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Lord Avebury: My Lords, I shall detain the House for one minute. I point out to the noble Lord, Lord Filkin, that yesterday evening we discussed the situation in Belarus. I mentioned during that debate that two journalists had been convicted of insulting President Lukashenko and were sentenced to two and a half years' hard labour. If either of those people wished to come here and seek asylum, they would be barred by Clause 64.

Another case, which I mentioned this afternoon at Question Time, is that of Mr Manouchehr Mohammadi, the leader of the students in Tehran. I asked whether Mr Straw would raise his case with the Foreign Minister, Mr Kharrazi, during his visit today to Tehran; I know that he has done so previously. We are in an absurd situation. The British Government—the Foreign Secretary—are interceding on behalf of this man, who is a student leader and who was imprisoned after the student unrest in 1999 and has been in Evin prison ever since, where he has been tortured. However, if he came to the United Kingdom and sought asylum, he would be absolutely barred by the provisions of Clause 64. That does not make any sense.

Lord Joffe: My Lords, the provisions in the Bill relating to presumptions arising out of sentences imposed by governments in countries overseas are particularly dangerous. Almost by definition, people seeking political asylum in this country have been opposed to the regimes of the countries from which they come and have in the process subjected themselves to the draconian laws that are often prevalent in those countries. I quote from my South African experience. In South Africa under the sabotage legislation there was a minimum sentence of five years for the most innocuous offences. I recall that one offence was that of throwing a brick through a window with political intent and a conviction of six or seven years obtained. There are countless other examples. I support both amendments.

7.30 p.m.

Lord Filkin: My Lords, I propose to respond, first, to Amendment No. 53 and to explain why the Government are clear that this is an important element within their overall policy of meeting fully their obligations towards refugees and asylum seekers who genuinely need protection. I also want to explain why they are stepping up their efforts to spotlight and remove those who do not need such protection and who have no valid claim to remain in this country.

In legislating in this respect, we want it to be known by the refugee and asylum-seeker community, and by the public at large, that refugee status should not be

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taken for granted, particularly, as the House will be well aware, as there is substantial trafficking in illegal migration into Europe and into Britain itself.

Clause 64 defines the term "particularly serious crime" in Article 33(2) of the refugee convention as any offence for which a sentence of at least two years' imprisonment has been imposed. We decided on that yardstick in order to make it clear that high standards of conduct are expected from refugees who have the privilege and advantages of residence here. As has been pointed out, the very small minority who commit serious offences will be expected to argue their case for remaining here by seeking to rebut the presumption that they are a danger to the community. I should of course point out that at that stage they will have been convicted of the criminal offence, which carries a sentence of two years. At present, with no formal definition—

Lord Lester of Herne Hill: My Lords, I am sorry to interrupt so early in the Minister's reply. However, when he talks of a "serious offence" in answer to the point raised by the noble Lord, Lord Joffe, does he also mean political offences, as classified by critics of foreign governments, for example—those who oppose them and are convicted of political offences abroad? Are those, too, to be regarded under this provision as "serious offences" for this purpose and for the purpose of the presumption?

Lord Filkin: My Lords, if the noble Lord, Lord Lester, will bear with me for a while, I shall be pleased to come later to the point about sentences imposed abroad. At this point, I am keeping matters relatively simple and am focusing on sentences imposed in this country where we consider a two-year sentence to be a reasonable definition of serious criminality. Given the two-year sentence, a person will have, by the judgment of a court, committed a felony, and a serious one at that.

At present, with no formal definition of "particularly serious crime" in Article 33(2), it is too easy for refugees to rely on the protection of the refugee convention in order to secure their stay. The UK would not be the only country where an "actual sentence" criterion was used. In Germany, it is three years or more; in the USA, it is one year or more.

Therefore, we do not think it unreasonable to put those who fall within the scope of Article 33(2), due to criminal behaviour, in a position where they have to defend their right to remain here. The courts, not the Home Secretary, will always be the final arbiter in this matter. If people in that category are genuinely not a danger to the community, as judged by the court, and their rebuttal of the presumption is backed up by the independent appellate authorities, they need have no cause for concern. As I believe we said in Committee, in those circumstances it is almost inconceivable that a person would not apply a challenge to the court and that he would not receive the benefit of legal aid if needed.

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In our view, one essential element of the definition is a reference to the actual sentence—

Earl Russell: My Lords, is there any provision for up-rating the limits of years in proportion to inflation of sentencing?

Lord Filkin: My Lords, I believe that, unless it is something that one experiences as one goes by, time does not have an inflationary consequence. We are talking about the length of time, not a financial sentence.

Our approach is also simple and practical. It will immediately be clear from the legislation when Article 33(2) applies without any need for a specific list of offences. The noble Lord, Lord Kingsland, was quite right. We had a thoughtful discussion in Committee and we reflected on the matter considerably over the summer. We wrote to the noble Lord, Lord Kingsland, explaining—I apologise; I shall check my records—

Lord Kingsland: My Lords, I was not suggesting that the noble Lord did not write to me; I simply do not recall receiving the letter.

Lord Filkin: My Lords, I have been given an extract from a letter without the name of the person to whom it was addressed. Clearly we wrote to someone. That is not a very satisfactory response. Whomever we wrote to, I shall ensure that the noble Lord, Lord Kingsland, receives a copy or, indeed, a further copy if, in fact, we had sent one in the first place.

In essence, we did not depart from the arguments that we advanced when we considered the matter in Committee; that is, that the benefit of the actual sentence is that a court takes into account the offence and the circumstances of the individual at the same time. We considered that, if one is seeking to identify a measure, that, in our judgment, is more likely to be a fair measure than the alternative.

In Committee, we also reinforced our view, having considered it over the summer, of the position in Scotland. The noble Lord, Lord Kingsland, will recall that Scotland does not have anything like the same level of offences with prescribed maximum offences, and therefore some difficulty would arise in that respect.

Perhaps I may also illustrate that by referring to some of the cases which would not be caught in these circumstances. If the definition were limited to offences with a maximum term of imprisonment of 10 years, then offences carrying a maximum sentence of seven years or less would be omitted from the scope of Article 33(2). For example, a refugee sentenced to a maximum of seven years for child abduction would evade the application of Article 33(2).

Other offences with a seven-year maximum sentence are theft and the placing or dispatching of articles to cause a bomb hoax. The five-year maximum sentence level includes the production, supply or importation of class C drugs and aggravated vehicle-taking where a

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death occurs. We do not believe that it would be reasonable to omit serious offences of that kind from the scope of the article.

All the offences that I have mentioned are those in respect of which a court, following a conviction, might choose to make a recommendation for deportation. That, in itself, is an important indicator of seriousness. Previous cases in which Article 33(2) has applied have often involved a court recommendation for deportation.

I turn to the matter of a child pornography offence which carries a sentence of less than two years. In a sense, that provides us with an argument for having a threshold of less than two years. However, on balance, we feel that that would be too low.

With regard to crimes abroad, the clause does not apply where an offence committed abroad could not attract a sentence of at least two years if committed in the United Kingdom. Therefore, offences of the type described in Iraq would not meet the definition as one would not be sentenced at all—let alone for two years or more—in the United Kingdom. I hope that that is of comfort.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. Is that really correct? There are still offences in this country—sedition-related offences—which may seem archaic, and offences in relation to public order, which, if one looked at the nature of the offence, would match a political offence committed in another country. The fact that the conduct relied upon in Iraq would not in fact have led to a conviction is not the way that the Bill is formulated. Therefore, one cannot simply say that there is no double criminality involved and that therefore there is protection in that way because that is not how the clause has been formulated.

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