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Lord Falconer of Thoroton moved Amendment No. 195F:

Page 91, line 31, after ("133") insert ("or regulations under section 135").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 136, as amended, agreed to.

Lord Avebury moved Amendment No. 195G:

After Clause 136, insert the following new clause--

("Asylum seekers bearing false papers

. In section 5 of the Forgery and Counterfeiting Act 1981, at the end there is inserted--
"(7) In subsection (5)(f) above, "passports and documents which can be used instead of passports" does not include any such document when used by a person seeking entry to the United Kingdom as an asylum-seeker or transiting the United Kingdom with a view to seeking asylum in another country."").

The noble Lord said: Some Members of the Committee may have seen an article which appeared in the Independent on Sunday a few days ago under the heading, "Britain gaols a thousand refugees". The article claims that the United Nations has formally complained to the Home Secretary that 1,000 asylum seekers are being thrown into gaol every year simply because they pass through London airports on their way to other countries. It claims that, although many of them do not speak English, they are brought before the courts and jailed for up to nine months, most of them ending up in Wormwood Scrubs which, it is said, was castigated recently by the Chief Inspector of Prisons for its appalling conditions.

The article goes on to say that as a result of this case which was heard before Lord Justice Brown in the Divisional Court last week, the CPS told its chief prosecutor not to proceed with outstanding prosecutions against people accused of using false documents. At the end of the case Lord Justice Brown said that there will be people in prison who should not be. A final judgment in the judicial review is expected this week.

When the Minister replies, can he say whether it is true that the CPS decided not to proceed with outstanding prosecutions? What are the Government going to do about those people who have already been sentenced and who are now serving their sentences in prison? It seems to me that if the Government recognise the force of the Divisional Court's judgment, they owe

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a responsibility not only to those who would be prosecuted in the future but also to those already improperly convicted.

I also ask the Minister whether he will agree to publish the letter from the UNHCR mentioned at the end of that article in which grave concern is expressed about the potential violation of asylum seekers' rights. I asked the protection officer at the UNHCR representative's office in London whether I could have a copy. Quite properly, he told me that it was the property of the Minister and that I should seek to obtain a copy from him if I wanted to see what it said.

I shall give an example of the sort of thing that was happening until the case in the Divisional Court to which I have referred. It relates to an Algerian, Chouki Adimi, who came to the United Kingdom from Italy on false documents which he had obtained en route. He presented the documents at the airport with the intention of entering the United Kingdom to speak to his brother who already had leave to remain here and to get his advice about seeking asylum in the United Kingdom. However, he was caught at the airport because the Italian passport that he had presented was one of a number of stolen blanks, which was on the Heathrow computer. After a couple of hours, he admitted that he was not Italian but Algerian and that he wished to claim asylum. He was not allowed to claim asylum or to talk to his brother, but was held at Heathrow police station for removal the following day as an illegal entrant.

In the meantime, a solicitor had made an application for asylum on his behalf. It was pointed out that he could not return by France or Italy, through which he had transited, because neither of those countries recognised persons as refugees who were fleeing from non-state persecution. That was the subject of another judgment last week in the Court of Appeal, to which we shall have to return, not on this occasion but at Report stage.

He was charged with possession of false documents and appeared at Uxbridge Magistrates' Court in April 1998. The lawyers applied for an adjournment, stating that because he was protected by Article 31 of the refugee convention, the proceedings should be stayed pending the determination of his claim. That application was refused. In due course, however, the magistrates did allow an adjournment pending judicial review proceedings. On that occasion in November 1998, Mr Adimi was recognised as a refugee. However the CPS said that it would continue with the prosecution. I do not know what has happened to Mr Adimi. Perhaps the Minister will bear in mind that particular example when he replies.

These two amendments are designed to ensure that bona fide refugees are immune from prosecution when, in order to reach safety, they have resorted to some illegality. They do not require that they must have come directly from a country of persecution. They would apply to all refugees and asylum seekers except those who had already found refuge in another country and were moving to the United Kingdom for reasons of mere personal convenience.

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These amendments are intended to apply to those resorting to false documents and clandestine entrance, and to all those who show false documents at port on disembarkation, in order to enter so as to seek asylum once in the country, or on embarkation after passing through the United Kingdom in order to seek asylum in another country, as well as to those who seek asylum at a port.

