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Baroness Williams of Crosby: Before the Minister sits down, he referred to the right of appeal under Clause 8 eventually being removed. He referred also to the fact that under Clause 55 it will be possible to make an appeal specifically on human rights grounds. He will be aware that there is a hiatus between the two. Clause 55 cannot come into practice until the Human Rights Act comes into effect, which I understand is not likely to happen before October next year. Does that mean that Clause 8 would effectively last until Clause 55 came into operation? Or in what other ways can the gap be dealt with that is likely to emerge between the timing of those two clauses?

Lord Falconer of Thoroton: The noble Baroness is right to raise that point. She may recall that my honourable friend the Parliamentary Under-Secretary of State undertook to consider sympathetically the argument that the clauses should be implemented at the same time. I am pleased to confirm that the Government have decided that the two clauses should indeed be brought into force at the same time, to coincide with the coming into force of the Human Rights Act, on which Clause 55 depends, on 2nd October 2000.

The noble Lord, Lord Cope, tabled an amendment to that effect. Had the noble Lord moved it, I should have committed the Government--as I do now--to seeing whether a provision can be placed on the face of the Bill. It may be impossible for drafting reasons. However, I give an undertaking on behalf of the

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Government, which I hope to be able to reflect in a clause in the Bill, that Clauses 8 and 55 will both be brought into effect at the same time.

Baroness Williams of Crosby: I am most grateful.

Lord Dholakia: I am grateful to the Minister for the undertaking that he has given. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 112B not moved.]

Clause 56 agreed to.

Clauses 57 and 58 agreed to.

Clause 59 [Claims for asylum]:

Lord Dholakia moved Amendment No. 113:

Page 38, line 32, at end insert ("implementation of which should include recognition of rape as persecution and therefore grounds as asylum").

The noble Lord said: Those of us who have attended a number of meetings held in this House with women's organisations, and in particular the organisation Women Against Rape, understand why it is necessary to make explicit the recognition of rape as persecution and therefore a ground for asylum.

Women making asylum claims are hugely disadvantaged, because being persecuted as a woman is not explicitly recognised by the UN convention on refugees, which is binding on governments. Despite national and international legal precedents recognising gender based persecution, women still face enormous obstacles in getting their claim recognised. Although rape is officially recognised as a war crime, many women who are raped by police or soldiers are not in officially recognised war zones.

With no statutory obligation to consider rape and other sexual violence in the context of the UN convention, and given that the Home Office's starting-point is to reject claims, officials routinely ignore or override ways in which particular cases might fit with established precedents. In addition, lawyers representing women do not necessarily know what the precedents are, or see how they apply to a particular case, further disadvantaging women.

Additionally, and crucially, because women may not be able to speak about what has happened and are not asked about rape, full details of the persecution they have suffered may not emerge immediately, or indeed for some time. Given the Home Office's power to "fast-track" cases which it decides do not fit under the convention, there is even less time for a full case to be made.

Many women whom we have interviewed have been raped and sexually assaulted by government agents in order to stop or punish their political activities against military dictatorships and other repressive regimes, yet the official response constantly undervalues and downplays women's political activity against such regimes. Sexism is also responsible for the fact that rape is still not officially recognised as an instrument of political repression even though it is the most common weapon used against women.

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Some countries, such as Canada and Australia, as well as the United Nations High Commission for Refugees, recognise rape as persecution and therefore grounds for asylum. I very much hope that we too will consider rape as such. I beg to move.

11.45 p.m.

Lord Cope of Berkeley: As has been made clear once again in Kosovo, rape is used as part of persecution in some situations. It is a particularly appalling crime and seems to me clearly grounds for asylum. The only question is whether it is desirable to say so specifically in the statute or whether that might lead us to try to define all kinds of different methods of persecution. It is a difficult judgment, but I look forward to the Minister's advice on it.

The Countess of Mar: I am grateful to the noble Lord, Lord Dholakia, for bringing the matter to the Committee's attention by proposing the amendment. At the same time, I wish to speak to my Amendment No. 116. My experience has been that all too often women who appear before the Immigration Appeals Tribunal will tell about rape for the very first time. They will have been through the immigration interviews--generally two--and they will have been before an adjudicator. Because in many instances women come from ethnic origins that have taboos on talking about sex in front of men, they will not divulge what they have gone through either until they have a female lawyer or they become desperate and have to tell what has happened.

In addition, there are other circumstances where the situation of women is not recognised. In Moslem countries a single woman without male support is vulnerable to attack. In recent years we have had a number of such cases and I am pleased that the House of Lords has now acknowledged that women form a special group.

I hear what the Minister said about defining special groups, but in this case it is necessary. I understand that the Home Office has been examining the matter and I commend to the Minister the gender guidelines on the determination of asylum claims in the UK. I endorse what the noble Lord, Lord Dholakia, said about Canada, the USA and Australia all having gender guidelines. They found that it improved fairness and efficiency in determination of claims.

Earl Russell: The Appellate Committee of this House has now recognised women as a particular social group within the meaning of the convention in cases decided earlier this year. I do not need to exhort the Government to show sensitivity on the point.

I have two practical points. One relates to the nature of the proof involved. There is always a problem about the Home Office asking for too high a standard of proof.

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I have here one particular Home Office refusal letter which is an example of a good many:

    "The Secretary of State did not accept that Ms L was arrested, detained and raped as she alleges. The Secretary of State has considered the report from the Medical Foundation for the Care of Victims of Torture but finds no conclusive evidence to support Ms L's claim".

That is a stern evidential requirement. In a criminal case too late for medical evidence, it would be extremely difficult to meet it. I hope that guidance will be issued, asking for a slightly more realistic standard of proof in such cases in the future.

