My Lords, I am grateful to noble Lords who propose these amendments: the right reverend Prelate the Bishop of Gloucester, speaking through the right reverend Prelate the Bishop of Durham, and the noble Baroness, Lady Chakrabarti. I agree of course with the importance of the UK carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the refugee convention. However, we do not agree with these amendments which, when taken together, will effectively maintain the current standard of proof for all elements of the well-founded fear test.
There are other undesirable implications of the amendments which I will set out briefly. The House has heard short speeches supporting a number of these amendments. I have obviously got to reply to all of them, so I hope that the House will indulge me. I will try to address them in a comprehensible order, because some of the points are related and some are discrete.
I come first to the point made by the right reverend Prelate the Bishop of Durham, who asked how Clause 31 would produce clarity. Clause 31 is drafted to introduce a step-by-step process for decision-makers, considering whether an asylum seeker has a well-founded fear of persecution. The central point I would make is that currently there is no such clearly structured test.
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Amendment 40 would remove the approach set out in Clause 31. What does Clause 31 do? It imposes a requirement for the decision-maker to first consider—this is in subsection (2)—what you might call the subjective element of the well-founded fear test, where a decision-maker will consider whether the asylum seeker in fact has a characteristic often referred to as a “convention reason” as specified in the refugee convention, and whether the asylum seeker in fact has a fear of persecution as a result of that convention reason.
There is then a second stage of the approach under Clause 31(4), where the decision-maker would consider whether there is a reasonable likelihood—not a fact, as in the first part of the approach—that the asylum seeker would be persecuted if returned. The amendment, however, in combination with other amendments, instead maintains the status quo in expecting decision-makers to take a decision in the round, based on all the evidence available, and therefore wraps up what are conceptually quite different parts of the test into one overall question. Having separated out and identified those two elements of the test, Clause 31 raises the standard of proof for the first element of the test to the balance of probabilities. That is because, at that stage of the test, at its core, we are asking claimants to establish on a balance of probabilities that they in fact are who they say are and that they in fact fear what they say they fear.
Reports from non-government organisations, and speeches from noble Lords in Committee and again today, have warned of the effect that this clause may have on those with certain protected characteristics: those, for example, with LGBT+ claims, or women fleeing gender-based violence. I can say that we have obviously considered this very carefully. There are
several ways in which we would ensure that such individuals were not disadvantaged by the change. We have already put in place specific asylum policy instructions on considering sexual orientation and gender in asylum claims, and these guidance documents set out in some detail how decision-makers should fully investigate the key issues through a focused, professional and obviously sensitive approach to questioning. As part of putting this guidance into practice, we will update both the guidance and training provided to decision-makers, and we will ensure that interviews are sufficiently detailed to enable claimants to meet the higher standard required, regardless of the nature of the claim. Let me be clear: the proposed test will not prevent LGBT+ or female claimants, or any other cohort for that matter, who are genuine refugees from being recognised as a refugee in the UK.
As I said in Committee, there is international precedent that supports our decision to raise the threshold for assessing the first part of the test, the facts that a claimant presents, on a balance of probabilities. Both Canada and Switzerland have systems which examine to this higher standard at least some elements of a claimant’s claim. Although I heard the right reverend Prelate the Bishop of Durham say that this makes us out of step with the UNHCR and our own courts in their decisions to date, ultimately, as I explained in Committee, interpretation of the refugee convention is not a matter for the UNHCR or the courts, in the sense that the UK, as a signatory to the convention, is entitled under the Vienna Convention to interpret the words of the refugee convention bona fide. Of course, the UK does that through this Parliament—and I am not using the word “Parliament” as some sort of euphemism for “Home Office”. Indeed, I think the results of the votes in this Report stage would indicate that certainly this House is not an extension of the Home Office. I was stating that as a neutral point—noble Lords might think that is good, bad or indifferent.
I will not deal directly with Amendment 42, because I think it is fair to say that it is a consequential amendment on Amendment 41, so my argument on Amendment 41 therefore applies there as well.
Amendment 43 would remove the requirement for decision-makers to consider whether the asylum seeker in fact has a fear of persecution as a result of a convention reason. That link is a vital part of the assessment, which would be removed altogether as a result of these amendments. Refugee status in the UK must not be granted to those who do not have a genuine fear of persecution for a convention reason. I suggest that that ought to be incapable of dispute.
Turning to the second part of the test in Clause 31(4), the standard of proof for the second element of the test—this is whether the claimant would be persecuted if returned to their country of origin or country of former habitual residence—remains at the standard of reasonable degree of likelihood. That is because this element of the test—the future fear of the claimant—is obviously harder for the claimant to demonstrate, and therefore a lower standard of proof is appropriate. It seems that there is no disagreement across the House on that point.
However, while Amendment 43, for the most part, mirrors the closing stages of Clause 31, which would otherwise be removed by Amendment 44, it has one major omission, and I was not sure whether this was accidental or deliberate. From certain of the speeches, it appears to be deliberate, and that is this: the removal of reference to consideration of whether an asylum seeker can internally relocate in their country of origin to a place where they would not have a well-founded fear of persecution. Our interpretation of internal relocation is outlined in Clause 34, and the result of these amendments would, therefore, be a lack of clarity for decision-makers as to whether this factor remains a core part of the well-founded-fear assessment. I suggest that it has to be, considering that internal relocation is a common aspect of the asylum decision-making procedure among our European Union counterparts and other international partners. Therefore, it remains entirely unclear to me why this consideration should be removed if, as I say, it is a deliberate removal.
As I noted in Committee, I set out in the letter, which I heard the noble and learned Lord, Lord Brown, was going to subject to judicial analysis, the concerns of noble Lords regarding the compatibility of this clause with our international obligations, in particular obligations under the refugee convention. I have sought to set out the position, and I apologise twice: first, for the length of the letter—I am afraid that it takes a little time to set out the position—and secondly, for the fact that the letter was sent out later than dated. It was provided to the Whips Office at the end of last week, but it was only circulated, as the noble and learned Lord said, on Monday. I am the person on my feet; I am the person responding to this debate, so it is only right that I make the apology to the House for the lateness of that letter. I am sorry that it was sent out later than it should have been and later than I intended.
I am not going to repeat the contents of the letter, but I will set out the conclusion. Consideration of historic case law, views of authoritative academics, the approach of a number of other jurisdictions and Article 31 of the Vienna convention show that the current policy is not the only possible good-faith interpretation of the convention. We have set out our interpretation in that letter.
Turning to Amendment 45, Article 1(A)(2) of the refugee convention states that a refugee is an individual who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Clause 32 sets out what precisely is meant by each of those characteristics—the “convention reasons”. Focusing on “a particular social group”, the clause sets out that the definition of that term means that a claimant must meet both conditions of the test, in Clauses 31(3) and 31(4), in order to be considered a member of a particular social group.
I remind the House that far from being clear what the position is in law, there has been a degree of confusion in this area for many years. One can cherry-pick Upper Tribunal decisions from here, there or anywhere, but I am afraid the fact is that there is a clear mismatch between how the concept of “particular social group” has been defined in current legislation and government
policy in different tribunal judgments and how it has been interpreted in some courts. Therefore, we have set out a clear definition in primary legislation, because at the moment there is no universally agreed definition.