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Lord Falconer of Thoroton: These amendments raise important issues about the way that applications from women asylum seekers are to be treated. They relate to how their experiences as women contribute to the substance of a claim for protection and how they are treated by the system in the United Kingdom. I deal first with the question of rape as a ground for claiming asylum. In order to qualify as a refugee, an individual must show that he or she has a well founded fear of persecution for one of the reasons set out in the 1951 convention. The Government accept that physical or psychological torture, rape or other serious sexual violence would amount to a human rights violation that could in turn amount to persecution. This is explicitly acknowledged in our asylum casework instructions that are also available on the Internet. All caseworkers have access to and are guided by these instructions. Any complaint that we have deviated from our stated approach in an individual case would be considered at an appeal by an independent adjudicator.
I hope in the light of that explanation that there is no difference between us on the question of whether rape may provide the basis for a successful claim for asylum. There is no doubt that it may do so. However, rape cannot guarantee asylum. Each case must be judged on its merits to establish whether the circumstances amount to persecution within the terms of the convention. There is no universally accepted definition of persecution and attempts to formulate such definitions have met with little success. To attempt to list all of the possible methods of persecution would be impossible and to list only one would be undesirable.
On that basis, the amendment proposed by the noble Lord, Lord Dholakia, is unnecessary simply to establish that rape may provide a ground for asylum. I suggest to the Committee that it is undesirable to identify in legislation one possible ground for asylum but not others. These issues are better dealt with in policy guidance to caseworkers rather than in legislation, and the instructions already cover the question of rape as a form of persecution. I can also assure the Committee that if a rape survivor was not considered to qualify for asylum, he or she could still be considered for exceptional leave to remain on compassionate grounds.
I turn now to the second amendment in this group which is concerned with the practical arrangements for dealing with asylum claims from women, some of whom may have been raped. We have in recent months been discussing with the Refugee Women's Legal Group how to update and revise our own guidelines in order to take better account of the particular needs and concerns of women asylum applicants.
The guidelines produced by the Refugee Women's Legal Group have been very helpful to us in this endeavour and we have adopted a number of the recommendations. For example, we have drawn to the attention of caseworkers the fact that the experiences of women in their countries of origin may differ significantly from those of men. Their ways of protest, activism and resistance may manifest themselves in different ways. Certain types of persecution may more commonly affect women, and they may be reluctant to disclose this, particularly to a male interviewer or interpreter. For this reason, we have said that requests for a same sex interviewer or interpreter will be
However, I could not recommend to your Lordships that any guidelines produced by the Refugee Women's Legal Group should automatically be adopted. That would be the effect of the amendment. For example, we do not consider that the guidelines make sufficient distinction between discrimination and persecution. The guidelines also require that full asylum interviews should not take place on arrival. We agree that there may be circumstances when this would not be appropriate, but if we were constrained by legislation to defer all interviews we would be unable to conduct early interviews even when they were desirable. This would give greater scope for some applicants to delay resolution of their claims and prolong their stay, contrary to our objective of speeding up the asylum process.
Although I cannot for these reasons accept the amendment, I emphasise our desire to work closely with the Refugee Women's Legal Group to ensure that gender issues are properly considered in the course of dealing with asylum claims. Our discussions with the group are continuing and we will consider any further constructive proposals which are made.
Lord Dholakia: I thank the Minister for the explanation that he has given. There are a large number of these organisations across the country, many of them specialising in this work. When they are producing guidance for the caseworkers and the officers perhaps they should consult with them so that awareness is increased. It has taken the police years and years of dealing with such cases to develop that sensitivity required in this area of work. I beg leave to withdraw the amendment.
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