My Lords, I will speak to a number of amendments in my name in this group: Amendments 100, 102, 103, 104, 105, 107, 108, 109, 111 and 112, all of which are supported by my noble friend Lord Carlile of Berriew, who is a co-signatory. I am grateful to him and to the noble Lord, Lord Cashman, who has also supported one of them. I am also grateful to the Minister for a remote meeting with me to discuss my amendments, which I appreciated.
We are here dealing with the situation where a person claiming refugee status has been given a third country removal notice. That notice will be for removal to a country specified in Schedule 1, and the refugee claimant has a well-founded fear of persecution if they are removed to that country. Under the Bill, the removal notice can be challenged only by a serious harm suspensive claim. The serious harm condition is defined in Clause 38(3): the person claiming refugee status must, within a specified period called “the relevant period”,
“face a real, imminent and foreseeable risk of serious and irreversible harm if removed … to the country or territory specified in the third country removal notice”.
The majority of my amendments in this group focus on the inappropriateness of the requirement to show an imminent risk of “irreversible” harm within a specified period.
The first point to note is that, by way of general observation, whereas the serious harm suspensive claim focuses on the situation of an individual claiming refugee status, the well-established approach both internationally and under our own jurisprudence is to ask, in the case of a “particular social group” within Article 1A(2) of the refugee convention, whether the members of that group have a well-founded fear of persecution by virtue of being a member of that group.
Secondly, that change in approach is explained by the appearance, for the first time, of a requirement for an individual claiming refugee status to be able to resist removal to an otherwise unsafe country only if they can additionally show that they would personally suffer serious and irreversible harm. There is no such
requirement in the refugee convention or in any jurisprudence of our own courts or, so far as I am aware, those of any other country.
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Confusion is compounded by the reference to “suspensive” in serious harm suspensive claim, which indicates that this is, in some way, an interim situation. The actual situation is hidden in the complexity of the language used in the Bill and it is desirable to take this slowly, step by step.
Under the refugee convention, a person is a refugee if, among other things, they are a member of a particular social group under Article 1(A)(2) of that convention and if the members of that group have a well-founded fear of persecution. Under Rule 39 of the rules of the European Court of Human Rights and its jurisprudence, a person claiming to be a refugee can claim interim relief where, in the absence of such relief, there would be an imminent risk of irreparable damage to that claimant. To be emphasised here is that such interim relief is to protect the claimant refugee, who claims that their rights would otherwise be infringed.
In the Bill, however, the requirement to show an imminent harm becomes an additional requirement. Every member of a particular social group who has a well-founded fear of persecution has to prove that for their refugee status to be honoured by the United Kingdom.
We can see this if we look at what would happen in practice if, for example, a member of the LGBT community was served with a removal notice to a country in Schedule 1 that persecutes LGBT people, of which, as I said on a previous occasion, there are many. The LGBT person would make a serious harm suspensive claim, as that is the only way to challenge the removal notice under the Bill. If the Secretary of State rejected the claim, there would be a right of appeal to the Upper Tribunal. In order to succeed before the tribunal, the claimant refugee would have to show three things: first, membership of the particular social group comprising those in the LGBT community; secondly, that he or she, as a member of that social group, has a well-founded fear of persecution; plus, thirdly, that he or she has an imminent risk of serious and irreversible harm to him or her before the end of the “relevant period”, as defined—that is, time to make a human rights claim in relation to the removal notice, for it to be determined by the Secretary of State and for judicial review proceedings to be completed.
It can therefore be seen that, in the plainest contradiction of the convention, the Bill, in effect, rewrites the definition of a refugee to include an additional requirement of imminent and irreversible harm. I have to ask the Minister whether that is really the Government’s intention. There is, in fact, nothing suspensive about this at all, because the refugee status of the claimant would be established in the course of an appearance before the tribunal.
I turn to a different issue: what is irreversible harm, under the Bill? My Amendments 105 and 107 are directed to Clause 38(5)(c) and 38(7), which say, in essence, that the fact of the better healthcare in the United Kingdom than in the country or territory
specified in the removal notice will not or is unlikely to constitute serious and irreversible harm. This is far too sweeping. I gave the example in my explanatory note to Amendment 105 of a gay man living with HIV/AIDS who is given a removal notice specifying a country or territory where there is no access to appropriate medication. To remove him to such a country might well result in death even if not within the “relevant period” as defined.
I ask the Minister: what would be the Government’s approach to that situation in the context of a serious harm suspensive claim? It is also to be noted in this context that the Home Office’s August 2016 asylum policy instruction on sexual orientation issues in asylum claims states that, among other things, lack of access to health services may give rise to discrimination amounting to persecution.
The second issue is this. The Supreme Court case of HJ (Iran) v the Secretary of State for the Home Department, which was reported in 2011, overturned the test applied by the Court of Appeal that a person would not qualify as a refugee if he or she would not be persecuted in their home country if they acted with discretion. The Supreme Court said that it was sufficient to qualify as a refugee for the purposes of the refugee convention if LGBT people who lived openly there would be liable to persecution. Will the Minister please confirm that there is nothing in the Bill, including particularly the provisions relating to serious harm suspensive claims, that would undermine that test as laid down by the Supreme Court?
Finally, and similarly, will the Minister confirm that there is nothing in the Bill, including particular provisions relating to serious harm suspensive claims, that would undermine or qualify the UNHCR’s guidance on internal flight or relocation alternative? That expression, as I am sure the Minister is well aware, refers to a specific area of the country in question where there is no risk of a well-founded fear of persecution, and where, given the particular circumstances of the case, the individual could reasonably be expected to establish himself or herself and live a normal life.
I look forward to hearing the Minister’s response to those specific questions.