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Baroness Scotland of Asthal: I may have misheard the noble Lord, Lord Avebury. Was he suggesting that I said that it was impossible to identify individual tribes? What I was saying in answer to the noble Baroness, Lady Williams, was that on a number of occasions it has been said that somebody came from a certain tribe, which would indicate that they may have had difficulties. I was not by any means saying that it was impossible. I outlined the difficulties that may occur, but I was not suggesting that it was impossible to do, simply that it was difficult, cumbersome and possibly unnecessary to go down that road.

Lord Avebury: The Minister had just been discussing the question of Zimbabwe, and the possibility that undocumented arrivals might have produced essentially credible evidence that they came from that country. She went on to broaden her comments by saying that many people claim to belong to a particular tribe or group but that the matters that they state are peculiarly within their own knowledge and it is very difficult or impossible for an immigration officer to test their stories. I was merely saying that, in the case of language, we now have tools that, according to the Home Office, are turning out to be very effective. That is illustrated by the fact that it was possible to label one in five persons claiming to be from Somalia as coming from some other country. The same is true, if I may broaden the discussion, with those coming from Zimbabwe. It is possible to identify a person who speaks Ndebele as coming from a particular area of Zimbabwe. If he comes from South Africa and is pretending to be a Ndebele, it is possible for the language testers to prove it to be false.

I can see that we are not going to get any further on these matters than they did in the other place and so I shall not hold noble Lords up by prolonging the reply to the debate. I can only say that, from the discussion that we have had so far, I think that we have not heard the end of these matters and we shall have to return to them at a later stage of the Bill. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 7 not moved.]

Lord Avebury moved Amendment No. 8:

Page 3, line 6, leave out sub-paragraph (iii).

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The noble Lord said: My Lords, Amendment No. 8 is designed to ascertain the circumstances in which it would be unreasonable to expect non-compliance with the instructions or advice that has been given by the facilitator of the asylum-seeker's arrival in the UK. In another place, the Minister said that the Government wish to send out the message that if people destroy their documents, even if it is at the behest of a facilitator or agent, they would be liable to prosecution. The noble Baroness has reiterated that in the answer that she gave to the previous amendment. But how are asylum seekers expected to know that destroying their documents as part of the bargain with the facilitator is a criminal offence? In another place, there was some discussion of warning notices at the airports but, assuming that they are prominently displayed in the immigration hall, it could be too late by then because the passenger will already have destroyed the document on his way from the landing stage to the place where he has to present it.

It has been acknowledged by the Government, in the aftermath of the Morecambe Bay tragedy, that people who enter the country illegally, in that case for economic reasons, are in fear of the power of the facilitators, and that dread is even worse for asylum seekers. We very much welcomed the Government's amendment to subsection (7)(b)(iii) on Report in another place, to add the words allowing a person to comply with the facilitator's instruction to dispose of his document where it would be unreasonable to expect him not to do so. But I looked in vain for any explanation of the "rare situations", as the Minister described them on Report on 1 March, when this excuse could legitimately be deployed.

The Refugee Children's Consortium is particularly anxious that a generous interpretation for children should be put on this exception because they are clearly more vulnerable to threats and intimidation by adult facilitators. Children from some parts of Africa, for instance, may well be silenced by the fear of witchcraft. In response to a question by Mr Hilton Dawson in another place, the Minister said that the guidance would make reference to children who destroy documents under duress. We believe that it would always be unreasonable to expect children not to comply with instructions from an adult who arranged their travel, and I hope that the Minister will give us that assurance. As regards adults, surely there are many situations where the facilitator has power in the country of origin and could make life difficult for the remainder of the family still there.

