliament and can be debated. It is only to be expected in any matter such as this that changes to procedures will be required from time to time—for example, whether to impose or remove a visa requirement.
Our present system sensibly allows us an opportunity to discuss important issues while enabling administrative changes to be made relatively easily and quickly. I hope that the noble Lord, Lord McIntosh, does not have any intention of voting on the amendment and so including in the Bill a regime which would become totally inflexible and which would normally, and rightly, be outside the statute, so that it could be adjusted from time to time and be subject to parliamentary consideration.
If the noble Lord were to try to put the amendment into the Bill, I would advise the Committee to reject it. 560 I think that the noble Lord wishes to use the amendment as a vehicle for discussing the asylum rules by which officials will operate the Bill's provisions which the Committee is discussing. I should have no objection to doing that. The Government have published the rules and sought comment upon them. If the Committee wishes to comment upon them under the guise of this and subsequent amendments, that is fine.
I come now to the point made on Amendments Nos. 73, 75, 76 and 77 by my noble friend Lord Renton. He said that the principle had already been decided by the Committee and it might therefore be —I use the word loosely—improper for that matter to be put to the Committee for a second decision. Of course it is correct and reasonable to discuss the issue. All I would say is that I made the Government's position clear on the first amendment, upon which we had a Division. The remarks I made then apply equally now.
§ 4.45 p.m.
§ Lord McIntosh of Haringey
As always, the Minister is seeking to help the Committee in its consideration of these matters. I am grateful to him for what he has said. He is right when he says that our primary purpose is to see that the Immigration Rules which exist and which the Government have publicised do not conflict with the general obligation set out in Clause 2. That is the thrust of the bulk of our amendments. The intention of the amendments tabled by my noble friend Lord Clinton-Davis is to ensure that the Immigration Rules do not conflict with Clause 2. We claim that there is a contradiction in how the Bill is to be operated, if not on the face of the Bill.
This is the Committee stage. As to whether we divide on Amendment No. 71, if it is our view that the conflict between the rules and the convention is so great that it is necessary to insert the amendments into the legislation and leave to the Government the problem of reinserting a degree of flexibility, then we may do so. I make no promises one way or another.
As to the point raised by the noble Lord, Lord Renton, about the four amendments in the group, I recognise the validity of the point he makes: that these amendments, although none of the others, relate to matters which have already been decided upon Division, and it might be better if my noble friend Lord Clinton-Davis were to see fit, with the leave of the Committee, to withdraw the amendment.
§ Lord Tordoff
It has been worthwhile putting the amendments before the Committee because there is a distinction to be drawn between the rules which will be operated by immigration officers and the definition of "asylum" in Clauses 1 and 2. It is important to distinguish between the rules which, as the Minister has said, come before this place for debate but which cannot be amended by Parliament, and, by convention, are not rejected by this place. So this is a proper device in order to bring these matters forward. I take the point that the noble Lord, Lord Clinton-Davis, will probably withdraw the amendment, and I support that. Nevertheless, there is a 561 distinction to be drawn between the point that was made before in relation to the definition of "asylum" on the face of the Bill and matters relating to conventions in the operation of the rules. It is interesting to note that the Government will apparently draw up rules which make no reference to those other conventions, but which are rules that will have to be operated by immigration officers at our ports of entry.
§ Lord McIntosh of Haringey
The position is slightly worse than the noble Lord, Lord Tordoff, suggests, because Immigration Rules do not come before Parliament in any form. The procedure rules would come under negative resolution, but the Immigration Rules which are the subject of Amendment No. 71 have no parliamentary status.
§ The Lord Bishop of Ripon
I support the general point made by the noble Lord, Lord McIntosh. It is the Immigration Rules as much as the Bill itself which arouse such anxiety. There is a sense of frustration that the Immigration Rules are beyond debate. This may be a device to enable us to debate them. It is important that we should be able to do so, not just because, as we glance at them, it seems prima facie that some of them are hardly fair or just, but because they are at odds with Clause 2, which asserts the primacy of the convention. It is that difference between Clause 2 and the Immigration Rules which is causing us such difficulty, as we shall illustrate when we come to debate some of the amendments to the rules themselves. I am glad that we are able to debate the issue. It enables us to express our grave disquiet about the way in which the rules have been framed; that is, in a narrow spirit and at odds with the spirit of Clause 2 of the Bill.
§ Lord Hylton
If the amendments that we are discussing were to be accepted flexibility would remain. I say that because under another part of the Bill the Secretary of State will retain his rule-making power. That disposes of the immediate question of flexibility. The advantage of accepting the amendment means that at a later stage the text of the rules can be amended in this Chamber.
Perhaps I may clarify one or two points because there appears to be a slight element of confusion. The noble Lord, Lord McIntosh, said that the rules do not come before Parliament. Actually they do; they are presented in a Command Paper. That is presented to Parliament and can be Prayed against. Therefore, Parliament can have the opportunity of discussing the rules. Admittedly, the Prayer is either accepted or rejected, but the rules come before Parliament in the form of a Command Paper.
The noble Lord, Lord Tordoff, said that it is right to consider the matter because the rules are different from the definition of "asylum" with which we dealt in the first amendment. I respectfully disagree with the noble Lord because the rules operate only under the provisions of the Act. Therefore, if the Act defines "asylum" in a certain way, the rules will operate 562 according to the Act. The suggestion that they are two separate items is not correct because the rules depend upon the Act.
I return to what was said by my noble friend Lord Renton. I do not wish to make too much of the issue; your Lordships' procedures are fairly lax and it is reasonable to discuss the matter. I believe that, procedurally, we should be wrong to vote upon the amendment because the decision was taken in relation to the first amendment, which dealt with the same issue.
§ Lord Tordoff
Perhaps I may make a slight correction. The noble Earl said that the Prayer can be voted against. Of course, there is in this Chamber a convention that Members do not vote on Prayers but we may debate them. Members in another place may well vote on Prayers, but that is not the case in this Chamber.
§ Lord Renton
We are being asked to do in primary legislation—albeit in a schedule and not in a clause —what we have previously done as a matter of secondary legislation but of a kind which must be laid before Parliament. There are two advantages in secondary legislation. The noble Lord, Lord McIntosh, anticipated what I believe. The first advantage is that it saves putting a great deal of detail into primary legislation. The second is that the Immigration Rules—for whose administration I was once responsible—need to be considered in the light of changing circumstances. The circumstances in which they have to be administered might require them to be amended from time to time. For such amendment to be made the subject of primary legislation each time could cause delays when that should not be the case and could create an added burden for Parliament and be quite unnecessary.
I believe that it is far better for us to adhere to the practice which has been built up since 1971—that is, more than 20 years—of having the rules made by the Secretary of State and requiring them to be laid before Parliament. I am sure that that is the best way. Alas, the new schedule would alter that procedure.
§ Lord McIntosh of Haringey
The House has already set up a Select Committee on delegated legislation. I was afraid that it might not have enough to do so I thought that I would provoke the noble Lord, Lord Renton, into speaking his words of wisdom. The committee can then consider them in considering its terms of reference.
§ Lord Renton
Under the noble Lord's amendment the rules would cease to be delegated legislation. This legislation would be primary legislation and that committee would not have the power to consider it.
§ Lord Clinton-Davis
The noble Lord, Lord Renton, made a salient and reasonable intervention and I accept the force of his arguments. Nevertheless, I thought that he was out to spoil my day. I could not have forgiven him for that because I have a host of other amendments to move. There appear to be a number of important points relating to the principle that we are discussing, apart from the issues raised in 563 the specific amendments under debate. The first is that we would have no opportunity in any debate to amend what might be unfounded and unjust rules. The main reason for our dealing with the matter in this way—I readily agree that the procedure is somewhat arcane —is to put under scrutiny that which by virtue of the rules we would not normally he able properly to scrutinise.
Moreover, if the Committee were to declare itself in a particular way on some or any of the amendments, the Government might be induced to recognise that the rules must be changed. Therefore, the exercise is valuable from that point of view. However, my noble friend Lord McIntosh leads on these matters and if he says that I should withdraw the amendments, of course I shall do so. In fact, I was thinking of doing so before he prompted me. The debate has put into perspective the issues that we shall discuss later, and I beg leave to withdraw the amendment.
Amendment to Amendment No. 71, by leave, withdrawn.
§ [Amendment No. 74, as an amendment to Amendment No. 71, had been withdrawn from the Marshalled List.]
§ [Amendments Nos. 75 to 77, as amendments to Amendment No. 71, not moved.]
Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 78:
In paragraph 2, leave out from ("An application") to end of paragraph.
§ The noble Lord said: In tabling the amendment we seek to address the issue of the mandatory refusals of applications which do not fall within the criteria. Exceptional leave to remain is a doctrine which falls outside the Immigration Rules and it has always been accepted on that basis. As a result of our debate on Second Reading and debates in another place, it is clear that the Government are not concerned about providing proper protection but they are concerned about the numbers. That is our contention, but no doubt the Minister will disagree.
§ I agree with what was said earlier by the noble Lord, Lord Bonham-Carter; grants of exceptional leave to remain are likely to be significantly reduced and applications which otherwise indicate a fear could fall into the typical class of an ELR application. That is categorised as an asylum application, to be refused only on the basis that it does not meet the rest of the criteria.
§ I believe that a refusal along those lines could indicate that we are coming to the end of ELR. That is also the view of many people who are concerned with the day-to-day application of the rules. That is a point which the Minister needs to address, because I am sure that this point has been made repeatedly in representations to him and his colleagues. The anxieties which have been expressed by the bodies dealing with refugee matters and ELR—the two are intimately connected—need to be assuaged, if they are capable of being assuaged.
§ This point needs to be addressed. I shall listen with great interest to what the Minister has to say about the matter. I beg to move.564
§ 5 p.m.
§ Lord Bonham-Carter
I support the noble Lord, Lord Clinton-Davis. Again, we are quite close to the heart of how the Bill will work in practice and we return to the question of what is the purpose of the Bill. The purpose of the Bill is to prevent abuse. The interpretation of this clause becomes more serious if the purpose of the Bill is what I have described it as being—namely, to lay down rules under which people might justifiably claim the status of refugee and claim asylum in this country.
If, as has been suggested in some quarters, the purpose of the Bill is to reduce the numbers, once more we must look at the matter in a more sceptical light. That is what I fear it is. That is why the whole position of exceptional leave to remain is so important. I suspect that it will be discussed again and again during the course of this Committee stage. I hope that the noble Earl will confront the issue fairly and squarely. The passage which we wish to omit calls for mandatory refusal of applications that do not meet the criteria. That may well have the effect which the noble Lord, Lord Clinton-Davis, suggests. Therefore, as he did, I look forward with interest to hearing the interpretation which the noble Earl puts upon those words.
§ The Lord Bishop of Ripon
I should like to comment on that part of the rules which refers to the Secretary of State's discretion to remove a person to a third country if he is satisfied that that would be consistent with the UK's international obligations.
I see a difficulty in that regard. Article 33 of the Geneva Convention prohibits removal to a country where a person will be at any risk of persecution or at risk of onward removal. In the rules there is no indication of the criteria by which the Secretary of State will satisfy himself as to the situation of a third country or, indeed, whether there is any risk of somebody who is removed to that third country being "onward removed" to a country where he is at risk. My chief anxiety is as regards that removal to a third country.
§ Lord Renton
As my noble friend Lord Ferrers is against the schedule, would it not save time if, instead of pressing him to comment on the various amendments moved to it, we were to leave any discussion on those amendments between the noble Lord, Lord McIntosh, and those who have moved the amendments to his new schedule? That may save time and save my noble friend Lord Ferrers a certain amount of trouble.
§ Lord Clinton-Davis
We are not necessarily interested in saving the time of the noble Earl, although I am sure that it is invaluable. We wish to save from injustice people who seek asylum upon whom injustice may fall. With respect, I should have thought that that was a rather more cogent point.
It is only by addressing the points one by one in the way that we have that we are likely to receive a meaningful answer. Otherwise, we may become caught up in a general debate about these issues and points may be lost. That is the sort of thing which 565 happens on Second Reading. Although I always value any point of view expressed by the noble Lord —I did so in another place when I was there with him—I disagree with him about this suggestion. I do not believe that it would be conducive to the interests of the Committee if we were to proceed along that route nor do I believe that it would be in the interests of those whose applications must fall to the authorities to he dealt with.