My other point is that made by the noble Countess about reluctance to tell the story the first time. In asylum law, if you do not tell it the first time, it tends to count against you. It has fallen to me three times to try to persuade a woman to report a rape. I have been successful once. Those were white, western women in an open culture. It is far more difficult in a culture in which the taboos are stronger--even more difficult in one where a woman may destroy her marriage prospects if she reports a rape. I hope that a claim of rape will not be ignored if it was not made immediately on the point of entry.

Baroness Williams of Crosby: During 1993, I visited Bosnia at the time when Lady Warburton was leading the investigation into rape as a form of direct political action intended to intimidate the enemy. She obtained a great deal of evidence to show that rape had moved from being in most cases an individual matter to being a systematic strategy used by some countries as a way of frightening and demoralising the other side.

That gives a different context to the way that we normally deal with the issue. I particularly recommend Amendment No. 116 because it gives gender guidelines that are most likely to distinguish between what may be a difficult issue of definition and the emanation of a specific government policy used as an act of war.

Lord Alton of Liverpool: I support Amendments Nos. 113 and 116. If the Refugee Women's Legal Group's gender guidelines were incorporated into statute, as the new clause aims to do, that would radically improve the standard of decision making in women's asylum and gender-based claims. Perhaps the Minister can say something about the training of officials dealing with such cases in gender awareness and the differences that arise in cases concerning women.

A Ugandan woman, for example, who was a member of the UPC opposition party and attended meetings, was arrested, tortured and raped. The Home Office refused her asylum application. When she appealed, the adjudicator did not dispute that members of her family had been killed or that she had been detained and tortured--but did not accept that the woman had been persecuted for her political opinions. The adjudicator therefore concluded that she did not qualify for protection under the 1951 convention.

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In that instance, a woman was persecuted for her informal or indirect involvement in political activity. That can range from passing messages and providing food and clothing to providing a safe house or medial care--things in which men might not be involved.

Another example is where women are detained, tortured or killed simply because of their relationship with people whom the authorities are in any event persecuting. An Ethiopian woman was detained by government soldiers following the death of her brother, who was a member of the liberation front, on a student demonstration. She was interrogated about her own political beliefs, threatened with death and forced to submit to sexual violence.

The Home Office refused that woman's application, arguing that because she was not a member of a political party she could not be protected under the 1951 convention--despite considerable evidence proving that Oromo political prisoners and their relatives have been raped, killed, or both, while in custody.

I draw the attention of the Committee to another example of women being treated differently from men. Women suffer persecution because of institutionalised social discrimination and gender-specific forms of harm, against which the state is unable or unwilling to protect them. Women at risk include those who refuse arranged marriages, have sexual relations outside marriage or do not conform to social mores regarding how they ought to dress or behave. Women who transgress the standards imposed upon them by society can suffer cruel and inhuman degrading treatment or even death. Other women may be fleeing female genital mutilation, forced sterilisation or, in the case of Chinese women, forced abortion, forced sterilisation or the forced fitting of IUCDs.

There are examples where the credibility of an applicant is often questioned by the Home Office because the woman has delayed in providing details concerning sexual violence. This may be because of the presence of male interviewers or interpreters, inappropriate interview techniques or fear that members of her family or community may find out, or simply because the experience was too traumatic to discuss at the point of asylum application.

Other noble Lords who have spoken in this debate have pointed out that women who come from the Islamic culture find it particularly difficult to provide details. I give the Committee the example of a Pakistani woman who did not give details of rape and sexual abuse at her initial interview because she did not want to discuss it in front of the interpreter and interviewer, both of whom were Moslem men. The Home Office refused her application and argued that her failure to mention this information meant that she was not a credible witness. On appeal, the judge agreed with the Home Office, noting that,

    "the appellant is an educated and sophisticated woman. She is not a rural agricultural worker from a remote village and we do not believe that had she had anything to say she would not have done so simply because there were male Muslims present".

Her appeal was rejected.

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In cases involving sexual violence, state responsibility for the harm suffered or feared is often not recognised even where a woman is persecuted directly by the state or by an agent of it. For example, a Turkish woman was arrested and detained because of her membership of Dev Sol and Tayad. She was sexually abused and given electric shock treatment by attaching electrodes to her breasts. The Home Office refused the application, arguing that,

    "although Turkish authorities have a tendency to roughly handle people, it is not directed at anyone in particular ... it is their style".

What an extraordinary quotation. I believe that that evidence from those cases is a graphic illustration of why these amendments are necessary.

I also commend to the Committee the endorsement of the guidelines contained in the amendment tabled by my noble friend Lady Mar by organisations the names of which occupy two or three closely typed pages. Those organisations range from Christian Aid to the Shaftesbury Society and Westminster Diocese Refugee Service. Therefore, this concern is broadly based. However, the matter goes further than that. For example, UNHCR endorses the principles of gender-specific guidelines and recognises the need for such guidelines in the UK. It congratulates the RWLG on compiling such a quality document. In addition to these organisations and campaigning groups, my noble friend has referred to experience elsewhere in countries such as the United States, Canada and Australia.

In the light of that, it is important that asylum interviews are carried out in a gender-fair and appropriate way; that evidence in support of applications is treated properly, with due consideration of gender needs and constraints; and that women are encouraged to make independent claims for asylum and are not automatically treated as dependants. Amendments Nos. 113 and 116 go some way to raising those concerns. If the Minister is unable to accept them this evening, I hope that he will at least give the Committee an assurance that he will consider them between now and Report stage and return with government amendments to deal with these important questions.

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