Regrettably, it has been found from research and the recent cases in the Divisional Court that the immigration service, police, Crown prosecutors and magistrates have for years been ignoring or misapplying Article 31 of the refugee convention. It is estimated that since 1994 many hundreds of bona fide refugees have been unlawfully imprisoned in breach of the UK's obligations because of this neglect and default. It is clearly wrong for that state of affairs to continue and imperative that the UK complies and is seen to comply with all her international and humanitarian obligations. I beg to move.

Lord Phillips of Sudbury : I support my noble friend Lord Avebury in this amendment and speak also to Amendment No. 195H with which it is grouped. The Committee may understand that Amendment No. 195H seeks to add a clause to Section 24 of the Immigration Act 1971 to make clear what may already exist by implication. However, from what my noble friend Lord Avebury said, that would appear to be highly contested, given the three cases which are currently being adjudicated, ex parte Kaziu, ex parte Adimi and ex parte Sorani.

The amendment seeks to insert into Section 24 of the Immigration Act 1971 a clause which makes it absolutely plain that someone who has lodged a claim for political asylum here, or is in transit to a place of political asylum, should not be subject to prosecution under Section 24(1)(a). That subsection allows a prosecution and indeed, leads to many prosecutions on the grounds that the person concerned,

    "knowingly enters the United Kingdom in breach of a deportation order or without leave".

It is worthwhile making extremely plain our profound concern about the situation to which my noble friend has referred, as mentioned in the Independent leader. That is in relation to the United Nations Convention on Refugees 1951. I am sure that it is not necessary for either the noble Lord, Lord Williams of Mostyn, or the noble and learned Lord, Lord Falconer, to be reminded of the provisions of Article 31, but it may be of help to the Committee. Article 31 states:

    "The Contracting States",

of which, of course, we are one,

    "shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in that territory without authorization".

That article of the convention has been, some would say, honoured in the breach by the United Kingdom authorities in case after case.

My noble friend Lord Avebury referred to the Adimi case. Perhaps it would emphasise and give vivid illustration to the point we are trying to make in this

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amendment to briefly refer to the facts of the Kaziu case. Mr Kaziu was bodyguard to President Berisha in Albania. He was subject to two assassination attempts in 1977 when President Berisha fell from power. He organised demonstrations when a member of the governing party--an MP of President Berisha's party--was murdered. In 1998 threats were made to him and to his parents.

A search was put out for him and he escaped in the only way he could, which was by using a false passport. There was no other way in which he had any other prospect of escaping. I am afraid that Greece is an unsafe country for Albanians. He went into Greece only as a means of escaping to the United Kingdom. He went to the United Kingdom only because he was en route to Canada where the prospects for Albanian refugees in his position seeking political asylum are a good deal better than they are even here.

He was hauled off the flight to Canada and prosecuted under the Forgery and Counterfeiting Act for his false passport and for another offence and convicted at Uxbridge Magistrates' Court. Subsequently, he was lucky enough to obtain the services of Bernberg, Peirce and Co., who have brought judicial review proceedings on which, as my noble friend said, we are awaiting judgment.

I hope that going through those facts makes very clear the necessity for these amendments. Without them, there is no doubt that the muddles and unfairnesses of which the cases mentioned are but the tip of a large iceberg will continue. Therefore, I strongly urge the Government to consider these amendments favourably. Obviously, if the wording is imperfect in some respects, one would very readily accept whatever changes may be necessary, as long as the effect of the wording is preserved. Although the judgment of Lord Justice Simon Brown has not yet been delivered, he went as far as to say:

    "Manifestly, somebody should be giving very careful consideration to our obligations under Article 31 and ensuring that procedures are in place to guard against violating them".

These amendments would do just that.

10.15 p.m.

Lord Falconer of Thoroton: I am extremely grateful to the noble Lord, Lord Avebury, for drawing attention, by means of these amendments, to the important issue of whether prosecuting asylum seekers for fraud-related offences is consistent with our obligations under Article 31 of the 1951 refugee convention. Like quite a number of Members of the Committee, I imagine that the noble Lord is obviously aware that the Government are in correspondence with the London Office of the United Nations High Commissioner for Refugees on this precise issue. I have not actually seen the newspaper article that has been mentioned, but I assume that that is the correspondence to which the noble Lord was referring when he asked whether we could make it public. I can see no reason whatever why we should not make it public. However, I should point out that the correspondence is in fact addressed to the Attorney-General and, subject to his consent, we will make it public.

