HL Deb 27 April 2004 vol 660 cc690-701

3.17 p.m.

Baroness Scotland of Asthal

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 13 agreed to.

Clause 15 [Unfounded human rights or asylum claim]:

Baroness Whitaker moved Amendment No. 28: Page 17, line 2, after "religion" insert "or belief

The noble Baroness said: This group of amendments all address one point; namely, to bring the Bill into line with the Human Rights Act 1998, and specifically Article 9 of the European Convention on Human Rights and the International Convention on Civil and Political Rights, to which the UK is a signatory. There is an even more recent precedent in the title of the Employment Equality (Religion or Belief) Regulations. I remind your Lordships that the Communications Act 2003 was amended in Committee by the Government to change "religion" to "religion and other beliefs". That amendment, like these amendments, was encouraged by the British Humanist Association, of which I am a member. I thank that association for its help. The point of inserting "belief", as the Committee will know, is because, in international treaty language as well as case law, it is that word—to cite the authoritative United Nations Human Rights Committee—which protects, theistic, non-theistic and atheistic beliefs as well as the right not to profess any religion or belief'.

However, the amendment is not just there for consistency, although consistency is a reputable aim. It is there because there are states which persecute their citizens because they do not profess a religious belief, usually that associated with the state. People have been condemned to death for that reason. It was once so in this country, so we cannot shrug our shoulders about it. So belief needs to be explicit in the statute as a recognised ground of persecution, otherwise there will be the odd and grossly unjust situation that people persecuted for their atheistic or humanistic beliefs would be treated differently by this Government from those persecuted for their religious beliefs.

Some may say that, because the Refugee Convention and previous immigration and asylum legislation use the term "religion" with no addition of "or belief", we should remain with that wording. But the whole point of the thinking behind the Human Rights Act is that procedures should be reinterpreted with human rights in mind. The admirable House of Commons research paper 3/88 of December 2003, which states that human rights law should be taken into account throughout the immigration and asylum process, specifically mentions Article 9 of the European Convention on Human Rights, which covers freedom of thought and conscience as well as religion.

Sometimes it is argued by lawyers that the term "religion" encompasses belief of a non-religious nature. That may well be how the term is understood by lawyers; or, indeed, the agents of persecution can be motivated by religious motives and thus the non-believing victim is persecuted on grounds of religion, even if not his. I am nevertheless convinced that we should have law that is readily understood by everyone. Those for whom it is intended are not exclusively lawyers, but asylum seekers and all who want to know what grounds of persecution may be taken into account. If we add the words "or belief" we will have sent out an unequivocal signal that it is all forms of religion and belief which are protected under the right to freedom of thought, conscience and religion. I beg to move.

The Lord Bishop of Chester

We on these Benches have no problem with the arguments put forward by the noble Baroness, subject to what we will hear from the Minister. It is interesting that the first use of "Christian" derived from Christians being regarded as atheists by the conventional authorities in Antioch.

If I heard the noble Baroness correctly, a better formulation might be "religion, belief or unbelief", rather than simply ''belief', as she referred specifically to those who had no belief. However, we think that her points are probably covered under proposed new paragraphs (f) and (h), so it may not be necessary to make the change suggested. If we understand the thrust of all the categories, there need to be identifiable groups of people involved. Perhaps that means some sort of organisation or corporate recognition required with the group concerned, rather than simply individual beliefs or unbeliefs.

In general terms, we are entirely supportive of the comments made.

Lord Avebury

We also are sympathetic to the ideas that motivate the noble Baroness in tabling the amendment, although we are not convinced with the right reverend Prelate that it is absolutely necessary. Clause 15 allows the Secretary of State to certify as clearly unfounded, and therefore ineligible for an in-country appeal, any claim from applicants relying on Section 92(1) of the 2002 Act who are refused a certificate of entitlement under Section 10 of the Act, or refused variation of leave to enter or remain if the result is that the person has no leave to enter or remain or if that leave is varied but, when the variation takes effect, the person has no leave to enter or remain.

The clause then extends the order-making power in Section 94 of the 2002 Act, so that the Secretary of State can add parts of states to the list of states from which an asylum seeker's claim is automatically deemed to be clearly unfounded. He can also specify descriptions of persons who are at no serious risk of persecution in particular states or parts of states, and there is a list of characteristics to be covered by the description.

The Explanatory Notes state that proposed new subsection (5C) gives only: Examples of what might constitute a 'description of person"', indicating that the list is not intended to be exhaustive. The subsection concludes with, (h) any other attribute or circumstance that the Secretary of State thinks appropriate". That would obviously include "belief' if it were not already covered by "religion", which may be what the noble Baroness seeks to achieve.

