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Earl Russell: My Lords, in an amendment in which we are asking for the consent of the Attorney-General, it gives me great pleasure that the noble and learned Lord the Attorney-General is in his place to give his consent to the conduct of this debate. I am delighted to see him here.

I am delighted also that Amendment No. 30 is on the Marshalled List. It does indicate a desire to comply with the judgment, although it would be rather more impressive if all the cases which were before Lord Justice Simon Brown had been resolved. But, to my knowledge, at least one of these applications--that of Mr Sorani--was still undetermined two weeks' ago. That argues a certain lack of precipitate haste to comply with the implications of a judgment, which incidentally was forced to deal in considerable detail with the merits of Mr Sorani's application.

In that judgment, Lord Justice Simon Brown quoted from a memorandum by the UN Secretary-General in 1950, which is part of the preparatoire of the UN convention. It states:

“A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge".

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That, he explained, was the reason why Article 31 of the UN convention was necessary. He stated that the need for it had not diminished. He said:

“Although under the Convention subscribing States must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country) they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier's liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents".

That is why he suggested that the respondents--that is, the Government--might wish to reflect generally on the wisdom of prosecuting and imprisoning refugees for the use of false travel documents. He analysed their argument about the right to deter and concluded plainly:

“I find this argument unconvincing".

I shall not deal at length with the argument about the implications of the words “coming directly" because my noble friend Lord Avebury has covered that ground fairly clearly. But I shall add one point. If the object is, as it appears to be, to prevent an undue proportion of refugees from coming to one country, the rigorous application on an international basis of the words “coming directly" would tend to increase the proportion of refugees coming to a country with major airport links with the rest of the world. That is something which, applied as a general and not purely as a national principle, would tend to increase the proportion of refugees coming to this country. Although that might not cause me great concern, it does not appear to be precisely the object of the Home Secretary. So I wonder whether he is achieving his objectives.

Lord Cope of Berkeley: My Lords, I have, not often but sometimes, found it a disadvantage during a career in both Houses of Parliament not to be a lawyer. It is a disadvantage in this debate. I have a great deal of sympathy with what has been said in support of Amendment No. 29. However, the nub of the argument seems to lie in whether it is better to provide a defence in terms of Amendment No. 30, or a restriction on prosecution in terms of Amendment No. 29.

Neither amendment stops entirely the possibility of a prosecution. In Amendment No. 29, the right reverend Prelate and his colleagues have provided for the possibility of a prosecution with the permission of the Attorney-General in the circumstances set out in the amendment. If there is an obvious defence which will succeed as set out in Amendment No. 30, not many prosecutions will be mounted. So the difference becomes a rather close balance in regard to which a non-lawyer has difficulty making a decision. Is it better that a defence should be provided which will rule out most prosecutions before they begin, or that no prosecution should be instituted without the permission of the Attorney-General?

On balance, it seems to me as a layman that it is better to use the approach in Clause 29: to say that there shall not be a prosecution, except in exceptional

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circumstances. That approach seems clearer. But we all know that the clear approach is not always the right one to take in law when considering how matters will turn out in court. So it is with some diffidence that I express a preference for Amendment No. 29 over Amendment No. 30.

Lord Hylton: My Lords, I am glad to know that the Government have concluded that something needs to be done to mitigate the starkness of the provision in Clause 23 dealing with deception as the clause was originally drafted. Even before the Adimi case, it was clear that a large number of countries would never let their persecuted political dissidents go without their having false documents. One has only to think of Iran, Iraq, China and Burma, to name but a few.

When it comes to a choice between Amendment No. 29 and Amendment No. 30, as a non-lawyer, like the noble Lord, Lord Cope of Berkeley, my preference is for Amendment No. 29. It seems to be more positive, and to avoid the likelihood of defences having to be mounted unnecessarily.

Lord Sheppard of Liverpool: My Lords, Amendments Nos. 29 and 30 are grouped together. It would help me and, I believe, other noble Lords to hear Amendment No. 30 expounded and defended, so that we may consider that as we attempt to assess Amendment No. 29.

I want to refer briefly to the issue of deception, which is central to these provisions. I hope not to repeat what other noble Lords have said. In July 1991, UNHCR said that the protection owed to refugees under the 1951 UN convention on refugees may be rendered meaningless if persons in search of protection and assistance are unable to reach the territories of states that are party to this involvement.

Lord Justice Simon Brown has already been quoted in your Lordships' House. He spoke about false documents and said in the Adimi case that,

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

He noted that the requirement,

“will be satisfied by a genuine refugee showing that he was reasonably travelling on false documents".

I would like the Minister to explain why, in Amendment No. 30, for a defence to be established it would have to be shown that the person has,

“(a) presented himself ... without delay; ...

(c) made a claim for asylum as soon as was reasonably practicable".

At every stage of this debate, the point has been made that people who have been persecuted are fearful of officialdom. They may arrive in a strange country with a strange language. There will be moments of fear when they will not immediately know what they ought to do. I am sorry that such wording is included in what is in many other respects a helpful amendment.

Many of us honour and respect the work of the Medical Foundation for the Care of Victims of Torture. Among many cases quoted in its 1998 study of refugees from Zaire, it says that most had to use a

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false identity or had no papers in making an escape. A study of Turkey made this year says that of 16 people granted refugee status, two had come on their own passports. It is plain that many who have come would not have got here if they had not used false papers. As often stated in this debate, as in 1996, the Jews fleeing from Hitler would not have got here if they had relied on correct papers.

I am trying as best I can to compare Amendments Nos. 29 and 30. As the two previous speakers said, it seems to me to be a better strategy to go for restricting prosecution until the asylum question has been settled. That is not saying that no prosecution can happen, but what I propose seems a more logical way to proceed.

9.30 p.m.

Lord Williams of Mostyn: My Lords, perhaps, for the convenience of your Lordships, the pro-Amendment No. 29 argument has been put fairly fully. My noble friend Lord Sheppard asks why we have differed slightly in our approach. I do not believe we have differed in our fundamental purpose, but we have come to alternative conclusions.

My noble friend has asked one or two direct questions which I am more than happy to answer. They are helpful questions and deserve answers. The reason we framed our Amendment No. 30 in the way we did comes significantly from two sources: first, Article 31(1) and secondly, the question of administrative arrangements with which I shall deal fully in a moment.

Article 31(1) states:

“Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who"--

I emphasise the following words--

“coming directly from the territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation"--

which goes directly to the question asked by my noble friend Lord Sheppard--

“providing they present themselves without delay to the authorities and show good cause for their illegal entry or presence".

Essentially, our Amendment No. 30 is to deal with the question of administrative arrangements in the way that I will specify, but it is based on the thinking of Article 31(1).

A number of questions were asked and I shall answer them all, if I can. The noble Lord, Lord Avebury, asked about the new clause and its application to those cases who have been granted exceptional leave. Article 31(1) applies specifically to refugees. Exceptional leave is granted for a variety of reasons but it is not granted to refugees.

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