New Clause 7 - Interpretation of Refugee Convention

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 9:45 am on 27th January 2004.

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'(1) In Article 31 of the Refugee Convention—

''directly'' means without transit through or landfall (whether by land, sea or air) in a safe country.

(2) In subsection (1)—

''the Refugee Convention'' means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its protocol;

''safe country'' include the countries listed in paragraph 2 of Schedule 3 to this Act and such other countries as the Secretary of State may designate.'.—[Mr. Turner.]

Brought up, and read the First time.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party 10:00 am, 27th January 2004

I beg to move, That the clause be read a Second time.

The new clause deals with something that I confess I did not know was the case until my hon. Friend the Member for Woking mentioned it from the Front Bench during one of our earlier sittings. The word ''directly'' in the refugee convention does not mean what most people would assume it means. Article 31 refers to

''refugees . . . coming directly from a territory where their life or freedom was threatened''.

It seems to me that the natural meaning of ''directly'' is ''without making landfall in another place''. Yet, for some reason—I have not checked why—the courts have determined that ''directly'' does not have what most of us would regard as its natural meaning, but that the meaning it carries allows asylum claimants to go through one or more countries, which may be safe countries, on their way to this country. The purpose of the new clause is to find out why the Government think that is an acceptable interpretation of the word ''directly'' in the context of article 31.

If I had done my homework a little earlier, we would be talking about the rest of the convention as well. Article 31 refers only to the application of penalties to people who have not arrived directly, and I suspect that what is far more important in the eyes of most of our constituents is eligibility for asylum when people have not arrived directly, but have come indirectly through a safe country such as France. The Minister might tell me that the usual meaning of ''directly''

applies in the case of eligibility for asylum but simply does not apply in the case of article 31. However, the new clause relates to article 31.

Obviously, to make the new clause stand up, I have had to give a definition of a safe country. It may not be perfect, but the purpose of the new clause is to probe the Minister's and the Government's thinking. If the Minister finds the existing definition unacceptable, why have the Government not sought to redefine ''directly'' in a way that most of us would find acceptable? If the Minister finds the definition acceptable, perhaps she could explain why the Government think it is acceptable that people who have left a country where they have a justifiable fear of persecution should come through a country such as Italy, France or Belgium and not claim asylum there, but then be eligible for asylum in this country, or be ineligible for penalties for arriving without documentation, or with false documentation.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

As the hon. Gentleman said, the new clause defines ''directly'' for the purposes of article 31 of the 1951 refugee convention as meaning

''without transit through or landfall . . . in'' a country listed in paragraph 2 of schedule 3, or any other country that the Secretary of State may designate. That would mean that refugees who travelled to the UK through one of those countries could, when applicable, be prosecuted, or penalised, for illegal entry into or presence in the UK, without having the option of a defence under article 31. It would not affect the assessment of the asylum claim, but it would mean that a prosecution could be brought even if someone was given refugee status, and it would mean that they would not have a defence if they had travelled through a country in which they could have claimed asylum.

I do not think that there is that much between us. I agree with the hon. Gentleman that, in the past, article 31 has been interpreted very widely by the courts, and that those refugees who have had the opportunity to claim asylum in a safe country en route to the UK should do so, and should not be able to rely on the convention as a defence for entering the UK illegally. We dealt with this matter in section 31 of the Immigration and Asylum Act 1999, where we defined defences based on article 31 of the convention for the purposes of UK legislation. Subsection (2) provides that:

''If . . . the refugee stopped in another country outside the United Kingdom [the defence] in subsection (1) applies only if he shows that he could not reasonably be expected to be given protection under the Refugee Convention in that other country.''

