Examination of Witnesses (Questions 342
THURSDAY 20 JULY 2000
Chairman: Good afternoon. You will have heard
what happened earlier, so did we. Thank you very much for coming.
342. Ladies and gentleman, you will have heard,
as the Chairman said, some of the questions in particular I asked
earlier on. Can I address my first question to Nick Hardwick.
You were quoted in The Observer on 25 June as being somewhat
critical of the Home Secretary. You said "The challenge for
Jack Straw is to interpret the Geneva Convention in a modern context
but consistently with . . . fundamental principles". How
consistent are the Home Secretary's proposals, particularly his
reflective speech at Lisbon, with the fundamental principles of
the 1951 Convention in your view?
(Mr Hardwick) First of all, can I say
that we welcome the Home Secretary's speech. We welcome a debate
on these issues. I do think that what was positive overall about
what the Home Secretary had to say was that he placed it in the
context of how can States best protect refugees in the 21st century,
how can the conclusions of the Tampere Summit be implemented,
rather than simply in the context of how do we keep migrants out.
To that extent, I think it was welcome. I have to say that within
what he said there were a number of ambiguities and I am not sure
precisely what he meant by some points. As you will recall, he
divided the globe up into three groups of countries. In the first
he talked about countries within which there were widespread and
severe human rights' abuses and he suggested that from those countries
the EU States could take refugees on a quota basis. As I think
some of your other witnesses have said if that was in addition
to the existing rights then that would be a welcome initiative.
I can think of examples, for instance, in the Kosovo crisis before
the war with NATO began where there were a number of refugees
escaping from that situation into Italy, the Italian authorities
could not cope, they were crossing the Adriatic in extremely dangerous
circumstances, in the hands of traffickers. Certainly our counterparts
in Italy were calling for precisely such an evacuation and quota
system then. If it was in replacement of the existing individual
rights of people to claim asylum, then frankly we would be back
in the situation that existed in the 1930s when Jewish refugees
from Central Europe could come to Britain if they were pre-selected
from outside the country but as late as 1938 Britain imposed visa
restrictions on Jews coming from Austria and Germany and those
who came spontaneously or illegally were returned. I think there
would be a very real danger in return in that situation. At the
other end of the spectrum the Home Secretary talks about a group
of countries from which it would be hard to imagine a genuine
asylum claim being made, and as you know he listed the EU States
and the North American States. I think it would be hard to argue
with that except that he added to his list of Statesand
I quote" . . . and many others". It is the "
. . . and many others" which causes us concern. I think in
the article to which you refer I gave the example of Turkey which
wants to join the EU and I think that would be very dangerous
if it is assumed that because Turkey is an EU State no asylum
343. Turkey is not an EU State yet and it is
not likely to be unless it resolves some of its problems.
(Mr Hardwick) If one took a view that there could
be no asylum claim entertained from an EU State, the point is
the membership of the EU is not static and is going to expand.
I do not want to be entirely negative. I think there are ideas
within the Home Secretary's statement which deserve to be further
explored but certainly we have concerns about some of the fundamental
344. Do you accept that the Home Secretary was
concerned about that preamble to the Convention which I mentioned,
the burden on the States receiving some of these flows, when he
said " . . . Even those who drew up the 1951 Convention were
exercised by the need to balance the individual right of protection
with the management of large flows of people migrating for diverse
reasons". Do you accept that is a legitimate concern? Would
you not share my view that it is the job of the Home Secretary,
as elected by the British people, to match his duties and responsibilities
which are every bit as important as the duties and obligations
under the Convention to the British people?
(Mr Hardwick) Of course those responsibilities have
to be balanced but I think it is important, also, to place the
obligations or the responsibilities that fall on the UK in context.