§ Lord Hylton
It is a sad fact that four or five years ago the majority of people arriving in Britain and seeking asylum were given full refugee status. Since then, it has become the practice to give more and more people exceptional leave to remain and fewer and fewer people full refugee rights.
That has dramatic consequences for the people concerned. Once they have been given ELR it means that they cannot bring in their wives, children and immediate dependants. That has been clearly shown in the case of those Kurds from Eastern Turkey who arrived in this country in large numbers in 1989 and in somewhat smaller numbers since that time. Most of them were not given full refugee status. However, the Secretary of State was sufficiently impressed by their cases to give them exceptional leave. He thought that it would be dangerous to send them back to Turkey. However, he seems to have failed to take into account the circumstances of their wives, children and close dependants, who were and still are subject to police harassment and deprivations of all kinds caused to them by the authorities. Those families remain divided.
At present there is a hunger strike taking place close to the Home Office building to protest about the status that people are given and the consequences for them. I urge the Government to have second thoughts about this whole matter.
First, I express my deep gratitude to my noble friend Lord Renton for his courteous anxiety that I should not have any more work to do than is necessary. I value that. I hope that he will continue to exercise his mind in that direction and I invite Members of the Committee opposite to do the same. That would be extremely helpful.
I agree with my noble friend Lord Renton that it would be wrong, for the reasons which were explained earlier, to put the rules into the Bill. These are administrative matters which are dealt with better in secondary rather than primary legislation. If dealt with in primary legislation, they are inflexible.
Having said that, I realise that Members of the Committee opposite wish to ask the Government various questions about the rules. We published the rules and we have said that we are happy for them to be considered. If this is a vehicle by which that can be done, it satisfies a public desire.
The noble Lord, Lord Hylton, refers to various people who sit outside the Home Office. He says that their rights should be considered. The right reverend Prelate was also anxious about that. We are implementing what are internationally agreed rules; 566 that is, the determination of who is a refugee. I return to the point that that is qualified by the United Nations Convention on Refugees.
Having defined what is a refugee, you then have to work out how you are going to deal with that person and the other applicants who come into this country who may seek asylum but who may be determined not to be true refugees.
The point about the amendment is quite simple and it is a matter about which the right reverend Prelate the Bishop of Ripon is anxious. The best way to help him is to explain what might happen. A person might come from another country and might come to England having travelled via a safe third country. According to international convention one only takes a refugee in when he has come from a country where it is considered he is in danger. It is an accepted convention that a person only has the right of asylum in the first country to which he goes. He cannot therefore pick and choose. He cannot go to France, for example, and then decide to come to England because he thinks England might be better.
The rules are quite clear. If a person comes from a safe third country, he has to be returned to that safe third country. That principle is accepted by all countries that are parties to the United Nations convention. If this amendment were to be applied, it would mean that we would be obliged to accept anyone who had come, from a country, admittedly one where he was being persecuted or enduring other suffering, but who had then gone to a safe third country, for example France, before coming to England. The rules are perfectly clear and the convention is perfectly clear. People are not accepted when they have come from safe third countries. Asylum seekers are only accepted when they have come from their country of origin.
§ Baroness Seear
I ask this question merely for information. Does this really mean that if someone has merely stopped over as it were, for example in Austria—I understand huge numbers of refugees have gone there—while fleeing a country where he has been in great danger, he must stay in Austria indefinitely and he has no rights to go elsewhere? That is extremely hard on Austria apart from anything else. Is that really correct?
§ Lord Bonham-Carter
I hope I may add to those comments. I am informed by the United Nations High Commission for Refugees with reference to another clause in this Bill that,The rules embodied in paragraph 11 appear to be based on the assumption that there is an international principle whereby a person who has left his country in order to escape persecution must apply for asylum in the first safe country he has been able to reach. It should however be pointed out that no such international principle exists".I do not know whether the High Commission is right, but it appears to speak with some authority on this matter.
§ The Lord Bishop of Ripon
I make a further point in relation to this matter. I could envisage circumstances in which a person leaves one country, for example, passes through another country and ends up in the UK. He or she may have roots in this country; for 567 example he may have friends in this country or a community with which he or she is in touch. England in that case would be the natural country in which that person's claim is considered. The fact that a stop-over or a pause has been made in another country does not seem to me to be sufficient reason for the UK to deny the determination of such a claim to remain here.
The right reverend Prelate says that a person may leave a country because he is in fear, go to another country and stop over there and then come to Britain, for example, because he has friends here. If one is seeking asylum one does so because one wants to leave one's country of origin because one is being persecuted there. The principle is that it is the first country one enters which has the obligation to accept one as a person seeking asylum. The right reverend Prelate says in a most charming way that if someone has some friends in England he may prefer to seek asylum there. One cannot operate a world-wide asylum system by allowing people to choose the country to which they go.
The matter that concerns the right reverend Prelate would be covered under the principle of exceptional leave to remain. If a person were to ask for asylum in this country and were told he could not be granted asylum because he had already gone through a safe third country, it may be that under certain circumstances, perhaps because the person concerned had connections with this country, an immigration officer may decide to grant that person exceptional leave to remain. However, that is different from giving such a person a categorical legal right merely because he is an asylum seeker. On that basis alone such a person, having passed through a safe third country, would not have the right to remain.
§ The Earl of Onslow
I hope that my noble friend can help me on this matter. What happens if someone arrives, say from Croatia, and he has stopped a fortnight in Austria on the way and we tell him that he is not entitled to asylum here and therefore he must go back to Austria? Do the Austrians have to accept that person or does that person remain in perpetual motion travelling from Vienna to London and back again?
§ 5.15 p.m.
I have tried to explain that if a person leaves a country and goes to another country and sits like a bumble bee in that country for a fortnight he cannot then move to another country and then demand asylum. He is obliged to accept asylum in the country to which he goes when he leaves his own country. One cannot run a system which permits people to hop around the world and choose the country where they wish to claim asylum.
§ The Earl of Onslow
I am in total agreement with the Government on this point. I am merely asking for my own information what happens if a chap arrives here from a previous safe country and he is not allowed to remain here. Can we send him back to the 568 previous safe country? What physically happens to him? I ask this question for information. As I have said, I totally agree with my noble friend on this point.
I can only tell my noble friend that each case has to be considered on its own merits. It would be invidious of me to say what would happen in a particular case when I do not know the conditions of that particular case. If a person comes here seeking asylum and he does not qualify for it, but nevertheless there are extraneous circumstances, he might well be given exceptional leave to remain. The view of the United Nations High Commission for Refugees is that European Community member states' acceptance of the Dublin Convention and the resolution of the host third countries shows that there is an internationally accepted principle here. The convention forbids a return to a country where a person's life or freedom would be threatened. That is the principle under which we operate and that is one of the reasons why we accepted the Dublin Convention. No doubt we shall discuss that convention later. The United Kingdom is a signatory to that convention. It provides a clear route in this matter.
§ Lord Mishcon
I hope that the noble Earl will kindly help me on rather a different issue on this amendment. My suggestion is that the paragraph which the amendment seeks to remove from the Immigration Rules is completely unnecessary in any event. I invite the Committee to consider paragraph 2 which states:A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that",the three conditions that are mentioned in the paragraph are met. The first condition is that the person,is in the United Kingdom or has arrived at a port of entry in the United Kingdom".He has to satisfy the authorities that that is the situation. Secondly, he has to satisfy the authorities that,he is a refugee, as defined by the Convention and Protocol".Therefore a necessary condition of his being granted asylum is that he is found to be a refugee within the convention. The third condition of his being granted asylum is that if the Secretary of State were to refuse his application the person would be returned to a country, wherever that may be, where he would be persecuted. I hope that I may paraphrase the condition printed in the Marshalled List.
If those three conditions have to be satisfied for asylum to be granted, will somebody kindly tell me —I look to the noble Earl to do so—why one needs the additional statement that,The Secretary of State may decide not to consider the substance of a person's claim to refugee status if he is satisfied that the person's removal to a third country would be consistent with the United Kingdom's international obligations"?That condition already appears under heading (c). The following statement adds nothing at all. If an applicant has to satisfy all those three conditions, would someone explain to me—I say this with all humility—why the final statement is necessary in any event?
The noble Lord, Lord Mishcon, sought help and invited me to provide it. I shall do my best to assist the noble Lord. It is curious for one such as myself to be in the position of helping an eminent lawyer such as the noble Lord, Lord Mishcon, but I am happy to have a shot.
If the noble Lord looks at paragraph 2 he will see that it reads:A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that".Certain conditions are then listed. However, at the end of the paragraph it is stated that he does not even have to consider the substance of the claim if the person has come from a third country. That is what is meant by the words,if he is satisfied that the person's removal to a third country would be consistent with the United Kingdom's international obligations".One of those international obligations is that one does not accept a person from a safe third country. Therefore, if someone has come from a safe third country the asylum officer dealing with the case can say that that particular man has no case. He would not even have to consider the substance because that person had already come from a safe third country.
§ Lord Mishcon
I acknowledge the noble Earl's courteous description of me. I invite him to repeat it as often as he wishes. However, although that was a very polite answer, it was not by any means a relevant answer.
If the paragraph said that the substance need not be considered should the refugee applicant have come from another country which was safe, I would understand the noble Earl's reply. It says no such thing. It says that the Secretary of State need not consider the substance of a person's claim to refugee status if he is satisfied that the removal of that person from this country to a third country —not the arrival here from a third country—would be consistent with the United Kingdom's international obligation. As I read that paragraph—and I may be incorrect in my interpretation—it means that where the Secretary of State is satisfied that removal to a third country would be consistent with the United Kingdom's international obligations—for example, removal to France, which the Secretary of State knew happened to have vacancies at that time for refugees—he could say that there was no point in his looking into the three conditions, namely, that the man was a refugee and had arrived in the United Kingdom and so on. He could say to that person that he had made arrangements with his opposite number in France and the man could go to France. That is what it means. It has nothing to do with the country from which the person comes. It relates to the country to which the refugee may go.
I find it extremely difficult to understand, first, the paragraph in relation to the Minster's explanation of it, and, secondly, why it is necessary in any event in view of the three conditions which have to be satisfied and which are set out in paragraph 2. Obviously, I am anxious not to waste the time of the Committee if my point is not of substance, but it appears to me that one of the arguments for agreeing to the amendment is that the last paragraph is not necessary in any event.
The noble Lord, Lord Mishcon, would never waste the time of any Committee because his points are always of interest. He will also realise that the rules are drawn up to be interpreted and understood by people whose speciality lies in many directions but may not lie in the same direction of legal finickiness, as the noble Lord, Lord Mishcon. The paragraph is included as a matter of clarity. It says that an application which does not meet those criteria will be refused. It then goes on to say that more details are given in paragraph 11. The person reading that can then look at paragraph 11.
The noble Lord shakes his head. I am not succeeding in convincing him. I am merely trying to tell the noble Lord, that, as I understand it, the paragraph indicates that where a person comes to this country from a third safe country he can be sent back. I see that I have not convinced the noble Lord. Perhaps the best that I can do is to take clearer advice and write to the noble Lord. I can assure him that if he is not satisfied by that he will not be satisfied by anything.
§ Lord Tordoff
If the noble Lord, Lord Mishcon, reads paragraph 11 he will see that his suggestion that the Secretary of State, or whoever it might be, may have been in touch with a third country is not necessarily the case. That paragraph states specifically that:Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant".That makes the case worse rather than better.
§ Lord McIntosh of Haringey
If we needed any evidence as to the necessity of the procedures which we have adopted of tabling the schedule for debate and then considering amendments to it, this debate has proved that we were right to do so. We have shown, and my noble friend Lord Mishcon in particular has shown, that the Immigration Rules are badly drafted. They contain cross-references which in themselves contain contradictions. We have also shown that the Minister does not understand them. The Minister in his response, in which he made a blanket statement that no applicants coming from third safe countries will be accepted, has shown that he does not understand the complexity of the wording of his own rules.
