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Lord Dubs: My Lords, I thank the Minister for her detailed explanation although I am bound to say that it does not give a great deal of comfort.

It is not right to say that a late claim is an abusive claim. The majority of late claims, however undesirable the Minister may find them, are most likely to be made through ignorance, through not knowing the situation in this country or through being rather naive in the approach to officialdom here. I do not believe that late claims are abusive. Nor do I believe that many people who come with forged documents do so with an intention to deceive. The claims may be perfectly proper claims in terms of individuals having a well-founded fear of persecution even if they are made late through ignorance, uncertainty, insecurity or for the many reasons which cause people not to deal with British officialdom as expeditiously as the Government would wish them to.

Having said that, I know that the Minister is not to be persuaded. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendments Nos. 9 to 12 not moved.]

Lord McIntosh of Haringey moved Amendment No. 13:

Page 2, line 24, leave out from ("fraudulent") to ("; or") in line 25.

The noble Lord said: My Lords, this amendment was moved in Committee but the Minister's reply was so unsatisfactory that we felt that it was necessary to return to this issue.

The point about the words which we seek to delete is that they are so extreme. The whole of subsection (5) provides opportunities for certification for the accelerated procedure and paragraph (5)(d) states that it applies if the claim is manifestly fraudulent or any of the evidence adduced in its support is manifestly false. It is the words "any of the evidence" which really stick in our throat.

Clearly, if the bulk of the evidence, the thrust of the evidence, adduced in support was manifestly false, then the application would be fraudulent. But there are many cases--and some were raised in Committee--when some of the evidence, and not necessarily an important part of it, could be false. But that does not mean that the application itself is fraudulent. It may simply mean that a mistake, and often an unimportant mistake, has been made. For example, a newspaper report submitted in good faith could have errors; it could be unreliable or exaggerated. A foreign government might misinform people about the fate of relatives in detention or witnesses may prove to be unreliable. All those fall within the words which Amendment No. 13 seeks to delete but they do not affect the genuineness of the application.

If the application is manifestly fraudulent perhaps it is legitimate to use the accelerated procedure, but not if any part of the evidence is manifestly false. Indeed, the UNHCR handbook deals with this issue at paragraph 199 which states:

    "Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility",
not the claimant's responsibility,

    "to evaluate such statements in the light of all the circumstances of the case".
It is not just the UNHCR which thinks in that way. The Government's background paper to the Bill is very clear and helpful. It would be useful if the Minister could confirm what is said in that background paper, which refers to,

    "unequivocal evidence that the information which he had given to support the claim was false: for example, where it is established that the alleged events forming the basis of the claim have not taken place, or where documents submitted to support the claim (for example, arrest warrants or newspaper articles) are found to be forged or counterfeit".

The briefing suggests that information submitted verbally would not be included and that if an applicant submitted a genuine newspaper article that contained an error that would also not lead to a fast-track appeal. Therefore, the Government's own briefing and their own interpretation of this clause in the legislation show that

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the language of the clause is too extreme. The way to deal with that extremism and the language of the Bill is to take out those few words. I beg to move.

Baroness Williams of Crosby: My Lords, perhaps I may add one further argument to the argument made so ably by the noble Lord, Lord McIntosh. Many people in this House have experience of intelligence services and such bodies, some of which operate for very dubious governments. The assurance which I seek concerns the possibility of someone who finds that so-called evidence is added to his case against his wishes and without his knowledge by some agent of his government.

For example, if it were the case that somebody wished to put forward evidence "in support of the case" with the real intention of undermining the case, because the evidence was false and was adduced from some part of that government's embassy which might be very out of sorts with the person seeking asylum or refugee status, and the person concerned did not wish to adduce that evidence in his support, would that fall within the present terminology of the Bill?

