§ 5.25 p.m.
§ Debate resumed.
§ Lord Rea
My Lords, like the noble Lord, Lord Avebury, I oppose the order that we are debating. But, 1722 like him, I believe that the designation of any country as "in general" presenting "no serious risk of persecution" is an unsafe basis for policy on granting asylum. I suggest that it is likely to lead to unjust decisions.
At the Committee Stage of the Asylum Bill we spent some time taking to pieces the meaning of the words "in general". To summarise, the danger is that in so doing—I shall use the words—"the particular" will be missed. The fast-track appeal procedure will tend to bypass cases of any legal complexity where, for instance, it takes time to assemble evidence. Moreover, in just those countries where the observation of human rights is improving "in general"—I use the Government's words—the nature of harassment or persecution is likely to be most insidious and need the most careful consideration. As Alex Carlile said yesterday in another place, the fact that an asylum seeker has to argue against a "rebuttable presumption" that his claim is false constitutes a loading of the scales of justice against him.
Of the countries listed in paragraph 2 of the order, Ghana is the only one of which I have first-hand knowledge. I have great respect and affection for Ghanaians as a national group. They have provided some distinguished international civil servants and—generalising, of course—I feel that they have greater integrity than the citizens of some West African countries that I could name. Ghana was the first African country to gain independence in 1957 but democracy has been hard to achieve or maintain, as in other newly independent nations. President Rawlings seized power in a military coup in 1981 and become president after elections in 1992 which were given a qualified bill of health by some international organisations but strongly criticised by opposition parties in Ghana as fraudulent and rigged. The opposition subsequently boycotted parliamentary elections, leading to a virtual one-party state. The Ghanaian constitution calls for normal human rights to be respected. There is an independent judiciary and political parties are legal. There is also a Commission for Human Rights and Justice, but it is a government sponsored body which has not been known to criticise government policy, only individual cases of alleged corruption.
The president's rule seems externally to be basically benign, except when serious opposition is expected and then he can become very unpleasant. At the Committee Stage of the Asylum Bill on 23rd April this year the noble Lord, Lord Avebury, described two incidents in which Rawlings acted in a violent and foul-mouthed manner in front of others. In particular, at a Cabinet meeting last December he physically attacked and threw to the ground his vice-president, Mr. H. E. Kow Arkaah, a man 20 years his senior and a distinguished senior politician in Ghana. That gives a flavour of the strong-arm tactics used by the regime.
There have been several incidents in the past two years when demonstrations have been broken up violently with loss of life. Much publicity has been given to granting amnesties to former opponents of the regime over the past few years and it is probably true that there are now few convicted political prisoners in Ghana. On the other hand, there are prisoners in 1723 detention "while evidence is being collected". That is true, for instance, in the case of Alex Ofei—who, incidentally, is a British citizen—and five others, arrested on return from Britain where they had been students. They are accused of plotting to overthrow the government and have been held virtually incommunicado for more than two years. That is illegal under Ghana's constitution, which requires that if a detainee is not charged within a reasonable time he should be released unconditionally or at least subject to appropriate restrictions.
A letter to the noble Baroness, Lady Cox, smuggled out of prison from John Kwado Owusu Boakye, one of those still held in detention says:for 25 months in detention without trial is really the most damnable situation any human being can bear".He also points out that his wife and child (now in Britain) have not been granted asylum and fears for their safety if they have to return to Ghana.
Time does not allow me to describe the many other examples of which I am aware that testify to the far from perfect human rights situation in Ghana. For instance, there is interference with press freedom; three journalists were arrested earlier this year for publishing material which was;prejudicial to the interests of the state".In the inter-tribal fighting in northern Ghana two to three years ago very large numbers of people—possibly up to 20,000—mere killed and there are 113,000 refugees from Ghana in neighbouring countries, according to the UN High Commission for Refugees. If there isno serious risk of persecutionwhy do they not return home? I can provide accounts of those and other episodes testifying to the doubtful nature of the regime and its adherence to the International Convention of Human Rights.
The country report from the Home Office justifying the inclusion of Ghana in the order is complacent and over-optimistic about the real state of political freedom and protection of human rights in Ghana. For example, it is premature to state that the government:abides by the constitution or that ordinary Ghanaians enjoy freedom of speech and political assembly".The evidence that I have described—as I have said, there is much more—suggests that the Government would do well to look again at the inclusion of Ghana in the order. But the best solution would be to drop the order altogether.
As a postscript I should say that I do not deny that many asylum seekers are driven to seek residence in countries of the north by poverty as well as political persecution. In the case of Ghana and some other African counties, poverty has increased as a result of the structural adjustment programmes of the IMF and the World Bank. If poverty increases, so does civil unrest. In response to that an authoritarian government—as we have seen, though Ghana is ostensibly a democracy, President Rawlings is a very authoritarian character—especially one that is insecure, responds by cracking down heavily on dissidents. That is one reason why, in 1724 the past decade, we have seen a large rise in the numbers of asylum seekers not only from Ghana but also from other countries in Africa.
The long-term answer to the increased pressure of asylum seekers is not to clamp down on those seeking asylum but to improve the terms of trade and lift the debt burden of the poorest nations from which the greatest pressure comes. But I agree that that is another story.
§ 5.33 p.m.
§ Lord Renton
My Lords, I do not have the advantage of having been to Ghana and therefore cannot answer the points made by the noble Lord in relation to its inclusion in the order. However, he made one point which rather played into the hands of the Government when he said that there is much poverty in Ghana. Bearing in mind the vast amount of poverty that exists throughout the world, the Government have had to be careful that we do not find people coming to Britain simply as economic migrants. Perhaps on reflection the noble Lord may feel that he did not strengthen his argument by making that point.
In opening the debate, the noble Lord, Lord Avebury, suggested that the principle of designation and therefore of the order was unlawful. But there is nothing new in it. Section 1 of the 1996 Act, which we dealt with in the summer, replaces Schedule 2, paragraph 5 of the 1993 Act and there has never been any suggestion that the idea of designation is contrary to our international obligations.
§ Earl Russell
My Lords, I am grateful to the noble Lord for allowing me to intervene. The suggestion was made in our debates in Committee at some length. Whether it is accepted is a matter for debate.
