My Lords, Amendment No. 4 is grouped with Amendment No. 5 and it deals with Clauses 33 and 34, which were Clauses 34 and 35 at the Report stage.
The aim of our amendment is to restrict the number appearing before SIAC. In reality, no one other than those against whom a certificate has been issued—and I suspect that the number will be low—will fall into the category. To an extent, our amendment will restrict the free-standing nature of the clauses. That is precisely what the Minister tried to do and failed at the Report stage.
Our main concern is two-fold. First, genuine asylum seekers may be victimised as a result of public prejudice and unduly restrictive legislative or administrative measures; and, secondly, the carefully built refugee protection standard may be eroded. Current anxieties about international terrorism risk fuelling a growing trend towards the criminalisation of asylum seekers and refugees. Asylum seekers increasingly have a difficult time in a number of states, either accessing procedure or overcoming presumptions about the validity of their claims, which stems from their ethnicity or mode of arrival. The fact that asylum seekers have arrived illegally does not vitiate the basis of their claim. The fact that certain ethnic or religious backgrounds may be shared by those who have committed grave crimes does not mean that they themselves are also to be excluded.
We saw the evidence of that during the time of the Gulf crisis when a substantial number of people were locked up either because they were Iraqi or because they came from the Arab states. The culmination of that was that at the end of the process all of them were found to have no claim against them and were granted asylum in this country.
At the Report stage, the noble Lord, Lord Rooker, spoke at length in order to assure us about the difficulties of unifying Clauses 34 and 35, now Clauses 33 and 34. He has obviously failed, but I suspect that our amendments give him a leeway in which he can address the matters in a proper manner. I do not want to rehearse the arguments which we put forward at the Report stage last Thursday, but perhaps I may take up some of the comments the Minister then made and offer our observations now on what he said then.
The noble Lord, Lord Rooker, suggested (col. 1042) that the thrust of most of the speeches against Clauses 34 and 35 was that Articles 1(F) and 33.2 of the refugee convention should not exist. That is not the case. We want to reaffirm our commitment to the current convention regime where exclusionary factors are considered currently with inclusionary factors. Does the noble Lord, Lord Rooker, mean to suggest that the intention of the legislation is to give effect to Articles 1(F) and 33.2? Those articles already have effect in UK law and therefore there is no need for additional legislation to give effect to Articles 1(F) and 33.2.
It is in any event unrealistic to suggest that inclusionary and exclusionary aspects can be neatly separated in all cases. The noble Lord stated (col. 1043) that we should not just take an ill-considered decision on exclusion without hearing the person's case and that nothing in the clause is intended to produce such an approach. Does the noble Lord, Lord Rooker, mean that the inclusionary aspect will be considered if that is deemed necessary in order to assess the exclusionary aspect of the claim? How might that be judged? Can the Government give an assurance that all the relevant factors will be assessed? How will that be possible if the full asylum hearing is denied?
It is worth noting that the exclusion of a full examination of the asylum aspects of a claim in the first instance could generate further bureaucracy and costs in cases where the Secretary of State later revokes a Clause 34 certificate or where the issue of the certificate is quashed by SIAC under the terms of Clause 33(5). In such a case the applicant would have to go back to the beginning in order to have the inclusionary aspect of the claim examined once more. Considerations of time and expense are always persuasive when establishing practical guidelines.
Moreover, it is possible that in certain cases the Secretary of State will be legally obliged to rule on a refugee claim irrespective of the applicability of the exclusion clause. That possibility would arise in the context of spousal and dependent refugee claims.
My noble friend Lord Avebury has pointed out that it is not stated on the face of the Bill that factors leading to a proper consideration of an individual's case would be fully considered before a certificate is issued under the terms of Clauses 34 and 35. My noble friend went on to say that the Secretary of State should be required to consider proportionality in each case, to which the noble Lord, Lord Rooker, responded by saying:
Can the Government confirm that the proportionality test, as codified in the terms of the refugee convention, will remain intact under the new legislation?
Clauses 33 and 34 concern certification by the Secretary of State for the purposes of expulsion, whereas Clause 21 concerns certification for the purposes of detention. Do the Government agree that, under the terms of Clause 21, there are no equal provisions for removing the asylum seeker's right to have his or her full asylum claim examined? Indeed, we have been given to understand that, under Clause 21, the suspected terrorist will remain entitled to have the inclusionary elements of his or her claim assessed at the same time as the exclusionary elements are addressed. Does the noble Lord acknowledge the absurdity of creating a higher standard for cases to be brought before SIAC, which merely concern issues of national security, than more serious cases of suspected terrorism under Clause 21? I beg to move.