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Baroness Blatch: My Lords, I have made it clear endless times in the course of our debates, both today and on other occasions, that adjudicators can set the certificate aside and can take a different view from the Secretary of State on issuing certificates. But I have addressed quite directly, in the course of speaking to this amendment and a similar amendment earlier, that we do not wish to put on the face of the Bill the fact that a reasonable excuse is a key reason for setting the certificate aside. The adjudicator will make up his or her own mind as to what reason he or she produces for setting a certificate aside.

Lord Avebury: My Lords, how on earth can he make up his mind to set aside a certificate when he is not given power to do so in the Bill? That is precisely the point of the amendment. I am only asking for the noble Baroness to agree that effect should be given to the words she herself used and which I have just quoted. If she really wants me to produce an example of the kind of case where I think she would be bound to agree that the adjudicator would like to exercise such powers, I can do so.

If the certificate is issued and then circumstances change in the country of origin between the issue of the certificate and the appearance of the applicant before the adjudicator, such that he would find himself at serious risk when he was sent back to the country of origin, the adjudicator might have very reasonable grounds for setting the certificate aside. But I do not want to spell out such grounds out on the face of the Bill. I am only trying to do what the noble Baroness suggested we had already achieved, which was to give the adjudicator power to set aside a certificate which has been presented to him by the Secretary of State. If the noble Baroness cannot see that point, I must take counsel by withdrawing the amendment and coming back with it at Third Reading after perhaps trying to argue with her privately to make her see the error of her ways. If she has not divined that her own words gave authority for the amendment, I do not quite know what I am going to be able to say to convince her.

Baroness Blatch: My Lords, the noble Lord will continue to argue with me over many things. I spend a good deal of my week every week responding to detailed inquiries from the noble Lord. I do not think much will change on that point. I have said that if the adjudicator believes that the certificate has been wrongly produced by the Secretary of State, the adjudicator can set that certificate aside. I have said repeatedly, not just to this amendment but to similar amendments, that we do not intend to put on the face of

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the Bill an excuse such as having a reasonable explanation. It would invite all the abuses that we have had endlessly from asylum seekers who use that as a mechanism for delay. We are not prepared to go that far.

Lord Avebury: My Lords, if I copy the noble Baroness's words precisely from her speech in col. 1499 of the Official Report of 30th April, where she said,


    "good reason why he should not have received a certificate",
will she accept an amendment to that effect on Third Reading?

Baroness Blatch: My Lords, I would invite the House not to accept it.

Lord Avebury: My Lords, those are the noble Baroness's own words. I am absolutely flabbergasted. However, in the circumstances, I suppose I have no alternative but to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 23:


Page 2, line 44, at end insert--
("'persecution' includes persecution either by the state or its agents or by persons acting independently of the state's authority, if the acts are knowingly tolerated by the authorities or if the authorities refuse or prove unable to offer effective protection."").

The noble Lord said: My Lords, the definition of "persecution" based upon the 1951 Geneva convention seems reasonably clear. Nevertheless, there have been doubts over recent years as to how various governments have interpreted the convention, particularly the definition of the word "persecution". This amendment seeks to make it clear that persecution is either persecution by the state or its agents or by persons acting independently of the state's authority, if the acts are knowingly tolerated by the authorities or if the authorities refuse or prove unable to offer effective protection. Where the state prosecutes individuals, the situation is reasonably clear. The doubts come when people claim to suffer from persecution not from the state itself but from other organisations or paramilitary groups that may be acting independently of the state and over which the state has no control.

The purpose of this amendment is to ensure that persecution by both bodies--by the state or by bodies independent of the state--should all be considered as persecution for the purposes of the Bill. The amendment is important because the European Union had a resolution some time ago which would mean that only those persecuted by the state could be recognised as refugees. That was a quite negative and restrictive resolution and one which would undermine the rights of many asylum seekers who, if they were sent back, would face the same persecution from which they had fled even if the acts of persecution were not themselves committed by the state.

