Note submitted by the Law Society
EXTRACT FROM A LETTER TO THE CLERK OF THE
COMMITTEE
As you are aware, at the time of writing it
is generally anticipated that the Government will shortly announce
the findings of a number of internal reviews of the asylum process,
and that this announcement will lead in due course to the implementation
of significant reforms. In this context, I would at this stage
like to draw the Committee's attention to just two issues in which
the Law Society has a particular interest, namely the use of Immigration
Act detention in asylum cases, and the proposed regulation of
immigration advisers.
THE USE
OF IMMIGRATION
ACT DETENTION
IN ASYLUM
CASES
The Law Society considers reform of current
policy and practice in respect of the detention of asylum-seekers
to be a key test of the Government's stated commitment to a "firm,
fast and fair" asylum-determination process. I attach a copy
of the submission by the Society's Immigration Law Sub-Committee
to the internal review of detention policy initiated by the Parliamentary
Under-Secretary of State, which members of the Committee may find
of interest. The Sub-Committee is somewhat disappointed that,
since that time, there has been no further consultation of, or
substantive discussion with, non-government organisations.
THE REGULATION
OF IMMIGRATION
ADVISERS
As the Committee will be aware, in January the
Government issued a consultation document on the regulation of
immigration advisers. Since the early 1990s, the Law Society has
repeatedly urged ministers and senior officials to take steps
to control the activities of the currently unregulated immigration
advisers, and the Society therefore welcomes the Government's
engagement in debate on this issue.
At the same time, the Society has consistently
drawn attention to the serious undersupply of suitably proficient
immigration advisers and representatives—that is, those
with the specialist knowledge, skills and experience to provide
an effective service in what is generally agreed to be a particularly
complex and demanding field of law. For it is evident that the
supply of proficient immigration practitioners—both lawyers
and paralegals in private practice and those working in law centres,
CABx and voluntary organisations—is insufficient to meet
the demand for their services, and it is arguable that it is this
shortfall in supply that provides the unscrupulous with a market
in which to operate.
The Society is therefore deeply disappointed
by the consultation document's emphasis on the cost of control,
rather than the advice needs of immigration applicants, and by
its resultant failure to set out convincing proposals for increasing
such applicants' access to quality advice and representation.
I enclose a copy of the Society's response to the consultation
document[2]
As you will see, the Society is also surprised
by the consultation document's failure to take account of the
Lord Chancellor's plan to introduce exclusive contracting for
all civil advice and assistance work, and the potential effect
of this on the quality of advice and assistance provided under
the legal aid scheme. Furthermore, the Society firmly rejects
the notion that solicitors engaging in immigration work should
be subject to "double" regulation. In this regard the
Society is disappointed by the consultation document's inexplicable
failure to take proper account of the various initiatives taken
by the Society to promote best practice and compliance with the
mandatory rules of professional conduct, including the issuing
of specific Guidelines for immigration practitioners (paras 18-22
of our response) and the development of an Immigration Law Accreditation
Scheme (paras 23-27 of our response).
The Society has also been deeply disappointed
by the way in which ministers have chosen to present the consultation
document. On a number of occasions following the launch of the
document on 22 January, ministers have claimed that the Home Office
has identified some 40 firms of solicitors that have acted improperly
in some way in immigration cases. And the consultation document
itself also states that there are 38 firms of solicitors whose
activities give "cause for concern". However, ministers
have repeatedly declined to provide the Society with details of
the identity and alleged improper conduct of the firms in question.
The failure to provide this information is particularly
frustrating, given that the Society has repeatedly urged ministers
in both this Government and the last, and Home Office officials,
to inform the Society of any concerns they may have about the
conduct of particular solicitors. However, since the beginning
of 1997 the Home Office has made only one complaint to the Office
for the Supervision of Solicitors (OSS)—and that in April
1997.
In this context, the Society has been particularly
concerned to learn—not from ministers—that the figure
of 38 firms giving "cause for concern" is simply the
number of firms held (at the time of the consultation document's
preparation) on a "blacklist" maintained by immigration
officers at Heathrow airport. Moreover, the Society has been informed
by immigration officers that firms have been entered on the "blacklist"
simply for intervening too often during interviews of clients
(immigration officers prefer representatives to remain silent
during such interviews), or for arriving "late" for
such interviews. The Immigration Service has now provided the
OSS with an "updated" list of the 50 firms now held
on this "blacklist", although this larger list apparently
includes a number of non-solicitor firms. However, the OSS has
been provided with no more than a list of names—there are
no allegations of improper conduct or complaints attached, and
indeed no information as to how each firm has come to be entered
on the "blacklist".
In the circumstances, the Society is deeply
disappointed and frustrated by the references—both in the
consultation document itself and in the public statements of ministers—to
specific numbers of solicitiors' firms engaging in improper conduct.
I hope that the Committee will find the above
information of interest, but if you or members of the Committee
would like further information on any point then please do not
hesitate to contact me.
