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Lord Bassam of Brighton moved Amendment No. 18:


Page 15, line 40, leave out from ("the") to end of line 42 and insert ("Secretary of State after consulting the Registrar General of Births, Deaths and Marriages for Scotland;").

The noble Lord said: My Lords, I hesitate to say this about any amendment for which I have responsibility, but this amendment and Amendment No. 19 are minor technical amendments. They will allow the regulations provided for in Clause 22 of the Bill, as they relate to the reporting of suspicious marriages in Scotland and Northern Ireland, to be made by the

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Secretary of State only after consultation with the Registrars General for Scotland and Northern Ireland respectively.

The amendments reflect the fact that, although immigration policy is reserved to the UK Parliament, it is appropriate for regulations that will affect registrars in Scotland and Northern Ireland to be consulted on with the Registrars General of those countries. Consequently, I am happy to commend these amendments to the House. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 19:


Page 15, line 43, at end insert ("after consulting the Registrar General in Northern Ireland").

On Question, amendment agreed to.

Clause 23 [Provision of facilities for immigration control at ports]:

Lord Bassam of Brighton moved Amendment No. 20:


Page 16, line 8, at end insert ("there").

The noble Lord said: My Lords, this will not win the prize for the shortest amendment in parliamentary history; indeed, I believe that prize probably went to the noble Earl, Lord Ferrers. However, I am grateful to the noble Viscount, Lord Brentford, and the noble Lord, Lord Cope of Berkeley, for drawing my attention to this matter.

I am putting forward this amendment in response to their valued comments on Report. I trust that I made it sufficiently clear at that stage that there was no question, in relation to Clause 23, that we were seeking to transfer headquarter operations to ports as a means of reallocating costs.

Similarly, it was never our intention that a port operator should be required to provide facilities without charge for the operation of immigration control, other than those which relate to the port in question. That being the case, I am content to put forward this small amendment to Clause 23 in the interests of clarity and I invite noble Lords to give it their full support. I beg to move.

Lord Cadman: My Lords, I should like briefly to express my appreciation to the Government for this simple amendment which will, I agree, localise the requirements of the Secretary of State in the provision of facilities at ports and airports. This should go a long way to relieve the concerns of the operators of these facilities, as negotiations regarding the provision of immigration facilities can be kept much more site specific and there will be much less generalisation. Thus any disputes should be more easily overcome and the offer of some independent scrutiny, as mentioned at an earlier stage of the Bill, will be made much more achievable. It is to be hoped that there will also be improvements in cost and practicality.

Lord Cope of Berkeley: My Lords, this is an excellent amendment, both in its content--which, as the

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Minister said, takes up a point that I and my noble friend raised on Report--and in its form. Indeed, as one of those who has occasionally criticised the parliamentary draftsmen, I should also like to take this opportunity to say that this amendment is a model of their art.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 21:


After Clause 28, insert the following new clause--

DEFENCES BASED ON ARTICLE 31(1) OF THE REFUGEE CONVENTION:NO. 2

(" .--(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention) he--
(a) presented himself to the authorities in the United Kingdom without delay;
(b) showed good cause for his illegal entry or presence; and
(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.
(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.
(3) In England and Wales and Northern Ireland, the offences to which this section applies are any offence, and any attempt to commit an offence, under--
(a) Part I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);
(b) section 24A of the 1971 Act (deception); or
(c) section 26(1)(d) of the 1971 Act (falsification of documents).
(4) In Scotland, the offences to which this section applies are those--
(a) of fraud,
(b) of uttering a forged document,
(c) under section 24A of the 1971 Act (deception), or
(d) under section 26(1)(d) of the 1971 Act (falsification of documents),
and any attempt to commit any of those offences.
(5) A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim.
(6) "Refugee" has the same meaning as it has for the purposes of the Refugee Convention.
(7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.
(8) A person who--
(a) was convicted in England and Wales or Northern Ireland of an offence to which this section applies before the commencement of this section, but
(b) at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),
may apply to the Criminal Cases Review Commission with a view to his case being referred to the Court of Appeal by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

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(9) A person who--
(a) was convicted in Scotland of an offence to which this section applies before the commencement of this section, but
(b) at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),
may apply to the Scottish Criminal Cases Review Commission with a view to his case being referred to the High Court of Justiciary by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.
(10) The Secretary of State may by order amend--
(a) subsection (3), or
(b) subsection (4),
by adding offences to, or removing offences from, those for the time being listed there.


