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Earl Russell: The noble Baroness may be well advised to accept the amendment. It may save a great deal of trouble. Should she not accept it, it is my understanding that, if Parliamentary Questions were to be tabled asking for the assessments for each country in turn and severally, the noble Baroness would be bound under the procedure for Questions to Ministers to give answers which did not knowingly mislead the House. It might be tidier and more economical if she accepted the amendment instead.

Baroness Blatch: Does the noble Earl suggest that I have misled the Committee, that I may mislead the Committee or that I would not mislead the Committee?

Earl Russell: None of those matters at all. I simply suggest that the noble Baroness would be under an obligation to answer the Questions.

Baroness Blatch: With or without the amendment, I am under an obligation to answer questions honestly at the Dispatch Box. I believe that I have always done that. I was extremely open with the noble Lord, Lord Avebury, in the point that he raised on country matters on another part of the Bill. I have written to him fully in a letter since then and have no objection to his making that public. I refer in particular to the point raised by the noble Lord on Kashmir. The noble Lord admitted that the Human Rights Commission had been invited to investigate an incident and that it had been an extra-judicial killing. Even that point has been referred to previously.

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Asylum seekers often base their claim, at least partly, on allegations of human rights abuses and persecution in their country. Wherever that is a significant issue in the claim, the letter giving reasons for refusal will respond by setting out the Secretary of State's view. That view can then of course be challenged by the applicant on appeal. In addition, we have made available written country briefs on Nigeria and Ghana setting out our assessment of conditions in those countries. Those briefs are available to applicants, representatives and adjudicators.

Furthermore, we have undertaken to provide assessments of all countries we put forward for designation under Clause l. Those briefs will be provided to Parliament as well as to the appellate authorities and will be available to applicants. Similar briefs on other countries of origin are also planned.

Against that background, I oppose the amendment for two reasons: first, it is unnecessary; and, secondly, it gives unjustified prominence to an issue which should form only one element in the overall consideration of the asylum claim. At present the Secretary of State is under a requirement to consider all matters which are relevant to the asylum claim. In setting out reasons for refusal, he must address any matters which are central to the claim. To the extent that that requires responding to allegations about conditions in the country, the obligation to do so is already here.

But the assumption behind the amendment is that the assessment of general conditions in the country is prescriptive of the decision. That is misguided: each case is considered on its individual merits, taking account of the facts and the circumstances relating to the particular case. An applicant from a country with human rights defects may be at no risk of persecution, and an applicant from a country with a good record may, nevertheless, have a well-founded fear of persecution. In short, the obligation on the Secretary of State should be to give reasons for refusing the application. We see no merit in imposing any requirement beyond that.

Much has been said about Nigeria. I shall say just a word or two about it. The Government of course share the concerns about the human rights record in Nigeria, including the deplorable execution last November of Ken Saro-Wiwa and his eight associates. We are monitoring the complex situation closely with the FCO, but consider that individual Nigerians whose claims have been individually considered and properly determined can be returned under normal immigration procedures. We have no reason to believe that those being returned are facing difficulties. The Home Office disclosable brief on Nigeria was updated in December 1995 to take account of more recent developments, including the execution of Ken Saro-Wiwa. Further updates will be delivered as necessary.

The overall assessment remains that ordinary Nigerian citizens can express their political opinions without fear of persecution. Independent adjudicators overwhelmingly agree with Home Office decisions in

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Nigerian cases. The Refugee Council report of 9th October criticising earlier background brief was highly selective. It overlooked the essential point that asylum applications are considered on their individual merits. That is our obligation under international agreements. A full response was sent to the chief executive of the Refugee Council on 15th December l995.

Perhaps I may say to the noble Lord, Lord Avebury, that the Home Office did not withdraw the Nigerian brief. The first version was made public months before the deplorable execution of Ken Saro-Wiwa and his colleagues. It was entirely right to update the report to take account of those and other relevant events, and that is precisely what happened.

Lord Clinton-Davis: I find that reply mind-bogglingly complacent and indifferent to the realities of the situation within Nigeria. How does the Minister know with certainty that the individual cases with which the Home Office is dealing are people who will not disappear? Does it keep an eye on them? How does it know?

The truth of the matter is that they do not know. How on any reasonable basis could the Government come to the conclusion at which they arrived in 1995 before Ken Saro-Wiwa was killed while under arrest? How could they come to a conclusion which was so markedly different from that of the United States? The fact of the matter is that they misled themselves, quite apart from misleading the country, because they wanted to come to that conclusion.