If the Minister were right and we had never accepted applicants coming from safe third countries, then we would have no asylum applications whatever. There are no direct flights from Mogadishu; there are no direct flights from Adana in eastern Turkey or Sulaymaniyah in northern Iraq; there are no direct flights from northern Sri Lanka. If there were there would have had to be very complex arrangements for visas to be issued in those places in the first place before people could be allowed on planes subject to the carriers' liabilities conditions of this very Bill.
571 I grant that the rules seek to find a way of dealing with applicants who come from third safe countries. We have a Minister who asserts that they do not do so.
The noble Lord is running away with himself. I did not say that we do not do so. I tried to explain to the noble Lord that there is an obligation under law concerning people who seek asylum. One can send them back to safe third countries but one does not have to send them back. If one does not send them back one gives them exceptional leave to remain.
The noble Lord, Lord McIntosh, said very generously that I do not understand the rules. That was a little extreme, even for the noble Lord, Lord McIntosh. I have understood the rules perfectly clearly. What I tried to do was to explain to noble Lords opposite what they are. Perhaps I failed to do so.
§ Lord McIntosh of Haringey
Perhaps I may be allowed to rephrase my remarks. I certainly do not wish to give offence to the Minister for whom I have a great deal of respect. He has brought out into the open the inadequacy of the draft Immigration Rules. The amendment of my noble friend Lord Clinton-Davis seeks to deal with one particular inadequacy of the drafting. I, as the mover of the original amendment, would be happy to accept his amendment to my own.
§ Lord Clinton-Davis
This short debate has yielded some interesting points, not least the inexorable logic of my noble friend Lord Mishcon. I was not his articled clerk for nothing. I would not say that my noble friend has shown the Minister not to understand all the rules. That would be fantasy. The Minister has indicated to the Committee that he wishes to think about the explanation that he has given. He is rightly concerned that he has not persuaded us as to why the paragraph should remain.
It is not enough, however nice it may be for my noble friend Lord Mishcon to receive his missive, that it should be confined to the two of them. The issue goes wider than that. The public have a right to know. I hope that it will not be just a piece of confidential information passing between the two of them, however elegant the correspondence may be.
In a later debate we shall return to the subject of international obligations, raised by the noble Earl. I question the point raised in his answer to the noble Lord, Lord Bonham-Carter. The UNHCR has not added the qualification to the basic point that it makes. However, we shall return to the issue later; I do not wish to take up the time of the Committee now.
I wish to raise a point on the legal pernicketiness on the part of my noble friend Lord Mishcon. I do not believe that it is the case. We are anxious that the rules should be comprehensible. If they are open to ambiguity—it is plain that they are because the noble Earl indicated that he would take advice and return to the point in one way or another—that is not legal pernicketiness. People who are seriously affected by the rules must understand them, as those advising on such matters must understand the rules. If someone 572 with the legal experience of my noble friend has difficulty in understanding the point, I am sure that it is a matter which should exercise us all.
I do not propose to take the matter any further. My noble friend has indicated that he is prepared to accept the amendment. I am grateful. I find it surprising that he is so generous. I accept what he has said immediately.
On Question, amendment to Amendment No. 71 agreed to.
§ [Amendment No. 79, as an amendment to Amendment No. 71, had been withdrawn from the Marshalled List.]
§ 5.30 p.m.
Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 80:
In paragraph 4, line 7, leave out ("under the Immigration Rules.").
§ The noble Lord said: As drafted, the rule impairs the discretion to admit entry outside the rules. It abolishes the possibility of exceptional leave to remain being granted. Therefore that provides an inconsistency in itself. In the amendment we seek to ensure that the discretion to grant exceptional leave to remain stays. I beg to move.
§ Lord Bonham-Carter
In dealing with the last amendment, the noble Earl did not confront the question of whether or not the inevitable consequence of the Bill is to reduce the numbers granted exceptional leave to remain. The amendment moves in the same direction. Perhaps in his reply the Minister will tackle the point. It is the view of many people on reading the Bill that one of its functions is to reduce the numbers of people who are granted exceptional leave to remain in this country. With all its disadvantages—the noble Lord, Lord Hylton, referred to them—it has been a safety net for a large number of people.
Let us deal with that point first. The purpose of the Bill is to avoid abuse. I do not think that even the noble Lord, Lord Bonham-Carter, believes that there is no abuse to the system. The result of that abuse is that the system becomes clogged. One of the results of clogging-up the system is that some people are given exceptional leave to remain. It is not the purpose of the Bill to cut down the number of people who are given exceptional leave to remain, but that may well be one of the results. If the result of the Bill is expedition of people's claims for asylum and for immigration, and such claim is satisfied in one way or another more quickly, then the number of cases granted exceptional leave to remain is likely to be fewer.
Amendment No. 80 omits the reference to the Immigration Rules. I believe that there is a misunderstanding. The person who is refused asylum will automatically have his circumstances examined to see whether he can nevertheless be allowed to enter the country on an exceptional basis—in other words whether he can be granted exceptional leave to remain. Exceptional leave, by its very definition, is outside the Immigration Rules, and is therefore not 573 referred to in paragraph 4. Where the applicant who has no leave to enter is refused asylum, and there is no case for exceptional treatment, he will be further examined to see whether he can qualify under one of the Immigration Rules. I hope that that answer satisfies the noble Lord.
§ Lord Hylton
I accept from the Minister that there has been a limited number of cases of abuse. They are few. What clogs up the system is not abuse; it is what is occurring in the world. It depends on how much persecution, civil war and violence exists. That is the first consideration.
The second consideration with regard to the system in this country is this. How many people from the remainder of the world succeed in arriving in this country despite such factors as the Immigration (Carriers' Liability) Act?
I do not like to disagree with the noble Lord. He accepts that there are a few occasional abuses but states that what messes up the system is what is happening in the rest of the world. I do not agree with that. What clogs up the system is the number of people who come to this country and abuse the system. The troubles in the world cause more people to move about and cause more people to wish to come to this country.
However, one has to have perfectly reasonable rules. Even the noble Lord, Lord Hylton, will agree that one has to have reasonable rules for immigration, otherwise the country will be open to everyone. The problem arises when people abuse those rules. That is totally different from saying that there are so many people moving around the world that more people wish to come to this country.
§ Lord Hylton
There is a third factor which I have omitted. What is the capacity of our system for handling the people who present themselves? We all know that the number of immigration officers, and people dealing with asylum cases, has been considerably increased during the past 12 months. That has made a considerable inroad into the backlog.
It is perfectly true that many extra people have been involved in trying to deal with the backlog. However, so many people have the right and ability to remain, and to appeal—and while they appeal they stay longer—that the time it takes to satisfy the application runs into years. Very often it is because they have abused the system; that as a result of having stayed in the country so long, our system is obliged to keep them.
We are trying to simplify the system so that those who justly come here are able to come and do not have their applications messed up, but those who do not have a right to come, should not do so.
§ Lord McIntosh of Haringey
I do not know whether I should be glad or sorry that we are bringing out into the open matters which the Government may not have wished to be brought into the open. I am glad to see the noble Lord, Lord Renton, in his place again. On an earlier amendment he said that the purpose of the Bill was to prevent abuse. The Government have not 574 put it quite so crudely. I should have thought that the purpose of the Bill was to establish a just and workable system for dealing with refugees coming to the country.
I was discouraged from thinking that—and perhaps the noble Lord, Lord Renton, is right—when I heard what the Minister has just said. He repeated what I can only call the canard that what is wrong with the immigration system—the reason it is clogged up —is because of abuse. That is not the reason why the immigration system is clogged up at all. It has been clogged up in the past because it has been under-staffed and has not had the facilities to deal with the increasing number of applicants.
It is another canard, I suggest—and one repeated by the Government and their supporters all over the place—that those who are refused admission under asylum rules are automatically those who are abusing the rules. Of course they are not. The rules are extremely tight. They rely on the 1951 convention, which, as we have seen, is out of date in many ways. There are plenty of genuine applicants who under a more just and equitable system would be granted entry but who are not granted it under our rules. That is the reason we are debating the rules. To say that all those who fail to obtain entry are abusing the system and causing it to clog up is a misrepresentation of the true situation.
Once again, I think that my noble friend's amendment and our persistence in putting the rules before the Committee have revealed a situation which is profoundly unsatisfactory. I suggest to the Committee, without in any way wishing to curtail debate, that it may wish to support my noble friend's amendment.
§ The Lord Bishop of Ripon
I have listened carefully to the exchange between the noble Lord, Lord Hylton, and the noble Earl. It seems to me that the evidence points to the case lying with the noble Lord. It seems absolutely clear that the backlog of cases was due to the enormous number of people coming into the country—far more in 1989 than previously. Almost all the extra people who came in 1989 came from countries such as Somalia, Uganda and the Kurdish part of Iraq. The backlog to which the Minister referred was created because of the greatly increased numbers. It was brought about by those circumstances.
To refer, therefore, to this situation as an abuse of the system does not seem to me to be justified. How are these people said to be abusing the system when all that happens is that they are waiting for their case to be determined? It takes a long time because of the backlog, but I cannot see how the word "abuse" can be used in those circumstances.
Perhaps I may put the right reverend Prelate's mind at rest. I did not say, nor did I imply or intend to imply, that those who were appealing or clogging up the system were abusing it. I did not intend to give that inference at all. I said that there are people who abuse the system, and I defy any Member of the Committee to say that there are none. I can tell the Committee, as I told the House on Second 575 Reading, that one person so abused the system that he applied for social security under 50 different names. In my book that is abusing the system. However, I certainly did not wish to give the inference that all those who appealed were abusing the system. Of course that is not so.
§ Lord Clinton-Davis
I gather that my noble friend is once again exercising his generosity and accepting my amendment. Perhaps I may add two or three words to what has already been said. I am glad that the noble Earl qualified an inference that some of us drew from what he said which he thought was unjustified. None the less, it was an inference that we felt he was making.
When we get the situation into proper perspective, the abuses that have resulted in convictions before the court number 27. However inconvenient that may be, it is not tantamount to clogging up the system. Of course it is not helpful; none of us is in favour of abuse, but we need to get it into a proper context. The truth is that staffing shortages were recognised by the Government, albeit late in the day. They have taken steps to rectify the position.
I do not wish to pursue the point further at this stage. My noble friend indicated that he was prepared to accept the amendment and I am content with that.
§ On Question, amendment to Amendment No. 71 agreed to.
§ 5.45 p.m.
Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 81:
In paragraph 5, leave out second sentence.
§ The noble Lord said: Again I can be brief in moving this amendment. Its purpose is to underline a point. The rules indicate a proposal to serve a notice of intention to deport at the same time as the refusal of asylum. The possibility of curtailment of leave is at the least a threat to intending asylum seekers of the draconian consequences of a failed application. Consequently, we feel that the amendment is wholly justified on that basis. I beg to move.
The noble Lords, Lord Clinton-Davis and Lord McIntosh, are having a fine afternoon. One puts up an amendment and his noble friend then accepts it. It is curious that Members of the Committee opposite are rewriting the immigration laws, but that is a little bit of fun that they may have.
I look forward to that. It will be fun. I shall deal with this amendment simply, unless the noble Lord, Lord McIntosh, wishes to accept it, as he has the others.
Amendment No. 81 would delete the provision relating to curtailment of leave. The powers to curtail a person's stay are in Clause 7, to which there are a number of amendments. I think that it would be best to discuss it then. If we were to amend the rules under this amendment, it would have no effect as the powers to curtail would still be in the Bill under Clause 7.
§ Lord Clinton-Davis
The noble Earl is going to be surprised; I am going to withdraw the amendment! I beg leave to do so.
§ Lord Clinton-Davis
Far from it. I never recognise such a possibility. It is just that I think that it is more appropriate to have the debate on another occasion.
§ Amendment to Amendment No. 71, by leave, withdrawn.
Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 82:
In paragraph 5, after second ("deport") insert ("or remove").
§ The noble Lord said: This is simply a drafting amendment. What we seek to arrive at is that all persons who are threatened with enforced departure should have their cases considered in the light of all the relevant circumstances. I beg to move.
