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New Clause 3

Volume 202: debated on Tuesday 21 January 1992

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International Obligations

'. No power conferred by this Act on the Secretary of State shall be exercised in circumstances where the exercise of the power would be in breach of an international treaty or obligation to which the United Kingdom is a party.'.— [Mr. Darling.]
Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

With this it will be convenient to take the following: New clause 6—Interpretation—

'( ).—(1) In the interpretation or exercise of any provision or power in this Act regard shall be had to the Convention, the Handbook on Procedures on Criteria for Determining Refugee Status as published by the United Nations High Commissioner for Refugees from time to time and the European Convention on Human Rights which carne into force on 3rd September 1953.
(2) Where any provision of this Act appears to be inconsistent with the matters set out in subsection (1) above, the Conventions and Handbook shall prevail.'.
Government amendment No. 25.

New clauses 3 and 6 and Government amendment No. 25 have a similar effect. In Committee, we were anxious that, when it came to interpretation, regard should be taken of the United Nations convention on refugees and, in particular, the United Nations handbook on refugees which is published for the guidance of those who interpret that convention. There was much debate on that subject and the Minister undertook to reflect on the issue and decide whether the Bill could be suitably amended, and I am glad that he has.

Government amendment No. 25 states that
"nothing in the immigration rules (within the meaning of the Immigration Act 1971) shall lay down any practice which would be contrary to the Convention."
I am pleased that the Government tabled the amendment, which means that the legislation will be justciable so that matters relating to asylum or, more importantly, interpretation and the provision of immigration rules—whether procedural or substantive—would allow an aggrieved applicant the opportunity to argue his case before a court. As we said in Committee, it is certainly our view—and I think that it is the view of the hon. Member for Caithness and Sutherland (Mr. Maclennan)—that a declaratory statement of this sort, as well as being novel in our legislation, would be welcome. I am grateful to the Minister for having made the concession.

I do not want to press new clause 3 or new clause 6 to a Division, or to detain the House on this group of amendments. It might be more useful to discuss some of the matters relating to the interpretation of the rules, and we shall have an opportunity to do that in the debate on the next group of amendments.

I should like to thank the Minister for the Government amendment. It is a useful attempt to deal with a point that I raised in Committee—the compatibility of the immigration rules with our international obligations, particularly those under the international convention. However, I am not sure that the drafting of the amendment is entirely felicitous. The new provision could be understood as indicating to a court that the intention was that the immigration rules should conform with the provisions of the convention. I am afraid, however, that a slightly different interpretation might be placed upon the language: that the declaratory intention has not necessarily been given effect and that the rules themselves will take precedence over the statutory provisions. I hope that I am wrong. It may be that if the rules were independently adjudged to be contrary to the convention the Government's proposed provision would be binding and that the rule would be invalidated. No doubt the Minister will want to deal with the point.

Parliament cannot bind its successors, but in this respect rules that do not have the full force of law as prescribed by Parliament may be somewhat different. In other words, I am not sure whether, if there were a conflict between the convention and the rules as amended, the rules would prevail or whether this provision would ensure that they did not.

I welcome amendment No. 25 very much because it makes clear beyond doubt that there is no basis of any kind for the various scurrilous newspaper articles suggesting that genuine refugees might be sent back, in breach of United Nations convention obligations. I should like to quote from an article by Caroline Moorhead in The Independent of 18 November. It set off a flood of letters attacking the Government for their inhumanity. The letters, some of which have reached me, are completely without foundation, as I hope my hon. Friend the Minister will indicate. Caroline Moorhead, in her article, says:

"At least 2,000 victims of torture who have managed to get temporary permission to remain in Britain are faced with deportation—and possible further torture—if the Asylum Bill becomes law."
The article goes on to say that if the Bill is passed those who have been granted exceptional leave to remain in the United Kingdom
"can, in theory, be picked up, detained … and deported."
The writer of the article appears to rely heavily on advice given by the Medical Foundation for the Care of Victims of Torture, which says that the Bill poses grave dangers. The article goes on:
"Precisely what form it will take is not clear, since no attempt has been made to spell out the Bill's consequences. But inherent in its proposals is the possibility that people who fled their country after persistent brutality may again find themselves facing it."
Later the article says:
"Since it is planned to make the legislation retrospective, and most of the foundation's clients are on Temporary Admission or Exceptional Leave to Remain, there is hardly a person on its books not at risk of deportation."

