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Lord Avebury: My Lords, I do not think that the noble Baroness has underrated the suspicion that many people outside the House feel about the sequence of events concerning advisory panels and in particular, as she says, the list of countries that we are being asked to approve today.

The removal of UK appeal rights from the citizens of these states means that many individuals with valid claims will have to appeal from overseas, making it far more difficult for them to succeed whatever the Minister may say about the rights of appeal that they still enjoy.

In the first quarter of 2003, 17 per cent of applications by citizens of the countries on the list that we are being asked to approve were granted leave, and 10 per cent of the appeals from citizens of those countries were successful. So the risk of persecution on those figures was not negligible, yet the Secretary of State has concluded that there is in general no serious risk of persecution in any of those countries.

During the passage of the NIA Bill in this House, we expressed concern about the introduction of non-suspensive appeals, which seemed to us to undermine the principle that asylum applicants should be treated on their individual merits. We were assured, as we have been again today, that applicants from the designated countries receive exactly the same consideration as those from elsewhere. How can one expect officials who look at the applications from those countries not to be conditioned in their thinking by the knowledge that the boss does not think that those applicants should have an in-country right of appeal?

The Joint Select Committee on Human Rights in its 23rd report said about the original introduction of non-suspensory appeals that,

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When the first addition to the list of designated states was agreed by your Lordships on 31st March, the noble Lord, Lord Filkin, was at pains to emphasise that there is still the right of appeal—he repeated that today—which is, according to him, almost as good as having the right of appeal on the premises. He stated:

    "The fact that there is a non-suspensive appeal does not mean that there is no appeal. It is perfectly possible for people, who have a lawyer as part of this process, to signal to the British lawyer that they wish to mount an appeal even though it has to be a non-suspensive appeal. People have done so and there are a number of cases where such appeals are going through".—[Official Report, 31/3/03; col. 1126.]

But the question is whether they still have the same chance of obtaining asylum, other things being equal, on the same set of facts, as if they had presented the appeal in the United Kingdom. I suggest that the only way to assess that would be to consider the relative success rates of in- country appeals immediately before the order and appeals from abroad in an equivalent period after the order.

As Justice pointed out in its April 2003 inquiry into asylum and immigration appeals, as most appeals that are successful involve challenges to adverse findings of credibility by the first instance decision-maker and as the asylum seeker from a listed state has no opportunity to make such a challenge in person, his chances of success are bound to be lower.

Justice had misgivings about the countries added to the list in March and general concerns about the effect of non-suspensive appeals on the system as a whole, especially the possibility of increased reliance on judicial review. Has the Minister or his department responded in writing to Justice's critique, and has he discussed those and other matters with it since it produced that report in April?

In March, the Minister said that the fact that all 25 JR applications and all 12 appeals from overseas by citizens of the 10 listed states had been dismissed spoke for itself. Assuming, as we must, that there has not been an abrupt change in the background of the people seeking asylum from the 10 states that were then listed, that appears to show that, on similar facts, it has been made far more difficult for a case to succeed. Presumably, that is what the Government intended. The outcome of adding more countries to the list will be the same.

In deciding whether someone has a well-founded fear of persecution for one of the convention reasons, there will always be circumstances where a reasonable person could take either view. The Government are shifting the burden of proof for people from listed states, so that, in the case of JR, they must show that the initial decision was manifestly unreasonable while, in the few cases in which they manage to appeal from abroad, they are deprived of the chance to establish their credibility.

The number of people to overcome those hurdles will be small, but there can have been no change in the merits of their cases. We certainly agree that it is less likely for people from those states to have a well-founded claim, with the reservations expressed by my noble friend about particular countries, but that does

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not mean that not a single one qualifies, as the small sample that we had by 31st March would imply. I noticed that the Minister did not give us an update on those figures this afternoon. I think that they would reinforce my point.

In March, the Minister was apologetic about the Government's failure to establish the Advisory Panel on Country Information, which was provided for by Section 142 of the 2002 Act before that order was tabled. He has explained the reasons why it has not been possible to bring the panel into existence before this order was made. He said that the Government had written to all the organisations that might qualify for places on the advisory panel and that some of them had replied to say that they did not want to engage in the process because they felt that that would cut across their other obligations. Surely that has not taken three months.