§ Lord Renton
My Lords, I shall not argue that point further with the noble Earl. I am prepared that the record should be allowed to stand. But there is nothing new about designation and it was practised before it became law. I say that from experience of long ago when I was responsible for immigration under the Home Secretary.
Designation is surely a compliment to the countries which we designate. It means that the United Kingdom Government and Parliament consider that there is no serious general risk of persecution in the countries chosen. In any event, in each case an asylum seeker from any of those countries will have his case considered on its merits, quite apart from the background of conditions pertaining in the country from which he came. Where a claim is well established by proving a genuine fear of persecution, asylum will be granted.
Of the seven countries mentioned in the order, I have been only to Cyprus and India. I was in the Greek southern part of Cyprus in February, though I visited the border between the north and the south in the Troodos Mountains. I found that the Greek Cypriots were kind and tolerant people, except towards the Turks. The Greeks and the Turks in Cyprus have been in a state of antipathy for centuries. But that antipathy has been dealt 1725 with satisfactorily by partition. Partition is not something which we welcome, but it provided a solution in Cyprus. It enables the people of Cyprus to live in greater peace than they have enjoyed for a long time. The Government of this country were responsible for achieving that.
I have travelled widely in India. In spite of the ancient tribal and religious conflicts that exist, which our long occupation of the country reduced—and it also gave them a common language which they had never had before—there is now freedom of movement and freedom of religious practice, except in Kashmir and to some extent in the Punjab. I have met Sikhs in various parts of India who seem to have got on all right, and indeed some regiments of the Indian Army contain Hindus, Sikhs and Moslems all serving together.
It is fully justified that we should include India in the order. The word "general" to which I referred earlier is necessary in the case of India because in Kashmir, for example, there is a great deal of conflict, some suppression and no doubt some persecution. But in our heavily populated country we cannot absorb every dissident group from throughout the world; it simply cannot be done. There are many countries where part of the population is under threat and there are hundreds of thousands of people in those groups throughout the world.
We have our own social problems—housing, unemployment, education and hospital waiting lists. Goodness me, Members on both sides of your Lordships' House ask Questions about those matters every week. We have juvenile crime. We even have some terrorism. For us just to have an open door and a very tolerant attitude towards the absorption of all people who are unhappy in their own countries would merely increase our own social problems and add, incidentally, to the burden on the taxpayer. The taxpayer has a heavy burden in administering our asylum law because we try to be so tolerant. Those noble Lords who oppose the order have perhaps overlooked the factors I have mentioned.
I do not want to say very much more, but I would just like to refer to the speech of the right reverend Prelate the Bishop of Ripon, for whom I have such an immense regard. He was a vicar in my former constituency, and a much loved and respected one. I have never doubted the sincerity of his opinions. However, referring to Pakistan, he said that there are groups there who believe themselves to be under threat. That cannot be a reason for us to admit a large number of such people. The groups are fairly big and in any event Pakistan is in a different state from India. We know that the Moslem fundamentalists are determined not only to oppose people who are not Moslems but to oppose some Moslems as well. There may be victims of such determination, but is that really a reason for us to increase our own social problems by having large numbers of them here?
§ The Lord Bishop of Ripon
My Lords, I am most grateful to the noble Lord for giving way. I thank him for his expression of appreciation. I remember well my 1726 time as archdeacon in Huntingdon. I wish to take issue with him. It seems to me that the question is not whether we admit large numbers of people who feel themselves to be under threat but rather whether we have proper determination procedures which are not made weaker by the designation of certain countries. I was trying to argue that there is a strong case for not weakening the determination procedures—not that all would be admitted but that all would have their case given proper consideration.
§ Lord Renton
My Lords, I am grateful to the right reverend Prelate for what he has just said because to some extent it modifies what he said in his speech. I accept what he says. We should be grateful to him for that clarification and modification of what he was proposing.
I have a great deal of sympathy with the Government over this matter. I hope that if by some mischance it should come to a Division the Government will carry the day.
§ 5.43 p.m.
§ Viscount Waverley
My Lords, nobody can doubt the sincerity and commitment of the noble Lord, Lord Avebury, to the cause of collective and individual human rights. It is true to say that I have broad concerns with procedural delays. I have expressed these on more than one occasion. The Minister has responded in writing explaining that my solutions would require primary legislation. I accept that and thank her. I am satisfied that there is no clash with the instrument before us today.
Certain it is that I, like any other fair-minded person, abhor human rights abuses. We have been given examples by previous speakers. For example, India, about which the noble Earl, Lord Sandwich, spoke, is listed. Everybody is aware of the difficulties in Kashmir. It has to be said that the border dispute, exacerbated by predominantly religious differences, bears a resemblance to our own situation in Northern Ireland. IRA members seek asylum elsewhere in much the same way as Kashmiris from the Valley. I recognise the sensitivity of the comparison, but it serves to illustrate the complexities.
It will also satisfy the noble Earl, Lord Sandwich, that both President Clinton and our Foreign Secretary on a recent trip to Islamabad have both said that they will turn their attention to Kashmir. I think that this House could usefully encourage the Commonwealth Heads of Government Meeting in Edinburgh to place this on the agenda.
I wish to leave a thought with the right reverend Prelate about MQM, about which he laboured. He might be concerned that MQM is spearheading its campaign from within the United Kingdom, using this country as a safe haven. Leading on from that, I have a question for the Minister. When might we find in place an extradition treaty with Pakistan?
It is not as though we are saying to asylum seekers from the countries on the designated list, "Sorry, full house". The noble Baroness, Lady Rawlings, was clear 1727 on this point. We are saying, "Come with a genuine case and your application will be approved". We have, and will continue to have, the mechanism in place to process genuine applications. The Government could have gone further—by compiling a list in reverse of purely undesirable countries and so by extension placing all others on this designated list.
I believe that there comes a point when decisions have to be made on balance and in the national interest. This is one of those occasions. I believe that the noble Lord and his supporters have misjudged the mood of the country at large, and certainly of the majority of both Houses of Parliament. The measures introduced in the Act are right and I suggest that the affirmative order before us today is an essential component of that Act. I am additionally satisfied with the pronouncement of the Minister of State in last night's debate on the order in another place when she told the House:We have taken into account not only detailed information and deliberation by the Foreign and Commonwealth Office, but a range of information from other bodies such as the United Nations High Commissioner for Refugees and Amnesty International".—[Official Report, Commons, 15/10/96; cols. 692–3.]Frankly, if people want to do something useful, they could do a lot worse than attempting to halt the hordes of applicants who come for purely economic gain. A number of our European partners have wrestled with the asylum question. They have gone down much the same road as this Government. The United States is the next country that will be doing so.