I think that this approach to the definition is very similar to that proposed by the hon. Gentleman in his new clause. As far as I can see, his definition differs slightly from ours, in not providing the ''reasonable excuse'' defence for not seeking protection in a third country and in providing a definition for a ''safe third country''. There might be some situations in which that defence is appropriate—for instance, as we have seen with tragic results, if someone is locked in the

back of a lorry and transits another country, but literally cannot physically get out, that may be a reasonable excuse that we should provide for. I think that is the only sliver of difference between our definitions. I hope he will agree that the broad thrust is much the same, namely that a person can hope to benefit from the protection of article 31 only if they did not pass up an opportunity to apply in another country which they reached before arriving in the UK. I hope he will be assured that the definition that we already have in legislation is sufficient for his concerns to be met and that he will withdraw the amendment.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am most grateful to the Minister for allowing me to intervene in her thoughtful response to my hon. Friend's contribution. I have listened to the entirety of this debate. Will the Minister urge her officials, or the Government as a whole, to publicise more widely what she has just said about the Government's attitude to transit asylum seekers? I think many of us as constituency MPs will be faced with inquiries from our constituents as to why a person who has travelled from, let us say, the Balkans, all the way through the European Union, has been allowed to be treated as an asylum seeker in this country. I hope that the Government will make their attitude towards this problem more widely known, because it causes much puzzlement among ordinary folk when they see the results of these arrivals.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

There are two points here. There is a great deal of work going on—not only by IND, but by parts of our security services which work with us on intelligence-gathering in operations outside the UK—trying to ensure that people in source countries understand those issues and the risks, the exploitation to which they become prey by paying people to transverse them across the continent. It might be that we can do more in that regard, but we are trying to include getting those messages across as part of our overall strategy on this.

I must clarify one point. As I think I made clear to the hon. Member for Isle of Wight, the provisions in article 31 of the refugee convention do not allow a country to decline to consider a claim. Rather, it tells the member state concerned that should somebody be liable to prosecution because they have not claimed asylum, that person will not have a defence under article 31 if they have not come directly and not availed themselves of the opportunity, if they could do so, to claim in another country. It is about the offence, and penalising people; it is not about not considering somebody's claim. That is why it would technically be possible to prosecute somebody we have decided is a refugee, although many countries may not want to do that. Article 31 is about that person's defence, which they may or may not have, depending on how they got to the state concerned.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I thank the Minister for her explanation, and I am minded to withdraw the motion, but will she first address two points? First, I interpret her explanation to mean that article 31 requires that once someone is in the UK and has made a claim for

asylum, that claim must be assessed however hopeless it may be. That is not a good reason why they should not be prosecuted for arriving in the country without adequate documentation if they have come from France, for example. I cannot conceive that the authorities could successfully prosecute someone who had been given asylum.

The second point builds on that made by my hon. and learned Friend the Member for Harborough (Mr. Garnier), which is that people simply do not believe that the provisions of the Immigration and Asylum Act 1999, as the Minister explained them, are being operated. If they were, I would be right in saying that there were no genuine asylum seekers at Sangatte, but many of those people were allowed into this country. Such actions give entirely the wrong signals to our constituents and the people who want to hang around in the Pas de Calais until they eventually find their way into this country by Eurostar or some other means. It cannot be beyond the Government's capacity to be clear and consistent in the application of those laws.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I will try to deal with those two points. First, I know that the hon. Gentleman understands that article 31 of the convention concerns a much narrower point than the assessment of asylum claims. It states:

''The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees . . . coming directly from a territory where their life or freedom was threatened''.

We have already debated this issue. The hon. Gentleman wants to tighten the definition of ''directly'', but the current definition is adequate. That narrow point is not relevant to the assessment of the asylum claim.

Secondly, the hon. Gentleman talked about offences. There are several offences on our statute books to which the defence provided for under article 31 could apply. I do not have details of all the cases, but I think I included some figures in the tables at the back of the letter to the two Chairmen of the Committee. For example, that defence could be used in all of the following offences: seeking leave to enter or remain; avoidance or postponement; and deception. In 2002, there were proceedings against 241 people, 173 of whom were convicted. Presumably, either some of those people had an effective defence or there was not sufficient evidence. There are similar figures in the table for other offences to which that defence would apply. Clearly, the provisions are being used and people are being charged with offences, but the article 31 defence may have come into play in some of those cases.

If the hon. Gentleman means that we need to publicise more broadly the fact that we operate our laws effectively, I will accept that point and see what more we can do. The figures show that we are not being dilatory in prosecuting people when we can. However, I take his point that it may be an additional deterrent to tell people that. I think that that is his main point. I ask him to withdraw the motion.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.