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Asylum (Designated States) (No. 2)Order 2005

My Lords, the proposition that certain states should be designated as intrinsically unlikely to persecute anyone on account of his race, religion, nationality, membership of a particular social group or political opinion, and that it is reasonable to deny a person making such a claim a right of appeal, made us uneasy when it was first advanced by the Tory government in the Asylum and Immigration Bill 1996. At that time, we were supported by the Labour Party in arguing that it violated the principle that applicants for asylum should all be treated in the identical manner. As I said in 1996, if certain countries are singled out as places where there is, in general, no serious risk of persecution, it is put into the minds of the officials who deal with applications from citizens of those countries that the cases before them are likely to be bogus, which will subconsciously influence their decisions. The statistical evidence would be the number of applicants from designated states granted asylum or other forms of leave to remain by officials of the IND before and after designation. If the proportion of successful applications fell, there would be a strong prima facie case for saying that the reduction was an artefact of the designation and had nothing to do with the merits of the applications. Ghana is interesting because it was on the Tory safe list in 1996. It came off in 1999 when the Labour Government effectively re-enacted the 1996 Act power to designate countries as safe, but with a new list that did not include Ghana. Between 1996 and 1999, 25 persons from Ghana were granted asylum on their initial application. In 2000, that figure shot up to 40 and, in 2001, it was 50. Your Lordships may think that taking Ghana off the safe list had some influence on those figures. In the debates on the then Immigration and Asylum Bill in 1999, Lord Williams of Mostyn did not seek to justify the departure from what had always been one of the main planks of asylum policy on grounds of principle. His case was that the four countries being designated—Canada, Norway, Switzerland and the United States—were manifestly safe and that the Secretary of State’s certification that in each case it was safe to remove a person to one of the countries designated was subject to judicial review. After the appalling evidence that we have had of ill treatment of detainees in Guantanamo Bay, I am not sure whether Lord Williams of Mostyn, if he had still been with us, would have maintained his position about the safety of the United States. That shows how rapidly conditions in a particular country can change. The noble Lord mentioned Bangladesh, which is another illustration of the fragile nature of any such list. It was added in 2003 and two years later it had to be removed, after the accumulation of a weight of evidence of repression and physical attacks on religious, ethnic and secular minorities and the official opposition, including on 21 August 2004, the attempted assassination of the leader of the opposition, Sheik Hasina, when 24 people were killed and scores were seriously injured. I am not saying that conditions in the three countries now to be added are anything like those in Bangladesh; only that circumstances may change rapidly. The Explanatory Memorandum says that there have been some grants of asylum and of discretionary leave to remain to applicants from each of the countries that we are looking at. As the noble Lord has acknowledged, the risks are not zero. I work it out that 110 people were allowed to stay in 2004 and the first half of 2005, but we are not told whether the grants were made on application or on appeal. I hope that we can have that information: I gave the Minister notice that I would ask for those figures. If the successes were all on appeal, we have to acknowledge that 60 or 70 people a year will be sent back to these countries in circumstances where they would have been allowed to stay if they had retained the right of appeal which is now being taken away from them. We are not told what the relative experiences of men and women applicants have been in the cases of Ghana and Nigeria, even though we are now being asked to differentiate between men and women applicants from those two countries. I can understand that there may well be circumstances in which women are more likely to have a genuine fear of persecution. The Home Office told the Immigration Law Practitioners’ Association that the reasons for limiting the designation in this way were, as the noble Baroness said, the three problems of trafficking, domestic violence and female genital mutilation. The Country of Origin Information Service’s report on Ghana quotes reports which indicate that widespread violence is perpetrated against women there, even though it has a Ministry of Women’s and Children’s Affairs and active women’s NGOs. However, they have to contend with traditional practices and social norms that discriminate against women and deny them their statutory rights. In that cultural atmosphere, it would be surprising if women did not have some reason to fear persecution or, at least, to fear that they were not being given sufficient protection by the government against non-state agents of persecution. In the case of Nigeria, I wonder what,"““information material relied on by the Secretary of State””," was considered by the advisory panel as an accurate and objective representation of conditions there, because there is no report on the Country of Origin Information Service website. We were very much in favour of the institution of the advisory panel, but it is not a substitute for scrutiny by Parliament of the evidence on which the Secretary of State relies. If the Minister is going to reply that it was the Nigeria report by the old Country Information and Policy Unit on which he relied, that document considered the position up to 1 March this year, and a lot could have changed since then. These reports were supposed to be updated every six months, but they quite