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Lord Carter: My Lords, perhaps the Minister will write to me and all those who took part in the debate to answer my questions about the timing of regulations and payment.

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Asylum and Immigration (Treatment of Claimants, etc.) Bill

8.36 p.m.

House again in Committee.

Clause 7 [Claimant's credibility]:

Lord Avebury moved Amendment No. 18:

Page 7, line 23, leave out paragraph (e).

The noble Lord said: Clause 7 deals with a claimant's credibility. That is frequently an issue in asylum claims and it results in many cases being remitted to an adjudicator by the tribunal, as in some of the cases that I witnessed at the tribunal on Friday. Often, the details of a claimant's history are known only to him, as we have said when discussing previous amendments, and the "deciding authorities" have to reach the best judgment they can on the credibility of what he says.

The Government are now proposing that behaviour of certain kinds, some of which has to be a matter of opinion, is to be treated as damaging his credibility in general. The clause takes no account of the advice in paragraphs 198 and 199 of the UNHCR handbook on procedures and criteria for determining refugee status. Perhaps I may remind your Lordships of that advice. Paragraph 198 states:

"A person who, because of his experiences, was in fear of the authorities in his own country, may still feel apprehensive vis-a-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case".

Paragraph 199 states:

"While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case".

Paragraph 205 requires an examiner to,

"assess the applicant's credibility and evaluate the evidence (if necessary giving the applicant the benefit of the doubt)".

He would no longer be able to do that under Clause 7.

It is a matter of common knowledge that a person who has suffered torture or rape is generally reluctant to discuss his or her experience. Many claimants have what they regard as legitimate reasons for being unwilling or unable to answer questions put to them by the deciding authority. They may, for instance, feel a sense of shame at having had to leave their country rather than stay shoulder to shoulder with comrades who were also the victims of persecution. Or they may believe that something they say could jeopardise the safety of those comrades or their relatives. In fact, the IAA's own guidelines recognise that,

"delays in claiming asylum or revealing full details of an asylum claim, will not necessarily be due to lack of credibility . . . torture, sexual violence and other persecutory treatment produce profound feelings of shame. This 'shame response' is a major obstacle to disclosure. Many victims will never speak of sexual violence, or will remain silent about it for years".

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Subsection (3)(e) fails to recognise this, and obliges the deciding authority to treat failure to give an answer as damaging the claimant's credibility in general, and not just on the particular issue in question. The qualification that the failure must be without reasonable explanation is worthless, because obviously if the answer to the question touches on a sensitive issue, so would the explanation for refusing to answer.

I am not sure that I entirely understood what the Minister said on a previous amendment about representation at any interview where the person might be at risk of prosecution for documentation offences, and I will have to read carefully what she said. Where the asylum seeker fails to answer a particular question which he could not possibly have anticipated before the interview, he will not have advice on something which may well seriously affect his chances of gaining asylum. That is, unless the noble Baroness will say that immediately somebody is asked a question which he refuses to answer, that then triggers the right of representation at that particular interview. However, I do not think it was the intention of the Government to do that.

Turning to Amendment 19, the UNHCR handbook says:

"The expression 'owing to well-founded fear of being persecuted . . . ', by indicating a specific motive, automatically makes all other reasons for escape irrelevant to the definition [of a refugee]".

That is in paragraph 39; we touched on this in an earlier amendment. In providing that passage through a safe third country should impact negatively on credibility, subsection (4) implies that any secondary motive for seeking asylum in the UK in preference to that safe country is indeed relevant to the claimant's status. The subsection is therefore contrary to UNHCR policy, as well as lacking in any logical basis.

UNHCR's global experience is that genuine refugees will often have legitimate reasons for wanting to claim asylum in a particular country. Once a person has escaped persecution, his decision to seek the protection of one state rather than another can be motivated by numerous factors, including family ties, community, language and historical and cultural links. As Mr Justice Collins, the former president of the IAT, pointed out in a written response to the consultation paper on the Bill, cited in the joint meeting by Amnesty International, the Refugee Council and the RLS, to your Lordships in relation to the Bill's Second Reading, these factors are currently recognised in our law. He said:

"It has been accepted [in ex parte Adimi [2000] 3 WLR 434] that there is 'some element of choice' open to an asylum seeker in a country in which he hopes to gain sanctuary. The Home Office decision letters still regularly state that failure to claim asylum in a country to which an asylum seeker has travelled (often hidden in a lorry) throws doubt on the credibility of the claim. This is difficulty to uphold, particularly in the light of Adimi."