Finally, I have no quarrel with the additional list of safe third countries and see this as a natural progression.
I support the noble Lord, Lord Avebury, on many occasions. This is not one of them. I recommend that his Motion be rejected.
§ 5.48 p.m.
§ Earl Russell
My Lords, I hope I may begin by saying something which is not contentious. I should like, not for the first time, to congratulate the noble Baroness the Minister on her stamina. By the time we get to the end of today she may feel that she has completed the marathon over hurdles. I admire the patience and the determination with which she does it.
I was a little surprised though by the surprise of the noble Baroness, Lady Rawlings, that the debate is taking place. I agree that the House approved the conferring of certain powers in the course of discussing Clause 1 of the Bill, but it is normal that when the House approves the conferring of powers it does not automatically approve the particular exercise of those powers. Those of us who remember the Football Spectators Act 1989 remember that it is perfectly possible to confer powers on a government who nevertheless choose not to use them. Therefore, when the Government choose to use a power, it is perfectly proper for this House to scrutinise how those powers are being exercised.
There is a temptation in a debate like this (which I hope may be resisted on both sides) to make out that the countries concerned are either all black or all white. No country is like that. When it comes to human rights, all countries are lighter or darker shades of grey. A country 1728 with a perfect human rights record, if I may borrow James Bond's image, like a white crow or a pure geisha is unknown. A country with an entirely evil human rights record would be a country with no surviving population.
The question then is on which side this fact should tell. I think that it should tell on our side. It is a question of the burden of proof. Persecution is just as hard to bear if one is the only person subject to it as it is if one is in the company of many thousands. I do not agree with the adjudication which refused an applicant from Croatia on the ground that many other people were in the same position.
§ Lord Renton
My Lords, I thank the noble Earl for giving way. Perhaps I should say that I am not merely engaging in tit for tat. The noble Earl mentioned the burden of proof in relation to persecution, but he must surely realise that the burden of proof has to lie upon the person who would have the knowledge. We cannot expect our immigration officers to have knowledge of all the kinds of persecution that take place around the world. That must always be for the asylum seeker to prove in relation to his own country.
§ Earl Russell
My Lords, we happen to be discussing this in the presence of the noble and learned Lord, Lord Bridge of Harwich, who is the author of the leading judgment on the burden of proof in this matter. I refer to the judgment in the case of Sivakumaran in the Appellate Committee of this House in 1993. That ruled that the burden of proof had to be to a reasonable degree of likelihood. Subject to the correction of the noble and learned Lord, I understand that to be the present basis of the law. It raises a misgiving which has been expressed about the words "serious risk of persecution" which appear in the Bill. The fear has been expressed that that introduces a more stringent standard of proof. I do not have the learning to judge whether that is so, but I would welcome the reflections of both the Minister and the noble and learned Lord on that point, which seems to me to be worth considerable thought.
§ Lord Bridge of Harwich
My Lords, I am afraid that I must apologise to the House because I do not remember what I said. I do not remember what the case was about and I have no thoughts at the moment as to what the appropriate burden would be.
§ Earl Russell
My Lords, I beg the noble and learned Lord's pardon, but since he has given the leading judgment I thought it only proper to quote it. I was not expecting an instant judgment from the noble and learned Lord without having heard counsel. I realise that I could do no such thing with any propriety. I apologise if I appear to be doing otherwise.
The noble Baroness, Lady Rawlings, also suggested that this was not a matter of more stringent burden of 1729 proof or of greater likelihood of refusal, but simply of speed. I am not quite certain whether that stands up. The Home Office's explanatory notes on Section 1 of the Act state:Asylum caseworkers and adjudicators will be able to take account of the fact that the country has been designated … when considering claims regarding the general level of persecution in the designated country".That appears to me to say that claims of persecution from such countries risk being found less credible than claims from other countries, in which case that will affect the chances of individual applicants and the scrutiny will not be of exactly the same standard as for other countries. I shall, of course, defer to the Minister on the exact meaning of those words and I await her reply with a great deal of interest.
My noble friend Lord Avebury and the noble Lord, Lord Renton, raised the question of legality. The potential conflict is with Article 3 of the UN convention which states that claims should be considered without respect to national origin. The Minister attempts to reject that on the ground that the word "refugee" in the convention applies only from the time the claim is recognised. The custodian of that convention is not the British Government; it is the UN High Commissioner for Refugees. The handbook is quite explicit that the word "refugee" applies under the convention from the moment the claim is made. My noble friend quoted the judgment of the noble and learned Lord, Lord Nolan, in the Khaboka case to the same effect. I must remind the Government that they are not the final and ultimate authority on the meaning of Acts of Parliament. That authority rests with the courts, which have, on the whole, tended to find against the Government.
I should like to refer briefly to Regulation 3 which extends the designation procedure to safe third countries under Sections 2 and 3 of the Act. I have some misgivings about Switzerland in this context. The Minister will know—at least, she should know because we have often told her so—that the question is not whether the country concerned is absolutely safe, but whether it is safe for the particular applicant and whether the applicant may gain access to the processes. Switzerland has a rule of law that you cannot gain access to the process if you spent 20 days in another country. I have here a Home Office adjudication—I shall give the Minister the reference if she would like it—which ruled that Switzerland was not a safe country to which to return people.
As with the United States, curious things sometimes happen with regard to immigration procedures. My mother once attempted to gain entry to the United States and was asked to sign a document saying that she did not believe that resistance to authorised government was justified under any circumstances whatsoever. She read it carefully and wrote, "I agree with this. I think that the United States should still be subject to the British Crown". It took all my father's diplomatic skill to get her into the country. The United States is a chancy country on occasion.