Amendment No. 82 would require consideration to be given to the factors which are listed in paragraph 164 of the current Immigration Rules not only before a decision to deport a person is taken but also before a decision to remove a person is taken.
The Immigration Act 1971 makes a distinction between those who are or have been lawfully in this country and those who have not been here lawfully. Those who have been here lawfully can be removed only by the process of deportation, and consideration must be given to the factors listed in paragraph 164 to determine whether deportation is the appropriate course in their particular case. Paragraph 164 is not concerned with those who have never been here lawfully and who are subject to removal; that is, people who have been refused leave to enter or illegal entrants. I suggest that the amendment would blur that distinction.
§ Lord McIntosh of Haringey
I am not convinced by the Minister's argument and am disposed to accept the amendment of my noble friend.
On Question, amendment to Amendment No. 71 agreed to.
Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 83:
Leave out paragraph 6 and insert:
("6. Failure to assist the Secretary of State in establishing the facts of the case, without reasonable explanation, may lead to refusal.").
§ The noble Lord said: This amendment will take a little longer to discuss. I start with a point which is significantly missing from the whole environment of the way in which these issues are dealt with. People who are subjected to persecution and torture are in an extremely vulnerable position and condition. In the course of preparing for the debates on the Bill, large numbers of people came forward with great experience in this field, including the UNHCR, the Refugee Council, which I chair, and many organisations which I do not propose to list here and now. They are involved in seeking to succour the victims of 577 torture. They came not only to see us; they came to see the Government. They made representations to the Government on numerous occasions. They tried to persuade the Government. Frequently it is extremely difficult to persuade people who are seeking asylum to trust other people who are invigilating their position. It is necessary to secure their confidence if justice is to be done and to break down barriers to try to influence them, in the friendliest way, to enable them to tell those investigating the cases about the traumatic experiences that they have suffered.
§ We have had experience after experience, not simply within the particular area that we are considering now, of people who did not want to talk about their war experience; people who did not want to talk about being imprisoned as prisoners of war; and people who for some considerable period of time did not want to talk about the situation affecting them following an accident.
§ I am a solicitor. I used to be involved in litigation and I know how difficult it sometimes is—I am sure that this is the experience of other lawyers in the Chamber—to persuade perfectly genuine people to talk about something which they have experienced and which in their lives is utterly terrible. The situation those poor people are frequently in is precisely that. They may have been threatened with torture. They may themselves have been tortured. Certainly most of them, I suggest, suffered from a measure of persecution. I wonder whether the Minister accepts that that is the situation. It requires a great deal of sensitivity in order to raise that measure of confidence.
§ I have to say, from my experience in this field, as a lawyer and as a Member of another place, that sometimes even today they are treated with great hostility and a lack of understanding. That may not be so in every case, but it happens. The Minister must acknowledge it. Mistakes occur in the Immigration Service just as they occur in the police force.
§ I should like to know whether the Minister accepts that a hostile approach or, to put it a little differently, an approach which is not necessarily intended as hostile on the part of the immigration officer but which is perceived as such by the asylum seeker can simply build up those inhibitions which I was talking about a moment ago. Is it therefore beyond the bounds of reasonable possibility that such people simply will not open up to an immigration official, whether at a first interview or a second interview, or whether it is to another immigration official altogether, in order to reveal those intimate details about their experiences?
That is why we say that the issue merits special attention, as indicated in the handbook issued by the United Nations High Commission for Refugees. Paragraph 198 states:
A person who because of his experiences was in fear of the authorities in his own country may still feel apprehensive vis-á-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case".
That statement comes from a body which is renowned internationally in terms of dealing with refugees. It has insisted it is something which must appear in a separate paragraph in its handbook. That is, I believe, simply an acknowledgment of a reality to which, with
respect to the Government, no attention is given in the checklist or elsewhere in the draft rules. I want to know why not. Why not simply adopt that UNHCR procedure in the rules themselves?
§ The significance of the omission, in the words of the rules or in practice, can be absolutely devastating so far as a genuine asylum seeker is concerned. We regard the matter as very important indeed. I know that we shall debate the issue of fingerprinting later, but that too is relevant to what we are considering now. It may even be regarded as potentially an even more traumatic experience in the eyes of somebody genuinely seeking asylum in this country.
§ One can perceive fairly easily that this situation may represent to somebody who is escaping from persecution a symbolic association with the very sort of authority from which he or she has been escaping. I do not believe it is any answer to say, in those circumstances and in the circumstance to which I was alluding a moment ago, that fingerprinting is the norm in many other countries and that in this country we can go along this line because we do not associate it with criminality. I do not see that in practice that is how the matter will be perceived.
§ I am sure that at the present time in this country only people who are suspected or convicted of crimes are fingerprinted. I do not believe that we should depart from that practice and widen it. It is not beyond the realms of probability that a later rational explanation for the refusal or failure to be fingerprinted, or indeed a failure to report—it simply becomes the same sort of thing—is likely to fall on deaf ears. That is the risk. In the eyes of the Home Office, a person who refuses to acknowledge such issues, which stand out in the Immigration Rules, effectively stands condemned. The psychological realities can lead to risk of penalty being ignored.
§ The amendment is designed to ensure that genuine asylum seekers are not so penalised—perhaps victimised would be a better word to use—and that a sensitive and compassionate view is taken of the situation in which the asylum seeker finds himself or herself in the process of the application being determined. I believe that those are realities. If the UNHCR can recognise them, I think it behoves the Government to do likewise. I beg to move.
§ 6 p.m.
§ Lord Gridley
Perhaps I may give some explanation of the way I feel about Amendment No. 83. The Opposition speak of people who have been tortured. Torture has taken place in many parts of the world. It is relevant to find out why. It is because various factions in a country where it is practised use their method of torturing a person to get something out of him. It means that the country is being run under various systems.
It is only too easy for people to come to this country and say that they have been tortured when in fact they may not have been. Are we to accept their word entirely? To think that under those circumstances it is possible for the British Government to go all over the world trying to find the relevant evidence to substantiate the claim would be most unreasonable.
579 I speak from personal experience because I was tortured by the Japanese. When I happened to go back to that country after the war I found a system in place where every faction was against every other faction in trying to run things. People were telling all kinds of stories about themselves. That kind of thing happens when people lose confidence. Therefore, I say tonight that the argument of the noble Lord, Lord Clinton-Davis, that we must trust people and they must trust us is beyond what is required in the Immigration Rules. What is required is evidence that the truth is being produced in this country and that the person has definitely suffered from torture.
§ Lord Hylton
I support what was said by the noble Lord, Lord Clinton-Davis, in moving Amendment No. 83. I am in regular touch with the Medical Foundation for the Care of Victims of Torture. That organisation was formed in the first place by the medical section of Amnesty International. During the five or six years it has been in existence it has treated and cared for some thousands of people who have experienced torture in third countries and have come to Britain.
I should like to quote from what the foundation said in a document dated January 1993, which simply repeated the substance of previous documents prepared in relation to the earlier Bill on the subject. The foundation says:The testimony of our patients has shown that people who have been imprisoned and tortured find it very hard to talk about their experiences with anyone. This difficulty is similar to that of rape victims who, feeling degraded, find it very hard to reveal what happened. And rape is often part of torture. Such asylum seekers are often fearful that information may be passed back to their own country and endanger family and friends. They are not always aware without advice of what information is relevant, or it may not be readily available".In relation to the Government, the Bill and the rules, the foundation went on to state:We urge that an assurance be given that the difficulties experienced by tortured asylum seekers in recounting their experiences should not be held against them so as to prejudice their claim".That I can heartily support.
In that context I should like to mention also that the question of interpreters being used when people who do not understand or speak English are being interviewed and assessed is of paramount importance. I suggest that it is necessary to have fully fluent interpreters who are capable of taking a sympathetic approach to an asylum seeker and in particular to one who has suffered torture or other maltreatment.
Finally, the training of immigration officers and of adjudicators who have to handle those matters is another aspect which probably needs more thought and certainly the greatest amount of care.
§ Lord Boyd-Carpenter
Of course one understands the feelings of those who have been subjected to inhuman practices and abuse and that they may well be in a neurotic state. But if the Committee will look at paragraph 6, which the amendment proposes to delete, it offers a perfectly reasonable set of proposals.
Of course, one must assume, as I do, that the British officials who will administer the provision will do so with sensitivity and taste. But it is also their job to get 580 at the facts. It is known that a good many people seek to enter this country who are not entitled to qualify as refugees but who simply regard life in this country —sensibly as it happens—as a great deal more preferable to life in most other countries. Therefore it is necessary that they should be carefully examined. Paragraph 6 seems to get it about right. I hope that the Committee will not accept the amendment.
§ Lord Mishcon
I rise because of the contribution made by the noble Lord, Lord Boyd-Carpenter. He is right to refer to the wording of the clause about which we are talking. The benefit of the debate I hope will be that the Secretary of State, with the able assistance of the noble Earl, Lord Ferrers, will be able to look at the Immigration Rules and see whether they are too harshly worded and whether an immigration officer who is not too sympathetic to the applications made to him will want to act rather like the barrack-room lawyer one often found in the Army: he would look at his little book on the Army Act and decide in stern circumstances to administer what may have been even more than a rebuke to a recalcitrant soldier.
I accept the invitation from the noble Lord, Lord Boyd-Carpenter. I am looking at the rule and pretending for a moment that I am an immigration officer, well trained to ensure that the rules are abided by. Let us look at them and then look at the amendment.
First, the rule refers to,A failure, without reasonable explanation".Therefore I must give an explanation which the immigration officer thinks is reasonable. What if I fail to do that? I must not only tell him about "material factors", but I may fail to "make a prompt" disclosure. I suppose I may do it a day late in his view, or I do not do it when he asks me; it must be prompt.
There must be "full disclosure". That is not just a disclosure; it must be absolutely full. It must be "of material factors". Therefore I must disclose in regard to material factors, but not only in regard to material factors, because it goes on,either orally or in writing, or otherwise to assist the Secretary of State".Therefore, it is not only a question of my making a prompt and full disclosure of the material facts; there may be other things that I have not done. Although I have done all that, I have not fulfilled the "otherwise" or "to the full". I do not know why the word "full" appears again after the words "full disclosure" in the second line. I suppose it makes the bureaucratic case a little more substantial.
The paragraph goes on,in establishing the facts of the case may lead to refusal".The provision then talks about a failure to keep an appointment for fingerprinting and so forth. I do not want to go into that because I then say to myself, having heard the words uttered so far, "What are we trying to do?" Are we not saying to the applicant, "If you do not establish the facts of your case to our reasonable satisfaction, you know that it may lead to a failure"? When exercising the powers of the person interviewing the applicant that is surely all we want to say to any human being. In the words of the amendment we say, 581Failure to assist the Secretary of State in establishing the facts of the case, without reasonable explanation, may lead to refusal".It is simple, it is humane and it is not punctilious.
§ Lord Boyd-Carpenter
Before the noble Lord sits down, is it not a considerable advantage to the applicant to have spelt out, as paragraph 6 spells out, the kind of things which he is expected to establish? The few words of the amendment give him no guidance and no lead at all as to that. Surely if the noble Lord himself were in that position he would find it helpful to have spelt out in advance the headings of the matters on which he would have to satisfy the authorities so that he knew what to say and what he was ready to do.
§ Lord Mishcon
I have been invited to answer a question put by the noble Lord, Lord Boyd-Carpenter, and I do so very readily. I do not think that this is here for the advantage of the applicant. The words which make it prompt, full and so on are there for the person who is exercising the discretion to determine whether the application that is being made should fail. If the noble Lord visualises that the normal applicant who will come to our shores as a refugee will find it helpful if someone shows him the wording of this rule as it now exists in paragraph 6, I think that we are dealing with a very unreal situation.
I by no means wish to attack our immigration officials. They do a very difficult job in the main, but they are human. Like policemen, who are human, we find that there are a few members of the flock who not only take their responsibilities too seriously but act in a way which was never meant by Parliament or by a Minister. I say that you get all that you want by giving an immigration official the discretion to say, and I repeat these words, "You have failed to assist the Secretary of State in establishing the facts of your case. You have done so without reasonable explanation. This may lead to refusal". What more does one want?
