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Lord McIntosh of Haringey: There is something missing from the appreciation of the noble Lord, Lord Campbell of Alloway. The noble Baroness is moving an amendment which adds "by reason of gender"; in other words, if a man or woman is persecuted for the other reasons in sub-paragraph (4)(a) that is not affected. But if a woman in particular is persecuted, not for the other reasons but by reason of gender, that is a good reason for the inclusion. To that extent, although the amendment is probably in the wrong place, I support the principle behind it.
Baroness Elles: In view of the comments of the noble Baroness, Lady Williams, I believe that a very strong case has been made on this issue. I should like to put a question to my noble friend the Minister. Sub-paragraph (4)(a) includes a list of grounds on which persecution may be feared. In responding, can my noble friend say whether that is an exhaustive list or whether it is necessary to include the word "gender" to ensure that the cases properly raised by the noble Baroness are taken into account? I believe that the drafting and status of that paragraph will help the Government in deciding whether to accept, perhaps in a reworded form, the amendment moved by the noble Baroness.
Lord Avebury: My noble friend is quite right in saying that at the time of the introduction of the 1951 convention the particular forms of persecution suffered by women in many countries were not widely appreciated. She mentioned Iran in particular. I should like to expand upon that, if I may.
It is not the policy of a few rabid fundamentalists in Iran which causes women to be persecuted for not wearing a Hijab, which is the garb that covers the whole of a person's hair and leaves no part of the skin exposed except the hands. This is the policy of the mullahs' government; that is to say, the theocratic state imposed by Ayatollah Khomeini. It dictates that all women are to be dressed in a particular way on penalty of severe punishment, which may sometimes be inflicted on the spot by the religious police. It may also mean that a woman can be taken to prison and given a long sentence, or even be subject to lashes, for behaviour which is considered wrong in a woman but perfectly all right in a man. I believe that that answers the question posed by the noble Lord, Lord Campbell of Alloway.
Why should there be any specific mention of penalties that are applied to women? In states such as Iran there are forms of persecution that do not apply to men. It is not just a question of dress but a question of the status of women in the particular society: their right to employment, their entry into certain disciplines in the universities, their position under the law and their responsibilities within the family. A woman has no rights over her children in Iran. She has no right to become a judge. The head of state must be a man. Everything in the theocratic state of Iran is male-oriented and calculated to keep women in the position of second-class citizens.
In the face of that kind of discrimination, if a woman presents herself at a port of entry in the United Kingdom and claims to have been discriminated against as a woman in Iran, and to have suffered persecution by reason of her gender, I believe that it is perfectly right to grant her asylum on that basis and not stick to the letter of the 1951 convention. I absolutely agree with my noble friend that if we cannot do that by strict adherence to the 1951 convention then it must be spelt out on the face of the Bill.
Earl Russell: I hope that the noble Lord, Lord Campbell of Alloway, will forgive me for saying that he made an interesting point. I mean it. It was interesting. It is a point which was made in this place in 1628. The answer it received then seems to be entirely relevant to today. This place was then considering the Petition of Right which was a declaration of liberties. Someone said:
The answer of course was that that was not so; that no list of liberties can possibly be exhaustive, because the types of oppression and injustice which may happen are infinite, and no document can possibly specify them all.
The noble Lord will appreciate that within the principles of the common law there is a great deal of room for adaptation to change. If he considers the change in the applications the common law has made of the word "reasonable" over five or six centuries, that will make the point. So the liberties, as spelt out in the UN convention, must be capable of growth.
It is true, as my noble friends have said, that a high proportion of persecution that takes place in the world today is directed at women by reason of their gender. If the type of persecution that is taking place is changing, we must take account of it. It is not just the cases my noble friend has mentioned, it is the cases of women who wish to leave a violent and dangerous husband. They are in many cases treated worse than they were three or four centuries ago. So, where the type of persecution with which we deal is changing, we must recognise that fact. That is the point to which my noble friend wished to call attention.
