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Lord Hylton: My Lords, the important point that has just been raised by the noble Lord, Lord Avebury, brings me to another aspect of the exceptional leave to remain and indefinite leave to remain question. I refer to travel documents, particularly as regards those individuals who either do not have a valid passport of their own or perhaps have an expired one. I understand that the Home Office is willing to provide them with some kind of travel document but it is not always acceptable to all other countries to which they may wish to travel. For example, it may prevent people who are employed in this country from taking a holiday on the Continent of Europe or, as the noble Lord, Lord Avebury, indicated, it may prevent people from revisiting their country of origin to see whether conditions are suitable for them to return. They may easily not be. I hope that the Home Office will address this matter thoroughly and take it on board.
Lord Filkin: My Lords, the 1951 convention envisages that refugee status and its accompanying protections can come to an end in certain circumstances. It is therefore legitimate for the United Kingdom to end protection when those circumstances arise. I shall explain how we see that discretion being applied.
That power will apply only where a person ceases to be a refugee by virtue of their own actions and excludes situations where the circumstances in connection with which the person was recognised as a refugee cease to exist. Where a person was granted ILR because he or she had been tortured in their country of origin and the regime changed, we would not envisage that they would be required to return to their country of origin. We do not consider it appropriate to take away indefinite leave as a result of circumstances beyond the control of the individual. However, where a person voluntarily reavails himself or herself of the protection of their country of nationality, they will have indicated that they no longer require the protection of the
United Kingdom. There have been a number of examples—I do not know how apocryphal—of people being granted asylum in a country and then popping back for regular holidays and social contacts to their country of origin where they were allegedly tortured or where it was allegedly impossible for them to live. The matter would depend on the facts and the evidence in the relevant case. But clearly in the case that I have illustrated, the evidence would be that the person had obtained leave by deception and there would no longer be a need for them to remain in the United Kingdom.Refugees are granted leave specifically for the purpose of protection and if they behave in a manner which clearly suggests that they no longer need it it is legitimate to expect that the person concerned should leave the United Kingdom. I make those two clear distinctions. No doubt, as always, there may be circumstances which fall into greyer areas. However, the law would not permit the Secretary of State to exercise this power in an unreasonable manner and there will be circumstances where it will not be appropriate to revoke leave. I believe that in Committee we discussed compassionate factors such as the need to travel home to visit a sick or dying relative. Those factors would be taken into consideration. If the Home Secretary judged that the circumstances were genuine and valid, leave would not automatically be revoked.
Furthermore, the Secretary of State would not act in breach of his international legal obligations, so that removal could not take place when the individuals concerned have built sufficient ties to the United Kingdom for that to be in breach of Article 8 of the ECHR. In part, that touches on the question raised by the noble Lord, Lord Kingsland, in relation to Amendment No. 54.
This is not a power to keep refugees permanently on their toes and for ever uncertain; rather, it is a prudent measure to enable former refugees to be removed in circumstances in which it is clear from their actions that they no longer need protection. Those circumstances are set out so as to mirror provisions in the refugee convention which spell out when a refugee ceases to be a refugee. With those comments, I hope that I have done at least something to put the minds of noble Lords at rest in this regard.
Moreover, the Home Office is continually pressing for greater international recognition of the certificate of identity. The noble Lord, Lord Hylton, raised that point. That document is issued to those who are not refugees but who have ELR. It is therefore not a matter to which this clause directly relates. However, I take the noble Lord's point. The greater the international recognition of that, the better. Refugees are entitled under the convention to a refugee travel document which is recognised for travel purposes.
9.30 p.m.
Lord Hylton: My Lords, which other countries will accept the Home Office's travel document?
Lord Filkin: My Lords, I do not know. I will investigate and write to the noble Lord, Lord Hylton.
Lord Avebury: My Lords, the Minister said that it would be clear from people's actions that they no longer needed protection. I gave examples of people who were not absolutely clear about whether they needed protection and who wished to ascertain, by visits to the country of origin, whether it was safe for them to return permanently. The Minister did not deal with that point at all.