1730 I should like to concentrate today on Romania. I do not claim any first-hand knowledge, but I hope that I am as capable as any other person of reading evidence from a multiplicity of sources. I wonder whether the Home Office is the appropriate authority to form assessments of the state of human rights in foreign countries. I should have thought that the Foreign Office would be a great deal more qualified to do that—and there can be a difference.
§ Viscount Waverley
My Lords, the Minister of State in another place made it quite clear that she had taken the view of the Foreign and Commonwealth Office into account when preparing the Home Office assessments.
§ Earl Russell
My Lords, the noble Viscount brings me directly to my next quotation which happens to be from the Independent of the day before yesterday. It deals with the case of the Ahmadis to whom the right reverend Prelate referred. The Foreign Secretary, writing to the Minister without portfolio on behalf of a constituent, said:Radical sectarian groups and individuals have carried out attacks against Ahmadis. In some cases there are credible reports that the local authorities have given tacit support to those actions.We, and our EU partners, have expressed concern to the government of Pakistan about the treatment of minorities and blasphemy laws".Compare that with the assessment of that country by the Home Office which states:Ahmadis are recognised as a minority religious group and rights are safeguarded under the constitution".Again, there is a remarkable Home Office willingness to believe that what is said in a constitution is necessarily what is done. If the Home Office has taken account of representations from the Foreign Office I am not convinced that it has done so accurately.
In the case of Romania, the Home Office states that that country has been profoundly transformed and has turned into a democracy in which basic human rights are respected. I do not wish to attack Romania as a country. That country is making great efforts. I remind the House of what I said about shades of grey. I believe that it is never that simple. First, it takes a long time to remove from power all of the people who served the previous regime. That is true in all cases. Secondly, it takes a long time to learn the constitutional habits of thought of a free country. Thirdly, it takes a long time to learn the basic habits of thought necessary to have a police force who practise the rule of law.
I take one sentence from the assessment by the Home Office:the independent media continue to criticise governmental and political leaders freely and openly, although several journalists have been tried and sentenced to fines or prison terms for slander".I do not believe that is quite what the British press means by a free press. Article 239.1 of the Romanian Penal Code provides:Insult, libel, slander or threats made directly or by direct means of communication against a functionary whose duties involve the exercise of state authority, and who is performing his duties, or such insults made with regard to acts accomplished during the performance of his duties are punishable by three months' to two years' imprisonment".1731 If anything like that were in force here, would there be any noble Lord in this House, in one Parliament or another or in one government or another, who might not risk breaking it? There might be some but I believe that they would be very few in number. That is not a law that is easily reconciled with a free country.
Let us consider further freedom of the press and the case of Nicolae Andrei, who was told by the prosecutor that he had been found to be a confirmed oaf who lacked journalist training and experience and therefore was not familiar with the types of expression that could be used in criticising certain aspects of the lives and activities of state leaders. I am sure that Ministers of all parties in this country have often wanted to say that to journalists but, thank God, they cannot do it from a prosecutor's chair.
Under Article 200 of the penal code homosexuals are liable to imprisonment. Although I am aware that there may be those among your Lordships who are less distressed by that than I am, that is precisely why such people need protection. It is not those who are universally popular whose human rights need to be protected.
Finally, I touch on the treatment of the Roma. Amnesty International views the abuse of the Roma as a nationwide pattern. I see no reason to disagree with it; nor do I see any reason to disbelieve its evidence that Roma houses have been burned and Roma have been assaulted so savagely that one preferred to stay and burn to death in a burning house than go out and face the crowd, while the police looked on and did nothing. The Minister may say that these are occasional cases. There are a number of occasions. Abuses happen in the best regulated countries. Where they occur there may be genuine refugees. Where there are genuine refugees, we are bound by law, British and international, to give their claims proper examination. I am not certain that that is compatible with these regulations.
§ 6.4 p.m.
§ Lord McIntosh of Haringey
My Lords, in proposing this order the Government have always said that three criteria apply to the designation of a country, in what we shall not call the white list, for the purposes of asylum legislation. The first criterion is that in general there should be no serious risk of persecution in that country. The second criterion is that there should be a significant number of claims from that country. The third criterion is that there should be a high proportion of those claims which are refused.
It is no good attempting to deal with the problems raised by the phrase "in general no serious risk of persecution". We recognise that the phrase has been designed in Europe and simply adopted by the Government for the purposes of UK legislation. There is no greater chance of changing it than there is chance (or threat) of our leaving the European Union. But it is still a profoundly unsatisfactory phrase because the words "in general" can never apply to any particular application. No one applies to be a refugee in this country because there is in general a threat of 1732 persecution in his country. He applies to be a refugee here because he is being persecuted; in other words, there is a particular threat of persecution.
Noble Lords who have spoken with great authority about particular countries on the list have revealed the extent to which, although there may be no general serious risk of persecution, many individuals and groups of individuals in those countries may face a very serious risk which demands just as serious treatment of their applications as those from any other country. The noble Lord, Lord Avebury, spoke about Bulgaria; the right reverend Prelate the Bishop of Ripon spoke about Pakistan; the noble Earl, Lord Sandwich, spoke about India; the noble Lord, Lord Rea, spoke about Ghana; and the noble Earl, Lord Russell, spoke about Romania. All have provided details of the regimes in those countries which go far beyond the Home Office and, I accept, the Foreign and Commonwealth Office assessments of the conditions in those countries. But even if they did not go far beyond that point valid applications would still be likely to be made for particular purposes from countries put on to the white list and the criterion of no serious risk of persecution in general would not be adequate for the purpose. I suspect that the Government rely on the second and third criteria rather than the criterion recognised in European legislation.
What is the effect of the designation procedure? The Government deny that there is a presumption that an application is unfounded, or that because an application is unfounded it will be refused. They denied that consistently in the debate in another place yesterday and preferred to use the words "a rebuttable presumption". Clearly, that means that the principle of British law that a person is innocent until proved guilty is to be turned on its head for the purposes of this legislation. It means either that there will not be the same degree of consideration given to applications from these countries as is given to applications from other countries which are not designated under the order or it means nothing.
The Government do not claim that the consideration is the same. They do not deny that, for example, there is no possibility of appeal to a tribunal from the decision of an adjudicator in an accelerated case. They do not deny that the speed of consideration required of one of these accelerated applications will be so great that for many people it will be very difficult to assemble a case in the time that is provided for.
