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Lord Lucas: My Lords, I beg to move that the House do now adjourn during pleasure until half-past eight.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.21 to 8.30 p.m.]

Asylum and Immigration Bill

House again in Committee.

The Deputy Chairman of Committees (Lord McColl of Dulwich): Before I call Clause 2, I should inform Members of the Committee that in Division No. 2 the number of noble Lords who voted "Content" was 134 and not 133 as announced.* *[see col. 1544] Clause 2 [Removal etc. of asylum claimants to safe third countries]:

The Lord Bishop of Ripon moved Amendment No. 31:

Page 2, line 34, at beginning insert--
("(A1) Nothing in this section shall be construed as applying to--
(a) a person who can show a reasonable claim that he has been the victim of torture in a country in which he is claiming to fear persecution; or
(b) a person who is claiming to fear persecution in a country which has a recently documented record of torture."). The right reverend Prelate said: This is the first of the amendments relating to Clause 2. Its wording is identical to an amendment which was accepted in Committee last week. However, I believe that it is worth spending a moment looking at the implications of the amendment for Clauses 2 and 3. The combination of those two clauses effectively, in my view, removes the right of appeal against removal in certain cases. Therefore, it is a damaging provision for asylum seekers.

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Under Clause 2, certain categories of asylum seeker can be removed to a safe country, which we know now is to be limited to countries in the European Union, and Clause 3 limits their right of appeal to one which is to be made from outside this country. It is clearly the case that on occasions those countries which are claimed to be safe have not proved to be so. Indeed, various examples can be given of countries such as Italy and Belgium, which have, in certain circumstances, returned asylum seekers when it was thought that they would be secure.

It is clear that the combination of those two clauses makes it possible that asylum seekers will effectively be removed beyond the safe third country before they have had the opportunity to exercise their right of appeal. In those circumstances, it seems right that we should consider the implication of this for those who come under the terms of the amendment. I do not propose to repeat the debate which took place last week, but it was made clear then that there was considerable feeling in the Committee over the matter regarding those who had either been victims of torture or who claim,

    "to fear persecution in a country which has a recently documented record of torture".

It would be helpful to know what is the Government's intention in relation to Clauses 2 and 3 and with regard to the amendment. In the light of last week's Committee decision, do the Government regard it as right that the provisions of that amendment should in fact be taken to refer to Clauses 2 and 3, as well as to Clause 1? I should be most grateful if the Minister could make some comment in that respect. I beg to move.

Lord Dubs: I rise to express my support for the amendment. I seems to me that one of the key difficulties with Clause 2 is that there are insufficient safeguards against the asylum seeker who is removed to a safe third country being in turn removed to another country and then possibly to the danger that he faced when he originally fled. That is the crux of the safe third country argument. If we had sufficient safeguards it would not be such a critical issue. In the absence of such safeguards, we must have cause for concern. The amendment exemplifies precisely why there is so much cause for concern.

Members of the Committee agreed last week that we must pay particular regard to the victims of torture. It would seem to me to be the worst possible outcome if individuals who were liable to be sent back to face torture were removed from this country with no assurance that the immediate country to which they were removed would allow them to remain there. We have real difficulties in that respect.

The evidence of the Medical Foundation for the Care of Victims of Torture (which carries out such an excellent job in looking after those victims) has drawn attention to the fact that the hypothesis that I have developed is actually a very real one and that, at times, people are returned or are close to being returned to

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countries from which they will in turn be removed immediately to the country where they were threatened with, or possibly subjected to, torture.

Baroness Williams of Crosby: The view of the Committee with regard to the issue of victims of torture seems to me to have been very clearly reached on the first day of our proceedings. As the right reverend Prelate pointed out, the purpose of the amendment is to extend that safeguard to cover Clause 2. As the noble Lord, Lord Dubs, said, Clause 2 raises the whole issue of what is sometimes called "a safe third country". The United Kingdom Government is bound to comply with Article 33 of the UN convention on refugees, which states very plainly that no country on any grounds whatever may return an asylum seeker to another country without the certainty that he or she will be safe in that country.