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The noble Lord also rightly said that this issue is the subject of judicial review proceedings before the High Court. I understand that the judgment on this is due to be handed down tomorrow. Obviously, that may have an effect on precisely where we go in that respect. However, even though a judgment is to be given tomorrow which may affect the situation, I believe I should say as much as I can about the issue at this stage.

The Government take their obligations under the 1951 convention extremely seriously. No one denies that the protection afforded by Article 31 is an important factor in the decision of whether or not to prosecute a person for fraud-related offences. The Crown Prosecution Service recognises that Article 31 may be relevant when deciding whether or not to bring a prosecution in these particular circumstances. In the light of the correspondence from the UNHCR, the CPS is convening a multi-agency forum to take a fresh look at policy and practice relating to this issue. We shall seek to involve the UNHCR in these discussions. We shall also wish to consider any comments or guidance that the court may offer arising from the cases that have been mentioned. The first meeting of this group has deliberately been deferred to allow this to be done. Perhaps I may emphasise again that the judgment could affect all of this in such a way that we might have to return to the drawing board; indeed, we just do not know at the moment.

Having outlined the background, perhaps I may turn to the amendments in question. My principal concerns about them are twofold. First, I am not convinced that they fully address the nature of the problem or that they provide a complete solution. Secondly, in seeking to ensure that there is not a breach of our obligations towards genuine refugees under Article 31(1), I am concerned that the amendments may go too far and also offer scope for the abuse of immigration control by others.

It is important to remember that there are limitations on the scope of Article 31; for example, concerning the time-scale within which an asylum claim must be made in order to fall within the benefit of that article. Therefore, the answer to the question whether Article 31 applies in a particular case will not always be straightforward. If we decide to opt for a legislative solution--and we have not ruled it out--the possibility of opening up opportunities for abuse may, to some extent, be unavoidable. But, if it is, I should want to reduce the risk of abuse to the absolute minimum. This means thinking about the legislative option in a slightly longer time-scale than these amendments would afford and doing so in the light of any guidance offered by the courts on the problem.

I have in mind Amendment No. 195G in particular which, as drafted, would apply not just to refugees but to anyone who claims asylum, whether or not his or her claim had any validity. However, there are also aspects of Amendment No. 195H which seem to go over and above what Article 31(1) would require. For example, if the prosecution is not inconsistent with Article 31(1), we doubt if it is necessary for the Attorney-General to have to give his consent as well.

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As I have said, we take our obligations under the convention extremely seriously and we await with interest the judgment of the High Court, which may of course be subject to appeal by one or more of the parties involved. We shall want to consider the outcome of this litigation carefully before deciding what steps are necessary. It may be that a legislative solution is not the best way forward. For example, it may be possible to introduce adequate administrative arrangements for proper co-ordination and exchanges of information between the CPS and the immigration service when the possibility arises of prosecuting for an offence of fraud a person who has or may claim asylum. Such arrangements may well be sufficient to meet our obligations under Article 31 and may be a better way forward.

I appreciate that the timetable for consideration of this Bill and the timing of the judgment are not matters over which the noble Lord has any control. However, I suggest that until the judgment has been read and considered it may be premature to go down the route of amending legislation. Whether or not that judgment is the last word, we ought at least to consider it, and any guidance it may contain, before any decision is made as to whether or not we need to legislate on this matter. This is not the last opportunity to consider this issue. I therefore hope that the noble Lord will agree to withdraw these amendments and, if necessary, return to them at a later stage.

I shall deal with a number of points that have been made. I can confirm that the Director of Public Prosecutions has issued interim guidance to Crown Prosecution Service offices in the light of the comment made by Lord Justice Simon Brown that has been mentioned. I am afraid that I am not able to give the precise detail of that advice but I shall write to the noble Lord on that.

The noble Lord, Lord Avebury, referred to the Adimi case. This was the subject of judicial review proceedings. The CPS has already considered the issues raised by Article 31(1) and has decided that it does not prevent it bringing proceedings in that case. Of course, we must await the court's judgment on this point as the case has yet to come to trial. I think that is everything.

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