The noble Lord's explanation is not acceptable to the House. In fact, I would go so far as to say that the noble Lord has insulted the House by giving us a formal apology for not producing the advisory panel before March and then having the effrontery to propose an additional list of states this afternoon for our approval.

We very much wish to know what such a panel would have said about Sri Lanka, for example. The Refugee Council has expressed concern about the policy of initial decision-making on asylum seekers from Sri Lanka. It draws attention to the fact that, in 2001, 38 per cent of Sri Lanka appeals were successful. Admittedly, there were fewer successful applications and appeals in the past few months because, as my noble friend explained, there has been a ceasefire. However, the ceasefire is extremely fragile and there are still very serious human rights violations, particularly in the LTTE administrative area, about which my noble friend gave some details.

In the first quarter of 2003, 170 appeals by asylum seekers from Sri Lanka were upheld—10 per cent of the total determined. Also, 11 per cent of the first applications were granted. Those figures do not confirm the Secretary of State's opinion that, in general, there is no serious risk of persecution in Sri Lanka. If the advisory panel had existed, it could have looked at the information on the country and given us independent advice. I think that the Minister is pleased that we do not have such advice before us because an advisory panel would almost certainly have rejected the inclusion of Sri Lanka on the list.

My noble friend mentioned Bangladesh. This morning, I received a notice from an organisation called Hindu Human Rights, which is concerned with the position of that minority in Bangladesh. It points out that the Hindu population has fallen from 30 per cent of the total in 1941 to 15 per cent in 1971 and just 7 per cent in 2002. Is the noble Lord telling us that Hindus do not suffer any persecution in Bangladesh, or that the other religious minorities do not have an equally hard time? Does he know anything about the position of the Chittagong Hill Tracts, on which I have had a lengthy, detailed correspondence with the Home

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Office over many years? Is he aware that, although an agreement was made with the people of the Chittagong Hill Tracts that would allow them to have internal self-governance, it has never been properly implemented by the government in Dacca, and the whole territory is occupied by the Bangladeshi military, which continues to perpetrate serious human rights violations there?

My noble friend said that he would have accepted the inclusion of South Africa on such a list. However, noble Lords may wish to know about one factor that deserves consideration. Since we imposed visa restrictions on Zimbabwe in December 2002, most asylum seekers from that country come here via South Africa. I have received an e-mail from a well-known organisation, Bail for Immigration Detainees, about two individuals who chose that route to leave Zimbabwe and ended up in Harmondsworth because they could not prove that they were Zimbabweans and not South Africans.

What will be the position for people escaping from Zimbabwe who obtain, as they must do, false documents in South Africa to come here? Will they have a proper opportunity to establish their identity as Zimbabweans? Will the Home Office always reject the opinion being given by MDC representatives in London that they are in fact members of the opposition? Will the Home Office always, as in this case, refuse to allow the MDC to obtain independent verification of those persons' claim to membership of the party from original sources at home?

So many things are wrong with the lists before us that I had hoped that my noble friend would press his Motion to a Division. Anyone who has listened to this debate and who knows about the conditions in the countries of origin would say that the Minister was wrong to bring forward this list and that he should take it away and return with a reduced list, if necessary, after the panel has been appointed.

3 p.m.

Earl Russell: My Lords, I thank the Minister for the care and courtesy with which he introduced this Motion. He is, as always, impeccable on that point. I am particularly grateful to him for his concession that there is no such thing as a country in which all people are at all times safe. That is a truly vital point.

It follows from that point, however, that those who are genuinely subject to a well-founded fear of persecution, in a country in which such a thing is very unusual, are perhaps more at risk of having their cases mishandled and their danger mis-identified than almost anyone else. As an example of that, I cite a case that I have mentioned before; that of Mr Matthew Sheppard from the United States, a young homosexual who was found dead, nailed to a fence in Laramie, Wyoming. The noble Lord, Lord Monson, who I am happy to see in his place, said that he could have been perfectly safe living in San Francisco. On that occasion, I forgot to point out to the noble Lord that the first avowedly homosexual mayor of San Francisco was shot dead on his own balcony by a homophobic man, so it might not have been as effective as the noble Lord, Lord Monson, suggested.