The fear is that, even though the list of countries provided by the Government is limited to the European Union plus, as I understand it, other countries specifically designated by the Secretary of State, there are real concerns about what may arise in certain cases. Indeed, in some cases there are very close connections between third countries and others closely associated with them. That is particularly true of metropolitan countries and their former colonies, to which refugees or asylum seekers may be returned, subject to the rules on refoulement of the UN Convention, without the authorities having adequately satisfied themselves that those people will be safe in the country in question.

A kind of brutal "pass the parcel" is emerging among countries of the world in sending refugees to and fro among themselves. It is because we very much fear that process that we are trying to exempt those who are victims of torture from the provisions of Clause 2, as well as those in Clause 1. I am delighted to support the right reverend Prelate in his amendment.

Lord Runcie: I should like to add just a few words in support of the right reverend Prelate, not least because my name is attached to the amendment. It was not my intention to make a speech; indeed, I have not come here armed with one. In the light of the debate on the previous amendment of this character, I had assumed that the matter would also be settled as regards Clause 2. That was, perhaps, rather naive of me.

What prompted me to respond to an invitation to back the amendment was simply my own experience in helping to set up the Medical Foundation for the Care of Victims of Torture, which has pioneered the identification, the treatment and, indeed, a greater awareness of the existence of torture. I should also like to express my admiration for the work of Helen Bamber and her associates during that period. It was at that time that I was able to spend some time at the foundation and saw for myself the victims of torture in Iraq, or the effects on the Kurds. I was most impressed by the expertise which had been built up there.

That led me to believe that the UK had established a reputation in drawing the attention of the international community to the existence of torture and the possibilities in the identification and treatment of

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torture. I was convinced that in any new Bill about asylum, the appalling phenomenon of torture in the present day should be established in the provisions, and that this country should even err on the side of generosity when it came to the consideration and treatment of people who came from countries where torture was a recognised practice. I therefore support the amendment.

Baroness Rawlings: We have debated the subject of torture already under Clause 1. Of course genuine victims of torture will be protected by the Bill. However, what worries me is that yet again the amendment is not about the victims who have been tortured and who seek asylum. Forgive me if I have misunderstood, but, as I understand it, the proposals are to allow asylum seekers into the country, not if they have been tortured themselves but merely if they come from a country where torture exists.

8.45 p.m.

Baroness Blatch: I believe that someone said from a sedentary position that the amendment does not say that. However, I believe that the second limb of it does say that. The noble Lord, Lord Dubs, was concerned about safeguards. I join him in that I too and the Government are concerned about safeguards. However, with a note of cynicism, I must say that it does not matter how I describe the safeguards and tell the Committee that they exist, some Members of the Committee will refuse to accept my word.

Amendment No. 31 is concerned with the minority of cases where we decide to remove an applicant to a safe third country. But before I speak to that amendment, I propose to add to what I said last week about cases which are considered substantively in the United Kingdom.

All sides of the Committee agree that torture is utterly repugnant. All agree that the aim of our asylum procedures must be to protect victims of torture. But it is clear from last week's debate that many of your Lordships remain unpersuaded on two key issues. First, that our procedures do in fact provide effective protection and would continue to do so under the Bill. That is not believed. Secondly, that most current asylum applicants are at least unfounded and at worst abusive; and that if we provide loopholes they will be exploited on a large scale. Let me begin by addressing those two key issues.

I address the safeguards first. Our objective is to ensure that victims of torture are identified. The Asylum Directorate takes account of all available evidence, in particular about the individual case, but also about whether there is a consistent pattern of serious human rights violations in the country of origin. Claims are considered against the 1951 convention criteria. That is to say, a well founded fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion. There is no universally agreed definition of persecution and it may take many forms. But the Government have no doubt that torture is one of them and that a person with a well founded fear of torture will qualify for asylum under normal conditions.

