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Lord Falconer of Thoroton: My Lords, Amendment No. 78 would confer on convicted persons who have been given notice of a decision to deport, following the recommendation of a court, an avenue of appeal through the immigration appeals system.

There is currently no such right of appeal, nor is there any good reason to introduce one. Perhaps I may explain why there is no good reason to introduce one. First, the court which made the deportation order will have taken into consideration the convicted person's circumstances before making the recommendation. Secondly, the Secretary of State will reconsider those circumstances, providing in effect a review of the court's recommendation. Thirdly, the convicted person already has a right of appeal against the sentences through the criminal justice system. Fourthly, the court concerned may be the Court of Appeal. To have a Court of Appeal recommendation reviewed and possibly overturned by an adjudicator or even the tribunal would seem inappropriate. Fifthly, no person who has a ground for making a human rights or asylum claim is disadvantaged because such a claim will, if refused, attract a right of appeal under the appropriate clause of this Bill.

For those five reasons, it is inappropriate to give a right of appeal against a recommendation of the court that somebody be deported after being convicted of a criminal offence.

Lord Avebury: My Lords, I asked the noble Lord--but he did not reply--why the Government thought differently when the Bill was first introduced and why the Government continued to think differently during all the consultations with voluntary organisations that took place right up until the Special Standing Committee. I also asked why he did not volunteer an explanation of the Government's change of mind when he moved the amendment at Committee stage, as I described.

Lord Falconer of Thoroton: My Lords, as to why we included the right of appeal in the first place, we have now been persuaded that it is not a good idea. I have given the reasons for that and it would seem to be the nub of the case. I did not deliberately mislead or seek to put the matter through in an underhand way, as the noble Lord suggests. It was something that was dealt with, with proper notice having been given. I apologise if I did not sufficiently bring the matter to the noble Lord's attention at the time. I hope that he will think

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that I have set out the case sufficiently fully. Whether he accepts that or not is entirely a matter for him but we have set out our reasoning in relation to the matter.

Lord Avebury: My Lords, of course, I have no alternative but to withdraw the amendment and I do so with the greatest reluctance. I shall return to the matter on Third Reading.

Amendment, by leave, withdrawn.

Clause 59 [Acts made unlawful by section 6(1) of the Human Rights Act 1998]:

Lord Falconer of Thoroton moved Amendments Nos. 79 and 80:

Page 40, line 38, at end insert (“unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997").
Page 41, line 5, at end insert--
(“( ) No appeal may be brought under this section by any person in respect of a decision if--
(a) that decision is already the subject of an appeal brought by him under the Special Immigration Appeals Commission Act 1997; and
(b) the appeal under that Act has not been determined.").

On Question, amendments agreed to.

Clause 63 [Claims for asylum]:

Lord Graham of Edmonton moved Amendment No. 81:

Page 42, line 42, at end insert (“, which include recognition of rape as persecution and therefore grounds for asylum").

The noble Lord said: My Lords, the purpose of Amendment No. 81 is to make explicit the recognition of rape as persecution and therefore grounds for asylum. It is mostly ignored. I shall explain what I mean by that.

Women making asylum claims are usually disadvantaged because being persecuted as a woman is not explicitly recognised by the United Nations convention on refugees which is binding on governments. Despite national and international legal precedents recognising gender-based persecution, women still face enormous obstacles in getting recognition of their claims. Although rape is officially recognised as a war crime, many women who are raped by police or soldiers are not in officially recognised war zones. With no statutory obligation to consider rape and other sexual violence in the context of the UN convention, officials ignore or override ways in which particular cases might fit with precedents which have been established. In addition, lawyers representing women do not necessarily know what the precedents are or see how precedents apply to a particular case, further disadvantaging women.

Additionally and crucially, because women may not be able to speak about what has happened and are not asked about rape, full details of the persecution they have suffered may not emerge immediately or for some time. Given the power of the Home Office to fast-track cases which they decide do not fit within the convention, there is even less time for a full case to be made.