I welcome the hon. and learned Gentleman's contribution. He looks as though he has just returned from a busy day in court. Does he accept that the article from which he has quoted was written before the Government tabled their amendments? Those amendments meet some of the points that the article makes. However, the author of the article cannot be faulted for having raised these concerns. None of the matters had been discussed in Committee, let alone on Report.

I am grateful to the hon. Gentleman for making that point. However, the letters to which I have referred are still circulating. It appears that the message that went out during the Committee stage has not reached the people who seem to be very concerned about the matter. That being the case, it is all the more important that we take this opportunity to send the message loud and clear to everyone. Everybody has the highest regard for the Medical Foundation for the Care of Victims of Torture, which does exceptional work. I am sure that all its intentions are good, but it does not seem to be above a little bit of scurrility.

I hope that my hon. Friend will take this opportunity—undoubtedly the umpteenth, as has been indicated—to make several points. First, he should make it clear that the immigration authorities give the most scrupulous attention to the opinion of the foundation that any person is a genuine refugee and would refuse to accept its advice only if there were cogent evidence to the contrary.

When I raised this matter with the Department early in December I was given an example of the kind of case in which the advice of the medical foundation was not taken. The House may be interested in that example. It concerns a Zairean asylum seeker who claimed to have been severely beaten while in detention. The foundation's report concluded that scars on his body were entirely consistent with that claim. The Home Office commissioned independent medical advisers, who said that there was clear evidence that the applicant had been physically maltreated but that there was no particular evidence that the maltreatment had occurred recently in Zaire. There was some ambiguity about the medical evidence.

The immigration authorities, however, considered the story implausible for other reasons. In the luggage of the asylum seeker, who claimed that he had been tortured by the Zairean authorities, were five blank Zairean birth certificates bearing official signatures and an incomplete and unsigned Zairean passport in a name other than his. That seemed to suggest skulduggery rather than that the person was a genuine asylum seeker. Notwithstanding that, the applicant was granted exceptional leave to remain. The Department made it clear to me, however—and this was probably good sense—that he was given exceptional leave not solely on the basis of the medical evidence.

6.30 pm

Secondly, will my hon. Friend confirm that, where there is evidence of recent torture, a person will be treated as a genuine asylum seeker? If scars are so old that they cannot have been caused recently by the regime against which a person is complaining, or if there are other reasons to doubt whether the scars were caused by torture, as opposed to a fight or personal dispute, it may be another matter: the person may not be in genuine fear of persecution. I do not think that we should rule out the reasonable consideration of all the circumstances.

Thirdly, will my hon. Friend confirm that no refugee who has been given leave to stay in the United Kingdom for humanitarian reasons will be placed at risk of deportation as a result of the Bill?

Finally, will my hon. Friend confirm that the article to which I alluded is misleading about the Government's approach to the political activities of asylum seekers? Of course asylum seekers have the right to free speech and political association, just like everyone else in this country, but I hope that my hon. Friend the Minister will reiterate the point that, if someone who has absolutely no history of political association stands up in front of a camera and says something offensive to the regime back home, for the sole purpose of being able to say, "I cannot go back because I have offended the regime," he is making a mockery of the rules. Only in those circumstances have the Government said that the way in which a person makes such statements and assertions can and should be taken into consideration before a final judgment is made.

I am delighted that hon. Members on both sides of the House seem to agree that the kind of criticism levelled against the Bill before its Committee stage no longer has any foundation—if it ever did—and I hope we shall be able to make clear beyond peradventure the ridiculous nature of such scurrilous comments.

The Government amendment seems to have everyone's approval. I hope that my hon. Friend will kindly confirm my assertions so that we can safely put to bed all the misrepresentations of the Government's intentions and so that we can all be happy.

I do not believe that either the new clauses or Government amendment No. 25 are strictly necessary. The Government do not take on commitments that they do not, in good faith, intend to keep—nor do they exercise their commitments in a way that conflicts with our international obligations. It could be argued that there is a whole range of obligations relevant to the Bill besides the 1951 United Nations convention on refugees and the 1953 European convention on human rights, to which the new clauses refer. I suspect that if we made a list of them and inserted them into the Bill, the only practical result would be to provide pegs on which to hang more or less obscure arguments for judicial review. I do not believe that that would assist the asylum seeker with a well-founded fear of persecution. It would certainly complicate and delay the procedures for determining applications fairly that the Bill was designed to speed up.

