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Baroness Scotland of Asthal: I can reassure the Committee that the Government live in the real world. I can reassure the noble Earl, Lord Russell, that I live daily in the real world. I disagree with nothing that the noble Earl has said in relation to the dangers that people experience. In such a situation, as in all others, the ability to persuade and encourage people to tell the truth is always helpful because once the truth is told an informed judgment can be made. I understand what the noble Earl says about persuading people who have difficult stories of abuse to disclose them.
From 1977 until coming into the House and taking up office in 1999, I worked as a barrister in the family area. Throughout that period, I had the privilege of working with those who had suffered huge disadvantage and abuse. Therefore, I certainly understand the trauma and difficulty. However, that does not get away from the fact that those in such situations can be enabled and encouraged to tell their stories in a way that is meaningful for them and in a way that can often be a catalyst for change. It is cathartic for people to be so enabled.
A core principle underpinning the Bill is that those making asylum claims should be co-operative and honest in their dealings with the immigration authorities. Only if people are co-operative can the system operate as smoothly and as well as we want. The asylum system that we put in place must aim to achieve credibility with the public and with the genuine refugee.
A key part of delivering that system is to ensure that it deals robustly with those who do not co-operate and who try to play the system for their own benefit and to the detriment of others. Sadly, on too many occasions applicants are not as co-operative and as honest as they might be, failing to provide documents or destroying them, failing to answer questions fully, or failing to apply as soon as they can.
Of course, much will depend on the sensitivity and openness with which people are questioned. We are doing all that we can to improve the ability of those who undertake the complex task of asking those who are in a situation of certain anxiety the questions that have to be asked. We therefore consider it important to use the Bill to send out the clear message that certain types of behaviour are not acceptable and are likely to undermine the credibility of a person's claim to need protection. Clause 7 sets out various behaviours which we consider call into serious doubt the credibility of the applicant and which we therefore think the decision-makers and appellate court bodies should be obliged to take into account when assessing the asylum claim. I made it clear at the beginning that it is not determinative, because an exercise of judgment still has to take place. But these are factors which should properly be taken into account.
By listing various behaviours in primary legislation which must be taken into account when assessing the credibility of statements in support of an asylum or human rights claim, Clause 7 will give a higher profile to these issues and a framework for deciding authorities to use. But they are by no means a straitjacket. The fact that various behaviours must be taken into account does not mean that an asylum claim has to be refused where those behaviours are exhibited.
First, for several of the behaviours "reasonable explanation" proviso exists. Secondly, nothing in the clause—nothing in the clause—alters our obligations under the Refugee Convention or the ECHR. So, while we will look especially closely at the credibility of the substantive statements made in support of a claim by someone exhibiting the behaviours listed in Clause 7, if a deciding authority comes to the view that an applicant has nevertheless shown themselves to
come within the scope of the Refugee Convention or the ECHR, leave will be granted accordingly. The clause will not force a deciding authority to give undue weight to any of the factors it lists; it will merely ensure that all these factors are considered in a systematic and transparent way.Amendment No. 18 would delete subsection (3)(e), which provides that failure without reasonable explanation to answer a question asked by a deciding authority is to be taken as behaviour which damages a person's credibility.
We accept that there will be rare occasions where, for example, a traumatised person finds it difficult to give full answers to some questions on arrival. Clause 7 already caters for such situations by having a reasonable explanation defence built into subsection (3)(e). However, only the applicant can know the truth of their claim and associated matters—such as how they travelled to the United Kingdom—and therefore the general principle is that it is for the applicant to co-operate fully in establishing the truth.
It is the Government's view that where a person refuses to co-operate with our procedures by not providing information which is requested in connection with their claim and which it is in their gift to provide, that is a clear demonstration of non-cooperation. It is therefore entirely right that such failure, unless justified—and I say this for emphasis—by a reasonable explanation, should be taken into account when assessing the credibility of a person's claim. In that light, I urge noble Lords not to pursue the amendment.
Amendment No. 19 would remove subsection (4) of the clause, such that there would be no requirement for a deciding authority to regard the failure of a person to make an asylum or human rights claim in a safe third country as a matter of importance or damaging to the credibility of their claim in the United Kingdom. It is important to view the provision in subsection (4) within the wider context of a defensible system of protection, not only in the United Kingdom but internationally. There is, as we have discussed in earlier debates, a serious problem at present whereby traffickers and agents promote illegal migration across the globe in a way that puts people's lives at risk. They muddy the waters between movements based on protection needs and movements for other purposes, such as economic betterment.