In the light of all those circumstances, how, realistically, could the Government have reached those conclusions in good faith? Of course, they have an overwhelming desire to ensure that we have as few asylum seekers as possible, so the conclusion is that, if there is any doubt about them, send them back, even to Nigeria.

The Minister says that the amendment is unnecessary. I come to a sharply different conclusion. I believe that there is an obligation on the Committee to press the Government on this point. She says that each case must be decided on its merits. I do not believe that the Government are capable of deciding each of these cases on its merits because they do not know what will happen to these people. She says that such people may by at no risk of persecution. That is far from certain. I believe that the Minister's response is so unsatisfactory that I wish to seek the view of the Committee.

11.56 p.m.

On Question, Whether the said amendment (No. 51) shall be agreed to?

Their Lordships divided: Contents, 12; Not-Contents, 37.

Division No. 3


Avebury, L.
Clinton-Davis, L.
Dubs, L.
Graham of Edmonton, L. [Teller.]
Hacking, L.
Harris of Greenwich, L.
Hylton, L.
McIntosh of Haringey, L.
Ripon, Bp.
Russell, E. [Teller.]
Williams of Crosby, B.
Winston, L.


Addison, V.
Blatch, B.
Brabazon of Tara, L.
Brentford, V.
Brougham and Vaux, L.
Burnham, L.
Carnock, L.
Chalker of Wallasey, B.
Chesham, L. [Teller.]
Courtown, E.
Cumberlege, B.
Dean of Harptree, L.
Denton of Wakefield, B.
Dixon-Smith, L.
Gardner of Parkes, B.
Goschen, V.
Harlech, L.
Henley, L.
Inglewood, L.
Kinnoull, E.
Lindsay, E.
Liverpool, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Miller of Hendon, B.
Mountevans, L.
Northesk, E.
O'Cathain, B.
Rankeillour, L.
Rawlings, B.
Shrewsbury, E.
Stockton, E.
Strathclyde, L. [Teller.]
Trumpington, B.

Resolved in the negative, and amendment disagreed to accordingly.

30 Apr 1996 : Column 1615

12.4 a.m.

Baroness O'Cathain

moved Amendment No. 51A:

Before Clause 4, insert the following new clause--

Carriers' liability

(". In section 1 of the Immigration (Carriers' Liability) Act 1987, after subsection (2) there shall be inserted--
"(2A) No liability shall be incurred under subsection (1) above in respect of any person who on arrival is granted leave (including limited leave) to enter or remain in the United Kingdom.".").

The noble Baroness said: Before moving this amendment, I should like to express my gratitude to the officials in the Public Bill Office and the Government Whips' Office who have been most kind in rearranging the position of Amendment No. 67 which is now Amendment No. 151A so that I can be absent on Thursday to attend to a sad family matter abroad. I apologise to Members of the Committee who may have been inconvenienced because of that but I am exceedingly grateful for the help and courtesy that I have received.

On Second Reading, I raised anxieties about the operation of the Immigration (Carriers' Liability) Act 1987. I sought guidance on the scope of the Bill to establish whether I might draw that Act into our debate. I have been advised that the Bill's wording, which includes the words "other connected matters", provides me with such an opportunity. While some may think that the issue I am raising is peripheral to the core concerns raised in the Bill, I believe, nonetheless, that this is an important opportunity to put right a particular injustice.

I had been aware of the broad problems consequent upon the carriers' liability legislation for some time, but my awareness was certainly heightened when I joined the board of British Airways. At this point I must, of course, declare an interest in that respect. However, I can assure Members of the Committee that my concern about the issue is certainly not solely due to the

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inconvenience and financial penalty incurred by British Airways, other airlines or even shipping companies. Indeed, the Chamber of Shipping, which represents the ferry industry, supports the amendment. My concern is the fundamental issue of wanting to see justice and fair play done.

My amendment relates to one very specific element of the carriers' liability Act which I will describe later. Members of the Committee may benefit from a brief description of the background to the issue. The Immigration (Carriers' Liability) Act requires carriers to pay a charge, as they call it, of £2,000 in respect of any passenger that they bring to the United Kingdom who is carrying incorrect documentation; or, indeed, in some cases, no documentation at all. Documentation seems to go mysteriously missing between the check-in point in the foreign country and the arrival point in the UK.

Carriers accept that responsibility; indeed, most of them employ considerable resources to comply with the requirements. I do not seek to question the expectation of UK Immigration in respect of compliance generally with the Act. However, since Second Reading, I have visited Frankfurt Airport to see for myself the problems created by the legislation. The difficulties that check-in staff encounter in attempting to comply with all the complexities of the legislation are truly mind boggling and, quite honestly, have led me to assert that all staff dealing with the processing of passengers for flights--and, indeed, for sea crossings--to and from the UK are expected, in effect, to act as unpaid immigration officials.