§ The Earl of Onslow
It seems to me that the amendment allows the immigration official to be more of a barrack-room lawyer than does paragraph 6. Furthermore, if someone wants to come here and establish the fact that he is a genuine asylum seeker, he has to prove the case and prove it properly. As my noble friend Lord Boyd-Carpenter said, it is much fairer to have it spelt out than to accept the words proposed in the amendment. The amendment contains the words "without reasonable explanation". What is a reasonable explanation? The amendment would allow the immigration official almost to say, "You are not speaking the Queen's English", or something like that. The existing provision is much fairer. The man must be allowed, or must be asked, to make a full and prompt explanation and disclosure of why he wants to come here and why he should be allowed asylum. That seems to me much fairer than the amendment proposed by noble Lords opposite.
§ Lord Mishcon
Before the noble Earl sits down—I promise the Committee that this is the last time that I shall speak on this amendment—he will find the words "without reasonable explanation" in Rule 6.
§ The Lord Bishop of Ripon
I am grateful to the noble Lord, Lord Mishcon, for giving our debate some substance. I had felt a certain air of unreality about it as we went through amendment after amendment conscious that there was a substantive amendment to be considered in due course. In inviting the Secretary of State along with the noble Earl the Minister to take note of our debate in considering the Immigration Rules, he has indicated that we are perhaps doing something of significance in the Chamber this evening. I certainly believe that we are. It seems to me that for the first time in considering these rules we have come to a point where there is a widespread disquiet among those who work in this field about this rule. What we are attempting to do is to express that disquiet in this Chamber. I believe the noble Lord, Lord Mishcon, has done that extremely well.
The noble Lord, Lord Boyd-Carpenter, talked about people coming to this country in a neurotic state. I do not think that that word is quite the correct one. Surely the word "traumatised" would more accurately describe the state in which they arrive. It is our concern that people who come to this country in that state should have proper treatment that underlies our desire to amend the rules as they stand.
The proposed amendment is a more balanced and fair one. It is not in any way intended to be a guide for those who seek asylum. I cannot see asylum seekers wanting to seek out the Bill and to look up copies of it. From where will they get copies of the Bill? They might indeed look to proper advice at that stage. Such advice would be from those who have knowledge of the Bill. The Bill and the rules are to provide some kind of guidance for the immigration official and for those who are advising asylum seekers—not for the seekers themselves. The revised amendment more properly gives a fair balance and a better account of the situation. The rules as they stand undoubtedly give a kind of narrow view. Like many of the rules, they seem to be a number of hurdles over which asylum seekers have to jump rather than a way in which immigration officials can be guided fairly to make a proper and just claim of their desire to seek asylum.
§ 6.15 p.m.
§ Lord Bonham-Carter
The right reverend Prelate raised an interesting point when he said that people may seek advice. That is one reason why they may not wish to give a prompt explanation. Before giving an explanation of why one is seeking asylum in a foreign country whose rules one does not know or understand, one of the things an intelligent person might do is to seek advice. If one has to seek advice, there may be some delay. If there is some delay, one will fall foul of one aspect of the provision that we are trying to amend.
However, the point I want to raise is one which I have raised before. The Bill makes no distinction between adults and children. Does this clause really apply to children? If not, should it not be made clear that it does not apply to children? If it does apply to children, it is absolutely ludicrous. Do we really expect an unaccompanied child coming to this country to 583 carry out all those steps which the noble Lord, Lord Mishcon, described so aptly? We should have an answer to that simple but nonetheless important question.
I am quite happy to give the noble Lord an answer to that simple but fundamental question. Of course it applies to children. All immigration matters apply equally to children as they do to adults. We shall come to children later so let us dispense with that for the time being. But to suggest that one could have a form of immigration that did not apply to children would not be at all suitable.
§ Lord Bonham-Carter
I am grateful to the noble Earl for giving way. Surely it would be possible to have different rules applying to children and adults. That happens in many aspects of life. Children are not allowed to do some things which adults are allowed to do. The law of England in many respects distinguishes between adults and children. I do not see why immigration law should be an exception.
I suggested that we would come to children a little later on. What we are dealing with here is the consideration of cases. I was glad to see that noble Lords opposite accept that asylum applicants have a duty to co-operate as fully as possible in the asylum process. I agree with the noble Lord, Lord Clinton-Davis. It would be quite wrong if there was a hostile approach to people when they came here or if the approach of immigration officers was perceived as hostile. That could frighten people. If that were to be the case, people would get frightened. I agree with my noble friend Lord Boyd-Carpenter that these matters should be handled with taste, decency and care. I would hope that they would be.
The noble Lord, Lord Hylton, said that the torturing of asylum seekers and the effect that it had had on them should not prejudice their claim to asylum. All I can say to that is that it certainly should not; and I hope that it would not. That is why one cannot make laws about this matter. One must depend on the way in which the individual officer deals with each individual case.
The noble Lord, Lord Clinton-Davis, asked why we did not include the handbook of the United Nations High Commissioner for Refugees. The handbook is a very valuable and worthwhile guidance document, and all asylum division staff are issued with a copy. The views of the United Nations High Commissioner for Refugees are widely respected. Indeed, they are often sought, and regard is had to any court judgment which affects asylum seekers. But the handbook is not exhaustive, as is acknowledged by the authors; nor is it in any way definitive. Both the handbook of the United Nations High Commissioner for Refugees and court rulings can only be guides, and they are subject to change and challenge. On this basis I think it would be wrong to incorporate them into legislation which is necessarily much more unwieldy.
The noble Lord, Lord Mishcon, invited your Lordships to extend your imagination, I think to the limit, when he suggested that we should consider what 584 it would be like if the noble Lord, Lord Mishcon, were an immigration officer. I have thought of the noble Lord, Lord Mishcon, in many guises, but not until this evening had I thought of him in that guise.
It is very difficult for the Government, because when we spell out matters noble Lords say "It is too long. Why don't you shorten it?" When we make it shorter, noble Lords say "Let's spell it out and find out what the Government mean". I agree with my noble friend Lord Boyd-Carpenter that it is better when it is spelt out. The noble Lord, Lord Mishcon, said that these rules were not designed for the advantage of the applicant. That is true. They were designed for the instruction of the officer and how he should carry out the rules and the law under which those rules are made. The noble Lord, Lord Mishcon, said that he thought that it would be much better to have the proposed amendment in the Bill because it would give the immigration officer much more discretion. However, earlier, the noble Lord had referred to the barrack-room lawyer. One wonders what that person could do if he had wide discretion. If the noble Lord and others are frightened of what immigration officers could do, I think it is better clearly to spell out what they should do.
Also, this amendment deletes two requirements which we believe to be crucial in establishing the bona fides of the applicant and in ensuring a system which is free from delay and misuse. The aim of the whole system is to speed up and unclog the decision-making process at all levels. At present many applicants delay claiming asylum until they have exhausted all the other immigration avenues. Others take many months to return a questionnaire. Others fail repeatedly to attend for interviews, or they progressively change their stories.
Earlier this evening I was tackled about the question of abuse. I am bound to tell your Lordships that some 15,000 cases were refused last year for the simple reason that the applicants failed to attend the interviews or to provide information despite repeated requests. That is an abuse of the system, and it also clogs up the system for the genuine applicant. In some cases this may be the result of fear and confusion, but in others it is not; it is a case of dragging out the procedures. I think that that is unacceptable.
Applicants will continue to be able to seek professional help and advice in presenting their cases. They will be given every opportunity to put their stories in writing and at interviews, but there must be some onus on them to take advantage of these opportunities, and there must be some sanction against people who are deliberately non co-operative. It is right to spell out in the rules the lines the immigration officer should take, and I think that the rules as prescribed are correct.
§ Lord Tordoff
I should have thought that the people who have been described by the noble Earl would have been caught within the terms of the amendment. Clearly, in many cases the sort of people he was describing are people who have failed to assist the Secretary of State.
I should like to ask a specific question about paragraph 6, where it says: 585This includes failure to comply with a notice … or failure to complete an asylum questionnaire".What does that mean exactly? Do we know what is in the questionnaire? I do not think it is in the rules. I have seen questionnaires that ask all sorts of questions which I could not answer. I can imagine some people coming from foreign parts finding it difficult to answer the question about their mother's maiden name. Would that preclude them from coming in under the rules? People are afraid that there are artificial trip wires being put into the rules and that they may be used, by people who are not necessarily as scrupulous as one might wish, to prevent people getting in.
The noble Lord, Lord Tordoff, says that there are some artificial trip wires being put up for these people. That is not the case at all. It is a very simple questionnaire —I do not have it in front of me —asking about personal details of their family. The noble Lord, Lord Tordoff, says that they might find that very difficult to answer. All I can say is that I should be surprised if the person cannot provide his family details. I have no doubt, if we are not careful enough—I am not suggesting this—that we shall have the noble Lord, Lord McIntosh, putting down a questionnaire, and then your Lordships will be invited to alter it and the noble Lord, Lord McIntosh, will accept your Lordships' alterations. But I really think that is going too far. The questionnaire is perfectly simple, and if people fail to complete it, indicating what they are doing and where they have come from, that is a perfectly good reason for saying "You can't be a genuine applicant".
§ Lord Tordoff
But there are cases where people cannot answer apparently simple questions—people coming from areas of great turmoil, for instance the children to whom my noble friend referred coming from Bosnia who have been split from their families at an earlier stage. They may very well not be able to answer the kind of questions that may seem quite simple to us.
All I am saying is that, on paper, this appears to be a very rigid set of rules. Admittedly, there are not too many of them, but they can be interpreted extremely rigidly. The amendment seeks to widen the scope for discretion.
§ Lord McIntosh of Haringey
The Minister should not tempt me. He should know that I have been a market researcher for 35 years and I spent all that time writing questionnaires, and if I am tempted I will put a questionnaire into the Bill.
I did not want to tempt the noble Lord. We must let him concentrate his efforts where they are better used.
§ Lord McIntosh of Haringey
I prefer a questionnaire to some of the econometric equations which tend to appear in government legislation.
The thrust of this useful discussion has been about the issue of whether it is better to spell things out or to allow flexibility. In general, I would agree that it is more helpful to spell things out. Unfortunately, on this occasion the advice of the United Nations High Commissioner for Refugees is quite explicit: that 586 spelling out conditions is not advisable and not welcome when all those conditions are designed to help refusal. That is the thrust of paragraph 6 of the rules which we are now considering. It is also the thrust of paragraphs 7 to 10 of the rules. If the spelling out is all one-sided it is undesirable, and the flexibility proposed by my noble friend in this amendment is desirable.
§ Lord Clinton-Davis
I should like from my own experience as a lawyer dealing with immigration cases to illustrate briefly what my noble friend has said. It seems somehow to be in conflict with the experience of the noble Earl.
Immigration officers do abuse their authority, bully people and treat them scandalously. That is not acceptable. I am not seeking to assert that all immigration officials behave in that way. As I said earlier, that would be a travesty of the position. But, if these rules are for the benefit of the immigration official as the Minister said, why should we not draw to the attention of those who do not understand their duties properly the fact that a person—who, because of his experiences, is in fear of the authorities in his own country—may still feel apprehensive vis-á-vis any authority? He may be afraid to speak freely and give a full and accurate account of his case. A reminder is needed. If the Minister says that the measures are for the benefit of the immigration official, I do not see why he is reluctant to include provisions like those contained in the rules.
Earlier on the Minister said that it was for the benefit of the asylum seeker because he wanted to know where he stood. So the Minister is seeking to have the matter both ways. However, since my amendment is accepted I am content.
§ On Question, amendment to Amendment No. 71 agreed to.
§ 6.30 p.m.
Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 84:
Leave out paragraphs 7 to 10 and insert:
("7. In determining an asylum application, the Secretary of State will have regard to matters and criteria contained in the UNHCR Handbook of procedures and criteria for determining refugee status and such other guidance as may from time to time be given by the UNHCR or decisions of the European Court of Justice and Court of Human Rights.
8. In determining an asylum application from a child under the age of 18, the Secretary of State shall have regard to—
§ The noble Lord said: I fear that this amendment is going to take a little longer because it encompasses a checklist which we are seeking to scrutinise and amend. The whole concept of a checklist of this kind 587 has been assailed briefly in the last debate by the noble Lord, Lord Tordoff. I endorse that particular point of view.