In assessing credibility, deciding authorities are already guided by the Home Office's immigration rules, which include some of the provisions of Clause 7. However, failure to answer a question, and travel through a third country, are not mentioned. It would be entirely wrong to put new obligations on deciding authorities to assess

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credibility in ways that are contrary to UNHCR recommendations. In fact, we believe that the whole of Clause 7 is harmful, and that by elevating Home Office guidelines to the level of primary legislation, we are fettering the deciding authorities in the exercise of their judgment and discretion on credibility, and preventing them for considering each case individually on its merits, as the convention requires.

The effect of Amendment No. 20 is to restrict the application of Clause 7 to government employees, excluding those deciding authorities which carry out an independent judicial function. That is consistent with the Government's declared policy in Clause 14 that the proposed tribunal shall be an independent judicial body. Amendment No. 21 is consequential.

I have left until last the comments by the JCHR on Clause 7 in general and on the safe third country provision in particular. In its fifth report, in paragraph 27, it said:

"When we first examined the Bill, this presumption seemed to us not to be logically related to the failure to take a reasonable opportunity to make a claim in a safe country. There is no reason to suppose that a person is not worthy of belief on any matter merely because he or she preferred to make a human rights claim to the United Kingdom rather than in another country. The failure to make the claim in another country might cast doubt on certain statements, but, we thought, could hardly be said to damage the claimant's credibility in relation to all statements. Imposing a presumption of damaged credibility regardless of the nature of the statement in relation to which the credibility falls to be assessed seemed to us potentially to compromise the fairness of the decision-making process".

The Government's response was that, even if the person's credibility was deemed to be damaged, it would still be open to the deciding authority to conclude that he had made out his case. The deciding authority would still have to consider all the circumstances of the case and make the decision in accordance with the ECHR and the refugee convention. That may well be true but, if the credibility of the person on every other statement that he makes has been undermined by his choice of the UK as the country where he seeks protection, the saving may not be worth very much. I beg to move.

8.45 p.m.

Earl Russell: An applicant from Zaire once received a refusal letter that said:

"The fact that you say that the soldiers entered your house firing wildly seems to refute your claim that they threatened your life, and thereby severely damages your credibility".

Another refusal letter, sent in 2001 to an applicant from the Congo, said:

"You say that you were beaten, stripped naked and left in a cell soaked in urine. The fact that you say that this constitutes torture is so incredible as to destroy the credibility of the whole of the rest of your story".

Credibility is a way by which the interviewer is able to express his ignorance of the world. What he finds incredible is what surprises him. One might cite many more examples of that, and I shall not go on with them; but the Home Office seems totally unable to take on board quite how difficult people find it to tell the story of rape or torture. I do not know how many people there are present in this Chamber who have actually

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had the task of trying to persuade a rape victim to tell her story to the police. I have had that job three times and have succeeded once—and I have sometimes wondered whether the once when I succeeded was the once when I really failed. It is not an easy thing to do. One at least of those three victims would, I am convinced, have had her mental stability destroyed for life if she had taken my initial advice and gone ahead and told the story.

I have never had the dubious privilege of trying to persuade a victim of torture to tell her story, but one imagines that it may well be rather worse than that. Until the Home Office can take that on board, it is simply not living in the real world.

The point about the third country is not often enough made. If the whole foundation of one's life is cut from underneath one, one does rather care about finding some place to try to rebuild which one believes that one may actually be able to stand.

I remember once facing the noble Baroness, Lady Blatch, who was then at the Dispatch Box, on this subject. I asked her to imagine a situation in which she had to flee from this country for her life. More improbable things have happened in all countries; no country is safe for ever. I asked her to imagine that she had a daughter living in Australia but, because her plane had touched down in Dubai, she was required to remain in Dubai for life. I do not see the noble Baroness, Lady Blatch, in a veil, but she can follow the direction of an argument. She gallantly bit the bullet and said that she would be extremely grateful to be able to achieve safety anywhere.

That is what Home Office doctrine demands. In a perfect world that may be what we should all deliver, but I am a little doubtful. That is certainly not what the majority of people feel. Most people want to live where they know people, where they have friends and relatives. Most of us have relatives in more than one country. The desire for the solidarity of the family is not only a national emotion and not only good where it is a national emotion.

It is perfectly reasonable for people who have had to flee for their lives to want, within a reasonable range, some choice about where they live. For example, if before reaching the age of retirement I had had to go into exile, I would have liked to be able to live somewhere where I could teach the history of my country to people who wanted to know it. But I do not believe that to insist on a first safe country, even if it happens to be Liechtenstein, is living in the real world either.

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