often missed the deadline. It is a pity if the new COIS, which is replacing the CIPU, has started off on the same footing, particularly so when it must have been well aware that we were going to look at the information as a result of this order coming before Parliament. The CIPU report does not mention the problems faced by women under the Sharia law in some Nigerian states. I wonder if the advisory panel had any comment on this omission. There were two cases in Bauchi State in 2004 in which a woman was sentenced to death by stoning for adultery, although in both cases the conviction and the sentence were quashed on appeal. But women are at risk as long as this cruel and unusual punishment is mandatory for the offence of zina, or adultery. The Centre for Islamic Studies at Ahmadu Bello University in northern Nigeria has published a very useful study, Promoting Women’s Rights through Sharia in Northern Nigeria. The study was supported by DfID and the British Council. The report states that some traditional practices that are harmful to women, such as forced early marriage, have been shown to be un-Islamic. But on the question of zina, the study looks only at whether pregnancy should be treated as proof of the offence, and makes no comment on the mandatory punishments, which I understand are laid down in the Qur’an, of 100 lashes for unmarried offenders, and of stoning to death for married offenders. Nor could the authors of the study agree on the way in which evidence of pregnancy should be dealt with by the Sharia courts—a matter which they referred to the ulama, or Muslim clergy, for a final ruling. There is nothing in either the Qur’an or the Sunna to indicate that the court should consider whether the woman was a voluntary participant in the sexual act which led to her pregnancy. So in theory a woman who is raped and who becomes pregnant as a result of being a victim of rape may nevertheless be subject to that penalty, because there is no mens rea involved in the proof. Sentences of that kind have indeed been carried out, even on minors, in other countries, where the hadd offences apply. Clearly any woman at risk of being convicted of zina would have a good case for being granted asylum. I agree with the noble Lord’s presentation in the sense that women, in the areas where the sharia law applies, may have a much better case for applying for asylum than men. On a more general point, this is the first time that we have singled out a particular group as subject to risk of persecution in a country that is otherwise seen to be safe for the majority of the population. That prompts a question whether the Home Office has considered the position of women in other countries which are already designated, as the noble Baroness said, and whether that power—it allows designation by reference not only to gender but to language, race, religion, nationality, membership of a social or other group, political opinion or any other attribute or circumstances that the Secretary of State believes appropriate—has been considered in relation to other characteristics apart from gender. The obvious example is sexual orientation, since it is well known that gays are targeted for harassment and violence in Jamaica, in particular. Stonewall and the National Secular Society have both expressed concern to me on that subject and asked me to raise it this afternoon. May we have an assurance that when any new state is added to the designation list, there is a review by the COIS of the treatment by that state of its gay population and a recommendation on whether it should be exempted from designation? In particular, would the Government now carry out an assessment of the seven pages in the current COIS report on Jamaica, dealing with the precarious situation of gays in that country with a view to varying the existing designation? As I said earlier, Lord Williams of Mostyn said that the Secretary of State had to certify that it was safe for each individual to be sent back to a designated state to be treated in a certain way. Could the Minister tell us, in each of the states already listed, how many applications there have been in each of the years 2002 to 2004, and in 2005 up to the latest convenient date, and how many of those in each case have not been certified? If the Minister cannot give the figures this afternoon, perhaps he could undertake to place them in the Library. When the cases have been certified, how many have been the subject of judicial review and how many applications for judicial review have been successful? If the Minister could give that information country by country, it would be very useful for practitioners. The Immigration Law Practitioners’ Association—ILPA—has already asked me to inquire whether, when a woman arrives in the UK with a man who is, for instance, her husband or another close relative, she will be alerted to the fact that if she is the primary claimant there will be no certification. The association also suggested that when someone from a designated country has been granted refugee status in the past, a close family member applying after designation should not normally be certified. I would be grateful for an answer on that point as well. When the idea of safe states was first introduced by the Tories in 1996, we feared that it would undermine the principle that every individual application should be considered on its own merits. Coupled with the practice of fast-tracking the citizens of those states though Oakington, their chances of success in the exceptional cases when there is merit in the application are greatly diminished. As ILPA pointed out, those cases are likely to require specialist advice and information, which is not going to easily be assembled in the few days that they spend in Oakington. We understand, however, that designation is here to stay, and the best that we can do as an opposition is to ensure that it operates as fairly as possible. I hope that the Government will pay careful attention to the points that we have raised, and will let us and the practitioners have answers as soon as possible.