On Friday I listened to four cases at the tribunal, all of which were remitted for reconsideration by the adjudicator, where one judge said that problems were increasingly being encountered with determinations made under pressure. One case was of an Iranian member of the Workers Communist Party of Iran—an organisation whose existence was apparently unknown to both CIPU and to the judge himself. The appellant had said that his escape across the border into Turkey—which, I remind the Committee, has had a pact with Iran to refoule each other's dissidents since 1994—had been facilitated by his uncle who was a military officer on the border. I do not know whether that appellant had

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arrived without documentation, and clearly there was no secret about the manner of his arrival but it might well have been necessary for him to keep quiet about the details to protect his uncle. Incidentally, if an asylum seeker did arrive direct from Iran with a valid passport, it might be prudent to treat his application with some caution. There are agents of the regime dotted around Europe spying on the opposition, and those people may well have had genuine documentation. I think, on the whole, that Iran is not a country whose refugees find it necessary to destroy their documents and perhaps the Minister could give some statistical information on the countries of origin from which undocumented passengers are now arriving where that has been identified. That might give the Committee some idea of whether in the particular circumstances of those countries it would be expedient for asylum seekers to conceal their travel arrangements.

I turn to Amendment No. 9. In Section 31 of the Nationality, Immigration and Asylum Act a defence is available under Article 31 of the Refugee Convention where a person is alleged to have committed any of the offences listed there relating to false documentation. The defence applies only to a person who comes,

"directly from a country where his life or freedom was threatened within the meaning of the Refugee Convention",

or, if he comes via another country, that he,

"could not reasonably have expected to be given protection under the Refugee Convention in that other country".

We believe that without a similar safeguard here there is a significantly increased risk that convention rights will be breached, and that genuine refugees will be detained and punished for seeking protection here, contrary to the UK's international obligations.

UNHCR has expressed concern that as drafted the Bill undermines Article 31(1) of the convention, which provides that no refugee should be prosecuted for illegal entry or presence in a country if he presents himself without delay and shows good cause for his entry or presence. It says that the "reasonable excuse" provision does not go far enough to guarantee protection of refugees in accordance with that principle.

The question of Article 31 protection has been well rehearsed on previous legislation, particularly in the debates on the Immigration and Asylum Act 1999. Section 31 of that Act was introduced late in the proceedings by Lord Williams of Mostyn as a direct consequence of the High Court's finding in the case of R v Uxbridge Magistrates ex parte Adimi and others (1999 INLR 490), that asylum seekers had been unlawfully prosecuted for the possession of false documents, contrary to Article 31(1). A number of "Adimi" compensation claims for wrongful imprisonment were settled later for, I understand, around £40,000 per claimant. We do not want to repeat the same mistake now, and we respectfully challenge the Minister's assurance in another place that the two safeguards built into the clause,

"ensure that the offence is not inconsistent with a proper interpretation of the protection afforded to certain refugees under article 31".—[Official Report, Commons, 1/3/04; col. 620.]

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She said that the "reasonable excuse" defence covered the situations where the claimants had no documents when they began their journey, though surely that was a little disingenuous. The example that the Minister gave, both in Committee and on Report, was of a person who had been smuggled on board the plane by a corrupt official, and she said that as the circumstances were peculiarly within the knowledge of that person—a phrase that was repeated by the noble Baroness this afternoon—it was not unreasonable to ask him to prove, on the balance of probability, that it did occur. But it is precisely because the burden of proof is on the asylum seeker that we are uneasy about the compatibility of this provision with Article 31 because we all know that when the credibility of the applicant is an issue, he is in trouble.

The second safeguard, the Minister said, was that the amended subsection (5)(b)(iii) made,

"allowances for those rare situations in which a person's actions in deliberately destroying the document might be considered a reasonable cause for the purposes of article 31".—[Official Report, Commons, 1/3/04; col. 620.]

We agree that in the majority of cases where documents are destroyed the motive is to frustrate the immigration authorities in their duty of evaluating the claim for asylum or, at the very least, to block their return to their country of origin. But the Minister has acknowledged that in these rare cases there may have been a good reason for the destruction, and we believe that in those cases alone, as with the offences under the 1999 Act, it should be possible for the defendant to invoke Article 31 direct. I beg to move.

5.15 p.m.

Baroness Scotland of Asthal: I listened with great care to what the noble Lord, Lord Avebury, said in relation to these amendments. I absolutely understand that Amendment No. 8 seeks to remove from the list of unacceptable defences outlined in the clause the destruction or disposal of documents upon the advice or instructions of a facilitator.