As has already been said, the European Union States only take
4 per cent of the world's refugees. Most of the 25 million refugees
in the world do what they have always done which is walk on foot
from one very poor country to another, the numbers which come
here are only a tiny proportion. If you look at within the EU
those refugees or asylum seekers who come to Britain, the idea
that we are taking more than our fair share is simply not the
case. If you look at the numbers who come here as a ratio to the
existing population, in other words you take some account of the
size of the country, then the latest figures I have been shown
suggest that we are more or less at the European average. I think
the fundamental premise that is behind that question, that somehow
or other we are taking more than our fair share, I do not think
the facts actually bear that out.
345. Do you think the Convention confers an
absolute right or is there any room in your view for qualification
(Mr Hardwick) Certainly I would not want to see any
change at all in the basic principles of the Convention which
were drawn up
346. It was drawn up in 1951 specifically with
the consequences of the Second World War in mind. I know that
was changed in 1967 but the whole thing was predicated on the
armies of refugees. Indeed, I was brought up in Hamburg in 1956
and still then we were seeing the consequences of the flows of
(Mr Hardwick) As you say it was drawn up at a time
of mass refugee movements within Europe and many of those were
coming our way and there was at that time a generous response
to that mass movement within Europe. It was also, if I might say,
drawn up out of the direct experience of what happened prior to
the war when refugees seeking sanctuary had been turned away by
European states. It was clear that the European states, the initial
signatories, said "we will not make that mistake again".
For myself, I think it is too early to forget those lessons.
347. So you do not think there will be any case
for a kind of reinterpretation of the Convention on a regional
basis bearing in mind that the Convention was drawn up to deal
with a European problem 50 years ago when people could not travel
but, as I said earlier, now they can just jump on an aeroplane?
Perhaps there ought to be a regional solution to these problems.
(Mr Hardwick) I would not want to see that. I think
that is going down a very slippery slope. If some of the richest
countries in the world are seen to be taking an even smaller proportion
of some of the world's refugees, those countries in the south
that are the really large refugee receivers will start to question
why they should continue to do that.
348. Forgive me, do you mean refugees or do
you mean migrants or do you mean both?
(Mr Hardwick) At this time I am talking about refugees.
As I was saying, the vast majority of the 25 million refugees
are in the south and it is a number of very small, very poor countries
that truly do take a disproportionate share of those. If the richer
countries were seen to be being more restricted, closing their
doors in the way that I think Mr Howarth was suggesting, that
would have very damaging repercussions for the whole international
349. The reason why I put that question to you
is that there are cultural repercussions of these flows. If you
are suggesting that we should all take our share from wherever
in the world then that does create some cultural problems, whereas
taking people from within your own continent does reduce the cultural
implications to a certain extent.
(Mr Hardwick) I think I would disagree with you there.
I do not see that as creating problems, I see that as creating
350. We will just agree to differ on that then.
Can I just refer you to another item. As you have probably heard,
we have been going round various parts of Europe and the United
Kingdom seeing how border controls are being implemented and one
of the things we have found here is what happens when somebody
comes into this country without papers is they are refused permission
but they are not turned around and put on the next flight, like
they are in Algeciras from where they go straight back to Morocco,
or like they are on the Czech/German border straight back to the
Czech Republic. Here they invariably get releasedand perhaps
I should address this part to the two ladies if I may as you represent
the Immigration Law Practitioners' Associationand what
they told us was that these people then immediately get advice
from lawyers and advisory services involved in the immigration
business to tell them that they should plead that they are refugees,
asylum seekers, and tell them how to describe what has happened
to them so that they can better explain their case for asylum.
I wonder if the two ladies might not share my view that this is
a pretty corrupt practice by lawyers seeking to provide what are
economic migrants with a bogus claim for asylum seeking in this
country? Is that a concern to either of them?
(Ms Finch) It would be a concern if it was true.
351. So all that these immigration officers
have told us is completely untrue, they have spun us a complete
web of deceit?
(Ms Finch) Lawyers are professional. I am a barrister
and my friend here is a barrister and we have professional codes.
We also have professional bodies which people can complain to.
Certainly if barristers and solicitors were doing that and people
found out they would be in serious trouble with the Law Society
or Bar Council. We are officers of the court, we are supposed
to tell the truth. We do not stand up as barristers and tell a
story that we know is untrue.
