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Baroness Williams of Crosby had given notice of her intention to move, as an amendment to Amendment No. 28, Amendment No. 28A:

Line 9, leave out subsection (3).

The noble Baroness said: My Lords, the Minister inferred immediately that my noble friend and I tabled the amendment because we perceived retrospective legislation and wanted to elicit an explanation of why that had gone down. We will read the Minister's remarks carefully. We do not want to make difficulties for difficulty's sake but the Minister will appreciate that we feel unhappy about retrospective legislation. He has helped us to some extent as to how it ever came about.

Of course, administrative mistakes are made--indeed, we understand that very well--but normally one should actually meet the penalty that applies. However, we would be most grateful if the Minister could perhaps say a few more words about the refund scheme. My noble friend and I will look most closely at this matter, but will not press the amendment on the point at this time.

[Amendment No. 28A, as an amendment to Amendment No. 28, not moved.]

Lord Hylton: My Lords, I think I heard the Minister say that charges for travel documents would not be greater than comparable ones for the issue of passports. If I am correct, that is encouraging. However, when he comes to reply, I should be grateful if the noble Lord could confirm that charges for travel documents will always be kept at reasonable levels and will not become a new kind of tax or source of fund-raising on behalf of the Government. We need to bear in mind that travel documents are an essential facility for a large group of people--the noble Lord cited 15,000 per year--who would not otherwise be able to leave this country for whatever good reason.

Lord Avebury: My Lords, perhaps I may confirm what the Minister said; namely, that the charge to be made--if it remains the same as it has been for passports--is to be £67. Perhaps the noble Lord would reflect a little on that amount. After all, we are talking about people who, presumably, come here destitute from their country of origin where they have been persecuted. They may not have had time to build up any assets or to enter into work. Of course, people who are in the queue waiting to have their applications heard by the Secretary of State are specifically debarred from working. Therefore, £67 is rather a lot of money in such circumstances.

If we are proposing that all refugees should be charged that sum for the issue of travel documents, I think that it is worth pausing for a moment to consider

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the implications involved. I know many refugees who do apply for travel documents because they have to travel for their political work. If they come here as refugees from a country where they have been persecuted and are still engaged in activities which are linked to the opposition against the dictatorial regime in their country of origin, they may have to attend conferences in other parts of the world. Of course, they could not do so unless someone paid for it and I assume that that is normally the case. But they need travel documents for that purpose. It seems that we are proposing to charge every one of these people £67, irrespective of his or her ability to pay. That is a point that we should reflect upon before we leave this clause.

Lord Cope of Berkeley: My Lords, retrospective legislation is always odious, but at the same time it is sometimes necessary and often the right thing to do. In this particular case, as it has been thought to be the position for so long, it is my judgment that this is a proper use of the power of retrospective legislation which Parliament has along with its other powers.

As regards the question of the level of the fee that should be charged, it seems to me that the comparison with passports is obviously extremely relevant. However, in the end, the cost involved is what matters. We do not want the Government to make a profit out of these matters, but they should not face an undue burden as a result of the number of applications for such travel documents.

I do not know whether the cost of issuing such documents is greater than that which applies to supplying passports. I have not asked that question. If I had, no doubt I would have been told. We do not want people to be charged unreasonably for travel documents but, at the same time, it is unreasonable for taxpayers to bear too much of the expense. That is the balance which the Government have to keep in mind when fixing the level of the charges for such documents.

Lord Bassam of Brighton: My Lords, I should like to thank all noble Lords and the noble Baroness, Lady Williams, for their very helpful and constructive comments in this short debate. If I am unable to answer questions that have not been asked, I shall at least try to answer those questions which have been asked.

The noble Lord, Lord Avebury, made a perfectly valid and understandable point about the hardship suffered by people who may well come here in difficult circumstances. We are very sympathetic to that point. However, perhaps I should remind the noble Lord that refugees will be charged £21, in the same way that a UK resident is charged for a passport. As I believe I said earlier, before we lay new regulations, we will of course review the £67 suspended charge that we have already discussed. Therefore, we are keeping such matters carefully under review. We intend to be as sensitive as we possibly can in the application of the charges. I believe that to be a reasonable way for us to proceed.