I do not believe that the Government are even addressing the issue raised by Sir lain Glidewell in his inquiry when, on the basis of substantial evidence, he showed that having a fast-track procedure for part of the backlog of applications will mean simply that there will be a slower track procedure for the rest. He showed convincingly what is well recognised: that is, the number of long outstanding applications; the fact that the applications and pending appeals are growing by the week rather than reducing; and that the introduction of fast-track procedures for applicants from certain countries will serve only to increase the delays for the rest. The effect of that can be only that in the end the Government will have to increase the number of exceptional leave to remain cases which are given not 1733 on the ground that the applicants are genuine refugees but that the delays in considering their cases have been in excess of those which are acceptable in natural justice.
Therefore, as a result of this procedure we might well end up with more rather than fewer people staying in this country, and in many cases we would end up with the wrong ones. Everyone acknowledges—and Sir Julian Critchley made it clear in a letter to The Times this summer—that there will be genuine applications from the most unlikely countries and you can distinguish between a genuine application and an unfounded application only after a proper examination of the case.
The order follows on logically from the legislation. The noble Baroness, Lady Rawlings, appeared to believe that it was an abuse of the procedure of this House to be considering such an order. However, she will acknowledge that the Government made it possible for the matter to be considered on the Floor of the House in response to the affirmative resolution procedure. It is accepted that we are considering the order in addition to the Motion tabled by the noble Lord, Lord Avebury. I do not see what is improper about that. A few stalwart defences of the Government's position have repeated the arguments put forward during consideration of the Bill earlier this year. But there have also been five extremely well-informed speeches about individual countries which have shown the inadequacy of the consideration that is being given by government to the countries which are to be designated in the order.
There is no accusation of dereliction of duty on the part of government departments concerned. We are not saying that they have not done their best. We are saying that the attempt to make general assessments of the human rights positions of other countries is an unenviable and in many ways undesirable procedure. In the 1980s the United States considered having a white list. It decided that not only would it be impracticable but that it would put in question some of the foreign policy initiatives which it might wish to undertake in other areas. Of course, the existence of a white list which clears some countries means, by implication and deduction, that some other countries are not being cleared.
The United States realised that by having a white list it would by default be casting a general judgment on the human rights position of a large number of other countries. It decided that as a matter of commonsense and decent foreign policy it was not a good idea. I do not believe that it is a good idea now and I do not believe that the different consideration which is being proposed under the legislation and through the means of the order can possibly be in accordance with the 1951 United Nations Convention on Refugees.
In the debate in the other place last night, the Minister responsible, Miss Widdecombe, made a most extraordinary statement. She said that there was a difference between asylum seekers and refugees. She said that the article in the United Nations Convention: 1734is about refugees, not seekers of asylum … The order applies to those seeking to be recognised as refugees; the convention applies to those recognised as refugees".—[Official Report, Commons, 15/10/96; co1.714.]The Minister could not have been more wrong. Of course the consideration of refugee status is in two parts. It is about the application to be a refugee and refugee status once it has been granted. The Government have recognised that by saying that nothing in the Asylum and Immigration Appeals Act 1993, which governs these matters, shall be legal if it is in conflict with the 1951 United Nations Convention on Refugees. This order is in conflict with the Government's own legislation. It should be opposed, although not to a Division today, and we, in government, will not implement it.
§ 6.16 p.m.
§ Baroness Blatch
My Lords, this has been a good and open debate, unlike, I am afraid, the debate through which I sat in another place last night, where I believe there was wilful misunderstanding of the asylum procedures.
The right reverend Prelate was wrong in saying that today's debate is not about going over old ground. I am afraid that it is about going over old ground because the Motion before the House takes us over old ground. It questions the principle and the policy of establishing a designated list at all, a decision which has already been taken by both Houses of Parliament.
I confess that, like my noble friend Lady Rawlings, I am surprised that your Lordships should be asked to debate the principle of designation of safe countries of destination in advance of the order which the Government will bring before your Lordships today.
The power to designate countries of destination was fully debated when Parliament approved Section 1 of the Asylum and Immigration Act 1996. I do not intend to go into that debate once more. The fact is that Parliament decided to include that power in the legislation. Paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993, as substituted by the Asylum and Immigration Act 1996, empowers the Secretary of State to specify in an order countries in which it appears to the Secretary of State that there is in general no risk of persecution.
The order which has been laid before your Lordships in draft lists seven counties in which we believe there is in general no serious risk of persecution. The Government have made no secret of the counties they have been considering for such designation. These are Bulgaria, Cyprus, Ghana, India, Pakistan, Poland and Romania. They are the same seven countries which the Government indicated were being considered as candidates for designation when this House was considering the Asylum and Immigration Bill. Therefore, when Parliament decided to enact the power of designation it did so in the full knowledge that the Government considered these to be countries to which the new procedure might properly be applied. In view of this, I find it extraordinary that the noble Lord, Lord Avebury, should now put forward a Motion deploring designation as a matter of principle.
1735 Each of the countries of destination specified in the order has functioning institutions, together with stability and pluralism, sufficient to support an assessment that the general level of risk to those living in the country is low enough to justify designation.
We have made available an explanatory note on the designation of these countries, together with background country assessments setting out the Government's view of the general conditions in each of the seven countries. We have from the outset made clear the three main criteria which need to be met for designation to be appropriate. These are, first, that there is in general no serious risk of persecution in the country or territory concerned; secondly, that the number of asylum applications in the United Kingdom from its nationals is significant; and, thirdly, that a very high percentage on examination are refused.
The Government have emphasised many times previously the safeguards built into the designation principle. But it is important for me to remind your Lordships again of two key points. First, there will be no blanket ban on claims from designated countries. Each claim will be considered on its merits. In this respect a claim will be treated no differently from any other asylum claim to be determined. Secondly, an applicant will still have an appeal to an independent adjudicator if the application is refused.
Last year, among nationals of the seven countries we propose to designate at least 97 per cent. of asylum claims were refused. That represents over 6,750 applications. Designation will enable an accelerated appeal procedure to be applied to claims which are refused. The accelerated procedure will apply only if the case has been certified individually and if there is no evidence establishing a reasonable likelihood that the applicant has been tortured in the country of destination. If the adjudicator agrees that the application is unfounded, that will bring the process to an end. There will be no further avenue of appeal to the Immigration Appeal Tribunal.