Whether or not the amendment is accepted, it would be possible for the Secretary of State to make an order relating to persons who do not call their belief systems a religion. However, that could be the least of the problems with the exercise of the powers. If the Secretary of State certifies that part of a state is safe for a certain description of person, an applicant may have other characteristics not covered by the description that make it dangerous for him. For instance, a person's sexual orientation, which is not on the list, might put him at risk if he belongs to a religion considered immune from persecution in a particular state. The Secretary of State might say that it is perfectly safe to send a Muslim back to Saudi Arabia, but what if he is gay?

The problem with the whole formula is that it does not catch only the persons who base their claims on the characteristics in the description of person to whom the order applies. The Secretary of State has only to be satisfied under proposed new subsection (5B) that the person falls within the description for him to be deprived of his in-country right of appeal, whatever the ingredients of his claim and even if the description had no relevance whatever to his reasons for fearing persecution.

I am glad that the noble Baroness tabled the amendment because, although I am not troubled by the omission of "belief', I am concerned that the effect of denying particular classes of persons the right of in-country appeal may lead to injustice. I ask the Minister to amend proposed new subsection (5B) so that the Secretary of State must be satisfied that the claimant falls within the description, but that the claimant's fear of persecution was based on his possession of one or more of the characteristics cited in the description and not wholly or partly on his membership of some other class of persons covered by the Refugee Convention.

Lord Hylton

I would like to give two examples of where there has been considerable argument and doubt about whether something is a religion or not. The first is Buddhism, on which there can be arguments either way. As for Falun Gong, it is quite clear that its followers have suffered and still suffer terrible persecutions in China. There again, whether it constitutes a religion may be in considerable doubt. Some would describe it as a reformulation of ancient traditions and practices.

The wording of proposed new subsection (5C)(h) in Clause 15, which is on page 17, may almost be too wide and give too much discretion to a future Secretary of State. It might be better to rely on the wording contained in the international convention on refugees.

3.30 p.m.

Baroness Scotland of Asthal

I thank my noble friend Lady Whitaker for raising this issue. The noble Lord, Lord Avebury, is correct in relation to this amendment not being necessary. In view of his comments—much of which I agree with in relation to the way in which Clause 15 works—it will be helpful if I explain a little more fully the framework into which it sits, because I do not agree with him entirely. I hope that I will be able to reassure the right reverend Prelate the Bishop of Chester that the concerns that he may have about my noble friend's anxieties are also not well founded.

Clause 15, as the noble Lord, Lord Avebury, said, provides for a modest extension of the powers in Section 94 of the Nationality, Immigration and Asylum Act 2002, under which a state, or part of a state, can be designated if certain conditions are met. These are that there is in general no serious risk of persecution of those entitled to reside in that state. and that removal of a person entitled to reside there would not in general contravene our ECHR obligations. Since Section 94 came into force, 14 states have been designated by order under this provision. These are in addition to the 10 EU accession states included on the face of the 2002 Act, and due to be removed by Clause 15(4) of the present Bill to reflect their joining the EU.

Designating a country does not mean that a person's asylum or human rights claim will not be considered on its merits. Every case is given an individual assessment, taking account of all relevant facts. Where a claim is refused, it must be certified as clearly unfounded unless the Secretary of State is satisfied that it is not. Such a certificate prevents a person lodging an appeal until they leave the United Kingdom. That is the framework.

We consider that these provisions have been working well to date. Clause 15 enables a country or part-country to be designated for the purpose of Section 94 in respect of a description of persons, where the Secretary of State is satisfied that the Refugee Convention and the ECHR tests I have just described apply to the description of person in the country in question.

This provision would inject some further flexibility into the Section 94 powers. Where we do not consider that the two-part test set out in Section 94 is met when taking all the population of a given country together, there may be occasions where it would be useful to designate that country for a specified group or groups of persons for whom that test is met. The purpose of the power is to designate a group for the purpose of Section 94, and the non-suspensive appeals certification is to identify the groups for whom the country is generally safe. That is the way in which it looks.

As with every case, if a person falling within a designated group claimed asylum, we would give individual consideration. The new subsection (5C) inserted into Section 94 by Clause 15 provides what a "description of person" may refer to. We have listed seven specific examples of "attributes or circumstances" we think are most likely to be relevant to this particular power, and then added a final category covering any other attributes or circumstance that the Secretary of State considers appropriate". Contrary to what the noble Lord, Lord Avebury fears, this is not supposed to undermine but should actually give greater security for individuals. Turning to the amendment, it seeks to expand the fourth such description, "religion", so that it reads "religion or belief".