§ Another purpose that we should be seeking to fulfil is, as I said a moment ago, to have regard specifically to certain criteria which are set out in the UNHCR handbook and such other guidance that may be given from time to time by that body or by decisions of the European Convention on Human Rights and by the Court of Human Rights.
In the case of a person under the age of 18 we say that there should be a requirement that the Secretary of State should have regard to the matters which we set out in the amendment under paragraphs (a), (b) and (c). Our objection to the draft regulations is wide. The regulations state:
In determining an asylum application the Secretary of State will have regard to matters, which if no reasonable explanation is adduced, may damage an asylum applicant's credibility".
Does that mean all matters? I believe that it must because no other construction is possible. It is tantamount to saying, as these rules do, that refusal will almost certainly follow if an application fails to meet any of the criteria which are listed. I believe that there is a likelihood of the Secretary of State drawing adverse inferences as regards the applicant's credibility which could lead to palpable injustice.
Perhaps I may go through these matters. The first is,
that the applicant has failed to apply forthwith upon arrival in the United Kingdom, unless the application is founded on events which have taken place since his arrival in the United Kingdom".
That point was made earlier by my noble friend Lord Mishcon. The use of the word "forthwith" is very much more onerous than Article 31 of the 1951 convention provides. I am not at all sure that it is not seriously in conflict with that article which states:
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming 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".
Article 31.2 states:
The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country".
That is not applied as far as this matter is concerned.
Then there is the question of false representation. The second matter reads,
that the applicant has made false representations, either orally or in writing".
Do such false representations include those made to authorities elsewhere in the country from which the asylum seeker is fleeing? Are they false representations to the airline staff to enable the refugee to get on board an aircraft? Is it false representations—which I assume is what the Minister has most in mind—to the immigration authorities here? That is contrary to Article 1 A of the convention itself. I shall not burden the Committee with that at this stage. But there is a palpable conflict as far as that is concerned.
§ Perhaps I may illustrate what I mean. The article itself defines a refugee as a person who has a 588 well-founded fear of persecution outside his country of nationality. There is no reference to the circumstances or the means whereby that person came to be outside his country. But the essence of the Immigration (Carriers' Liability) Act 1987 is that refugees cannot get out of their country of persecution without visas or travel documents.
These issues were addressed by Mr. Justice Schiemann in Yassine (1990) reported in immigration Appeal Reports at page 354. He said this:
He who wishes to obtain asylum in this country short of prior contact with the Home Secretary offering him asylum, has the option of:
§ I believe that the learned judge summarised the issues very clearly indeed. The issues set out here simply do not address the merits of an application for asylum. In this amendment we are seeking to address the realities which are ignored in the criteria which have been adopted in the draft rules.
The third element here is,
that the applicant has destroyed, damaged or disposed of any passport, other document or ticket relevant to his claim".
That is a point raised in previous debates. Sometimes the refugees simply have no alternative but to get rid of their travel documents or passports in order to escape. Does not the Minister accept that? Another ground is,
that the applicant has undertaken any activities in the United Kingdom before or after lodging his application which are inconsistent with his previous beliefs and behaviour and calculated to create or substantially enhance his claim to refugee status".
Again, that blithely ignores the experience which is set out in the handbook itself in paragraphs 94 to 96 which deal pertinently with these specific issues. The handbook recognises that persons can become refugees—using the jargon "sur place"—where they cannot show that the authorities knew of their political beliefs before they left their own country but where their true state of mind gives rise to a fear of persecution if they are required to return.
§ The terrors of persecution in their home country can be such that any hint of opposition can result in persecution, torture and imprisonment. It is only when the refugee comes to a free country and a safer environment where he knows that he will not be subjected to those kinds of pressures, that he feels sufficiently safe to express his genuine views in public. He may feel impelled to do so because of the injustice that is happening in his home country. To take that into account as an assessment of whether or not he should be given asylum seems an absolute travesty of what ought to be happening. Should not a genuine refugee in a democracy feel that there are obligations upon him to speak of his experiences and his thoughts? That may make him more vulnerable if he is returned home, but to impose that kind of condition is utterly absurd and short of reality.
§ I turn to the question of the asylum seeker lodging concurrent applications in the United Kingdom or in another country. That point was raised very pertinently by the noble Lord, Lord Bonham-Carter, 589 in the Second Reading debate. It was never properly addressed by the Minister in his reply. One understands why it is necessary to make concurrent applications. One may feel that there is absolutely no alternative. To regard that as a significant black mark against an asylum seeker is to fly in the face of reality.
Paragraph 8 of the draft rules states:
The actions of anyone acting as an agent of the asylum applicant may be taken into account in regard to the matters set out in paragraphs 6 and 7".
Is that not utterly absurd? The tragedy is that its absurdity may have the most draconian consequences. How can the actions of people acting as agents of the asylum seeker, if undertaken without the express approval of the asylum seeker, affect the credibility of the applicant? Does it make sense at all?
I turn to paragraph 9:
If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused".
There is no reference to "a part of the country" in any of the other rules of which I am aware; certainly not in paragraph 91 of the handbook. How does that accord with the spirit of Article 1A of the convention that talks not of a part of a country but of that country?
§ Paragraph 10 offends a fundamental premise of the convention and the handbook because it is asserted over and over again that claims should be considered on an individual basis. The Government contravene those provisions by saying that it is permissible to deal with people as a group. There is a presumption that if one is involved in the activities of a group one is tainted. The burden of establishing that one is innocent in one's purposes falls upon the asylum seeker. It is very difficult to discharge that burden. I believe that it is not only wrong in law but absurd in practice.
Paragraph 7 of our amendment deals with children. We anticipated this matter in some respects in earlier debates. I agree wholly with the the noble Lord, Lord Bonham-Carter, that the law prescribes that children are dealt with on a totally different basis from the generality of the law in many respects. Why should the law relating to asylum be different? Part of the preamble to the United Nations Convention on the Rights of the Child reads:
The child by reasons of physical and mental immaturity needs special safeguards and care".
That is recognised in many areas of the law and should be recognised in the law relating to asylum. The matter is also dealt with in the 1988 guidelines for refugee children and in paragraphs 213 to 219 of the handbook. I suggest it is obvious to most of us in this Chamber that children have to be dealt with separately and therefore need to be dealt with separately in the rules. It makes absolutely no sense that that should not be so. As this is perhaps one of the few occasions when we are able to scrutinise the rules, I hope that the benefit of the debate will be that the Minister will say that the Government have to do something about it.
§ I shall try to be brief because I bear in mind that time is passing. We believe that because the rules are 590 to be dealt with for the benefit of immigration officials, there is specific reason for making sure that children are mentioned definitively. I do not know why the Government have chosen not to do that. No doubt the Minister will seek to explain. I believe that the sense of those on this side of the Chamber, and I hope of some on the other side, is that the case that we make out to deal with children specifically and differently is an overwhelming one. I beg to move.
§ 6.45 p.m.
§ The Lord Bishop of Ripon
It is becoming clear that the objections of some of us in the Committee to the Immigration Rules rest not only upon our difficulties with particular rules but upon the overall effect of them. I referred earlier to the rules as a set of hurdles. The noble Lord, Lord Tordoff, referred to them as a set of trip wires. In the paragraphs of the rules we see a whole series of factors. The United Nations High Commissioner for Refugees has expressed objection not only to the draft rules but also to the effect of the rules in totality. In measured language the UNHCR says that evaluation of credibility is a process that involves the consideration of many complex factors, both objective and subjective, that are impossible to enumerate and all possibly of equal importance. As such, any selection of factors which should be given special consideration when assessing a claim will necessarily be arbitrary.
The real point is that if in addition the selection is made with the declared aim of providing the Home Office with a list of reasons to refuse applications for asylum the impression conveyed is one of bias against asylum seekers. The heart of our objection is that the rules convey the impression of bias against asylum seekers. If that appears to be the case to the United Nations High Commissioner for Refugees it also appears to be the case to some of those in this country who are working in the field. I refer for instance to the Refugee Legal Centre. The centre was set up by the Government to provide advice and legal representation on appeal to those seeking asylum. The centre has expressed objection both to the rules as a whole and to particular rules. I do not want to go through the list as the noble Lord, Lord Clinton-Davis, has already done so. However, one particular rule seems to put asylum seekers in a virtually impossible situation. I refer to the rule dealing with the destruction of documents. Not only does rule 7 apparently contravene Article 31 of the 1951 convention, which prohibits the imposition of penalties upon refugees on account of their illegal entry or presence, but it also seems to provide an almost insurmountable hurdle to their ever arriving here at all—a hurdle that was made higher by the carriers' liability Act.
Many asylum seekers are in a Catch-22 situation. Someone cannot be recognised as a refugee unless he has left his country of origin and sought asylum elsewhere. Yet, as we know, there is no provision in the asylum rules to grant entry clearance as an asylum seeker for someone overseas. How are they to reach this country? In many cases it can be only by the acquisition of false documents. The fact that those documents are destroyed during the journey surely 591 does not make the seeking of asylum of any less merit. That is the only way in which a person can reach this country. That rule seems to contravene the spirit and the letter of the UN convention.
§ Lord Finsberg
Perhaps I may make a brief contribution, because I spent 22 years in another place with a constituency that had a large immigrant population. Without its support I may not have held that seat for 22 years. I found that two kinds of people would come to me for advice on the old rules and, looking at the new rules, I do not see that much difference. There were those who spun one the most heart-rending stories. They produced documentation, and, I must confess, for the first few years I believed them. I took up every case. I became more and more disillusioned, because there was clear evidence of a deliberate attempt to flout the then rules to enter this country illegally. During those 22 years I found only two cases where I felt that the immigration officers had acted unfairly and harshly. I should like to pay a warm tribute to immigration officers for the difficult job that they do. It is all too easy to criticise them, and yet they are doing a job. As my noble friend the Minister said, when they are investigated many of the cases turn out to have a non-response.
The other type of case was one where a man would come and say that he wished to bring in his wife and children. I cannot recall one case where a child, by itself, was the subject of a problem. So I shall not address that issue, because I have no real experience of it. However, I can see that there may be problems. One has to decide what age is a child. There are many children capable of mastering the most intricate computers, something which most Members of the Committee cannot do. So I do not necessarily say that a child's standard of intelligence is not sufficient to cope with the questions put by an immigration officer. Nonetheless, I can see that there can be problems, and I shall be interested to hear my noble friend's reply to that point.
It is helpful to have the rules spelt out as they are now proposed. I take the point on the destruction of documents made by the right reverend Prelate. One clearly needs some documentation to reach this country. It is not always false documentation that is required. The flexibility and the knowledge of an immigration officer would be helped greatly if the refugee said, "In order to get out of the country, I had to get forged travel documents. Here they are." That would command more respect and more likelihood of being admitted, other things being right, than if the refugee tore up the documentation and so put himself or herself outside the new rules. On balance, the amendment is not one that is worthy of support.
§ Lord Wilberforce
I can well appreciate the desirability of spelling out a number of points for the benefit of the officers who have to deal with difficult cases, and of the person who is applying. I have no comment to make about paragraph 7 and what is set out there. I leave that to other Members of Committee. The paragraph that troubles me greatly is paragraph 9 which deals with "a part of the country". 592 As the noble Lord, Lord Clinton-Davis, dealt with the issue rather briefly, perhaps I may spend a few moments looking at it. The paragraph puts the officer dealing with the case, and the applicant, in an impossible position and creates a mass of bureaucratic requirements and procedures which will clog-up the machinery.
Let us bear in mind that the person involved (the asylum seeker) has, to start with, satisfied the requirement of showing that he is a refugee within the convention. He is a person who has escaped from a country in which he was under a genuine, well-founded fear of persecution: he was in a village in Croatia which was attacked by the Serbs; his house was burnt down; his village was destroyed; his relatives may have been shot; he cannot possibly return there. He has, on the face of it, fulfilled every requirement for being a refugee. Are inquiries to be made about whether there is some other part of the country to which he can go where there is no persecution, which may be 100 miles away with armies in between? Will the adjudication officer have to consider such a situation? That relates not only to a place such as Yugoslavia, but to somewhere such as Somalia where at the time there may be some remote area of the country where there is no persecution. Are inquiries to be made into whether there is such a place to which he should go?