Designation will help the asylum system to deal quickly with the large number of unfounded applications we currently receive from countries which are, in general, safe. At the same time it will not detract in any way from the ability to consider the small number of applicants from such countries who may have a genuine claim. The United Kingdom is not the only country to have enacted a procedure of this kind. Denmark, Finland, Germany, the Netherlands and Switzerland already have similar arrangements.
In order to decide which countries should be designated we have had to assess whether the general level of risk to people living in a particular country is sufficiently low to warrant designation. That is made quite clear in paragraph 5 of Schedule 2 to the Asylum and Immigration Act 1993 in the use of the words,in general no serious risk of persecution".Designation does not mean that a country should be universally "safe" nor does it mean that a country's institutions should function to Western standards. The wording of the Act plainly excludes the designation of any country where there is a significant level of 1736 persecution, even if that persecution is targeted only at minorities. There are some countries which give rise to large numbers of unfounded asylum claims but in which there are nevertheless sufficient concerns about human rights that the requirement of the Act is not met. Nigeria is an obvious example. The list of countries we have proposed cannot, and clearly does not, include such countries.
The Motion of the noble Lord, Lord Avebury, appears to concern itself only with that part of the order which designates countries of destination. With your Lordships' permission, I should like briefly to draw attention to the second part of the order which designates certain countries as safe third countries. The Asylum and Immigration Act 1996 provides that where an asylum seeker is to be removed to a member state of the European Union with the intention that any asylum claim should be pursued there, the applicant may exercise his right of appeal only after he has left the United Kingdom. This is on the basis that his claim will be properly considered in the country to which he is being removed.
The Act enables similarly safe third countries to be designated by order, and the present order designates the United States of America, Canada, Switzerland and Norway. I notice that it was only the noble Viscount, Lord Waverley, who made a specific reference to this and gave it his full support. I am assuming that the fact that it has not been referred to too much means that it has the support of the House. If the noble Lord, Lord McIntosh, believes that the United States, Canada and Norway should not be included he did not say so. I should like to hear his reasons for that.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the Minister for giving way. She carefully did not mention Switzerland. It has been found by her officials on occasion that Switzerland is not a safe third country.
§ Baroness Blatch
My Lords, that was an omission on my part. I will include Switzerland and I will also refer quite specifically to that reference later in my speech.
Together with the European Union states, these states account at present for the majority of cases in which an asylum claim is made by someone arriving here from a third country where his claim could properly have been made and which is safe.
I very much hope that the noble Lord, Lord Avebury, will not press his Motion. If he does so, I must urge your Lordships to reject it. The order before your Lordships is made pursuant to a power which Parliament enacted in July of this year. It will be for your Lordships to say later today whether the order should receive approval.
But the Motion of the noble Lord, Lord Avebury, in effect invites the House to invalidate the very power in law which your Lordships so recently passed. I do not believe that that is what your Lordships would wish to do. I am sure that, instead, your Lordships would wish to reaffirm your support for the power of designation. It is a sensible power which recognises the need to make progress in dealing with the large number of unfounded 1737 asylum claims. These unfounded claims impose an unnecessary burden—a point made by my noble friend Lord Renton—and do no good at all to the cause of genuine asylum seekers whom the United Kingdom continues to welcome as refugees.
I hope that the House will forgive me if I turn now to the order and do not treat it as a second debate. The order is constituted in two parts. First, it lists the countries of destination to be designated further to paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993, as substituted by the Asylum and Immigration Act 1996. Secondly, it specifies the countries to be designated as safe third countries further to Section 2 of the Asylum and Immigration Act 1996.
I have already explained today why we have proposed for designation Bulgaria, Cyprus, Ghana, India, Pakistan, Poland and Romania as countries of destination. I shall therefore confine myself now to introducing the second part of this order in respect of the designation of safe third countries.
The 1996 Act provided that in cases where the safe third country concerned is a member state of the European Union, applicants may exercise their right of appeal only after they have left the United Kingdom. It was necessary to make this change because delays caused by the appeal process were substantially impairing our ability to make removals in cases where we were satisfied of the safety of the third country.
Section 2(3) of the 1996 Act provides for the Secretary of State to extend this provision to non-European Union states. We indicated during the passage of the Act through Parliament that we were considering using this power to designate the United States of America, Canada and Switzerland. The order includes these countries and adds Norway. Together, these states provide at present the majority of cases in which an applicant for asylum here may more appropriately pursue that claim in a third country.
I should like now to turn to some of the individual points because they were very important. First, the point was made initially by the noble Lord, Lord Avebury, by others and finally by the noble Lord, Lord McIntosh, that somehow or other this was in breach of our international conventions. It is true that most refugees who are recognised will have been refugees from their applications. But the vast majority are not recognised and their appeals fail. So we do not accept that all applicants have to be treated as refugees from the outset. Nor do we accept that the order breaches Article 3 of the convention. I am afraid on that point we will have to agree to differ.
The noble Lord, Lord Avebury, referred to the position of children in Bulgaria. As the country brief on Bulgaria makes clear, the Bulgarian government appear to be committed to protecting children's welfare and the vast majority of children are free from abuse in society. We have no evidence that children in Bulgaria are at general risk of persecution. In this respect I thought that my noble friend Lady Rawlings made a powerful speech from her knowledge and experience of that country.
1738 Our country briefs are based on information from a wide range of sources, again referred to by the noble Viscount, Lord Waverley, including the UNHCR and Amnesty International, in addition to the Foreign and Commonwealth Office, which also give us information. The country brief on Bulgaria draws particularly on the United States departmental research, because it is clear from our consideration of the range of sources that this research is soundly based and provides an accurate picture of the conditions in Bulgaria.
The right reverend Prelate the Bishop of Ripon asked how we can designate countries and referred in particular to the Ahmadis. That simply goes to demonstrate that the principle of designation, which is the fundamental point of the debate, is that there should be no general risk of persecution, not that the country is universally safe or that no individual is ever persecuted.