If this amendment were to have any practical effect, it would be—if I may most respectfully say so to my noble friend—marginally to increase the flexibility of the clause by, for example, enabling a country to be designated safe for those of its residents who held a particular non-religious belief, where members of that group met the two-part test of Section 94.

We have no problem in principle with this amendment since it is not inconsistent with the purpose of Clause 15, namely to identify categories of people who, in general, may be safer or less safe than other residents in a given country. However, we do not think the amendment is necessary because the existing wording—as the noble Lord, Lord Avebury, has already indicated—is sufficient to capture a description of a person defined by their belief. The term "religion" may itself cover such beliefs, particularly beliefs such as aethism. It is not just a view of lawyers—that is the view of others as well.

The noble Baroness may be pleased to note that the EU Qualification Directive, to which the United Kingdom will be a party, and to which we have already given political assent, will include the following in Article 12 on the reasons for prosecution: The concept of religion shall in particular include the holding of theistic, non-theistic and athestic beliefs, the participation in, or abstention from, formal worship in private or in community with others.". This wording is, we think, close to the spirit of Article 9 of the ECHR.

For any recognisable beliefs not caught by the "religion" category, other categories listed in subection (5C) are very likely to cover them, in particular category (f), which is: membership of a social or other group, category (g), political opinion, and category (h), any other attribute or circumstance that the Secretary of State thinks appropriate.". So, in relation to the Falun Gong, who are an identifiable group, it would be perfectly possible to argue that they would fall within the framework of the definition currently given.

We have not been attracted to the idea of adding the reference to "belief', as suggested by the particular amendments in relation to Schedule 3, because it refers to, race, religion, nationality, membership of a particular social group or political opinion", using the exact wording of the Refugee Convention. It must be wise to stick to those words because the parts of the schedule to which the amendments refer relate to countries that are safe on Refugee Convention grounds. In other words, an individual will not face prosecution there for a convention reason. Adding to—or indeed making any change to—the wording used in the Refugee Convention would mean that the test in Schedule 3 no longer fitted 100 per cent the relevant requirements of the convention. That is clearly, I hope the Committee will agree, not appropriate in this case.

However, I would like to reassure my noble friend that any concerns about the existing wording which may have prompted these amendments are more illusory than real, and for similar reasons to those just given in connection with Clause 15. As I stated, the term "religion" may itself cover beliefs which would encompass humanism and atheism. For these reasons, we do not consider these proposed amendments to be appropriate or necessary in this schedule. I hope from this my noble friend can feel comforted that her concerns are fully met, and those of the British Humanist Association will also, similarly, be met.

Lord Harrison

First, I apologise for not being present at the beginning of this debate. I ask clarification from the noble Baroness on the point that she made at the end there. Does she agree with me that it flies in the face of reason and any proper understanding of the English language—which we in this Chamber were talking about earlier—to confuse the concept of religion with that of atheism? I even look to the Benches near me for confirmation of that. However it is read by the general public, if you are to say that something is done in the name of religion, most of us would associate that idea with some kind of religious belief in respect of a god and so on. It certainly would not encompass the concept of those who profess atheism. I ask the Minister to clarify that point.

Baroness Scotland of Asthal

I hope that I have made clear that the way in which relgious belief has been interpreted has encompassed those of no belief. I think it is right. I do not know whether my noble friend was present when the right reverend Prelate the Bishop of Chester rightly reminded us that in the past, those who held Christian beliefs were said to be atheist because they did not believe as others did in terms of Judaism. They believed that Christ was the son of God, which for some was a real cult of atheism.

It may be convenient to adjourn the Committee for five minutes.

[The Sitting was suspended from 3.40 to 3.45 p.m.]

Baroness Scotland of Asthal

I hope that I have dealt with the matter to the noble Lord's satisfaction.

Lord Avebury

The Minister did not satisfy me on one question I raised; that is, what would happen in the case of a person who came within the "description of a person" but whose asylum claim was not based on his possession of that characteristic? I gave the example of a Muslim who was to be returned to a country where Islam was the religion but whose reason for his seeking asylum was that he was gay. In new subsection (5B) the only condition that has to be satisfied is that the Secretary of State must be sure that he is within that description and that he is entitled to reside in "the State or part".

