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Baroness Williams of Crosby moved Amendment No.2:


Page 2, line 24, leave out ("in the country or territory to which he is to be sent") and insert ("prior to his arrival in the United Kingdom.").

The noble Baroness said: My Lords, I make no apology for detaining the House briefly on this amendment. The purpose of the amendment is that someone who has shown evidence of torture should not be returned to a country other than the one from which he comes if there is a likelihood that he will be tortured or returned to a country which will torture him if he is sent back to that country.

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In Committee an amendment was agreed to deal with people who showed evidence of having been tortured. The Government responded, at least to some extent, to that decision. In the amended Bill subsection (5) of Clause 1 states:


    "This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured"--
That was what the House wanted--


    "in the country or territory to which he is to be sent."
What that means, I understand, is that the protection would only cover someone who was about to be returned to the country in which he had been tortured. It would not cover someone who was about to be returned to a country other than one in which he had been tortured, which might nevertheless torture him, or might send him on to a country in which he might be tortured.

In case noble Lords feel that I am making a purely abstract argument, I shall give two examples. All noble Lords will have read of the desperate plight that the state of Myanmar finds itself in. It is what used to be called the country of Burma. Very terrible things are happening to those who, with an extraordinary degree of courage, are supporting the almost certain victor of the last election in Burma, Miss Aung San Suu Kyi. She is defying the whole of the military government by persisting in arguing claims for democracy to return in Burma. Burma is a country which does not have any inhibitions about torturing dissidents and opponents of one of the most terrible governments in the world.

There have been cases in which people returned to other East Asian countries, specifically Thailand, have then been sent back to the country from which they came. Thailand is a country to which it is quite probable that people would be returned. It is apparently a safe sort of country. There is a great danger that Thailand, which has practised so-called reforms--meaning the return of people to the country of origin, directly in the face of the United Nations convention relating to refugees--might do it again.

The second example, to which the noble Lord, Lord Mackay of Ardbrecknish, referred, relates to the case of Belgium. The noble Lord said, justly enough, that most of us would regard Belgium as a safe country, certainly one that does not torture its citizens or those who flee to it. The trouble is that there is already clear evidence that in certain cases Belgium has returned Zairean refugees to another of the most dreadfully governed countries in the world, namely, Zaire. Indeed, some refugees have been sent straight from the airport in Brussels on to Zaire without so much as their cases being considered even for a matter of moments.

It is against that background that this modest amendment is directed, so that the Government cannot return someone, and I repeat the phrase,


    "if the evidence adduced ... establishes a reasonable likelihood that the appellant has been tortured".
We are not questioning that. We want to make sure that the person cannot be returned to a country which might continue to torture him.

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It is a modest amendment. However, because I move an amendment about torture, I want to raise two questions with the noble Baroness, Lady Blatch. I raised these questions previously but the noble Lord, Lord Mackay of Ardbrecknish, did not respond to them, no doubt for reasons of lack of time. They are so important to the intentions of this House that I raise them again on this amendment about torture.

At the Committee stage of the Bill the noble Baroness, Lady Blatch, said:


    "We are trying to arrive at a situation whereby a genuine claim of torture is properly considered and, if genuine, is well-founded at the first stage of consideration".--[Official Report, 23/4/96; col. 1057.]
Later she went on to say:


    "I referred to the very great importance and weight which are attached to any evidence of torture, especially when supported by a medical certificate".--[Official Report, 23/4/96; col. 1058.]

A few moments ago this Chamber decided that it would extend the right of asylum seekers from asylum given at port of entry only to three days, although that decision was taken against the advice of the Government. I ask the House to consider two situations. The first is where somebody who has been tortured applies for asylum at the port of entry. He is likely to have at most half an hour, perhaps an hour, with the immigration authorities. By the nature of things, he cannot advance medical evidence, unless it is highly improbable that he has medical evidence of torture from his own country. How then does he obtain the medical evidence? By leave of this Chamber, he may now be given three days to get that medical evidence.

The noble Baroness shakes her head. I repeat that I asked that question before and no answer was given to me. Therefore I am entitled to raise the matter again. What steps does he take to get medical evidence in this country if he is on the fast track? I am still not clear how far victims of torture will be removed from the fast track. I repeat the question. Can we hear from the noble Baroness how somebody establishes that there is a reasonable likelihood that he is a victim of torture in a matter of an hour or so before an immigration officer at the port of entry? Or, if he applies under the new amendment within three days, how can he establish that likelihood, unless he is able to get a medical examination in this country, which, as most of us know, is very difficult to do within three days? Indeed, in some cases it is close to impossible. That is my first question. How does he establish what brings him within the amendment agreed by this Chamber?

My second question relates to how asylum seekers can establish likelihood, if they remain on the fast track. I am not yet clear whether the amendment takes all possible people who claim to be victims of torture out of the fast track. I am sure that the Government will say, with some justice, that they cannot simply accept an a priori statement of torture as grounds for establishing likelihood. So my second question is: what establishes the likelihood of the claim? How do they go about establishing that likelihood and what would the Government regard as adequately fulfilling the conditions that they themselves have now laid down as a way of meeting the mood of this Chamber?

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It is on the basis of the answers to those questions, which I believe are absolutely crucial in terms of the intention of the House, that I shall decide whether to press the amendment to a Division. I beg to move.

Earl Russell: My Lords, my noble friend is quite right. On the first day of Committee on the Bill, the Minister entirely conceded the major premise on which my noble friend's amendment rests. The Minister said that it was quite impractical, before returning a person to another country, to gain an undertaking that that country would consider his claim. That was a very significant admission. It means that, when we return a person to another country which is not the country from which he came, we cannot be certain that that country will not again "billiard ball" return him, until he ends up back in the country from which he came. So for that reason, if for no other, my noble friend is quite right. It is whether he has been tortured in the country from which he comes and not whether he has been tortured in the country to which he is to go which is material.

I shall not detain the noble Baroness now with all the case law. She has heard it from me before. Although we disagreed profoundly at the beginning of the Bill on the significance of the judgment in ex parte Bostam by Mr. Justice Hidden, the noble Baroness on her own interpretation of that case concedes that such "billiard ball" returning to a third country may be possible. It has happened. That is all that the supporters of my noble friend's amendment need to prove. As I see it, one case would be enough. I have with me a great many more cases but I shall not detain the House with them.

We next need to consider my noble friend's point about how a claim to torture can be established. I have two points on the torture amendment, which I very much welcomed. One concerns the exemption from the fast track; the other comes under paragraph (7) in Clause 1, that the invocation of the torture amendment disapplies the prohibition of appeals to the Immigration Appeal Tribunal. Those are both crucial matters.

We are agreed that the mere assertion that one has been tortured is not enough by itself to establish a foundation to a claim. But obtaining the most eminent medical experts from Oxford takes time. They tend to have other engagements and other commitments, not all of which can instantly be set aside. So establishing adequate evidence to lay the foundation for a claim of torture must take some time. It is our recurrent fear that that time will not be available under the fast tracking procedure and therefore that victims of torture who are fast-tracked will be returned before they have been able to establish the evidence.

The appeal point is also vital. The Minister heard what my noble friend had to say about the case of Mr. Igbinidu. I cannot understand why the Home Office has not accepted that case. It tends to show that initial decisions on the question of torture may give rise to a need for appeal. I feel that there is here a question of natural justice. If the Minister were to accept my noble friend's amendment, she would protect the Government

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from a good many court cases in which I do not believe she would wish to become involved. I am delighted to support the amendment and hope that it is accepted.


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