Reference was made also to Karachi. I was asked about the communal violence and extra-judicial killings in the Karachi area. The security situation there continues to be kept under constant review but the violence appears to be confined to Karachi. It does not signify a general risk of persecution. Although most of Pakistan is relatively peaceful, over the past 18 months there has been serious violence in Karachi and elsewhere, as the right reverend Prelate said. The main reason for the violence is the confrontation between the MQM and the government but ethnic and sectarian violence is also a feature. On 20th September, Murtaza Bhutto, the estranged brother of Prime Minister Benazir Bhutto, died outside his Karachi home, caught in the cross-fire of police bullets. A period of unrest followed in which the supporters of the splinter faction of the PPP, which he formed, protested to government. Therefore, again, an individual coming from that country with a well-founded fear of persecution would be given full consideration for refugee status.
As regards the Ahmadis, at the initial stage of consideration of a case, all applications, including those from Ahmadis, are treated equally. If a well-founded fear of persecution under the United Nations convention terms is established, refugee status can be awarded. Should the case not be made out but it is felt that a certificate should not be issued, the adjudicator has the power to set aside the certificate and allow the case to go on for a tribunal hearing. If it is unfounded at the first stage and at the end of that stage the adjudicator has no difficulty in issuing a certificate, then the appeal judge, the adjudicator, can uphold that and that would be the end of the process.
Applications from Pakistan prove to be unfounded in a very high proportion of cases. In 1994, some 99 per cent of applications were judged to be unfounded and 98 per cent. in 1995. That high refusal rate continues. In general, there is no serious risk of persecution in Pakistan but while it is accepted that there is some discrimination and, indeed, harassment of Ahmadis and Christians, the two main religious minorities, it is not systematic or government-led or government-condoned.
The right reverend Prelate asked whether I had researched the backgrounds of Pakistani asylum seekers. In addition to the range of sources which we have 1739 consulted on preparing the country brief, we have taken into account our experience of the circumstances of people who have applied for asylum in recent years. A would-be asylum seeker is likely to be someone who has some factor in his background or circumstances which he hopes will persuade the authorities to grant him asylum. That does not mean that he necessarily has a well-founded fear of persecution.
My noble friend Lord Bethell asked a question about Cyprus. The designation of Cyprus means that applications from anywhere on the island, including that part controlled by the Turkish authorities, is included. We are aware of recent events in Cyprus. Again, that does not detract from it being generally safe. But an applicant coming from Cyprus who proves that he has a well-founded fear of persecution will be given very serious consideration for refugee status.
The noble Lord, Lord Avebury, referred to appeals. We are entirely satisfied that the 10-day period for the determination of an appeal in a certified case is sufficient. Not all cases will be certified. As I have just said, it is open to an adjudicator not to agree with the certificate if he considers that it was wrong to have issued the certificate in the first place. He may also grant further time if he believes that it is needed and the applicant makes a good case for it. Again, each case will be looked at on its merits.
The noble Earl, Lord Sandwich, referred to a lack of information in the Indian country brief. The brief runs to 14 pages and deals in great detail with the institutions of India and with conditions in that country. We shall keep fluctuating situations under review.
The noble Earl referred also to the medical foundation's report on torture. It is recognised that there were severe disturbances in the Punjab in the late 1980s and early 1990s. But since then the situation has largely returned to normal. Therefore, it is unlikely that applicants now being considered for asylum would be able to demonstrate that they were still of interest to the authorities. However, in any event, under the 1996 Act certification would not be appropriate under the safeguards for applicants who have been tortured. That would be an overriding factor. The fact that an applicant had been tortured would override all those provisions whether or not he came from a designated country. Designation will not alter the way in which those cases are considered.
Reference was made to President Rawlings. President Rawlings received 58 per cent. of the vote in the November 1992 presidential election which was assessed as being largely free and fair by international observers. Parliamentary elections were boycotted by the main opposition parties with the result that the present government were elected almost without opposition.
Extra-parliamentary opposition from the parties which excluded themselves from the electoral process has been successful in challenging perceived unconstitutional actions and policies of the government through the courts. However, as regards the elections which are to be held in December of this year, the National Electoral Commission is eager to avoid the 1740 criticisms which emerged after the 1992 elections. Allegations of ballot rigging were probably a result of imperfect registration of voters and inefficiency rather than of any deliberate attempt to influence the outcome.
The NEC has invited independent observers who will include representatives of the United Nations electoral assistance division, the Commonwealth Secretariat, the European Union, the ODA, which will send 10 observers, and the United States. Therefore, I believe that there is a real intention to ensure that democracy rules in that country.
The Amnesty International report of 1995 identifies possible prisoners of conscience but six of those mentioned—the Accra five and Karim Salifu Adam—have been charged with treason and committed for trial. All six have access to legal representation and their cases have attracted considerable attention in the free Ghanaian press. There is no evidence that the defendants in either case will be treated unfairly, illegally or extra-judicially or that, if found guilty, any punishment would be disproportionately severe.
I know that the altercation was friendly between my noble friend Lord Renton, because I know him too well, and the right reverend Prelate the Bishop of Ripon, for whom I personally have the highest regard. Determination procedures are not weakened by these measures. Any person who has a well-founded fear of persecution from any country, including the designated countries, will be given full and substantive consideration. It is only following that substantive consideration that a certificate would be awarded and, as I have already said, there is power for the adjudicator to set aside the certificate if there is any doubt about the issuing of it.
The noble Viscount, Lord Waverley, referred to a possible extradition treaty with Pakistan. I assure the noble Viscount that any evidence of terrorist or violent activity by any person claiming asylum here is taken fully into account before any decision is taken. The noble Viscount will understand that I cannot comment on the details of a particular case which may still be under consideration.
On the particular matter of extradition, I hope that the noble Viscount will forgive my caution. I should like to talk to my colleagues in the Foreign and Commonwealth Office. I shall of course write to him with a full answer to his question.
The noble Lord, Lord McIntosh, in a slightly taunting way mentioned Switzerland as did the noble Earl, Lord Russell. I believe that Switzerland is a safe country. It is possible for a country to be in general safe but for a particular individual to be a dangerous place. The point of these procedures is that if an individual has a well founded fear of persecution, even from a country that is regarded as being generally safe, that person must be given full consideration. I do not know of the particular case that has been mentioned, but it is possible that for that person Switzerland was considered not to be a safe place.