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After all, these are not revenue-raising devices. As the noble Lord, Lord Cope, said, retrospective action is sometimes necessary, although it may be odious. I am grateful to noble Lords for their patience and forbearance in this matter. If I have missed any points in my response, I shall be more than happy to pick up some of the detail in further correspondence. I believe I was pressed in particular on how the refund scheme might work. I shall provide the noble Baroness, Lady Williams, with a letter setting this out in a little more detail, and shall copy it to noble Lords who entered into this debate. I commend the amendment to the House.

[Amendment No. 28A, as an amendment to Amendment No. 28, not moved.]

On Question, Amendment No. 28 agreed to.

The Lord Bishop of Southwark moved Amendment No. 29:

After Clause 23, insert the following new clause--


( .--(1) In the 1971 Act, after section 24A, insert--
“Illegal entry and deception: prosecution etc.
(24B. No prosecution shall be instituted under section 24 or 24A above against a person who has lodged a claim for asylum under the Refugee Convention, or a person who gives information leading an immigration or police officer to believe that he may be seeking asylum, until his asylum claim is finally rejected, save with the consent of the Attorney General, and any person who gives such information to a police officer shall be referred to an immigration officer to ascertain whether he wishes to make a claim for asylum."
(2) In the 1971 Act, after section 26(1) there is inserted--
“(1A) No prosecution shall be instituted under sub-section (1)(d) above against a person who has lodged a claim for asylum under the Refugee Convention, or a person who gives information leading an immigration or police officer to believe that he may be seeking asylum, until his asylum claim is finally rejected, save with the consent of the Attorney General, and any person who gives such information to a police officer shall be referred to an immigration officer to ascertain whether he wishes to make a claim for asylum."
(3) In the Forgery and Counterfeiting Act 1981, after section 3 there is inserted--
“Use of false instruments: prosecutions in asylum cases.
3A. No prosecution shall be instituted under section 3 above where section 24B of the Immigration Act 1971 would preclude prosecution under section 24A of that Act for the use or attempted use of the false instrument."
(4) In the Forgery and Counterfeiting Act 1981, after section 5 there is inserted--
“Passport offences: prosecutions.
5A. No prosecution shall be instituted under section 5 above in circumstances where the false instrument possessed is a passport or document which can be used instead of a passport and section 24B of the Immigration Act 1971 would preclude prosecution for the use or attempted use of the false instrument possessed."").

The right reverend Prelate said: My Lords, in effect, this amendment would ensure that an application for asylum is determined before any criminal prosecution is considered regarding a person who is thought to be attempting to enter the country illegally. This is not to say that illegal methods are not sometimes used to seek entry into this country by people having no genuine case for asylum; it is to say that the case for asylum should first be tested before the illegal methods of entry are dealt with.

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A similar version of this amendment was debated in Committee in your Lordships' House on the eve of a judgment in the case of Adimi and others--a case which focused upon Article 31(1) of the 1951 Refugee Convention. That article is intended to ensure that bona fide refugees are immune from prosecution when, in order to reach safety, they have resorted to illegality. In the judgment on the Adimi case, Lord Justice Simon Brown confirmed that this applies to all refugees except those who have already found refuge in one country and are moving illegally to another for reasons of mere personal convenience.

In the High Court, Lord Justice Simon Brown held that prosecution should not be initiated or pursued where,

    “the illegal entry or use of false documents ... can be attributed to a bona fide desire to seek asylum".

Amendment No. 29, which is now before your Lordships, has been drafted to give effect to this ruling, giving protection against prosecution under immigration legislation and under the Forgery and Counterfeiting Act 1981. It would protect those who ask for asylum but it would also protect those who do not articulate a claim for asylum, thus placing a duty on police and immigration officers to take steps to ascertain whether or not a person is an asylum seeker before instituting a prosecution.

In the Adimi judgment, Lord Justice Simon Brown stated:

    “I would express the earnest hope that decisions to prosecute, not least for offences under the general criminal law rather than under Part III of the Immigration Act, will be made only in the clearest of cases and where the offence itself appears manifestly unrelated to a genuine quest for asylum".

He went on to say,

    “no arm of State, neither the Secretary of State, nor the DPP, nor anyone else, had apparently given the least thought to the UK's obligation under Article 31".

Those are stern words indeed. In the light of this it seems appropriate for the consent of the Attorney-General to be given in cases of prosecutions prior to the determination of the asylum application, and this is effected by the amendment before your Lordships.