(11) Before making an order under subsection (10)(b), the Secretary of State must consult the Scottish ministers.").

The noble and learned Lord said: My Lords, in this group we also find Amendments Nos. 22, 62, 63, 66 and 67. Perhaps I may try to deal with them compendiously. Amendment No. 21 was tabled in response to the judgment in the case of Adimi and others which was handed down the day after the Committee stage of the Bill had been completed in this House. It was tabled for discussion but not moved on Report. We have taken the opportunity to consider the comments of the Select Committee and have made some drafting changes.

The purpose of the amendment is to ensure that someone who comes within Article 31(1) of the United Nations convention of 1951 is properly protected and does not have a penalty imposed on him on account of his illegal entry or presence. As I told your Lordships on an earlier occasion, we have already put in place administrative procedures to identify at an early stage Article 31(1) issues. Ideally, therefore, in relevant cases the matter would never come to court. Sometimes these arrangements will fail. They will fail to identify someone who comes within Article 31(1) and this amendment is therefore a further safeguard. I told your Lordships on Report that subsection (1) draws on the terms of the article itself. There is one addition, which is the requirement for anyone claiming the protection provided by this subsection to have applied for asylum as soon as is reasonably practicable. I think that that is a fair addition.

Subsection (2) limits the application of the defence created by subsection (1) where the refugee stopped in another country outside the United Kingdom. In such cases the defence applies only if the refugee shows that he could not reasonably have been expected to be given protection under the convention in that other country. This is--I recognise the force of what the noble Lord, Lord Avebury, said--a narrower definition than that which was adopted by the Divisional Court. I think that we are entitled to take our view, having considered the views of the court, and we have taken a different view.

The purpose of the convention is to enable people to escape from persecution. There is no obligation to facilitate the passage of a refugee to a country of his or

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her choosing. This does not mean that every refugee who passes through a third country will be prosecuted; that does not happen at the moment and it will not happen in the future. I think that we are entitled to place a limit on what is called "forum shopping", deciding that one will accept an offer of safety in country B or C, but not in country A. As I said earlier on Report, the definition of "coming directly" was a generous one. There must come a time when an individual has stopped running away--that is the Article 31 situation--and has started travelling towards a preferred destination. We have tried to define this in subsection (2).

The offences for which the new defence will be available are listed in subsections (3) and (4). I believe that we have it right. There is quite a degree of conformity between this list and the offences listed in the amendment tabled by the right reverend Prelate the Bishop of Southwark at Report. If the list needs to be added to, this can be done by order, subject to affirmative resolution, by virtue of government Amendment No. 62, if that commends itself to your Lordships. The Select Committee on Delegated Powers and Deregulation suggested that removing offences from the list, and therefore removing the defence, was a more serious matter and should be a matter for primary legislation. We are happy to accept that suggestion and, in consequence, opposition Amendment No. 22 which stands in the names of the noble Lords, Lord Cope of Berkeley and Lord Goodhart, and the noble Viscount, Lord Astor.

I wish to deal briefly with those convicted of these offences in the past. I mentioned at Report that there is no central database which would enable us to identify those who have been convicted of one of the relevant offences who would not have been found guilty--and indeed probably would not even have been prosecuted--had a defence of the sort that we propose been available at the time. Subsections (8) and (9) permit anyone who has been convicted of a relevant offence in England, Wales, Northern Ireland or Scotland to apply to the relevant criminal cases review commission on the grounds that he would have had a defence had it been in force at the time. Cases where Article 31 has already been raised are excluded because the matter has already been addressed. It is plainly desirable--I think that your Lordships are all of this view--for the process, in other words, the protection provided by the clause, to start as soon as possible. If accepted, this amendment would come into force on Royal Assent by means of Amendment No. 66. Amendments Nos. 63 and 67 simply replace consequential amendments. I beg to move.


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