In commonsense terms, it is a very simple proposition and it is easy to understand. The UNHCR understood that very well. Perhaps I may quote from a statement it issued in 1995:

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    "To UNHCR, refusing refugee status to people who have been subjected to, or who fear, persecution by agents other than their own government is contrary to the text and to the spirit of the 1951 convention. Persecution which does not involve state complicity is still persecution. The Convention applies when the state is unable, as well as unwilling, to protect such people".
Nothing can be clearer than that.

Perhaps I may give the House one or two examples which will illustrate the situation. When I was with the Refugee Council we were very concerned about asylum seekers being returned to Zaire. I have not got the letter in front of me, but some years ago the then immigration Minister wrote that there was no persecution of asylum seekers who were returned by the Government of Zaire. But the letter went on to admit that there could be dangers from paramilitary organisations not under the control of the government. Although the British Government were sending people back, they were in effect conceding that there were dangers to returned asylum seekers from bodies which were behaving in an illegal manner as far as the state of Zaire was concerned and who were not under the control of the state. They were subjecting the asylum seekers to danger and persecution.

But Zaire is not the only country to which this might apply. The case of Algeria is very clear. Many individuals who do not abide by some Islamic customs and those associated with the West, have become targets for Islamic fundamentalism. Such people have fled to safety and yet that persecution is not from the Government of Algeria or its associated agencies, but from organisations which are hostile to its government. The Government of Algeria is simply unable to protect such individuals. Somalia and Liberia are two other examples where the collapse of state authority has meant that paramilitary groupings, not to do with the state directly or indirectly, have made life miserable for individuals and can cause persecution.

So the proposition is simple. Persecution can happen when the state causes it, or it may happen when organisations within a country that cannot be controlled by the state, persecute individuals. Both forms of persecution are very real and threatening. The purpose of this amendment is to make it clear that both such forms of persecution should be recognised, as has been recommended by the United Nations High Commissioner for Refugees. I beg to move.

Baroness Williams of Crosby: My Lords, I appreciate that the Minister may be unable to accept this amendment directly without further thought, but perhaps I may put before her a couple of matters for consideration which the Government may want to look at before we reach the end of the passage of this legislation.

It is clear that a number of governments are trying to escape some of the growing stringencies laid down by international conventions, by effectively using agents which they claim to have nothing to do with, to carry out operations that those conventions would make unacceptable and which would be outlawed by international law. Perhaps I may give an example which comes close to the hearts of everyone in this Chamber. That is the way in which General Galtieri's regime used death squads to destroy some of those who protested

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against the dictatorship of Argentina during and after the Falklands War. The Minister may remember some of the stories that were told at that time about the "Disparados". I know something about it because Dr. Raul Alfonsin who was the elected democratic successor to General Galtieri, pursued some of the cases against members of the military and others for killing some of the opposition and other voices of dissent in Argentina at that time.

They were able to argue that that had nothing to do with the government and that they were not responsible for the actions that were taken by a section of the military and some sections of the police. Clearly, the government were fully aware of what was going on and probably inspired it. Effectively, this group of people was in a sense able to pretend that it was not directly an agent of the government.

I appreciate that this is a complex issue. I am sure that at the moment the Government will not feel able to accept the amendment just like that. Persecution may well be a growing problem. It is characteristic of some of the central American regimes as well as of the previous regime in Argentina. It is important to try to find formulae and words that will bring some of these governments within the scope of international conventions which almost entirely address themselves to the official state apparatus. I suspect that this will prove to be a growing problem. I commend for the thoughts of the Minister and the Home Office the issue of persecution by those who are not nominally agents of the state, but in practice very often are their agents. It is going to be a growing international legal problem.

8.45 p.m.

Lord Renton: My Lords, I have been very interested by what we have heard from the noble Lord, Lord Dubs, and from the noble Baroness. But I must point out to them that the burden of proof as regards persecution lies on the person seeking asylum. The more we tie them down to detail the more difficult it will be for them to discharge that burden of proof. I suggest that from their point of view it is much better to leave the broad expression "persecution" there. It will make it simpler for them to prove their case. If we tie them down to this kind of restrictive detail the asylum seekers may find it hard to do so. Although I am one of those people who wish to see our asylum rules strengthened, on this occasion I have to point out that, bearing in mind where the burden of proof lies, this amendment would not be helpful.


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