There is also quite a disturbing side to the process. Experience over many years has indicated that illegal immigrants, who, in the overwhelming majority of cases, are actually economic migrants and not genuine political asylum seekers, come from countries where the colour of their skin is different to the majority in this country. Because of many cases where such people have proved to have had incorrect or forged documentation, the check-in staff are doubly wary. They are trained to engage in what is euphemistically called "profiling" in an attempt to avoid causing an offence under the terms of the Act. However, by that very attempt to avoid causing an offence under one Act they are running a huge risk of committing an offence under another; namely, legislation dealing with racial equality.

I have to say that I am most grateful to my noble friend the Minister, who gave me some time a few weeks ago and listened to my explanations regarding the background to my concerns. At our meeting with officials, I was able to expose much of the detail of certain cases; and, indeed, I had a most sympathetic hearing. The purpose of the Immigration (Carriers' Liability) Act was to reduce the number of passengers arriving in the UK with no proper documentation, indicating in the great majority of cases that they had no right to be here. The airlines and ferry companies had to tighten up their procedures and accept that, if they make an error, they have to face the consequences in terms of fines or charges for detention.

I personally feel that that is harsh. Let us just imagine the stress put upon check-in staff who have to process upwards of 200 passengers in 20 minutes or so. During

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the period of each process they have to ensure that tickets and passports are valid and that they meet the seat requirements of those individual passengers. Australia has one stamp and one visa; the United Kingdom has something like 17 different stamps and forms of visa. Coping with passports in Arabic, Chinese, Nigerian, Sri Lankan and so on leads to a huge number of permutations. Six seconds per passenger does not give much time to do all that.

In order to cope with the complexity, British Airways alone has a dedicated department of five full-time staff whose responsibility is to train check-in staff in 80 countries on how to detect forged passports and visas. It is a complex undertaking made even more complex by the fact that in many cases the staff in those countries do not belong to British Airways, they are staff who work for a local monopoly or the handling agency and who do not have the same incentive to ensure that all is correct. This activity alone costs British Airways some half a million pounds per annum. On that basis, the total costs for all airlines and ferry operators bringing passengers to this country could amount to a significant sum.

My amendment addresses immigration expectations under certain very specific circumstances when it actually allows an incorrectly documented passenger to enter the United Kingdom by granting what is called leave to enter or exceptional leave to enter. This normally occurs when incorrect documentation is acknowledged not to be a wilful act of deception. The passenger is in effect given the benefit of the doubt. Under these circumstances, I submit that the carrier ought also to be given the same benefit of the doubt resulting in exemption from the fine of £2,000. At Second Reading I described the case of the mother with the new-born infant who had omitted to get the new-born infant registered on her passport. It was a passport which, incidentally, was utterly correct in very other respect. The mother and infant together were granted leave to enter but the carrier was fined £2,000. Laudable common sense and compassion were extended to the mother and infant, but not to the carrier.

A similar situation arose again with an airline where a mother with four children on her passport but not on her visa arrived in the United Kingdom. Again, of course, the children were granted leave to enter, but on this occasion it cost the airline £8,000. In another case, a former diplomat arrived from America with a visa which had expired. Being known as a reputable person, of course he was granted leave to enter, but the airline again had a £2,000 fine. I have made the point before but it is one worth repeating that, while UK immigration on such occasions shows laudable common sense and compassion towards the passenger, that is not extended to the carrier. The only person to benefit is the passenger who caused the problem in the first place.

Carriers do not know how many such cases occur, but an examination of the statistics suggests that in 1994-95 a total of 2,742 passengers arrived without a visa, or with a visa that had expired, but were subsequently permitted to stay. That total represents more than a quarter of the total number of inadequately documented arrivals in the United Kingdom that year. Removing

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those passengers from the equation would, of course, relieve carriers of a sizeable burden, but it would also reduce the vast amount of paperwork by the immigration service that each case involves.

One of the major concerns raised in the debate on the Asylum and Immigration Bill has been the requirement for additional resources to speed up applications for asylum. If my amendment is accepted, it would certainly free up resources which could then be channelled into helping genuine asylum seekers.

Just as an aside, in Germany--a country so often held to be the example of best practice--the immigration authorities do not fine carriers for breaches of this kind, provided they have made best efforts to prevent their occurrence. Similarly, Canada adopts the German practice. This amendment seeks to put us on a similar footing and I submit that it is logical and fair. I beg to move.

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