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Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for giving way. Would that prevent anyone being sent to a country which is not a member of the Council of Europe and therefore does not apply the European convention in its courts?
Lord Falconer of Thoroton: My Lords, the question would be whether human rights would be infringed—which would be a different question from whether or not the country adhered to the European Convention on Human Rights. I was about to give an example; however, I think it unwise to do so without checking it out first. I do not think that the questions are the same.
Lord Kingsland: My Lords, without rehearsing a substantial part of the debate that took place before the dinner adjournment, I am in some difficulty in dealing satisfactorily with all the apposite points that the noble and learned Lord made.
Perhaps I may be allowed one reflection. The noble and learned Lord made a distinction at one point between the human rights that relate to the decision as to whether or not to send an individual abroad and the human rights that the individual would discover or not discover in the country where he or she was sent.
I am not sure that I understood entirely the Minister's observation. I took him to say that what was crucial to the Home Office—to the Government—was the first measure of human rights, not the second. But since I intend to re-table this amendment at Third Reading, I think I can wait for a further episode from the Minister then. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 37 to 41 not moved.]
Lord Archer of Sandwell moved Amendment No. 42:
- Page 53, line 27, at end insert—
The noble and learned Lord said: My Lords, whatever categories of persecution there may be, I assume that the House agrees that torture is in a separate one. Those who suffer torture are the most vulnerable, the most inhibited from discussing their experience or describing it at an early stage, and the least able to survive further persecution. It is in this area in particular that the record of the Home Office does not inspire a great deal of confidence. I am grateful to the group of NGOs that put out the latest publication under the Immigration Law Practitioners' Association.
I shall refer briefly to three case studies. In the first, a man from Zimbabwe whose parents were beaten and stabbed to death by ZANU, made a claim for refugee status following a campaign of harassment, intimidation and beatings. The Home Office certified it as being manifestly unfounded. The adjudicator indicated that the claim was clearly not manifestly unfounded. He allowed the appeal and overturned the certificate. He said that the man would have had a genuine fear of being persecuted, ill-treated and possibly even killed, and he was ultimately granted refugee status.
The second case is in a category that has been discussed more than once during this evening's debate. A woman from the Roma had received threatening letters and telephone calls, her house had been burnt down and she had been attacked by skinheads. Her claim was certified as being manifestly unfounded. The adjudicator said that if she were returned there would be a real risk that she would be subjected to torture or inhuman or degrading treatment.
The third case is of a man in Cameroon whose father had disappeared and whose family home had been burnt down. He was arrested and detained for three months, during which time he was systematically tortured, beaten with the flat-side of a machete and had his leg burnt with a hot iron. The Home Office certified that his case was manifestly unfounded. The adjudicator allowed the appeal, and he was granted refugee status.
Obviously, there are other examples, some of which other noble Lords quoted during the debate. The idea that the Home Office is somehow infallible in these matters will simply not stand up to a moment's examination. I note, too, that 40 per cent of cases that were certified as manifestly unfounded were in due course overturned on appeal. I shall quote from Lord Justice Stuart-Smith in the Demirkia case:
Lord Judd: My Lords, my noble and learned friend Lord Archer of Sandwell has again put the case very well. I have one area of concern to add. Methods of torture have, unfortunately, become increasingly sophisticated. One dimension of torture is psychological torture, which is much more difficult to deal with because the physical scars are not necessarily there. I can imagine that under a great deal of pressure—and we have been talking about pressure;
Lord Mayhew of Twysden: My Lords, the noble and learned Lord spoke of the record of the Home Office. I have a strong residual loyalty to the department in which I had the honour to serve a long time ago. Fortunately for me, I was not in charge of immigration cases. The three instances that the noble and learned Lord cited are very dismaying because in each of them the official arm has certified that the claim for asylum was manifestly unfounded.
The amendment affords the Minister the opportunity to answer the question that I twice put to him before our adjournment: whether the system that he has taken pains to explain to us this evening—that one pair of eyes will be supplemented by another—was in operation at that time. He has probably had an opportunity to take instructions about that and I should be very grateful if he would let us know.
While the Minister is thinking about that, I beg him not to expound once again that all is well because there is to be judicial review. Judicial review is not the same as appeal. As part of the legislature, it is our duty to ensure that in every type of case, and never more importantly than when torture is concerned, the judicial system provided for by statute—and the adjudicator has to deal with these matters judicially—is sufficient to provide an appeal against such a decision. It should not be left to judicial review and the High Court to say that the system was inadequate and let the applicant down.
Lord Avebury: My Lords, will the Minister say something seriously about the proposals to deal with all the cases certified as manifestly unfounded by funnelling them through Oakington, including the ones to which the noble and learned Lord, Lord Archer, referred? If that is the case, how can someone who claims to have been tortured establish the basis of their case within the seven to 10 days that are normal for people to pass through Oakington and out the other side? In a torture case, somebody needs to obtain medical evidence. There may or may not be doctors available at Oakington with the necessary background and expertise to examine a patient and say whether the wounds that he displays are likely to have been caused by torture. Still less are there likely to be psychiatrists capable of evaluating the sort of claim referred to by the noble Lord, Lord Judd, in which someone says that they have been psychologically tortured. A specialist kind of medical examination would be needed for that.
If the Government intend to send every one of these cases that are certified as manifestly unfounded through Oakington, they at least have a duty to
Lord Hylton: My Lords, the cases cited by the noble and learned Lord, Lord Archer, vividly illustrate the type of culture of disbelief that has prevailed in the Immigration and Nationality Directorate in the past and that I suspect is still found there. When he winds up, would the noble and learned Lord, Lord Archer, be kind enough to say whether he includes rape as a form of torture in the context of his amendment? It seems to me that the amendment is a minimum safeguard which the Government should accept if they wish to have their Clause 92.
Lord Goodhart: My Lords, we on these Benches entirely support the noble and learned Lord, Lord Archer of Sandwell, on this amendment. If anything, we would like to see it strengthened so that it applies to cases where there is a real possibility that the appellant would be tortured if returned to the country. The Minister may simply say that someone who has been tortured would never be regarded as someone with a manifestly unfounded claim, but I would not regard that as an adequate explanation. I think that the provision should certainly be included in the Bill to ensure that those who examine these cases always have in mind the question of whether there is a reasonable likelihood that the person has been tortured or would be tortured if returned. There is a value in including that in the Bill even if the noble and learned Lord, Lord Falconer, might not regard it as strictly necessary.
"( ) This section does not apply if the evidence adduced in support of the application establishes a reasonable likelihood that the appellant has been tortured in the country to which it is proposed to remove him."
"Where evidence of past maltreatment exists, it is unquestionably an excellent indicator of the fate that may await an applicant upon return to her home".
That is self-evident, but it appears to have required a distinguished Lord Justice of Appeal to spell it out. How, then, can it be said that in those circumstances an appeal is manifestly unfounded? I will not weary your Lordships by elaborating further. The proposition is so clear that any refutation would be manifestly unfounded. I know that my noble and learned friend is exploring whether there is a solution that will accommodate the recognised, legitimate concerns of the Government and also our own. I am content to await his reply. I beg to move.
10 p.m.
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