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Victims of torture who have not been persecuted for a convention reason do not therefore qualify for asylum. But we are also bound by our obligations under other international instruments. Article 3 of the European Convention on Human Rights and Article 3 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment both prohibit removal to a country where there are substantial grounds for believing that the applicant would be tortured. It has been suggested that because these instruments are not incorporated into UK law, they provide insufficient protection for victims of torture. I refute that. First, if an applicant engages our obligations under either the UN convention on torture or the European Convention on Human Rights, but not under the 1951 convention--for example, because the reason for the fear of torture is not one specified in the criteria for refugee status--exceptional leave will normally be granted. Secondly, individuals have an avenue of redress under the European Convention by taking their case to the European Commission and the European Court of Human Rights in Strasbourg.

One of the first elements in the induction training for asylum case workers is to raise awareness of the barriers genuine refugees may face in relating their experiences to officials. Additional training is given to those who will interview asylum applicants. Detailed guidance and training on assessing asylum claims, including the appropriate standard of proof to apply, also form an element of the induction programme. The United Nations High Commission for Refugees and other independent bodies contribute to the Asylum Directorate's training. At a meeting with officials on 3rd April the Medical Foundation for the Care of Victims of Torture has now also been invited to contribute to training. I join the noble Lord, Lord Runcie, who referred to the important work of the medical foundation.

Very great weight is attached to any medical evidence. If an applicant claims to have been tortured, the case worker will ask whether an examination has been carried out and request a copy of the report if it has not been submitted. Case workers also have access to the guidelines for the examination of survivors of torture which have been prepared by the medical foundation. We are considering some suggestions by the foundation for structuring the interview in such a way as to create an environment which encourages applicants even further to disclose fully the details of their claim; for example, through the greater use of open-ended questions. It is already our policy to seek to provide an interviewer of the same sex as the applicant in cases identified as sensitive.

Last week there were some misconceptions about the time allowed for consideration. The Bill does not affect the initial decision time. At present, the average decision time for a new claim is nine months, except in cases handled under the Home Office's short procedure, where cases are at present decided in three to six weeks.

The short procedure involves a shorter interval between application and interview, and between interview and decision. But interviews and decisions are accorded the same level of consideration and under the

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same standard of proof as other cases. The standard the applicant has to meet is a modest one--no more than a reasonable likelihood of persecution. None of that would be changed by the Bill. Any case which proves not to be straightforward can be taken out of the short procedure and considered at greater length. Requests for an extension in individual cases so that medical evidence can be prepared are very carefully considered. We have issued an instruction that the refusal of such a request by the medical foundation must not be taken at a lower level than senior executive officer. Medical evidence submitted after an initial refusal will be fully considered. If the refusal is maintained, reasons for doing so would normally be given in writing.

All evidence submitted after the Home Office decision is also considered by the adjudicator. It is open to an adjudicator to grant an adjournment to enable the applicant to produce further evidence, including of course evidence of torture, if he considers this necessary in the interests of justice. Again, neither the proposed new procedural rules nor the Bill itself will remove the possibility of adjournment where it is justified.

That is a summary of the safeguards which apply. We are not complacent and want the safeguards to be as effective as we can make them. That is why we asked officials to discuss them with the medical foundation.

But we also have to take into account the other side of this equation; namely, the widespread exploitation by abusive applicants. The Bill's opponents have so far had very little to say about that side of matters. Indeed, some have sought to pass off the problem of abuse of asylum procedures as a figment of the Government's imagination. That position is, however, untenable in the face of overwhelming evidence to the contrary. Last year only 5 per cent. of applicants were found to qualify for asylum and another 16 per cent. for exceptional leave to remain on compassionate grounds. That leaves 79 per cent. of claims which were refused. If the Home Office were refusing large numbers of genuine applicants, it would be losing large numbers of appeals. But the fact is that only 3 per cent. of appeals against refusal of asylum were upheld last year. Some of our critics, such as the Asylum Rights Campaign, have sought to counter this very telling statistic by attributing the appeal results to bias on the part of adjudicators. Words fail me. Such a claim is totally unfounded. Adjudicators are experienced members of the legal profession, appointed by my right honourable friend the Lord Chancellor, and are wholly independent of the Home Office.