We shall come to debate the International Labour Organisation convention and the European social charter in connection with the final group of amendments, so I shall not mention them now; indeed, as the hon. Member for Edinburgh, Central (Mr. Darling) was brief, I shall not say a great deal more myself.

As the United Nations convention is central to the Bill, I undertook in Committee to consider transferring from the rules the words that make it clear that nothing in those rules—which have to be made under the Immigration Act 1971—shall lay down any practice that would be contrary to the convention. Amendment No. 25 does precisely that, and I am glad that the hon. Member for Edinburgh, Central welcomes it.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) also welcomed the amendment in general, but asked me a specific question. I believe that his worries are unfounded, but I shall re-examine the amendment and make quite sure that it does what it is intended to do. I believe that the amendment means that any rule that was in breach of the United Nations convention would be ultra vires and that the court would rule it unlawful were it brought before it.

I welcomed the intervention of my hon. and learned Friend the Member for Burton (Mr. Lawrence) because he produced useful correctives to some of the things said by some groups, not least the Medical Foundation for the Care of Victims of Torture. My hon. and learned Friend referred in particular to the Moorhead article, which was deeply misinformed, caused a lot of unnecessary worry and work and wasted a great deal of newsprint.

My hon. and learned Friend wanted assurances on four matters—first, that the Government always pay close attention to the medical foundation's reports. I can assure him that we always do, but people can have marks or wounds on their bodies for many reasons and there can be various interpretations of the way in which they have come by them. We have to make our decision not merely on the basis of a report saying that the marks are consistent with one form of treatment but on the basis of the other evidence that we have about the antecedents of the particular individual claiming asylum.

My hon. and learned Friend asked whether signs of recent torture could mean that the person was a genuine asylum seeker. I forget exactly how he worded his question. Signs of recent torture constitute very convincing evidence that someone is genuine, but, in deciding whether to grant asylum, we must ask ourselves whether that person has a well-founded fear of persecution if he returns home. The fact that someone has been deliberately injured by another person is not conclusive, but it goes a long way to establishing a claim if the other evidence suggests that he would have fear of persecution if we sent him back to where he came from.

It has been suggested—I believe in the article by Caroline Moorhead—that, because of the measures in the Bill, people who have been given leave to remain will be put at risk of being sent away again. Nothing in the Bill alters their situation. Those who have been given exceptional leave to remain must apply to have that leave renewed, but that happens under existing law. The difference will be that if, for some reason, that person's leave is not renewed—which would not be as a result of the Bill—the Bill would ensure that he had the right of appeal to the special adjudication authority in respect to his turned-down asylum claim. That is the only respect in which the position of someone given leave to remain in Britain temporarily or indefinitely—certainly temporarily—can be altered, and it is a change to that person's advantage.

My hon. and learned Friend asked me how behaviour in this country could bear upon someone's asylum claim. A person's behaviour can bear only on his credibility, not on the objective question whether he has a well-founded fear of persecution if he were to return home. Often, those matters turn, at least in part, on the credibility of an individual. That credibility is certainly undermined if a person indulges in activities in this country which are inconsistent with his previous activities and are calculated to create for him an asylum claim or to enhance one that he already has. The matter goes to credibility; it does not go to the final decision. Because it is a factor in credibility, it seems only fair and honest to say so in the rules.

There are few cases in which credibility is undermined in that way, but there have been a number in which people have no fear of asylum in the country from which they came but have engaged in activities here in order to construct such a fear because they wished to stay longer than their visitors' entry visas allowed. However, the measure will not be used to send people back to a country in which they have a well-founded fear of persecution.

Although the Bill is designed to make our procedures more efficient, it is predicated on the basis that someone who arrives here with a well-founded fear of persecution in the place from which he has come will find a safe haven. That is the intention of the Bill and that is why I am happy to introduce amendment No. 25, although, strictly speaking, it is unnecessary. However, it is a reassurance and a signal. If, by any chance, any Government should produce rules in conflict with the United Nations convention, they would have to amend this primary legislation before they could avoid a court striking it down.

Question put and negatived.