The noble Earl, Lord Russell, referred to the explanatory note which states that case workers will be able to take into account the fact that a country has been 1741 designated when considering claims. I believe the premise behind what he said was that somehow or other that would influence their judgment. It is important that the assessors know the backgrounds of all countries, whether or not they are deemed safe. All this wording means is that case workers will have regard to the assessment of conditions in the country concerned which have led to designation with, we hope, the approval of Parliament. It does not alter the standard of proof. The standard of proof remains the same in considering individual claims. The Sivakumaran judgment, which requires the applicant to establish reasonable likelihood of persecution, will continue to apply.
In referring to Pakistan, the noble Earl, Lord Russell, alleged conflict with the Foreign and Commonwealth Office as regards Ahmadis. I believe I touched on that point but the noble Earl referred particularly to an article in the Independent newspaper of 14th October. There is no conflict between the Home Office and the Foreign and Commonwealth Office on this issue. We have always accepted that Ahmadis are subject to discriminatory legislation. But that legislation is not widely or systematically enforced. That was acknowledged in the Home Office assessment of Pakistan, a copy of which has been placed in the Library of the House. The numbers involved are relatively small. The human rights commission of Pakistan has confirmed that 144 cases are outstanding against Ahmadis under the blasphemy laws and 516 under other sections of the Pakistani penal code. All applications for asylum from Ahmadis are given careful scrutiny. Applications from nationals of designated countries will continue to be considered substantively and on their merits. If an Ahmadi met the convention definition of a refugee, asylum would be granted.
Noble Lords may be relieved to hear that I shall not go into any further detail about the countries concerned. We have made available to Parliament appraisals for each country. These explain why we are satisfied that the states meet the key criteria for designation; namely, that returned asylum seekers would be treated in accordance with the United Nations convention. The appraisals include a description of the countries' asylum laws and procedures. These are all states with long established and respected human rights records. I commend the order to your Lordships.
§ 6.43 p.m.
§ Lord Avebury
My Lords, I begin by echoing the thanks expressed by my noble friend Lord Russell to the Minister for the patience with which she has listened to all the speeches made in this debate. She also had to deal with two Statements which came in the middle of the debate. I pay tribute to her stamina and patience and I thank her for the careful attention she has paid to all the remarks made. I thank also all those who have taken part in the debate. Their contributions have, I believe, vindicated the decision to place this Motion on the Order Paper, notwithstanding the rather synthetic amazement expressed by the Minister and by the noble Baroness, Lady Rawlings. After all, if there is an 1742 affirmative resolution procedure in the House which allows a debate of this kind to take place, surely it is legitimate that noble Lords should exercise the right to initiate such debates. If, as a result of that, further elucidation of government policy is achieved, both the Government and the Opposition benefit.
The Minister clarified certain points although she skated over others. She agreed that refugees will have been refugees from the outset if they are successful but she said that that did not mean that we should treat as refugees those who are still in the queue and whose cases have not yet been determined. I disagree with that because one does not know at the outset whether a particular individual will be successful in his appeal. Even if one says that 95 per cent. of those who come from a certain country have been refused in the past and those refusals have been upheld on appeal, I defy the Minister to say in advance which of the 5 per cent. will be successful. Therefore in order to comply with Article 3 of the convention, which has been discussed in detail today, one has to treat an applicant as if he were a refugee ab initio. If one does not do that, one risks violating the convention. If the noble Baroness has not taken that point on board as a result of this debate, she will be in difficulty and the matter will have to be referred to other authorities and in particular to those in the UNHCR who have the task of enforcing the convention.
The noble Baroness may have missed some of the points that were made. I hope that she will deal with them in correspondence. A point of great importance is the nature of the Home Office briefs. It emerged from the remarks that the noble Baroness has just made that the immigration and nationality department will take into account the fact that a country has been designated and will treat Home Office assessments as gospel as regards the conditions in the countries of origin when it evaluates individual claims. We have heard in this debate of serious defects in Home Office assessments. In one particular case—
§ Baroness Blatch
My Lords, I thank the noble Lord for giving way. Whether or not an assessor considers the country assessment to be gospel makes no odds. What is being considered by the assessor is the particular plight of the individual. If the individual has a proven case of a well founded fear of persecution, irrespective of the background of the country concerned that will qualify him for refugee status.
§ Lord Avebury
My Lords, that may be so. But if, for instance, the Home Office assessment of Romania says nothing about the persecution of Jehovah's Witnesses, and the person presenting himself is a Jehovah's Witness from Romania, is not the officer making the determination likely to say that because that information is not in the Home Office brief he does not believe—
§ Lord Avebury
In that case we should be told what other sources the immigration and nationality department will refer to. They should be listed so that 1743 we can evaluate them just as today we have been able to evaluate the Home Office briefs which the noble Baroness kindly made available. That is an important point to emerge from today's debate.
I do not propose to discuss everything which has been said relating to individual countries. However, there is one matter which has run like a thread through the debate, and that is the question of the Ahmadis in Pakistan. I do not believe that the Government have quite taken on board what was said by the right reverend Prelate and a number of other noble Lords; namely, that we are not simply looking at the prosecutions of Ahmadis for offences under Article 295 of the criminal code, which was the legacy from General Zia's Ordnance 20 during military rule. What we are looking at is the whole climate in which Ahmadis suffer persecution and discrimination. That goes far wider than simply considering criminal prosecutions against them. We are talking about the climate of violence against Ahmadis, the number of Ahmadis who are murdered, the number of their religious buildings which are attacked, and the number of Ahmadis who are dismissed from their posts. This whole climate in which persecution of Ahmadis takes place goes far wider than simply the question of their position under the law. I do not believe that that was reflected either in the remarks of the noble Baroness or in the Home Office brief.
One could criticise so much of the perception by the Home Office of the situation in these countries of origin. Some issues have had light thrown upon them by the speeches of my noble friend Lord Russell and of other noble Lords and the right reverend Prelate who have taken part in today's debate. I believe that the debate has done good. It has drawn attention to the defects in the procedure which has been promulgated by the Government and the dangers which the fast-track asylum application system poses for asylum seekers from these countries. Having got that on the record, I am content to withdraw the Motion.
On Question, Motion, by leave, withdrawn.