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Baroness Turner of Camden: As my noble friend Lord Hylton has said, Clause 52 has probably
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occasioned more criticism than any other in the Bill. A number of organisations have written to me about it. I repeat that, as far as I can ascertain, the Government have not really said why the clause is needed. There appears to be legislation already on the statute book that could deal with terrorism. The clause gives the opportunity for an authoritarian government, should we have one in the future, to take action against individuals simply on the basis of the political views to which they give voice. I do not think that that was originally the intention, but the wording could certainly be interpreted in that way in the future. I hope that the Government will be disposed to look again at this, particularly in the light of the representations that I know have been made.
Lord Dholakia: Amendment No. 69 is grouped with Clause 52 stand part. It may be appropriate for me to speak to the Question in our name whether the clause should stand part of the Bill. The arguments that I shall advance closely resemble those put by the noble Lord, Lord Hylton.
We said on Second Reading that we cannot agree that the Government are entitled to reinterpret an international convention as they please in statute law. In this, we are at one with a number of the organisations cited by the noble Lord, Lord Hylton: the UNHCR—the custodian of the convention—the Constitution Committee, Amnesty International, the Refugee Council, the Scottish Refugee Council, the Welsh Refugee Council, the Immigration Law Practitioners' Association, and a great many others. I trust that when the Minister has listened to our arguments, she will give way on this clause.
The UNHCR said in a letter of 15 December 2005 that the interpretation by national legislatures of international legal obligations may lead to a practice which is inconsistent with international law. It fully accepts the concern of states to ensure that persons committing or aiding the commission of terrorist acts should not gain access to their territory. However, although the Security Council has declared that acts of terrorism are contrary to the principle and practices of the United Nations and fall within the scope of Article 1F(c) of the refugee convention, it has nowhere defined terrorism or international terrorism.
Even if the Security Council had declared a particular class of act as terrorist, that would not necessarily justify the application of Article 1F(c) in the absence of any universally accepted definition of terrorism. A state could refuse to consider individual applications for asylum if, after consideration of the individual circumstances, it considered that Article 1F(c) applied, including the proportionality of such a decision and the possible consequences of exclusion to the heinousness of the alleged acts of terrorism the person had committed. Although it is not stated, any such decision would be subject to judicial review and it would be for the courts to say whether the Secretary of State had correctly applied Article 1F(c).
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The JCHR says that it is unnecessary to interpret Article 1F(c) of the convention to ensure that terrorists are excluded from protection because they already are—a point mentioned by the noble Baroness opposite. It also says that no case has arisen where the absence of such a provision as Clause 52 has led to a terrorist being granted asylum. Guidance issued by the UNHCR on the interpretation of Article 1F as a whole says that it should always be interpreted restrictively and with great caution, and only after a full assessment of the individual circumstances of the case. In the case of Article 1F(c), the guidelines suggest that it covers only,
That description obviously does not include the minor acts of damage to property in the Terrorism Act 2000 definition, or some of the types of behaviour now to be treated as terrorist, such as glorifying terrorism—and we know what happened to that in your Lordships' House this week.
These considerations surely give us every reason for removing this clause from the Bill. If it has to be retained in any shape at all, it could allow the Secretary of State to certify a claim as falling within Article 1F(c) and providing for an appeal against certification to the asylum and immigration tribunal or SIAC, leaving it to judge whether acts committed by the person justified his exclusion.
I accept that the Bill implements many of the measures outlined in the Government's five-year plan on asylum and immigration. However, I am concerned that a number of new counter-terrorism clauses have been introduced in Standing Committee in the other place. This clause must be of the greatest concern to refugees and asylum seekers. It is one thing to look at measures to deal with counter-terrorism; it is another matter when such measures give the Government powers to exclude people from asylum.
I fully endorse what the ILPA has to say—that is, taken in conjunction with the broad definition of terrorism in the Terrorism Act 2000 and the Terrorism Bill 2005, this directly undermines one of the core purposes of the refugee convention, which is to provide protection to people seeking asylum on grounds of political persecution. Will the Minister confirm that the 1951 refugee convention and UK criminal law already provide the necessary framework? The provisions are there and refugees can be protected without compromise to our security. Can the Government demonstrate by example that these provisions are inadequate? Are we equating asylum seekers with threats to our national security? There may have been isolated examples in the past, but we should look at the way that asylum applications have been dealt with rather than undermine the 1951 refugee convention.