One looks at the paragraph and one asks, first, who is to prove what? When the unfortunate officer has someone in front of him who has left a country and who satisfies him that he has been persecuted and tortured, does he then have to inquire as to whether there is some other place in the country to which he could have gone? If he has to do that, is he not in great difficulty and likely to involve a great deal of complication and difficulty.
Even worse, of course, is the position of the refugee seeker. The officer may say, "You could have gone to Kosovo; you could have gone to Macedonia; you could have gone to the north of Somalia. Why did you not go there?" How will the unfortunate man, woman or child be able to satisfy those requirements?
Even at the first instance that will greatly increase delays and complications. It will provide every opportunity for difficult appeals and will clog-up the machinery. One may perhaps compare the position with what happens in homelessness cases. The paragraph may have been drafted by reference to and analogy with cases of homelessness. One knows that it is a defence available to a local authority called upon to provide accommodation that someone has rendered himself voluntarily homeless. One then embarks upon a great many difficult inquiries: he was in a house; he could have stayed there; there was plenty of room for him; he was able to be looked after; there were cooking facilities; but he says that is not possible because there are already 10 people in the house; he could not get on with his mother-in-law; and it was impossible to live there. Those are genuine cases which occur in relation to homelessness and British subjects in this country who are well able to deal with such a situation. How much more difficult 593 would it be for officers, who may not be well-trained to deal with such cases, and for the unfortunate person who has left a country of persecution.
The amendment suggests deleting those precise requirements and substituting a general reference to the handbook. There is a good paragraph in the handbook (paragraph 42) which says in general terms that one has to have knowledge of the conditions in the applicant's country of origin, which is an important element in assessing the applicant's credibility and so on and whether his continued stay in the country of origin had become intolerable for the reasons stated in his application. Surely that provides the adjudication officer with enough authority and a basis to deal with a case along broad lines rather than having to have to follow this legalistic paragraph which will make his life difficult, the life of the refugee impossible, and the administration of the paragraph a cause of delay and difficulty.
I hope that the noble Lord, Lord McIntosh, will be able to accept the amendment and that the Minister may be able to reassure us that that proposal or a reference to the paragraph is a better way of dealing with the matter.
§ 7 p.m.
§ Lord Donaldson of Lymington
Perhaps I may comment on paragraph 9. I listened with my usual sympathy to what my noble and learned friend said, but I find it difficult to know exactly what the paragraph means. It states:If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go".It is not a part of the country to which it would have been reasonable to expect him to have gone. Is the paragraph dealing with the situation from the point of view of the aspiring asylum seeker sitting in Heathrow? The question then is, "Would it be reasonable to expect the asylum seeker to buy a ticket to the part of the country in which he would be safe?". If the answer is yes, I can see every reason for refusing him asylum. However, if what is meant is, "Is there another part of the country to which he should have gone?", that might be a reason for refusing asylum. However, as he has not gone he is faced with a slightly different situation. That issue should be clarified.
I seek clarification on part of paragraph 7. I do not believe that I have met professionally a case in which documents have been destroyed. I should like to know what is the experience of the Home Office as regards the destruction of documents. Everyone seems to be assuming that asylum seekers destroy forged documents. Why would an asylum seeker destroy a forged document which he has used to leave the country? I should rather expect an asylum seeker to destroy a genuine document with which he had left the country. If an asylum seeker leaves the country of his alleged persecution with a brand new passport recently issued by the authorities, doubt is cast, although not conclusively, on his relations with those authorities. I should have thought that there was force in paragraph 7, but perhaps I do not understand the facts of the situation on the ground.
§ Earl Russell
I wish to ask the noble Earl only one question. How large an area of the country will qualify as a part?
§ Lord Wilberforce
The noble Earl might have amplified his question by asking what, for this purpose, is a country?
That is the kind of problem which arises when one starts to discuss all these different matters. We see here another example of the noble Lord, Lord Clinton-Davis, trying to remove a great hunk of the rules and replacing it with something smaller. I have no doubt that his noble friend Lord McIntosh, when asked whether he accepts the amendment, will say that he does. It really is a most curious procedure when one Member of the Committee opposite proposes an amendment and his noble friend on the same Front Bench accepts it. It is nothing to do with the Government as the two carry on a lovely tweedle-dum and tweedle-dee act. It is great fun for some.
We have written down clearly in the Immigration Rules the kind of matters to which immigration officers ought to address themselves. Having done that, some Members of the Committee say that that is not fair, that this is not right and that that is unclear. I find it extraordinary that they are prepared to remove those rules and insert something which is far more vague. They will give immigration officers wider carte blanche rules with which to make the wrong decisions.
I appreciate what was said by my noble friend Lord Finsberg about immigration officers. His experience showed that they seldom make a mistake. But everyone is human and people will make mistakes. I agree that immigration officers have a difficult task which they carry out with astonishing ability.
Amendment No. 84 removes paragraphs 7, 8, 9 and 10 of the rules, which set out the criteria by which cases are to be considered. That would leave no guidance to those who operate the asylum procedures nor to the applicants. The determining of an asylum claim is a complex matter, as the handbook issued by the United Nations High Commissioner for Refugees makes clear. Since the convention lays down no rules by which that should be done we must approach the problem by considering what it is that must be established and how best to achieve it.
The various methods which have evolved in this and in other countries, with the guidance of the United Nations High Commissioner for Refugees, are the result of experience. Ideally, one would wish for conclusive independent corroboration of everything which is claimed by an applicant. That would be of benefit both to the applicant and to the assessor. However, in reality, that is rarely possible. As a result, the asylum division staff must rely on a combination of factual information which is obtained from a variety of sources and an assessment of the individual who is making the claim. In other words, the credibility of the asylum seeker is a key factor. When interviewing him and speaking to him, his credibility is a key factor. In reaching a judgment, it is impossible 595 to ignore certain factors. It is perfectly natural and justifiable to query why a man did not claim asylum as soon as he arrived in a safe country.
The right reverend Prelate the Bishop of Ripon was concerned also about the concealing of a man's identity by destroying documents. It is perfectly reasonable and right to question a man about why he has destroyed his documents. In answer to the noble and learned Lord, Lord Donaldson, I must point out that we have had experience of people destroying documents. I cannot say whether they were legal or illegal documents because, of course, they were destroyed. If the destroyed documents were legal I agree with the noble and learned Lord that that is curious. However, the fact is that people come into this country having destroyed their documents. In some countries the fashionable process is, as they say, to flush them down the toilet. Why one should want to do that I do not know but the fact is that people enter the country without documents. It is perfectly right and reasonable that they should be questioned about why they have no documents. It may be that the applicant has a perfectly good reason and the draft rules make it clear that only in the absence of an explanation will refusal be allowed.
The amendment also deletes the provision which allows account to be taken of the actions of an agent who represents an applicant. I regret to say that we have seen examples of agents being paid sums of money to produce what they call "an asylum package". That will ensure the applicant entry into the United Kingdom or an ability to stay here. It cannot be possible to ignore such events; they happen.
The noble and learned Lord, Lord Wilberforce, was concerned about other "parts" of a country. It is not unreasonable to question whether an applicant might reasonably have sought refuge in a safe part of his own country. In many countries unrest or other political or internal problems are localised perhaps because of the actions of a particular group. Other parts of the same country may be perfectly safe and the residents there may be able to enjoy a secure and trouble-free life. It would seem more logical for an applicant who claims to fear persecution to stay within his own country but in a safe part—a country with which he is familiar and where the language and the cultures are the same and where he is closer to family and friends—rather than travelling to a remote country with which he has no connections at all. Therefore, it is not irrelevant for that question to be asked.
With regard to the proposal relating to group refusals, it is not intended that that power should be used frequently. If no one in a group claimed anything distinctive as an individual but relied on the general circumstances of the group and it was clear that those circumstances raised nothing in relation to our convention obligations, we might refuse entry to the group. There may be occasions on which a party arrives and it can show no reason why its members should be admitted under asylum procedures. That would occur where the claim was made on behalf of the group. However, any individual who is able to 596 show that his claim can be distinguished from that of members of the group would be dealt with in the normal way.
The noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord McIntosh of Haringey, asked why we do not use the handbook. As I said earlier, it is not an exhaustive document and the fact that it is not was acknowledged by the authors. It is not a definitive document. It must be a guide. It can be subject to change and challenge. On that basis I suggest that it would be wrong to incorporate it into legislation, which is necessarily a far more cumbersome vehicle.
Perhaps I may turn to that part of the amendment which deals with children. I know that that is a matter about which your Lordships are anxious. I know that the noble Lord, Lord Bonham-Carter, is anxious about it even though he has prevailed upon himself not to intervene on this amendment. It would add a new dimension to the legislation by incorporating special provision for all child asylum seekers, whether or not they are unaccompanied. I am not sure whether the noble Lord intended to include extra safeguards only for children who are unaccompanied, but the amendment would have a wider effect than that.
It is clearly important that any dealings with children should be conducted in an understanding and sensitive manner. None of us would take exception to that. All immigration officers and asylum division staff are aware of that and they act sympathetically. Unaccompanied children are placed as quickly as possible with an appropriate carer, whether a relative or a member of the local authority social services department. In assessing an asylum claim, the whole range of circumstances of an individual is taken into account. Children are not returned to any country where it is not clear that there are adequate reception arrangements in place which have been confirmed in advance. Indeed, few children who arrive here are ever returned simply because of the problems which surrounds such arrangements.
A claim for asylum must be assessed against the convention criteria. It does not matter whether you are a child or adult, the convention criteria are the criteria by which the asylum application must be considered. Due allowance must be made and is made for the maturity and ability of the child to express himself. Obviously reliance is placed on the assessment of social or welfare workers.
To develop a formal system of the type envisaged seems to be over-elaborate and might actively encourage people to place their children within our system. The current systems offer adequate safeguards. I should not have thought that such a system would be necessary for those who arrive as part of a family group. To proceed in such a way would complicate the handling of family applications.
I recognise that there is anxiety about children, and in particular children who become involved in the asylum process and how they are dealt with. I assure the noble Lord, Lord McIntosh—and I know that this will bring a smile to his face—that I shall consider the position of children. I shall see whether we can give 597 further consideration to including in the final version of the rules which will be laid before Parliament appropriate guidelines on the treatment of children.
§ Lord Bonham-Carter
Goaded by the noble Earl, I shall make a brief intervention in relation to Immigration officers. The Committee should not go away with the idea that immigration officers are infallible. Of visitors' appeals to the Immigration Appeals Tribunal, 25 per cent. are upheld. That is quite a substantial number.
§ Lord McIntosh of Haringey
The Minister had his moment of fun about the procedures that we have adopted and I do not begrudge him that. However, the quality of the debate that has taken place on the amendment, the interventions from the two noble and learned Lords and the last remarks of the Minister have fully justified our initiative in taking this step. It would be proper for us to accept the amendment into the substantive amendment so that we can go forward with the progress that we have already made.
§ Lord Clinton-Davis
I am grateful to the Minister for what he said in the final sentences of his reply. As my noble friend said, that wholly vindicates the position that we have taken in tabling the amendment. Whether or not the Government will draft something in similar terms remains to be seen.
The Minister kept on asking why an immigration officer should not ask certain questions. It is not the asking of the questions but the presumptions of guilt which arise from the application of these rules to which we object. I am delighted that my noble friend has accepted the amendment.
§ On Question, amendment to Amendment No. 71 agreed to.
§ 7.15 p.m.
Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 85:
Leave out paragraphs 11 to 14 and insert:
(".If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention, and the provisions of the other Conventions listed in paragraph 1) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Conventions and Protocol.
.The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless he has no connections with the United Kingdom and—
.Before returning a person under this paragraph, the Secretary of State is under an obligation to provide written confirmation from the authorities of the safe third country that the applicant will be admitted to its asylum determination procedure.").
