Contribution
My Lords, I apologise for not being here right at the beginning. I hope no one will object if I none the less intervene, as I was here for the previous discussion. I think I understand the motivation behind Amendment 184, in the name of the noble Baroness, Lady Chakrabarti. It would not perhaps be regarded by her as necessary if it were not for the nibbling away at the refugee convention in recent years.
I must confess that I am not attracted by the solution of the noble Lord, Lord Faulks, which is to say that we will have a complete disconnect between being a party to the refugee convention—sort of parking it over there—and saying that in domestic law we can do whatever we like. Sorry, I do not wish to parody what he said, but he was basically saying that we will do our own thing in domestic law and Parliament will decide what we want to implement. I am not sure that that really honours being a party to the refugee convention.
I am not quite sure whether my legal analysis matches that of other contributors to this debate but, as I read it, the amendment of the noble Baroness, Lady Chakrabarti, does not seek incorporation in the way that the ECHR was incorporated through the Human Rights Act. It is a bit stronger than the assimilation that we have had, such as in the Conservatives’ 1993 immigration appeals Act, which absorbed some of the definitions and wording of the refugee convention. Perhaps some kind of rather British compromise is going on.
What has happened in recent years is that there has been an attempt to ignore aspects of the refugee convention. I am sure the noble Lord, Lord Murray, is more expert on the refugee convention than I am, but I cannot really follow his assertion that his Amendment 203I would restore the correct reading or interpretation of Article 31. I do not know where he gets that from. Article 31 is worded as it is; it says anyone “coming directly”. It does not incorporate any kind of wording like that in his amendment. It just says someone “coming directly”; it does not say that they have not come directly if they have passed through or stopped in another country. I have a vague recollection that there is case law that says if someone passes through rather quickly—there are probably other qualifications, but with no intention to stay and not staying several years somewhere—then that would be ignored. That would be de minimis and it could still be concluded that they had come “directly” to the UK. I do not think the definition of “directly” has to be absolutist. No doubt the noble Lord will correct me, but I do not understand where this assertion that he is restoring the correct interpretation of the refugee convention comes from.
Rather like with the ECHR, if there is a belief that the convention itself is wrongly worded or not fit for purpose—I do not agree with that interpretation of either the ECHR or the refugee convention—then we should attempt to get an assembly of the state parties to change it. Obviously, there are some people who want to pull out of the ECHR, which is something that I vehemently disagree with, but even going short of that and saying, “We can stay a member but we’ll just make sure that we subvert and undermine it”, seems disingenuous and even dishonest. Be up front: if you want to try to change the refugee convention or the European Convention on Human Rights then try to get all the parties together and attempt to do so, but trying to pretend that we belong but do not really want to implement the provisions seems the worst of all worlds.
For instance, it is true that Article 31 of the refugee convention refers to “illegal entry or presence” but that has morphed, in current terminology, into describing people as illegal—“illegal immigrants”, a term that I will never accept. People cannot be illegal. I prefer the term irregular entry, because if someone arrives, applies for asylum and is granted it, having been described as illegal seems an unfortunate beginning. I am stuck with the fact that the refugee convention uses that term, but it does not refer to the persons themselves as illegal, which is what has happened in modern political and media commentary, which I deplore, frankly. That is just an example. I would prefer the refugee convention to be changed to say “irregular entry and presence”, until it is illegal presence. Once they have been refused asylum and they need to leave, they then have a different status. Anyway, I digress slightly.