Acts of terrorism may fall within the scope of Article 1F(c) provided that certain criteria are met. There is a serious danger that a broad application of this article may deny the benefit of international protection. We should be following the practice of many states that are party to the 1951 convention,
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which maintains a very restrictive interpretation of Article 1F(c). I see no reason why we have to be an exception to that. If it is good enough for the UNHCR, it must be good enough for us, unless of course the Government do not give any credence to the interpretation of the UNHCR. It would be a grave situation if that was so.
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Clause 52 is not necessary to protect the UK from terrorism. Article 1F already does that. Clause 52 may encourage other states to interpret Article 1F in their law perhaps even more widely than in the UK or, by contrast, too narrowly. This risks undermining the convention and the work of courts all over the world in interpreting and applying it.
The Joint Committee on Human Rights stated in a letter of 13 December 2005 to the Parliamentary Under-Secretary of State:
"We share the views of others that it is not appropriate for Parliament acting unilaterally as a national legislature to reinterpret in this way an international treaty to which the UK has become a party".
The Government's response cited two examples of their doing so: Section 72 of the Nationality, Immigration and Asylum Act 2002, which purports to interpret the meaning of "particularly serious crime" under Article 33.2 of the refugee convention, and Section 31 of the Immigration and Asylum Act 1999, which interprets Article 31. Both cases met with a similar outcry. The Office of the United Nations High Commissioner for Refugees described it as suggesting an approach,
"which is at odds with the Convention's objective and purposes . . . runs counter to long-standing understandings developed through State practice over many years regarding the interpretation and application of Article 33".
There are no good reasons for including Clause 52 in the Bill, and very good reasons for not doing so. There is a fundamental difference between us and the Government. We are told on the face the Bill that,
"the provisions of the Immigration, Asylum and Nationality Bill are compatible with the Convention rights".
We need to be convinced about that. For that reason, we do not accept the Government's argument on this clause.
Baroness Ashton of Upholland: I am grateful for the clarity with which noble Lords have explained what they are seeking in these proposals. l begin with the amendment of the noble Lord, Lord Hylton. I agree with the noble Baroness, Lady Anelay, that he presented perhaps a flawed amendment in a beautiful way, which leaves me completely disarmed in trying to deal with it as properly and appropriately as I can.
When I looked at this provision as a Minister approaching the subject for the first time, I probably drew the same conclusion as the noble Lord, which was that we would be inviting people whom we want to come into our country for very good reasons and saying, "Five years and then you're out". That is absolutely not what this policy is seeking to do.
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We have said that there should be in general a five-year qualifying period for settlement for those who are granted leave to remain under the immigration laws, and that we need to be clear that coming into our country and wanting to remain here is something that we welcome. However, we want to make sure that when people are settled in this country, having been refugees, they are able to continue to stay and want to stay with us. So it is a general rule, which is designed to show that we want refugees to feel that they have protection, but also that we are committed to wanting people to come here and remain here in the right and appropriate circumstances.
We recognise too that, under the convention—I am sure that Members of the Committee have read it carefully—while it is entirely appropriate for us to grant people the right to be here for as long as they need it, if the conditions of a country change dramatically, it is reasonable to expect people who have been here for only a short time to return home. That is very much in line with the spirit of the convention, which states that a person seeks to be a refugee when,
"he can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality".
So our principle is that those who deserve to have refugee status should be given it. If the circumstances in a country change within the five-year period, we would review that. There may be circumstances where we would expect the individual to return home. I shall refer to all the ways in which that would be done to make sure that we protected the individual appropriately. At the end of the five years, if we have not reviewed the situation in that country, or reviewed it and found that it had not changed, we would expect the vast majority of people who wished to remain and settle here to do so. The noble Lord should take that to heart as being an important part of what we are seeking to do.
We review refugee status and grants of limited leave if a refugee's actions bring him within the scope of the convention's exclusion or cessation clauses. That is not different from the previous position. However, we would review the status or limited leave in the event of a significant and, I emphasise, non-temporary change in the country conditions in the whole country or part of the country from which the individual or family came. Those reviews will take place on the basis of objective country information. They would follow consultation with UNHCR. A ministerial decision would be communicated to your Lordships' House and another place and it would be done on a case-by-case basis.