Lord Filkin: My Lords, the noble Lord is correct; and my apologies for interrupting him. I should have referred to that matter. The thrust of my remarks is that these issues are not black and white. There will be circumstances in which individuals wish to test the situation. They are entitled to a response—either yes or no—with, we hope, reasons from the Home Office. If the noble Lord has examples in which that does not appear to be happening, please may we have sight of them? I shall take them up.
Lord Avebury: My Lords, it is too late now because these people all had to exercise their own judgment about whether or not—
Lord Filkin: My Lords, I regret that but there is little I can do about it. However, I can certainly establish whether there is a fault of practice in the department and seek to rectify that.
Lord Avebury: My Lords, I can only say to the noble Lord the Minister that I know several of these particular Bahraini exiles who asked the Home Office whether they would forfeit their status by going back to their country of origin for a few weeks to ascertain whether the political temperature had changed sufficiently for them to be able to return home safely with their families and take up residence again in their country of origin. That uncertainty remains.
It is all very well saying that in future if such a case occurs I could come to the Minister. I am sure that I should get a very good reception from the noble Lord, Lord Filkin, if I took up individual cases with him. That situation is likely to recur in future. The clause as it is drafted will land all of those people in a position of uncertainty.
I point out, with great respect, that the Minister has used on a number of occasions—he did so again tonight—the refrain that the law will not permit the Secretary of State to exercise his power in an unreasonable manner. He suggested that if we got it wrong, it would be open to the person aggrieved to bring proceedings to judicial review. To me, it is unsatisfactory that policing at the edges of power by the judiciary should be regarded as an effective substitute for good, clearly drafted legislation. We should provide the Secretary of State with powers that
are limited to those that are necessary to discharge his functions in relation to immigration control rather than give him a sledgehammer, as does the clause, and entrust to the courts the duty of ensuring that he does not use it as a nutcracker.I know that we will not make any progress in this regard at this point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 54B and 54C not moved.]
Clause 69 [No removal while claim for asylum pending]:
[Amendment No. 55 had been withdrawn from the Marshalled List.]
Lord Dholakia moved Amendment No. 55A:
- Page 40, line 20, at end insert—
The noble Lord said: My Lords, the purpose of the amendment is to prevent the Secretary of State or an immigration officer taking action which might prejudice the safety or anonymity of an asylum seeker whose claim for asylum is pending. In meetings over the summer during the course of the Committee stage, the noble Lord, Lord Filkin, indicated that he believed he might be able to give a more satisfactory reply on this point. This amendment gives him an opportunity to do so.
Briefly, the existing provisions of Section 15 of the 1999 Act protect an asylum applicant from removal, pending the determination of his claim. Clause 69 repeats that protection. However, Clause 69(4)(c) introduces a new provision which permits the Secretary of State or an immigration officer to take steps to prepare for the removal of an asylum applicant in the future; for example, by making inquiries with an embassy as to the availability of travel documentation.
It is paramount that the UK authorities take whatever steps are necessary to ensure the safety of an asylum applicant and to engender absolute trust in the asylum system. That trust and safety may be compromised by the UK authorities taking certain steps to prepare for removal or by forcing the asylum applicant himself to make inquiries; for example, by applying for a travel document before the asylum claim has been finally determined.
Evidence has obviously been identified previously by a number of colleagues; for example, the Zimbabwean Government seek any information that they can about their citizens who may have claimed asylum in foreign countries. I believe that my noble friend Lord Avebury has already cited the example of the Belarusian authorities, who refuse to re-admit anyone whom they perceive as having claimed asylum abroad.
In Committee, the Government accepted the need to be discreet but suggested that not disclosing the reason for making the inquiry would be an adequate safeguard. However, they fail to appreciate that suspicious authorities—particularly those that have persecuted an individual in the past—will not need to be told why the inquiry is being made in order to jump to a conclusion about their citizen. That conclusion may not simply be a suspicion that the individual has claimed asylum; it is possible that he will be suspected of a criminal activity. The result may be that the individual or his family will be subjected to questioning, harassment or further persecution.
Having promised that he would look into the matter, this is an opportunity for the noble Lord, Lord Filkin, to see whether further progress has been made. I beg to move.
"( ) In this section "other interim or preparatory action" shall not include any action which may prejudice the safety of a person who has made a claim for asylum or that of his family members and shall preclude any contact with the authorities in or from his country of origin and any requirement to apply for a travel document in his country of origin."
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