Immigration, Asylum and Nationality Bill

Amendment No. 69 is grouped with Clause 52 stand part. It may be appropriate for me to speak to the Question in our name whether the clause should stand part of the Bill. The arguments that I shall advance closely resemble those put by the noble Lord, Lord Hylton. We said on Second Reading that we cannot agree that the Government are entitled to reinterpret an international convention as they please in statute law. In this, we are at one with a number of the organisations cited by the noble Lord, Lord Hylton: the UNHCR—the custodian of the convention—the Constitution Committee, Amnesty International, the Refugee Council, the Scottish Refugee Council, the Welsh Refugee Council, the Immigration Law Practitioners’ Association, and a great many others. I trust that when the Minister has listened to our arguments, she will give way on this clause. The UNHCR said in a letter of 15 December 2005 that the interpretation by national legislatures of international legal obligations may lead to a practice which is inconsistent with international law. It fully accepts the concern of states to ensure that persons committing or aiding the commission of terrorist acts should not gain access to their territory. However, although the Security Council has declared that acts of terrorism are contrary to the principle and practices of the United Nations and fall within the scope of Article 1F(c) of the refugee convention, it has nowhere defined terrorism or international terrorism. Even if the Security Council had declared a particular class of act as terrorist, that would not necessarily justify the application of Article 1F(c) in the absence of any universally accepted definition of terrorism. A state could refuse to consider individual applications for asylum if, after consideration of the    individual circumstances, it considered that Article 1F(c) applied, including the proportionality of such a decision and the possible consequences of exclusion to the heinousness of the alleged acts of terrorism the person had committed. Although it is not stated, any such decision would be subject to judicial review and it would be for the courts to say whether the Secretary of State had correctly applied Article 1F(c). The JCHR says that it is unnecessary to interpret Article 1F(c) of the convention to ensure that terrorists are excluded from protection because they already are—a point mentioned by the noble Baroness opposite. It also says that no case has arisen where the absence of such a provision as Clause 52 has led to a terrorist being granted asylum. Guidance issued by the UNHCR on the interpretation of Article 1F as a whole says that it should always be interpreted restrictively and with great caution, and only after a full assessment of the individual circumstances of the case. In the case of Article 1F(c), the guidelines suggest that it covers only,"““activity which attacks the very basis of the international community’s coexistence””." That description obviously does not include the minor acts of damage to property in the Terrorism Act 2000 definition, or some of the types of behaviour now to be treated as terrorist, such as glorifying terrorism—and we know what happened to that in your Lordships’ House this week. These considerations surely give us every reason for removing this clause from the Bill. If it has to be retained in any shape at all, it could allow the Secretary of State to certify a claim as falling within Article 1F(c) and providing for an appeal against certification to the asylum and immigration tribunal or SIAC, leaving them to judge whether acts committed by the person justified his exclusion. I accept that the Bill implements many of the measures outlined in the Government’s five-year plan on asylum and immigration. However, I am concerned that a number of new counter-terrorism clauses have been introduced in Standing Committee in the other place. This clause must be of the greatest concern to refugee and asylum seekers. It is one thing to look at measures to deal with counter-terrorism; it is another matter when such measures give the Government powers to exclude people from asylum. I fully endorse what the ILPA has to say—that is, taken in conjunction with the broad definition of terrorism in the Terrorism Act 2000 and the Terrorism Bill 2005, this directly undermines one of the core purposes of the refugee convention, which is to provide protection to people seeking asylum on grounds of political persecution. Will the Minister confirm that the 1951 refugee convention and UK criminal law already provide the necessary framework? The provisions are there and refugees can be protected without compromise to our security. Can the Government demonstrate by example that these provisions are inadequate? Are we equating asylum seekers with threats to our national security? There may have been isolated examples in the past, but we should look at the way that asylum applications have    been dealt with rather than undermine the 1951 refugee convention. Acts of terrorism may fall within the scope of Article 1F(c) provided that certain criteria are met. There is a serious danger that a broad application of this article may deny the benefit of international protection. We should be following the practice of many states that are party to the 1951 convention, which maintains a very restrictive interpretation of Article 1F(c). I see no reason why we have to be an exception to that. If it is good enough for the UNHCR, it must be good enough for us, unless of course the Government do not give any credence to the interpretation of the UNHCR. It would be a grave situation if that was so. Clause 52 is not necessary to protect the UK from terrorism. Article 1F already does that. Clause 52 may encourage other states to interpret Article 1F in their law perhaps even more widely than in the UK or, by contrast, too narrowly. This risks undermining the convention and the work of courts all over the world in interpreting and applying it. The Joint Committee on Human Rights stated in a letter of 13 December 2005 to the Parliamentary Under-Secretary of State:"““We share the views of others that it is not appropriate for Parliament acting unilaterally as a national legislature to reinterpret in this way an international treaty to which the UK has become a party””." The Government’s response cited two examples of their doing so: Section 72 of the Nationality, Immigration and Asylum Act 2002, which purports to interpret the meaning of ““particularly serious crime”” under Article 33.2 of the refugee convention, and Section 31 of the Immigration and Asylum Act 1999, which interprets Article 31. Both cases met with a similar outcry. The Office of the United Nations High Commissioner for Refugees described it as suggesting an approach,"““which is at odds with the Convention’s objective and purposes . . . runs counter to long-standing understandings developed through State practice over many years regarding the interpretation and application of Article 33””." There are no good reasons for including Clause 52 in the Bill, and very good reasons for not doing so. There is a fundamental difference between us and the Government. We are told on the face the Bill that,"““the provisions of the Immigration, Asylum and Nationality Bill are compatible with the Convention rights””." We need to be convinced about that. For that reason, we do not accept the Government’s argument on this clause.