Therefore, in that case, the Secretary of State would be satisfied that the person was a Muslim and that it was safe for Muslims in that country; and would sign a certificate even though the reason for applying for asylum in Britain was nothing to do with religion. That may be a defect in the wording, but I am asking only for the noble Baroness to look at the provision. If I am right about the drafting, I ask her to put it in a different form of words so that the Secretary of State does not have to exercise that power when the reason for applying for asylum was totally different from the "description of person" to which the category applied.

Baroness Scotland of Asthal

I answered the noble Lord by making two points. First, the purpose of the power to designate a group for the purposes of Section 94 non-suspensive appeals is to identify a group for whom a country is generally safe. As with every case, if a person falling within a designated group claimed asylum, we would give individual consideration to the merits of the claim. The claim would not be refused automatically. If a person could show a well founded fear, we would not remove him. I think I said that twice.

Baroness Whitaker

I thank all noble Lords who have taken part in this short debate from all sides of the Committee. Perhaps I may say briefly to the right reverent Prelate the Bishop of Chester—I am extremely grateful for his support—that non-belief is not added to religion or belief only because international treaty language uses the words "religion or belief" and international case law glosses that as including all forms of belief, including non-belief. This is my attempt to go by the wording of the rule of law.

I have sympathy with the points raised by the noble Lord, Lord Avebury. It is of primary importance to ensure that the law makes it unequivocally clear that freedom of all kinds of belief is entirely protected. Therefore, I find the response of my noble friend the Minister some comfort. I shall read her words extremely carefully. I am not sure that we have the confidence that the law is as clear and comprehensive as it ought to be, but for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 [Appeal from within United Kingdom]:

On Question, Whether Clause 16 shall stand part of the Bill?

Lord Goodhart

I seek to oppose Clause 16 standing part of the Bill. Part 5 of the Nationality, Immigration and Asylum Act 2002 sharply restricted the right of in-country appeals. That was highly controversial during the debates on the Bill because appeals from outside the country after removal are much less likely to succeed. In some cases, perhaps only a few, the appellant will be unable to proceed because he is imprisoned, or worse, in the country to which he has been returned. In many cases, the appellants are likely to have great difficulty in communicating with those representing them at the hearing of the appeal, which will undoubtedly reduce their chances of succeeding on appeal.

Section 92 of the 2002 Act prohibits in-country appeals under Section 82. The appellant must leave the United Kingdom before he or she can appeal. Section 92(2) does, however, contain a number of exemptions. Section 92(2) permits in-country appeals from certain categories of decisions, and is not altered by Clause 16 of' the Bill. Section 92(3), however, is altered. At present, that subparagraph permits in-country appeals if the appellant is in the United Kingdom and has received entry clearance, or holds a work permit. Clause 16 will amend Section 92 so as to restrict that right. Clause 16 excludes from in-country appeals against a deemed refusal under paragraph 2(9) of Schedule 2 to the Immigration Act 1971, for example, where an immigration officer believes that leave has been obtained by false information or non-disclosure of material facts.

Clause 16 will also restrict appeals where leave to enter has been refused because the immigration officer believes that leave was sought for a purpose other than that which was specified in the entry clearance previously obtained. Clause 16 will further limit the right of in-country appeal by those who are in the United Kingdom and have a work permit to people with some form of British nationality.

Clause 16 was added at Report stage in the House of Commons and was not debated at all there, so this is the first occasion on which either House of Parliament has had an opportunity to consider it. The result is that people who have obtained an entry clearance from one immigration officer, have paid for that clearance and, in many cases, will have incurred travelling costs in order to come to the UK in expectation of admission, may be turned away because the immigration officer who interviews them on arrival takes a different view from the officer who originally gave them entry clearance.

That is unlikely to affect many people, but it will have a severe effect on those who are caught by the amendment. The number of in-country appeals is in fact already small. In 2002, out of 84,000 appeals dealt with, only 3,600 were non-asylum in-country appeals to which Clause 16 might apply. Even under Clause 16, many appeals will continue to be dealt with in-country, so that at most this Clause 16 will affect only a few hundred people. It appears to us to be an unnecessary and petty restriction that should not have been included in the Bill.

I would also make the further point in connection with the new subsection 3D of Section 92 of the Nationality, Immigration and Asylum Act 2002, which is inserted by Clause 16, that there appears to me to be a distinct possibility that the limitation of the right of in-country appeal to people with work permits who have some nationality link with the United Kingdom contravenes Articles 6 and 14 of the European Convention on Human Rights. I wonder therefore whether the Government are satisfied with the compatibility of that particular amendment.

Baroness Scotland of Asthal

Of course, I understand what the noble Lord says in relation to compatibility. We are clear that these provisions are indeed compatible. There is nothing sinister in the proposal to limit appeal rights in the circumstances set out in Clause 16.