That is why the Government opposed Amendment No. 3 last week. Applicants would be able to avoid having their appeal accelerated merely by claiming that they had been tortured, no matter how untruthfully, or by pointing to instances of brutality by members of their country's police or security forces, no matter how isolated or irrelevant to the applicant's individual circumstances.

However, the Government accept that the Committee has expressed a clear wish that we should acknowledge the special vulnerability of victims of torture, and should do so on the face of the Bill. We therefore intend to

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bring forward at Report a modified amendment to Clause 1. Broadly speaking, this would reflect the principle that there should be an exemption for victims of torture from the accelerated appeal procedure, but it would be expressed in a way which would avoid laying Clause 1 wide open to evasion by people who are not victims of torture.

I have indicated the extensive safeguards that apply to protect victims of torture. I shall now turn to Amendment No. 31, which is concerned with the minority of cases which we do not consider substantively, and where we decide instead to remove the applicant to a safe third country. These are almost always applicants who claim asylum after arriving here from one of our western European neighbours--in 80 per cent. of cases from France, Germany, Belgium or the Netherlands.

The Government take a very straightforward view of such cases. First, we consider that our immediate neighbours, all of whom are advanced democracies with developed legal systems and asylum procedures, are just as capable as we are of complying with their international obligations and protecting individual rights. This means that, if someone is a genuine refugee or victim of torture, he will be just as safe presenting his claim in Germany as he will be presenting it here. Secondly, like all European countries, we take the view that asylum seekers should look for refuge to the first safe country to which they come. If they arrive from a safe third country in which they could have claimed asylum, we reserve the right to return them. That is a long-standing principle which is, for example, already stated in the Immigration Rules. Indeed, it is embodied in the Dublin Convention, which Parliament endorsed in 1991.

The purpose of Clause 2 is to render the safe third country policy more effective by removing the delays inherent in an in-country right of appeal. But Amendment No. 31 would insert a very large loophole into Clause 2. The first part of the amendment says that the Secretary of State should be prevented from returning an asylum seeker to a safe third country if the applicant has shown a reasonable claim that he is a victim of torture. This would mean that, by including a torture claim in his application, the asylum seeker would be able to fend off removal. In order to form a view on whether the applicant had "shown a reasonable claim" of torture, the Secretary of State would be compelled to assess the asylum claim substantively. By the time he had done that, removal to the third country would probably no longer serve a useful purpose, and the third country would often no longer be prepared to take him back. The whole purpose of the safe third country policy is to enable applicants to be removed quickly without substantive consideration of the claim. For that reason alone, Amendment No. 31 could render Clause 2 ineffective and is therefore unacceptable to the Government.

The second leg of the amendment would prevent removal to a third country if the country of origin has a recently documented record of torture. That is a totally

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irrational proposition. If a third country is indeed safe, why should the conditions of the country of origin be regarded as an obstacle to removal? Moreover, there are very few countries where there are not from time to time allegations of misconduct by members of the police or security forces. But that is very different from saying that torture is systematic or widespread, or that a particular applicant would be at any risk of torture if he were returned to his country. This part of the amendment alone could very well be used by appellants to prevent the issue of a Clause 2 certificate in a high proportion of cases, without any basis in a substantial risk to the applicant.

Do the supporters of the amendment deny that it would render Clause 2 inoperable? Do they deny that it would establish a loophole which could be widely exploited? I have not heard a convincing response to these questions. The truth is that many of the Bill's critics reject the Bill's asylum provisions altogether and would not mind in the least if Amendments Nos. 3 and 31 rendered them ineffective.

Some have argued that it is inhumane to remove an applicant, even if it is only to one of our European neighbours, if he or she is suffering the traumatic effects of torture. Of course, we do not remove people if they are medically unfit to travel. If there are concerns on that score, the port medical officer is on hand. But the Government do not accept that anyone who claims to have been tortured should be exempt from removal. That would, as I said earlier, simply create too big a loophole. If they are genuine refugees and genuinely too traumatised to travel, they would have shortened their journey by claiming asylum before reaching the United Kingdom in the third safe country through which they travelled.

Amendment No. 31 is irrational, unjustifiable and would be very damaging to Clause 2. I urge the Committee to vote against it.

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