When a person leaves their country through fear, we consider that, as a general principle, such a person should seek protection in the first safe country where they have the chance to do so. It has been said that nowhere in international law is such a requirement imposed. There may not be such a law, but that does not dilute the argument that a person who is in genuine fear should seek shelter at the earliest opportunity. Accordingly, we think it is right for Clause 7 to require the failure to apply in a safe third country to be taken into account, as that failure may cast some doubt as to a person's motivation for coming to the United Kingdom.
I should like to make two further points. First, the definition of a safe third country has been drawn very narrowly because we have linked that term to the countries listed as safe in Part 2 of Schedule 3 to the Bill. As the Committee will see, those countries are limited to the 26 countries that, as from 1 May this year, will be part of the Dublin II regulation. As noble Lords will be aware, we would, as our first step, seek to remove a person claiming asylum here to one of these 26 countries if the various requirements of the Dublin II regulation were met. It is, however, not always possible to do that under the regulation. Where it is not possible, the UK will consider the claim, but in accordance with this clause deciding authorities will be required to take account of the fact that the person did not apply in one of those safe countries.
The second point is that adverse inferences will be drawn only where a person had a reasonable opportunity to apply in one of the safe third countries through which they passed. In most cases we believe that they would have such an opportunity, but where they could show that they did not, the clause would not apply. I therefore hope that noble Lords will feel that Amendment No. 19, too, is not necessary.
Amendments Nos. 20 and 21 would mean that Clause 7 applied to decisions made by officials but not to decisions made by the immigration appellate bodies. If the primary decision maker had to take different things into account from those considered by the reviewing tribunal, there would be inconsistency and confusion. There would be an incentive for applicants to hold back evidence until the hearing in the hope of avoiding the consequences of their action. That would be an intolerable situation. We cannot have evidence assessed according to different criteria depending on when it is introduced.
I am sure that noble Lords are concerned about the procedures and we will be dealing with this matter. It is a proper concern. Clause 7 is not a threat to those procedures. Although it prescribes that certain behaviour is to be regarded as damaging to the claimant's credibility, it prescribes neither the extent to which credibility is to be regarded as damaged nor the weight to be given to an adverse credibility finding on any point. What it does is provide a framework for decision makers so that all the listed factors are considered in a systematic and transparent way that is consistent across all stages of the process. The person adjudicating the decision will be free to come to a just decision within the context of the circumstances they find.
As the noble Lord, Lord Avebury will recall, having considered the Government's case on these matters, the Joint Committee on Human Rights, at paragraph 32 of its report, stated:
- "We accept that it is legitimate for the Government to adopt this position, and we underline that the deciding authorities should at all times be conscious, when applying clause 6, that a claimant whose credibility is deemed to be damaged could well be telling the truth none the less".
9 p.m.
Earl Russell: I congratulate the Minister. I have made that speech, or variants of it, in this Chamber about 20 times. That is the most imaginative and understanding reply that I have heard to it. I agree with what the Minister said about the possible cathartic effect of telling a story. She will appreciate that not all Home Office interviewers have the skill to bring that about. In her professional experience, she must have learnt that. I was glad to hear what she said about training interviewers but it is a long job.
I also hope that she has learnt from her professional experience, as I have learnt from mine, and will accept that getting people to tell a story of that sort is something that can take a very long time. Therefore it should not be held against an applicant that he takes a long time to come out with something that is very traumatic. The Minister's almost final remark that something that is incredible is not necessarily to be the final result of the claim but is only to be taken into account is a very powerful argument for keeping an appeal level of decision, contrary to the original provisions of the Bill. We must remember that when we use the word "incredible" we are not saying that something is untrue, merely that it has not been believed. It is a statement about the hearer as much as about the speaker.
On the point about safe third countries, if everybody is to go to a safe third country it will mean that it is impossible to share out the burden if there is an enormous flood of refugees coming from one country. Suppose, for example, that there were a civil war in New Zealand. The whole of the burden would have to fall on Australia. I cannot believe that this is a reasonable way of approaching it. Perhaps the Minister can help the Home Office to have a little more imagination.
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