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Women interviewed have been raped and assaulted by government agents in order to stop or punish their political activities against military dictatorships. The noble Baroness, Lady Williams, and others will recall the situation in Croatia and Kosovo. It is quite clear that in those areas rape on the scale witnessed and validated was organised to a far greater extent than anyone could have expected.

Sexism is also responsible for the fact that rape is still not officially recognised as an instrument of political repression, even though it is the weapon used most commonly against women. Some countries, including Canada and Australia, as well as the United Nations High Commission for Refugees, recognise rape as persecution and therefore as grounds for asylum. For all these reasons, there is an urgent need for a statutory obligation on the Home Office to recognise rape as persecution and, therefore, as grounds for asylum. At the UN Conference on Women in Beijing in 1995, governments agreed that this would be the international policy.

I am informed that Mrs B and her family were political activists opposed to the military dictatorship in Uganda. She was detained and raped after she publicly denounced the soldiers who killed her brother. The Home Office turned down her claim, saying that since the solders who raped her were after her brother the rape and torture that she suffered had not been political persecution. She finally succeeded in winning a judicial review which referred her case back to the immigration tribunal. She was granted refugee status six years after her initial claim. Although one may say that that is anecdotal, the evidence is there to validate it.

I do not believe that this matter can be too strongly impressed on the Minister or the Home Office. They are well aware of the extent of the horror that is visited upon women in these unfortunate situations. If it is within their power to say something about this matter tonight or to indicate that, following discussion with the people affected, they will be able to improve the procedures, I shall be happy subsequently to withdraw the amendment. For the moment, I beg to move.

Lord Falconer of Thoroton: My Lords, this covers ground that we went over to some extent earlier this evening in the course of our proceedings. I repeat that the Government accept that rape or other serious sexual violence could amount to a human rights violation which in turn could amount to persecution. That is stated in our instructions to staff who deal with asylum claims which are publicly disclosable and have been placed on the Internet. There is, therefore, no doubt that rape and all other serious sexual violence may provide the basis for a successful claim for asylum.

It is important to reiterate that women who make claims to that effect need to be handled with considerable sensitivity. We have agreed to update and revise our guidance in order to take better account of the particular needs and concerns of women asylum applicants. We have discussed with the Refugee Women's Legal Group, which has produced its own

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gender guidelines, how best to do this. Our instructions to staff are not set in stone, and the Secretary of State is willing to discuss their content with outside organisations. We are prepared to be flexible where that is desirable and have already agreed to adopt a number of the recommendations made by the Refugee Women's Legal Group.

While we fully intend to continue to take the views of external organisations into account, a final decision on the content of our guidance will need to be taken when a variety of approaches is advanced. I suggest that the Secretary of State is best placed to make this decision, taking into account the advice of his legal advisers. I very much hope that that provides the reassurance that my noble friend seeks.

Lord Graham of Edmonton: My Lords, I am grateful to the Minister. I hope he agrees that to have this matter twice on the record today is valuable to those outside the House. It provides me with a great deal of reassurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Williams of Crosby moved Amendment No. 82:

After Clause 66, insert the following new clause--


(“ . The Secretary of State shall, in consultation with appropriate organisations, develop and adopt guidelines for dealing appropriately with--
(a) women; and
(b) children
in the determination of asylum claims.").

The noble Baroness said: My Lords, I wish to put on record my thanks to the Minister for his favourable and generous response to the amendment about gender guidelines. He has given a reassuring answer.

One of the persistent problems in dealing with cases of rape as a basis for seeking asylum is the production of conclusive evidence. The use of the words that there is no conclusive evidence in rejection of such claims, as, for example, in the case of Mrs L, brought to his attention by asylum A, indicates how difficult the situation is if there is not a relatively sensitive handling of the case and someone of the same gender to consider the evidence raised by the person seeking asylum on these grounds. I beg to move.

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