As the noble Lord says, Clause 16 replaces Section 92(3) of the Nationality, Immigration and Asylum Act 2002. It removes the work permit holders from the general provision, giving rise to an in-country right of appeal. The provision of appeal rights to those holding entry clearance or a work permit is historical, and harks back to the time when there were fewer visa nationals, and most holders of entry clearance had sought, when not required to do so, to find out in advance if they were eligible to enter the United Kingdom in the capacity for which the entry clearance was sought. It seemed right in those circumstances to provide an in-country appeal if, for whatever reason, the immigration officer refused leave to enter on arrival. But times have moved on, as I am sure noble Lords accept. There are many more visa nationals who must hold entry clearance, and it is now inappropriate to afford them such special treatment.

The purpose of Clause 16 is to prevent possible abuse in cases where an individual has entry clearance but then seeks to enter the United Kingdom for a purpose which is not that for which the entry clearance was issued. Where such a person is refused leave to enter the United Kingdom, they will not benefit from an in-country right of appeal. Therefore, any appeal against a refusal of leave to enter will be exercisable only from outside the United Kingdom.

Clause 16, as I am sure noble Lords will remember, works in conjunction with Clause 13, which gives immigration officers the power to examine an entry clearance holder, to establish whether leave to enter should be cancelled on the grounds that the holder is seeking to enter for a purpose other than that specified in the entry clearance. I should emphasise that all applications for asylum, whether or not these are made by an entry clearance holder, are considered carefully on their merits, and that this provision will not affect that. If an asylum application is made by an entry clearance holder that is not clearly unfounded but is still refused, an in-country right of appeal will still exist.

Clause 16 also removes the right to an in-country right of appeal for those persons who hold a work permit. This will not affect most work permit holders, as it is now a requirement that any holder of a work permit for more than six months' duration must also hold an entry clearance. Holders of other immigration employment documents, such as seasonal agricultural workers, those on the sector-based scheme and the highly skilled migrants programme must hold entry clearance, whatever the length of their planned stay. So unless leave to enter is sought for a changed purpose, the holder of an immigration employment document would have an in-country right of appeal if refused entry, by virtue of having entry clearance. However, in the interests of consistency, it is necessary to alter the right to an in-country appeal for the holders of work permits, in order that similar rights to an appeal are available to the majority of those who have obtained prior entry clearance. This change will only affect non-visa nationals who hold a visa permit of six months or less and who are refused leave to enter the United Kingdom.

Specified British nationals who do not have a right to abode in the UK will continue to benefit from the same in-country right of appeal as they currently have under Section 92(3). That means they will retain their in-country right of appeal against a refusal of leave to enter where they hold a work permit at the time of removal, regardless of whether they also hold entry clearance. The specified British nationals, under the meaning of the British Nationality Act 1981, are as follows: British Overseas Territories citizens, British overseas citizens, British nationals overseas. British protected persons, and British subjects. These persons have been exempted from the proposed change to prevent further erosion of their status. We believe that we have a particular responsibility to these groups, and that it is consistent with that responsibility that their entitlement not be reduced. Their rights of appeal from within the United Kingdom remain as set out on the face of the 2002 Act.

I hope the noble Lord will be satisfied that we are not actually doing anything terribly wrong in this Clause.

4 p.m.

Lord Renton

I am inclined to agree with what the noble Baroness has said, much though I sympathise with the noble Lord who opposed the Clause. The noble Lord mentioned the European Convention on Human Rights in support of his remarks. We should bear in mind that, although that convention has had great support on both sides of the House, especially the government side, it was conceived years ago, before we had the peril of terrorism. We must now look at it in the light of that peril.

Lord Goodhart

I hear what the Minister says. In response to the remarks of the noble Lord, Lord Renton, my reference to the European Convention on Human Rights applied solely, as regards those who hold work permits, to the distinction drawn between those who have some form of British nationality and those who do not. I remain unconvinced by the noble Baroness's argument that there is adequate ground for distinguishing between those categories and treating them differently. However, in due course, that matter may have to be tested in the courts.

The more the noble Baroness spoke, the more convinced I became that Clause 16 would affect only a small number of people and was therefore unnecessary. Being unnecessary, it should not have been introduced to the Bill. The noble Baroness did not suggest that it would have any great effect. Be that as it may, we shall consider what she has said, and I shall not seek to divide the House on the Question whether Clause 16 should stand part.

Clause 16 agreed to.

Clause 17 agreed to.

Baroness Scotland of Asthal moved Amendment No. 28A: After Clause 17, insert the following new clause—