My Lords, I will speak to Amendment 105 in my name and those of the noble Baroness, Lady Coussins, who cannot be here tonight, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Paddick, to whom I am grateful. I also thank Women for Refugee Women and ILPA for all their work on this amendment.
The amendment would remove the narrow restrictive and requirement in Clause 32 that, in order to qualify under the “particular social group” grounds of persecution for recognition as a refugee under the convention, two conditions must be met. The amendment would replace this with an either/or condition. As I will explain, this would be in line with international standards and UK case law.
This is a small amendment, but it is significant, as the UNHCR has made clear. The UNHCR explains that Clause 32 is one of a
“series of changes that would make it more difficult for refugees who are admitted to the UK to be recognised as such.”
The case for the amendment is, in effect, set out in its detailed legal observations, which have been invaluable to our scrutiny of the Bill. The UNHCR warns that narrowing the definition of “particular social group” in the way that the clause does
“could exclude some refugees from the protection to which they are entitled … In the UK and other jurisdictions, the particular social group ground has proved critical in the protection of those
with claims based on gender, sexual orientation, gender identity, status as former victims of trafficking, disability or mental-ill health, family and age.”
This view is endorsed by the Bingham Centre, which warns:
“The result will inevitably be to refuse protection to people who, as a matter of international law, are refugees.”
It picks out this clause as one of a number that are particularly troubling to it from a rule of law perspective.
The UNHCR explains the origins of the two conditions and why it has recommended that they should be treated as alternative, rather than cumulative, tests. The argument was endorsed by the late Lord Bingham, acting in his judicial capacity, when he ruled that the cumulative approach taken in Clause 32 was wrong because
“it propounds a test more stringent than is warranted by international authority.”
Thus this approach, the UNHCR points out, has been affirmed in the UK courts over an EU interpretation. I cannot resist observing that it is rather odd that a Government committed to taking back control from the EU is so keen to apply an EU interpretation that has been rejected by the British courts. Indeed, on the previous group, the Minister said that our starting point should be that we had left the EU, so could he perhaps explain why that does not apply to this clause?
In their briefing, Women for Refugee Women—WRW —and ILPA include an example, taken from Garden Court Chambers barristers, of what this might mean:
“a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic”—
one shared with other members of a group—
“but also that trafficked women as a group are perceived as having a distinct identity in her country of origin. The latter is of course much more difficult to establish than the former because this is judged by the perceptions of the society in her country, and it can be very challenging to find objective evidence on women as a distinct group.”
WFW and ILPA also point out that there was “no pre-legislative consultation” on this clause because it was not included in the New Plan for Immigration. Can the Minister explain why this is the case? Moreover, the equality impact assessment on the Bill, which has been described as “superficial and inadequate” by barristers at Garden Court Chambers, fails adequately to assess the impact of the change on groups in vulnerable circumstances.
As I have already noted, the UNHCR has warned of the likely implications for a wide range of such groups. I particularly draw attention to how this clause is likely to have an adverse impact on women fleeing gender-based persecution—a group that the Government claim to care about. As I made clear on an earlier amendment, it is one of a number of such clauses that have to be viewed in the context of the failings that already exist. According to WRW and ILPA,
“Over the years, there has been substantial research on the failures of the Home Office in delivering a fair asylum process, and on the reasons why many women who flee gender-based persecution may be wrongly denied protection.”
Most recently, as I noted last week and gave the Minister some weekend reading on, the British Red Cross has published research that details experiences that
“highlight the distrust and disbelief women can face when discussing traumatic experiences of violence”,
especially, but not only, when interviewed by men. One survivor’s words are recounted:
“you feel so low and you feel so degraded and you’ve been violated and you were [telling] your story, you were expecting to be heard and to have someone who shows you some form of sympathy.”
In the Commons Public Bill Committee, the Government justified their position by asserting that the new clause was necessary to bring certainty to an area bedevilled by conflicting authority. But ILPA and WFW give that argument short shrift, pointing out:
“There is no conflicting authority: the UNHCR and the senior UK courts have a clear and constant interpretation. It is the Government that seeks to depart from this shared interpretation of the Refugee Convention, and it does so without warrant or proper justification.”
So can the Minister provide a more convincing justification today of a clause that, in the words of Women for Refugee Women and ILPA
“reverses case law of senior UK courts, contravenes UNHCR standards, and reinstates an erroneous EU law standard”?
If not, will he agree to this amendment?