Perhaps I may refer, as an example, to Boss, the organisation of the old South African government. Evidence was provided by that organisation, not at the wish of the person concerned and not with his understanding or knowledge, but in order to damage him. It is crucial that such evidence should not be taken into account as a basis for refusing the application. I should be grateful if the noble Baroness will give that assurance.

Lord Monson: My Lords, the noble Lord, Lord McIntosh, may be right to claim that the paragraph as it stands goes too far, but is it not possible that his amendment goes too far in the opposite direction? Would not a reasonable compromise be to replace the word "any" with the word "most"?

7 p.m.

Earl Russell: My Lords, I do not think that that is the answer because we want to know whether a person has a well-founded fear of persecution. Under international law, if a person has a well-founded fear of persecution he is entitled to refugee status since no other evidence is material. That is all that we want to find out. Admissibility of evidence must be directed to that end to which the whole investigation is directed.

This amendment covers a case to which we have referred many times before, where people enter the country by means involving some element of deception and then claim asylum in this country. I know that the noble Baroness regards that as an improper procedure. We have had a good many exchanges about that. I thank the noble Baroness for the letter which she wrote to me on this subject between the stages of the Bill, but since she said in that letter that she is unable to understand my position I hope that I shall be forgiven for explaining it further.

My understanding is that under international law it is perfectly in order for people to enter a country, even if the means by which they do so includes deception, and

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then to claim asylum in country. I rely on Article 31 of the UN convention. Last time I mentioned it in Committee the noble Baroness challenged me to produce it. She said she could not understand how it came to have that meaning. With the leave of the House, I should like to read the relevant words and then the comments of the UNHCR upon them. The relevant words are:

    "The contracting states shall not impose penalties on account of their illegal entry or presence on refugees who come in directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in that territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".

As I understand those words, if people entered the country and then claimed asylum and could show that claim to be good under international law ratified in this country by the 1993 Act, and incorporated, that would wipe out any element of deception. It seems to me that the clause in the Bill which this amendment would delete goes contrary to that. Since the Committee stage, I have discovered that my interpretation of Article 31 is the same as that used by the UNHCR and therefore, correct or not, it is one which deserves a hearing. The UNHCR says that,

    "Article 31 exempts refugees coming directly from a country of persecution from being punished on account of their illegal entry or presence, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".
It also says--and this is in answer to another point made by the noble Baroness in Committee--that the word "refugee" in that context must be understood not only in terms of those whose claims have been accepted but of those who are making claims, because

    "once their claims have been examined they may prove to be refugees entitled to benefit from Article 31".

The UNHCR also says--and this relates to another argument that we have had, but I may as well deal with this matter now and avoid coming back to it later--

    "the term 'coming directly' covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection could not be assured. It is clear from the travaux preparatoires"--
I should add that under international law the travaux preparatoires can be used under principles rather like those of Pepper v. Hart to elucidate the meaning of the legislation--

    "that the term also covers a person who transits an intermediate country for a short time without having applied for or received asylum there".

I deal now with the draft of the convention, and stress that these are still the words of the UNHCR. It introduced the term, "coming directly"

    "not to exclude those who had transited another country, but rather to exclude those who 'had settled temporarily' in"
another country, which is a very different case.

Those are good reasons, I think, for saying that the words in the Bill to which we object are contrary to international legal obligations confirmed by an Act of Parliament passed in the lifetime of this Parliament. I know it is normally a legal principle that in a conflict between two Acts of Parliament the later will take precedence. But it will be a difficult principle to apply in this case because the noble Baroness has reaffirmed

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many times that it is not the intention of this Bill to undo our obligations under the UN convention, which the noble Baroness says that we accept. I may say that I am very pleased to hear her say that.

So any court construing this Act would be bound to construe it in the light of the UN Convention on Refugees, as laid down in this country by the 1993 Act. Therefore it is something that may come within the jurisdiction of the British courts as well as the International Court of Justice. In these circumstances it might be a considerable saving on the Home Office's legal Bills to accept this amendment here and now.

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