352. So are you saying this is not happening?
(Ms Finch) There may well be clients who come in who
have been told to tell a story by agents and a lawyer may have
doubts about that particular story but we are not judges, we are
lawyers, we are paid to represent that person.
353. It is a pretty lucrative business to be
in, is it not?
(Ms Finch) Actually immigration law is not a lucrative
business. Most solicitors' firms will tell you they can only do
it because they are making money out of conveyancing or other
work. You certainly cannot make money out of asylum applications.
354. So the householder is not only being stung
on their fees for conveying their property, they are also paying
for asylum as well?
(Ms Finch) It is not a choice a lot of people make.
Mr Howarth: I will bear that in mind if I come
to sell my house.
Chairman: There is no anti-lawyer bias in this
Committee I want you to know, Ms Finch.
355. I do not want to press it too much further.
Ms Rogers, would you agree with what Ms Finch has said?
(Ms Rogers) Absolutely. Naturally we would not in
any way condone the operation of consultants or other individuals
who pose to be immigration lawyers who are, in fact, not lawyers,
who pose to be immigration lawyers and set up the sort of scenario
that you have set out of a bogus claim and so on, of course we
would not condone that. Indeed, that is precisely why even to
be a member of the Immigration Law Practitioners' Association
we have to be satisfied that they are properly regulated. No-one
can say they are a member of ILPA if they are not properly regulated
by a professional body or management committee. I agree entirely
with Ms Finch, lawyers do not set up bogus claims. There may be
individuals who tell us bogus claims but we are not judge and
jury of that, we are there to represent them.
356. So you believe whatever story they tell
(Ms Rogers) It is not for us to believe
357. You will take it on trust?
(Ms Rogers) It is not for us to believe or disbelieve.
We are there to represent, we are not there to disbelieve.
Mr Howarth: You have just heard what the Professor
has said about the time that all this is taking. This is itself
a magnet to people to come to this country and you, as lawyers,
and the courts are part of this inexorable process of delay, spin-out
Mr Stinchcombe: It is called justice.
Mr Howarth: Mr Stinchcombe is saying it is justice
but he is a lawyer as well. The Professor has said this is part
of the problem.
358. We have no prejudices here.
(Ms Finch) What we would like to say about that is
clearly, and it has been shown by research, delay occurs in the
decision making process at the beginning in the Home Office, that
is where the bulk of the delay comes in. Now the time to a decision
and being in court is extremely short, they are listing within
weeks and not months. The lawyer's side is quick, perhaps too
quick because sometimes you have to get medical reports or reports
from the courts. You hear about Kurds coming to this country in
1989 who are still in the courts now because there were no decisions
made in 1995/96, that was where the delay was. Lawyers could do
nothing at that point because we had given all of our evidence
in to the Home Office and nothing came back.
(Ms Rogers) Also the delay occurs because of one of
the points made by the previous speakers, that the decision making
itself is so poor. Because it is so poor these cases do have to
go to court. There will be delay if cases have to go to court
which should not be there in the first place.
359. Can I ask you one final question. In what
percentage of cases do you advise a client that they have not
got a leg to stand on and the best thing they can do is to make
their way to the port and return from whence they came?
(Ms Finch) Clearly now there is this controlled legal
representation for representing in front of a tribunal, which
is a new part of the Legal Aid, you have to advise whether or
not there is sufficient merit for them to get controlled legal
representation. If they cannot get controlled legal representation
and unless they are prepared to pay privately they will not have
anybody who will represent them. That is a test that has been
put in, they have to say "you have got to have at least a
45-50 per cent chance otherwise you will not be represented".
There will be people who feel very strongly they have a case and
they have not been persecuted for Convention reasons. That is
one of the difficulties with the Convention, that it is old-fashioned
and the categories of persecution are limited. Perhaps the most
difficult, say "I have a client who is being persecuted by
the Mafia in Ukraine", he clearly has been persecuted, he
does not fall within the Convention, in that case you would tell
him he does not fall within the Convention but you could say he