We in the Churches in London have first-hand experience of trying to care for refugees. There are day-care centres run by the Churches in almost half of all London boroughs. Indeed, one is located within a hundred yards of where I live in Streatham. In addition the Churches run residential hostels and support structures for those in local authority accommodation. Through encountering these refugees and asylum seekers we meet with people fleeing some of the most oppressive countries on earth and we hear their stories. I have learnt from the experience of relating to such people that people in fear of their lives do not always have the right documentation, and if they have, they cannot always go home to get it because the agents of terror may be waiting for them. They naturally show up at borders with no documentation, wrong documentation or false documentation.

In the debate in Committee on the eve of the Adimi judgment the noble and learned Lord, Lord Falconer, indicated that the Government would study the

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judgment carefully. The evidence that this scrutiny has taken place is to be found in the welcome Amendment No. 30 of the noble Lord, Lord Bassam of Brighton. Because this amendment tackles the same problem as Amendment No. 29 which stands in my name, I hope that I shall not try your Lordships' patience if I seek to tease out the difference between the two amendments. Basically both seek to honour Article 31(1) of the refugee convention. I welcome the Government's realisation that this country's legislation must be based upon international treaties. The fundamental difference between the amendments, however, is that my amendment makes the application of Article 31 a bar to criminal prosecution, whereas the amendment of the noble Lord, Lord Bassam, allows it to be pleaded as a defence. I am not at all sure that this gives the protection which the article requires. To make the article a defence is to accept that a prosecution can be started against an asylum seeker before his status has been determined.

Let us consider what might happen in practice. I fear that in effect the magistrate in deciding whether Article 31 is a sufficient defence against prosecution will determine the application for refugee status--something that he is not qualified to do. Lord Justice Simon Brown in his Adimi judgment said as much. He stated,

    “I am troubled by the prospects of busy magistrates trying issues as difficult and sensitive as those which arise under Article 31".

Indeed, it is quite possible that the same case might go to two different places, the Home Office or immigration appellate authority on the one hand, and the magistrates' court on the other, where in the course of proving,

    “good cause for his illegal entry or presence",

under subsection (1) of the new clause in the Minister's amendment, the asylum seeker in fact might have to plead in a magistrates' court a large part of his or her asylum application.

The obvious solution to this dilemma would be for the magistrate to delay the trial until after the asylum appeal is decided, but in this case is it not simpler to follow the approach of Amendment No. 29 which provides that no prosecution can be brought until the asylum application is decided? I believe that this is a more straightforward and effective way of achieving in practice the full protection of Article 31.

I acknowledge that Amendment No. 30 is a considerable step forward and has some welcome elements. Certainly it could not now be said--as Lord Justice Simon Brown claimed--that no one involved in the criminal justice system had ever addressed their mind to this problem. Amendment No. 30 suggests that they have done so now. Nevertheless I believe that Amendment No. 29 is more straightforward and workable and is less likely to cause confusion and distress. I beg to move.

9 p.m.

Baroness Williams of Crosby: My Lords, I follow the excellent and clear speech of the right reverend Prelate

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the Bishop of Southwark and add a few more points to those which he outlined so effectively. I begin by saying a few words about the general approach of these Benches to the Bill. We fully understand that the Government have an almost impossible problem before them. As the standard of living as between the wealthy and developing parts of the world widens, in some cases it becomes more and more difficult to stop a great many people from trying to move from one part of the world to another. We recognise that this poses an extremely grave difficulty for the Government which is infinitely compounded by the fact that a great many profoundly crooked gentlemen and ladies who belong to illegal immigration rings try to cash in on the misery of many millions of people in this world in order to exploit them, and in some cases even blackmail them.

Therefore we have much sympathy for the Government on this matter. However, we have always held the view that a clear distinction should be made between those who seek asylum and who may be able to establish a bona fide case and those who are simply trying to get in on the wave of sympathy that genuine refugees attract in order to come here illegally and, indeed, to disobey and to evade the laws of this country. I want to state that point clearly as I shall not repeat it. However, I want our position to be fully and clearly understood.

Having said that, we began with the original Clause 23 which concerned us deeply. Ministers may recall that as long ago as 12th July my noble friend Lord Russell specifically drew attention to his concern that Clause 22, as it then was--it is now Clause 23 of the Bill--might not be compatible (I believe the noble Lord, Lord Alton, supported him in this) with Article 31(1) of the refugee convention. They gave due warning of that at the time.