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Presuming that there are certain countries that are safe is a bit like introducing a presumption of guilt instead of one of innocence into criminal trials. The Minister may wish to tell me that that resemblance is superficial. If he does, I will listen with very great care and an open mind to his reasons. The basic justification that the Government are offering, as outlined in the explanatory memorandum, is that the countries included in the order are safe because a very high proportion of the applications from those countries are found to be unfounded. With respect, I think this is to argue in a circle. It will remain arguing in a circle until we have a great deal more confidence than we do now in the standard of first decisions in asylum cases. For example, the Law Society points out that, in the period shortly before the power came in, a majority of the Czech cases in Oakington were found, on appeal, to be have been wrongly decided in the first instance. That related to a majority of cases, but it need not relate to a majority to be an injustice. That example illustrates that the risk of injustice is real.

It is also a manifest fact that, in several countries—most particularly in South America—conditions may change rapidly. We have seen, with Zimbabwe, how the Home Office is very slow to adjust to a change in conditions in a country from which refugees come. An order that might be justified at the moment of introduction may equally well be totally unjustified three months later. A good many people will probably have died unnecessarily before that is put right.

My noble friend Lord Goodhart drew attention to the prevalence of torture in some of the countries concerned, most notably Brazil. Right back to the 1996 Bill and probably before it, my noble friend Lady Williams of Crosby has persistently drawn the House's attention to the difficulty of getting evidence of torture in cases in which there is only a very short time for a hearing. Attempts to get people to admit that they have been tortured, like attempts to get them to admit that they have been raped, create great resistance. There is a taboo on admitting it. Decisions in torture cases that are reached in a hurry are often wrong.

I remember one such case in which I had a very long correspondence with the noble and learned Lord, Lord Williams of Mostyn, who was then the responsible Minister. I am thankful to say that in the end he was persuaded by the justice of the case and did what was necessary. But it took an immense amount of time, energy and intelligence of a Minister of very great power which, in a different situation, could have been better deployed on more general issues of policy, which the noble and learned Lord has never lacked to bring his mind to.

The Minister appears to be extremely well satisfied about the non-suspensive appeal. On the other hand, the Refugee Legal Centre, which I suspect has probably more day-to-day experience of defending people than the Home Office, which inevitably is on the other side, can possibly have, says that it has had very great difficulty with conducting appeals from

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abroad. When dealing with cases from the Home Office, one regularly finds that it is fairly difficult because the cases have a protean habit of changing.

I am dealing with one at the moment, which is not a particularly complicated case, concerning two unaccompanied minors from Kosovo. They have been here since 1999. They are comfortably settled into a family in Suffolk with foster parents who now wish to adopt them. They are entirely at ease at home and successful at school. The Home Office now wants them to return and was conducting two separate hearings—one in London and one in Nottingham. Clearly, that created a considerable problem of correspondence, telephoning and so forth. The case has changed shape three or four times in the course of two or three weeks; every time one has to drop everything one is doing to take it up and get straight on the telephone, probably before one is dressed.

It is not particularly easy dealing with a Home Office case if it is happening on one's doorstep and one has expert advice to hand. The thought of doing this with a time difference; with the complexities of international telephone systems, not all of them as good as ours; with the difficulty of language; and with the difficulty of making contact with lawyers in the countries concerned really makes my mind boggle.

I must admit that one dreads taking on an asylum case because one knows that every business one has on hand, however important, will have to take second place until the case is finished. Conducting such a case from abroad will inevitably double and re-double anything like that. Like my noble friend Lord Goodhart, I do not understand what it is about this order which is quite so urgent that it is necessary for the Government not to wait until September before bringing it in. After all, the new arrangements for the sitting time of the House mean that the time until we sit again is not really that lengthy. Will it really be the end of the world if three or four people from these countries, some of whom perhaps genuinely ought not to have been here, actually get in? Is it worse, if that happens, than if a couple of dozen are sent back to face a well-founded fear of persecution?

I have never understood why the Home Office believes that this country is at quite so much risk from a small number of unjustified asylum seekers. It reminds me of what the English said on the union of the crowns between England and Scotland, which is something on which I happen to be working at the moment. There are not that many Scots compared with the English. In fact, in 1571, there were only 40 Scots resident in London. That is the verdict of an official survey conducted under the auspices of the Lord Chancellor. Nevertheless, in 1603, over and over again one finds rhetoric in this House and in the other place, saying that England was in imminent danger of being swamped by the influx of hungry Scots.

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