As currently drafted, Clause 2 allows a person who relies on the destruction or disposal of their document as their reason for not being in possession of it to rely on the fact that they destroyed or disposed of it on the instructions of their agent or facilitator if it would be unreasonable to expect them to have done otherwise. We believe that this will cover those exceptional circumstances where a refugee or any other applicant may be so vulnerable and so dependent upon their facilitator for ensuring their safe flight from persecution in their country that they may innocently agree to destroy or dispose of their passport at their behest. However, as a general rule we do not consider it acceptable for people to dispose of their passports simply because they were told to do so, and it is important that we make that point clear on the face of the Bill.

Destroying or disposing of documents is behaviour aimed at avoiding proper immigration, as the noble Lord, Lord Avebury, acknowledged. This offence is about changing such behaviour, encouraging people to be honest and co-operative. If people are being

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instructed and advised to destroy their documents, we need to make it clear that they must not heed those instructions or that advice. If this defence were to be routinely allowed, this offence would become less potent and the effect on people's behaviour would be reduced.

We shall make efforts to ensure that people are aware, both before embarking for the United Kingdom and before reaching immigration control in the United Kingdom, that not having a document when or if they seek leave to enter or claim asylum is a criminal offence.

Amendment No. 9 would create a further defence to the offence under this clause where a person could show that they met the requirements of Section 31 of the Immigration and Asylum Act 1999. Those requirements, in summary, are that a person be a refugee who has applied for asylum as soon as reasonably practicable upon arrival in the United Kingdom and can show good cause for his illegal entry or presence. Section 31 was introduced to reflect the United Kingdom's obligations under Article 31 of the 1951 Refugee Convention.

The reason we oppose this amendment relates to the nature of the offence and the two safeguards that we have put in place to ensure that that offence is consistent with our obligation under Article 31.

Clause 2 is not there to prosecute those who arrive without documents and can show good reason for not having them. I hope that we have made that clear in the past couple of hours that we have debated this issue this afternoon. Not having a document at the start of your journey would qualify as a good reason. So a refugee forced to flee their country without papers would not be caught by Clause 2.

The behaviour that the offence in Clause 2 is designed to criminalise is the destruction or disposal of a document which a person had when they began their journey. We do not think that a person should be automatically protected against prosecution or conviction for such behaviour when they are a refugee who can show that they meet the other requirements of Section 31. In such cases, the person will have had a passport when he left the country where he feared persecution. Having left that country, there is no reason why he would need to destroy or dispose of his passport.

As I mentioned previously, two safeguards exist to ensure that the offence provided for by Clause 2 is consistent with Article 31 of the 1951 convention. First, we believe that, for the most part, a person who can establish that he never had a document will be able to demonstrate that he has a reasonable excuse for not being in possession of one.

Secondly, a government amendment to subsection (7)(b)(iii), which we have already debated, was made in another place and makes allowances for the exceptional situations where it may be reasonable for a person to follow his facilitator's instructions to destroy or dispose of his document; for example, where a refugee is so vulnerable and so dependent upon his facilitator for ensuring his safe flight from persecution in his country that he may innocently agree to dispose of his passport

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at the behest of his facilitator. We listened very carefully to what was said in the other place and have sought to close the loophole identified and give the exception in the way that we have drafted it.

The noble Lord, Lord Avebury, also asked about data. We do not have the data, broken down by nationality, relating to the percentage of applicants arriving undocumented. However, overall, more than half of asylum applicants—perhaps as many as 70 to 80 per cent—arrive without documents. Therefore, this is a widespread problem which needs to be addressed. It does not follow that if a high percentage of certain nationalities arrive undocumented, asylum seekers cannot obtain documents. It could mean that they are destroying family documents en route to the United Kingdom. We think that that issue is appropriately and proportionately addressed in the new arrangements that we now have.

As I made clear, Clause 2 is phrased so that it will catch only those who seek unreasonably to flout the rules and take advantage of them so that they can make unmerited claims. It is not there to catch the innocent or the unwary.

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