I wrote to the Home Secretary on 5th August repeating that concern and suggesting that substantial steps would have to be taken to make the two positions compatible. I say with real enthusiasm that the noble and learned Lord, Lord Williams of Mostyn--who took delivery of these remarks in Committee before his noble friend Lord Bassam joined him--made it plain that he took on board some of these objections and would do his best to meet them. It would be less than gracious if we did not say--as the right reverend Prelate has said--that we are grateful to the Home Office and the Ministers for the steps they have taken in bringing forward the new clause in Amendment No. 30.

The right reverend Prelate has already referred to one of the difficulties of this matter, which is that cases under the Forgery and Counterfeiting Act 1981, and those under Sections 24A and 26(1)(d) of the Immigration Act 1971 continue to be conducted.

As recently as a few weeks ago, people who were trying to cross Heathrow in order to gain entry to Canada, among other countries, found themselves arrested and tried by this country without being able to put their case to the country to which they intended to go; they did not intend to stop in this country at the

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time. This has created great problems for the United Nations High Commission for Refugees, which has continually protested about it. There have been many hundreds of arrests at Heathrow over the years in order to pursue prosecutions. As long ago as 1988, Richard Dunstan of Amnesty International drew attention to such cases and suggested that they were likely to be in breach of the understandings we had with the United Nations High Commission for Refugees.

Be that as it may, perhaps I may now turn to the differences between Clause 25 and Clause 23, to which the right reverend Prelate has referred. I shall add one other very important one. In the response to the Adimi case, the respondent for the Home Office specifically said that administrative steps would be taken--the phrase he used was “administrative directions"--which would go a long way to meet the points raised by Lord Justice Simon Brown. I read the case in detail very carefully and noticed this precise commitment. I understand that since that time some kind of working party or working group has been established which is looking into the issues of the kind of administrative directions that might be given to the Crown Prosecution Service and others.

I must make it explicit that the problem is that the House knows nothing of this. Indeed, if I had not turned up the judgment--which was hard enough to get hold of--I would not know even today that administrative directions were proposed by the Government to deal with a large part of the problems raised under Clause 23. I mention this because new Clause 25 as it stands--if the administrative directions are clear and plain enough--would probably do.

The right reverend Prelate raised the issue of the difficulty and the problems of prosecuting people in magistrates' courts and, frankly, the inappropriateness of magistrates' courts effectively trying a refugee case. With great respect to the wonderful work done by magistrates, most of them are very unfamiliar with our obligations under international conventions because they rarely have reason to address that kind of topic. We do not think magistrates' courts are the right place for asylum cases to be tried. The right reverend Prelate made that very plain in his remarks.

Perhaps I may press the Government. We welcome new Clause 25 but a good deal depends on that unknown piece to which no reference has been made in either House. It perhaps could not be referred to in the other place because the judgment was not before us then. It is now before us--and it would be immensely helpful and a courtesy to the House if Ministers could tell us something about the administrative directives they propose. Perhaps they could tell us whether they believe that the directives could deal with the bulk of the prosecutions which neither they nor we wish to see in the case of asylum seekers.

As the right reverend Prelate has clearly and lucidly stated, that is why we tabled the amendment. The amendment makes clear that asylum seekers under Article 31(1) should not be treated on all fours with

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people who have illegally come to this country. It will be most helpful if the Government can tell us more about this and, dare I say it, possibly even, when they are ready, put the administrative directions in the Library in order that we can consider whether they meet--as we hope they do--the kinds of objections that we have raised persistently on this matter since the Committee stage.

9.15 p.m.

Lord Avebury: My Lords, let me say first that it has been helpful all the way through these proceedings that the Government have issued notes on the amendments. We are particularly grateful for the notes on this amendment which refer to the issuing of administrative safeguards, in conjunction with the CPS and police, to avoid prosecuting those who fall within the terms of Article 31. We have that on the record but not in a form which has seen the light of day in a public document.

I very much agree with my noble friend that we are entitled to see what advice has been given to the police and the CPS. Otherwise, as the right reverend Prelate said, there is always the danger that people may be prosecuted--and there is a power to prosecute them--and that they have to use the defence that is set out in the Government's new clause. We think that is unsatisfactory. We need to be convinced that the administrative arrangements are sufficiently watertight to ensure that prosecutions do not occur. Otherwise it would be better to adopt the course of action proposed by the right reverend Prelate to decriminalise the conduct altogether so that it is not possible for such a prosecution to take place during the period when the asylum seeker is under consideration by the Home Office. It is absolutely vital that we know what is in these instructions and that we can see how certain it is that a person is not going to be prosecuted while he is awaiting the determination of his application.