§ The noble Lord said: I must be brief but this is an important issue that needs to he argued more fully. At an early stage of our debates this afternoon the noble Lord, Lord Bonham-Carter, asked the Minister what was the assumption behind his assertion that there is an international principle governing the situation of a person who has left his country to escape persecution; namely, that he must apply for asylum in the first safe country which he has been able to reach. Attention was drawn to the UNHCR briefing on this point. Therefore, I ask the Minister on what he bases that presumption. Is there any principle or rule in international law which prescribes the situation? According to the UNHCR, the answer is that there is none.
§ I wish to ask a few other questions of the Minister. In relation to paragraph (10) what indication is there of what might constitute exceptional reasons for a person's claim to be considered here? Does having family members in the United Kingdom constitute exceptional reasons? What duty is there on the Secretary of State to consult the authorities to ensure that no refoulement will take place in the safe country? As was stated by the noble Lord, Lord Bonham-Carter, there is a risk that some refugees could be shunted from one country to another and treated rather like pariahs, with no country being prepared to accept responsibility for them. We say that safeguards should be introduced in order to deal with that situation. There are many other points which I should have raised had time permitted. I beg to move.
§ Lord Tordoff
I should like to point to the fact that cases exist in which people are sent back to third countries where the authorities of this country obviously believe that they are safe but they are wrong about that. I refer to today's Guardian which states:Kurds win compensation. The Home Office has agreed to make ex gratia payments of £5,000 each to three Kurdish asylum seekers detained by the Turkish authorities for 34 days after their plane was sent back".Those people were presumably sent back to Turkey because the authorities of this country believed that they would be safe there. The authorities were clearly wrong and the Home Office has had to pay £15,000 to clear up that matter.
It will come as no great surprise to the noble Lord, Lord McIntosh, to hear me say that we believe Amendment No. 85 contains several unacceptable provisions. In keeping with earlier amendments which we have already debated, it seeks to incorporate other international conventions into the text. I have explained our position on this to the Committee. We do not think that it is appropriate to include provisions of other conventions, however good they are, and even where we have signed up to them, in a Bill which is specifically concerned with asylum. We simply cannot have, as part of the arrangements for dealing with asylum which require international effort and co-operation, provisions which go wider than asylum and which may not evoke international unanimity. Of course these matters are important: they form the backdrop against which our decisions are taken, but I respectfully suggest that they go wider than the specific obligation to individual refugees.
599 If a country is told by another that the latter is sending back an applicant because he has arrived from the former, and is asked whether it will receive him, the country's natural reaction is to let him stay where he is because he will be safe. The right way out of this difficulty is to get international agreement on the criteria for assigning responsibility. This we have done in the Dublin Convention, which we have ratified and which we hope can be brought into operation in the near future.
The amendment further provides that an applicant may not be removed unless he has "no connections" with the United Kingdom. It is already our practice to waive our normal third country policy if a person arriving here can show that he has close ties with this country. It is not possible to specify exactly what these might be in every case, as situations vary so much. However, as a general rule, immediate family members might constitute such a tie, particularly if there were a degree of dependency on such family members involved. However, the effect of the proposed text would be that any possible connection, however weak—for example, a holiday in London 10 years ago, membership of Manchester United Football Supporters' Club which a person had joined by post or a connection with a relative, however distant—perhaps a second cousin once removed—would oblige the United Kingdom to take responsibility for examining the claim, even if the applicant had stronger ties in the third country from which he had arrived. That cannot be right.
The other major change proposed is that the Secretary of State should be obliged to obtain written confirmation from the receiving country that the returned applicant would be admitted to the asylum procedures. I do not think this is necessary, given that the Secretary of State must first satisfy himself that the third country is indeed safe—in other words, that the applicant would not be at risk there and that it would not send the applicant elsewhere in breach of the 1951 convention. These safeguards guarantee the applicant's safety. It is then for the other country to determine on what basis to treat the applicant.
§ Lord Tordoff
With all due respect, that does not answer my question about the Kurds, where the system has clearly been shown to fail.
I support this amendment. I believe it is thoroughly sound. I had a post in Uganda, where I was responsible for refugees. I remember cases where mistakes were made and refugees were sometimes sent to countries which were not safe and several refugees suffered considerably as a result. I remember a classic case of this which occurred in London. At the time I was in the Foreign and Commonwealth Office. A young Ugandan man came to Britain. He was refused admission to Britain and he was sent to another country. I believe that country was Zaire. However, the authorities in London did not check the route that his plane was to take. The plane went to Zaire via Uganda. The man was hauled out of the plane by the Ugandan authorities—this occurred in the time of Amin's persecutions—and he was 600 imprisoned and suffered greatly. He managed ultimately to escape. That incident was entirely due to the fact that the authorities in London had not taken proper precautions and had not made the proper preparations for dealing with his case.
It is always difficult to comment on individual cases. The noble Lord, Lord Tordoff, referred to Kurds. The Kurds in Turkey may base their claim on particular actions of security forces in the South East. Many Kurds of course live perfectly normal lives in Istanbul. The noble Lord, Lord Tordoff, mentioned compensation. I do not think that that matter is relevant. If people were returned to Turkey, for example, and there were subsequent doubts about whether they had sought asylum, compensation would not be a matter of concern.
§ On Question, amendment to Amendment No. 71 agreed to.
§ [Amendment No. 86, as an amendment to Amendment No. 71, not moved.]
§ Lord McIntosh of Haringey
I have carefully considered the position as it was discussed when Amendment No. 71 was first moved some hours ago. I know the Minister feels strongly that this is not a matter that should be put to the vote. However, I have taken into account the high quality of debate that has taken place on the amendments to Amendment No. 71. The amendments are on the record as substantive criticisms of the way in which the Government have approached the formulation of immigration rules. They have been supported by many outside organisations with a deep understanding of this matter. I believe it would be proper for the Committee to show its appreciation of the debate that has taken place by approving the original amendment as now amended. That may result in problems for the Government in terms of flexibility. However, I have enough confidence in their ingenuity in finding ways of securing by further amendment the flexibility that they feel they require. It is proper that the Committee, having given this matter its consideration, should now express its view.
The noble Lord, Lord McIntosh, cannot get away with it quite as easily as that. He has drawn the rules to the attention of the Committee. He has provided a great service in doing so. We have had an interesting debate this afternoon about the rules. They are complicated and they are sensitive. The Committee has criticised them, has expressed anxiety about them and has asked questions about them. The noble Lord is anxious about the time, as we all are. However, I must say that I do not think it is right to include these rules in statutory legislation. They are inflexible. The whole point of having such rules is that they should be subject to subordinate legislation. It is not right to include them in statutory legislation.
The noble Lord, Lord McIntosh, has suggested that, if the Committee were to accept the amendment and the rules were to be included in statutory legislation, the Government would find some way of maintaining flexibility in this matter. However, with the greatest of respect, I must say that is an 601 irresponsible way in which to treat legislation. Either the rules should be included in the primary legislation or they should appear in secondary legislation. In my view they should appear in secondary legislation. I hope the Committee will not accept the amendment.
§ 7.28 p.m.
§ On Question, Whether the said amendment (No. 71), as amended, shall be agreed to?
§ Their Lordships divided: Contents, 63; Not-Contents, 117.602
|Division No. 2|
|Acton, L.||Kirkhill, L.|
|Airedale, L.||Lockwood, B.|
|Archer of Sandwell, L.||Longford, E.|
|Ashley of Stoke, L.||McIntosh of Haringey, L.|
|Barnett, L.||McNair, L.|
|Beaumont of Whitley, L.||Mason of Barnsley, L.|
|Birk, B.||Meston, L.|
|Bonham-Carter, L.||Mishcon, L.|
|Broadbridge, L.||Morris of Castle Morris, L.|
|Buckmaster, V.||Nicol, B.|
|Carmichael of Kelvingrove, L.||Pitt of Hampstead, L.|
|Cledwyn of Penrhos, L.||Plant of Highfield, L.|
|Clinton-Davis, L.||Prys-Davies, L.|
|David, B.||Richard, L.|
|Dean of Beswick, L.||Ripon, Bp.|
|Desai, L.||Robson of Kiddington, B.|
|Donoughue, L.||Rochester, L.|
|Falkland, V.||Russell, E.|
|Fitt, L.||Sefton of Garston, L.|
|Galpern, L.||Serota, B.|
|Graham of Edmonton, L.||Shepherd, L.|
|Grey, E.||Taylor of Blackburn, L.|
|Hampton, L.||Taylor of Gryfe, L.|
|Hamwee, B.||Thomson of Monifieth, L.|
|Harris of Greenwich, L.||Tordoff, L. [Teller.]|
|Hollick, L.||Turner of Camden, B.|
|Hollis of Heigham, B.||Underhill, L.|
|Howell, L. [Teller.]||Whaddon, L.|
|Hylton, L.||Wigoder, L.|
|Irvine of Lairg, L.||Williams of Mostyn, L.|
|Jay of Paddington, B.||Winstanley, L.|
|Jenkins of Hillhead, L.|
|Aberdare, L.||Crickhowell, L.|
|Alport, L.||Cumberlege, B.|
|Annaly, L.||Denham, L.|
|Archer of Weston-Super-Mare, L.||Denton of Wakefield, B.|
|Donaldson of Lymington, L.|
|Arran, E.||Downshire, M.|
|Astor, V.||Ellenborough, L.|
|Barber, L.||Elton, L.|
|Belstead, L.||Faithfull, B.|
|Blatch, B.||Ferrers, E.|
|Boardman, L.||Finsberg, L.|
|Borthwick, L.||Flather, B.|
|Boyd-Carpenter, L.||Fraser of Carmyllie, L.|
|Braine of Wheatley, L.||Gainsborough, E.|
|Bridgeman, V.||Gisborough, L.|
|Brookeborough, V.||Goold, L.|
|Buckinghamshire, E.||Goschen, V.|
|Burton, L.||Gridley, L.|
|Cadman, L.||Grimston of Westbury, L.|
|Caithness, E.||Hacking, L.|
|Campbell of Alloway, L.||Harmsworth, L.|
|Campbell of Croy, L.||Harvington, L.|
|Carnegy of Lour, B.||Hayhoe, L.|
|Carnock, L.||Hemphill, L.|
|Chalker of Wallasey, B.||Henley, L.|
|Chilver, L.||Hesketh, L. [Teller.]|
|Clark of Kempston, L.||Hives, L.|
|Colnbrook, L.||Hothfield, L.|
|Colwyn, L.||Howe, E.|
|Cranborne, V.||Jeffreys, L.|
|Jenkin of Roding, L.||Renton, L.|
|Johnston of Rockport, L.||Rodger of Earlsferry, L.|
|Kimball, L.||St. Davids, V.|
|Lane of Horsell, L.||Saltoun of Abernethy, Ly.|
|Lindsey and Abingdon, E.||Seccombe, B.|
|Long, V.||Shrewsbury, E.|
|Lyell, L.||Skelmersdale, L.|
|Mackay of Ardbrecknish, L.||Skidelsky, L.|
|Mackay of Clashfern, L.||Stewartby, L.|
|Macleod of Borve, B.||Stodart of Leaston, L.|
|Mancroft, L.||Strange, B.|
|Margadale, L.||Strathclyde, L.|
|Marlesford, L.||Strathmore and Kinghorne, E [Teller]|
|Morris, L.||Swinton, E.|
|Mottistone, L.||Thomas of Gwydir, L.|
|Mountevans, L.||Torrington, V.|
|Mowbray and Stourton, L.||Trefgarne, L.|
|Moyne, L.||Trumpington, B.|
|Munster, E.||Ullswater, V.|
|Norrie, L.||Vaux of Harrowden, L.|
|Orr-Ewing, L.||Vinson, L.|
|Oxfuird, V.||Vivian, L.|
|Pearson of Rannoch, L.||Wade of Chorlton, L.|
|Pender, L.||Wakeham, L.|
|Peyton of Yeovil, L.||Whitelaw, V.|
|Plummer of St. Marylebone, L.||Wise, L.|
|Prentice, L.||Wynford, L.|
|Reay, L.||Young, B.|
§ Resolved in the negative, and amendment, as amended, disagreed to accordingly.
My Lords, I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage resumes at 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.