Baroness Rawlings: I understand fully what the noble Baroness, Lady Williams, is saying about torture and women, but surely if a woman is badly tortured that will come under "torture". It does not need to come under "women" whatever be the torture--when it is against a woman, she will come under the procedure for asylum because she has been tortured. Any man can be tortured in the way that a woman cannot be tortured. We will not insert an extra provision relating to gender for men because men may be tortured in a way that might not be possible for women. In this case including gender may perhaps be going too wide.
Amendment No. 16A would insert an additional category of asylum claim to which the special appeal procedure can apply into sub-paragraph (4) in Clause 1. I should say at the outset that the amendment is defective because, as drafted, it would enable the certification of all asylum claims which do not show a fear of persecution by reason of gender.
There is a temptation that we should accept the amendment because it would, in a way, foreshorten some of today's debate. It would allow us to certify the vast majority of asylum claims. I know that that cannot be the noble Baroness's intention, and such an indiscriminate extension is not acceptable to the Government. So in an attempt to safeguard one additional category, the truth is that all other categories would be certified. I know that that is not the noble Baroness's intention.
However, the noble Baroness's intention in tabling the amendment is to prevent us certifying a refused claim under sub-paragraph (4)(a) if it alleges persecution on grounds of gender. The amendment is unnecessary, and I shall explain why. If a person shows a fear of persecution, including a fear based on gender grounds, that person would normally have done enough to escape certification under indent (a). That would be the case, for example, if the applicant alleges that his or her human rights will be threatened because of gender. I have to say to the noble Earl, Lord Russell, that my noble friend Lord Campbell of Alloway's understanding of this part of the Bill is right.
That does not of course mean that a gender-based claim would be exempt from a certificate if it is manifestly fraudulent, or meets one of the other criteria under Clause 1. Nor does it mean that such a claim would always succeed. I can assure the Committee that gender is taken into account in the assessment of individual asylum claims where that is relevant. However, our experience suggests that, in practice, few, if any, asylum applications made in the UK turn solely on the question of gender-based persecution. Applications normally involve claims of persecution on the grounds of race or religion or, for example, that a particular group of women faces persecution. Each case is considered on its merits. Each case that has been mentioned during the debate would be properly considered under even the 1951 convention.
The interpretation of a "social group" convention ground has been raised in debate by the noble Baroness. Our approach is not to define in the abstract whether women or men, or any other set of people, might or might not be regarded as a social group. Each individual claim is considered on its merits to determine whether the applicant can demonstrate, in all the circumstances of the case, that he or she has a well-founded fear of persecution in a particular country for any of the 1951 convention reasons. A range of possibilities exists; for example, from treatment of women generally, which may be discriminatory but may not constitute persecution, to a particular group of men or women
Gender is taken into account in the assessment of individual asylum claims where that is relevant. The Government believe that it is right that all asylum applications from men and from women should be considered without any discrimination in accordance with the criteria set out in the 1951 UN convention relating to the status of refugees. Each claim is considered on its merits to determine whether the applicant can demonstrate that he or she has a well-founded fear of persecution.
Rape and other forms of sexual violence clearly amount to persecution in the same way as do other acts of severe physical abuse. Whether less prejudicial acts or threats would amount to persecution will depend upon the circumstances of each case. In order to qualify as a refugee, the applicant would need to show that that fear of persecution was well-founded and based on a convention reason.
Women and, indeed, men who do not meet the requirements of the 1951 convention may be granted exceptional leave to remain in the UK if there are compelling humanitarian reasons why they should not be required to leave. The point made by my noble friend Lady Rawlings was right: sexual abuse is not specific to women or gender; men, too, can be sexually abused. There is a great deal of evidence that they are.
If it is serious abuse, it is persecution or torture. The noble Earl, Lord Russell, in his inimitable style, and calling upon his enormous understanding of history to which I defer absolutely, asked whether the list of grounds for persecution in sub-paragraph (4)(a) is exhaustive. The answer is that it is.
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