Before I come to the substance of my remarks, I wish to ask a further question: what are we going to do about the people who have already been imprisoned and who are at present in prison as a result of their wrongful conviction when they would have had an Article 31 defence? We have been told that such persons have to refer to the Court of Appeal. However, by the time they reach the Court of Appeal and the case is heard, the sentence will have been served. I believe that the maximum sentence imposed by magistrates for such offences is six months. Three months have passed since the Adimi judgment, during which time presumably those people were not able to get a court hearing because we had the Recess.

Is it right, the Government having decided that they will comply with the judgment and thoughts of Lord Justice Simon Brown, that these people have been allowed to spend an extra three months in prison waiting for their cases to come before the Court of Appeal? I wish that the Government would choose a more expeditious arrangement to ensure that people who on the Government's own admission are

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wrongfully imprisoned, are released as soon as possible. I hope that the Minister will have more to say on that matter in his reply.

The new clause proposed by the Government does not satisfy the requirements of the judgment of Lord Justice Simon Brown in two respects. First, in subsection (1)(c) it requires the person to have made an application for asylum,

    “as soon as was reasonably practicable after his arrival in the United Kingdom".

This point was specifically dealt with by Lord Justice Simon Brown in the case of Mr Adimi himself. The respondents in the case said that what was required of a refugee was a “voluntary exonerating act". They stated that a person seeking asylum should reasonably be expected to claim that asylum as soon as he arrives at Passport Control. The Government are returning to that point. They say that for a person to benefit from this new clause, he or she must apply for asylum the moment he or she arrives at Passport Control.

However, Lord Justice Simon Brown specifically stated that that was not the case. He could not accept that argument. In the case of Mr Adimi, he did not apply as soon as he reached Passport Control, but he was still within the rules of Article 31 when later on he made his application. That part of the judgment is not reflected in subsection (1)(c).

I turn now to subsection (2), which states that,

    “subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country".

It is usually the case that a person will stop in another country on his way to the UK because almost everyone who comes from a country where he is being oppressed has to journey via an intermediate third country in order to reach the United Kingdom. In the case we have been discussing, Mr Adimi came from Algeria via Italy and France, Mr Sorani came from Iraq via Turkey and Mr Kaziu came from Albania via Greece.

The wording in subsection (2) appears to follow the submission of the Home Office which was again explicitly rejected by Lord Justice Simon Brown. The Home Office argued that, although the phrase “coming directly" in Article 31 should not be interpreted literally because that would contravene the clear purposes of the article, the condition was only met if the refugee,

    “could not reasonably have expected to be given protection"

in any intermediate country. That would not be the case unless he needed, rather than merely desired, to come to the United Kingdom.

Lord Justice Simon Brown said that the Home Office contention was that Article 31 allows the refugee no element of choice as to where he may seek asylum. He must claim it where first he may. Only considerations of continuing safety would justify impunity for further travel. Lord Justice Simon Brown continued,

    “For my part I would reject this argument. Rather I am persuaded by the applicant's contrary submission ... that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short-term

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    stopover en route to some intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which such exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugees sought or found their protection de jure or de facto from the persecution they were fleeing".

He went on to quote the UNHCR guidelines, which are also quite clear, that in looking at the phrase, “coming directly", each case has to be judged on its own merits.

None of that is reflected in the wording of subsection (2). I very much hope that the Minister will agree to take back this provision and reflect upon it so that he may return at Third Reading with a wording that brings it into conformity with the judgment in the Adimi case and with the guidelines.

The clause as drafted does not protect from prosecution an asylum seeker who is ultimately granted exceptional leave to remain. Yet it would be contrary to the spirit of Article 31 if a person who had been given the benefit of the doubt, even though he has not the proof that he has a genuine fear of persecution, is then prosecuted for one of these offences. That is another respect in which the clause is defective. It does not cater for people who are granted exceptional leave to remain as opposed to refugee status.

I submit that it can never be in the public interest for an asylum seeker to be prosecuted for one of the offences, whether or not he is ultimately successful in his application. If he is to remain here for the rest of his life, on whatever grounds, six months in prison will not start him off on the right track. If, on the other hand, he has to be sent back to the country of origin, there is no point in spending taxpayers' money on court proceedings and imprisonment before his departure.

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