The burden of proof in any review of the situation in the country would be placed on the Immigration and Nationality Directorate to demonstrate that the individual was no longer a refugee. If the individual is found no longer to be a refugee, whether he should have leave to remain on other grounds will be
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considered. As a result of the Bill, there will be an in-country right of appeal against any decision that a person is no longer a refugee.
If a refugee completes five years in the UK and a review has not been triggered, then he will be eligible to apply for settlement. At that point, we would carry out background checks to ensure that there was no basis for holding that his presence was not conducive to the public good and, subject to that, we would expect the majority of applicants to qualify for settlement at that point.
Refugees would retain access to key mainstream benefits, as well as to social housing and employment. In the Bill, we are legislating to ensure that they have access to refugee integration loans. We would not expect country reviews to happen very often, but there will be circumstances where they are appropriate because the situation has changed dramatically. Tragically, in most of the areas from which refugees come it takes many years for the situation to change at all. However, if the situation were to change, we would go through that process.
The noble Lord should take heart that we are looking for a situation where a person comes into the country and is given his initial five years. If, in those five years, we have reviewed his situation in the light of the changes in his country, we have consulted UNHCR and decisions have been taken and placed before your Lordships' House and another place, we would then suggest that the refugee's situation had changed completely. He would have a right of appeal against that and a right to seek leave to stay on other grounds. If, at the end of the five years, we have not done a review or nothing has changed in that country, he would have the right to apply for settlement. Unless there were extenuating circumstances, or reasons why we felt he was inappropriate, he would stay.
I think that is a wholly satisfactory policy. It recognises our obligations and that we want people who wish to integrate in our society to remain here in those circumstances and do so appropriately. I hope the noble Lord will feel comforted that this is not about a five-year review that tells people to leave the country at the end of five years. That is not the intention behind this policy in any way, shape or form.
I shall turn to the substantive point about Clause 52. As the noble Lord, Lord Dholakia, indicated, the issue is the statutory interpretation of Article 1F(c) of the 1951 Geneva convention on the status of refugees. That article sets out where there are serious reasons for considering that a person has been guilty of acts contrary to the purposes and principles of the United Nations, the provisions of the refugee convention will not apply to him.
Clause 52 clarifies that acts of committing, preparing or instigating terrorism and acts of encouraging or inducing others to do so constitute acts contrary to the purposes and principles of the United Nations and will result in exclusion from asylum. In addition, the clause requires that where the Secretary of State rejects an asylum claim, or makes any other
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decision wholly or partly in reliance on Article 1F, the asylum and immigration tribunal or the Special Immigration Appeals Commission hearing an appeal in which the rejection or decision is to be considered must begin its consideration of the refugee's appeal by considering whether Article 1(F) applies. If it is concluded that it does, the element of the appeal which relies on the refugee convention must be dismissed.
The noble Lord specifically wanted to know why we had included the provision, in terms of the actions of the courts. Although we accept that Article 1F(c) has long been interpreted by the courts as allowing for the exclusion of terrorists and suspected terrorists from asylum, that is not explicit in its wording. We have looked at United Nations Security Council resolutions, which have clarified the position. UNSCR 1373 of 28 September 2001, for example, says that,
"any act of international terrorism constitutes a threat to international peace and security . . . acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations".
UNSCR 1377 of 12 November 2001 echoes this and states further that,
We believe that, in light of the heightened threat from terrorism that this country faces, it is appropriate to legislate to provide statutory backing to the accepted practice that terrorists and suspected terrorists should not be afforded the protection of the refugee convention. That is what we seek to do with this clause.
The noble Baroness, Lady Anelay, asked a pertinent question about child soldiers. We would of course consider every case on its individual merits and absolutely take into account issues of coercion—that is the critical issue in these particular tragic circumstances. Clause 52 does not remove that element of discretion, so there is no question that child soldiers would be automatically excluded under the clause. I hope that that answers her question.
That is the basis on which the clause is being introduced into the Bill. I have had the benefit of talking to a number of organisations, to which I am very grateful for the time that they have spent discussing the matter with me. Many useful and valid points have been made, on which I will of course reflect. However, we believe that it is important that we have statutory backing to ensure that we can deal with issues of terrorism appropriately. I believe that Clause 52 does that.
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