Richard Dunstan
Secretary, Immigration Law Sub-Committee
SUBMISSION BY THE LAW SOCIETY'S IMMIGRATION
LAW SUB-COMMITTEE TO THE HOME OFFICE'S REVIEW OF DETENTION POLICY
1. By letter dated 5 September 1997, the
Parliamentary Under-Secretary of State has invited NGOs to make
submissions to a review of Home Office policy in respect of detention
in asylum cases. NGOs are asked to focus on a number of specified
areas, and to bear in mind a number of pragmatic constraints arising
from the general policy aim of effecting the removal of rejected
asylum-seekers.
2. The suggested areas of focus include
the length of detention and procedural matters such as the review
of detention decisions and the use of prisons (rather than immigration
detention centres). Notwithstanding the importance of these matters,
the Sub-Committee would submit that they are secondary to the
more fundamental questions of what purpose detention in asylum
cases is supposed to serve, and accordingly of what the criteria
for detention should be.
THE CRITERIA
FOR DETENTION
3. The Sub-Committee recognises that a truly
functional asylum process necessarily involves the removal of
those whose asylum claim has, after full and fair consideration,
been properly rejected. The Sub-Committee also recognises that
"detention at some stage is likely to be necessary"
in effecting many—but by no means all—such removals.
4. However, it is the common experience
of the practitioners represented by the Sub-Committee that, currently,
detention is targeted overwhelmingly at newly-arrived asylum-seekers—for
many of whom the prospect of removal (even assuming a negative
outcome to the asylum claim and any subsequent appeal) is inevitably
somewhat distant. Moreover, it is the common experience of practitioners
that a large proportion of those so detained are eventually released—often
after a lengthy period of detention—without their asylum
claim having been fully resolved. The Sub-Committee notes that
this experience is reflected in the findings of a large-scale
study by Amnesty International in 1996-97 (as reported in the
reports Cell Culture and Dead Starlings).
Starlings).
5. It is the view of the Sub-Committee that
such emphasis on the use of detention during the early stages
of the asylum process is at variance with the stated policy aim
of removing rejected asylum-seekers. While it may be true that
"over 75 per cent of removals" involve some period of
detention, this does not alter the fact that all but a small minority
of the available detention places are occupied by those who were
first detained at the time of application. And, as already noted,
a large proportion of those so detained are eventually released,
in some cases after a grant of asylum or ELR but in most cases
without the asylum claim having been resolved. Furthermore, among
those cases where the individual is eventually removed (or makes
a voluntary departure), the detention involved is often excessively
lengthy.
6. Accordingly, the Sub-Committee would
submit that there is a need for a fundamental re-evaluation of
detention policy, and in particular for the establishment of criteria
for detention which reflect the overall policy aim of effecting
(justified) removals. The Sub-Committee would submit that, in
general, this would involve the use of detention in appropriate
cases of rejected asylum-seekers at or near the end of the asylum
process, ie when removal is a genuinely realistic prospect. The
Sub-Committee would further submit that an "appropriate"
case for detention is one where there is a real and demonstrable
risk that the individual would otherwise abscond, and where other
measures short of detention will demonstrably not suffice.
7. In this context, the Sub-Committee would
submit that there is an associated need for the Home Office to
develop, in partnership with local authorities and relevant agencies,
a range of effective alternatives to detention during the early
stages of the asylum process. These may include strict residence
and reporting conditions and more widespread use of realistic
bail guarantees, but the precise nature of such alternatives is
likely to be influenced by future policy in respect of social
welfare provision for asylum-seekers more generally, which the
Sub-Committee understands is also under review. At an operational
level, the Home Office should work closely with relevant agencies
to identify potential alternatives to detention in each case.
8. The Sub-Committee recognises that such
a shift in detention policy may arguably result in an (unquantifiable)
increase in the proportion of newly-arrived asylum-seekers who
abscond. For it cannot reasonably be disputed that some of those
currently detained from the time of application would otherwise
abscond. However, the Sub-Committee believes that any such outcome
must be seen in the context of the more general failure to date
to remove more than a small proportion (about one in six) of those
rejected asylum-seekers who have exhausted (or conceded) all appeal
rights. Moreover, a general policy of targeting detention at rejected
asylum-seekers need not exclude the use of detention at a much
earlier stage in appropriate cases (as defined above). Nor need
it exclude a limited period of detention (on arrival) for the
purposes of establishing identity etc.
LENGTH OF
DETENTION
9. Clearly, the length of detention in any
one case is (and will remain) a function of the speed and flexibility
of the asylum process as a whole, even if (as happens now) some
priority is given to detained cases. However, the problems associated
with lengthy detention would be considerably reduced by the targeting
of detention at rejected asylum-seekers at or near the end of
the asylum process. In general, such detention should be of relatively
limited duration. That said, the benefit likely to accrue from
such a shift in policy would be diminished by a failure to improve
significantly the process of documenting rejected asylum-seekers.
REVIEW OF
DETENTION DECISIONS
10. It is the view of the Sub-Committee
that, even if detention were to be targeted at rejected asylum-seekers,
the need to ensure that detention is used only where absolutely
necessary demands the existence of robust and transparent safeguards.
In particular, all decisions to detain should be subject to automatic
and repeated scrutiny and review by, and challenge before, an
independent review body. This in turn demands that the detainee
be fully informed of the (specific and individualised) reasons
for detention, and of his or her rights. Furthermore, there should
be a statutory presumption in favour of liberty, with a burden
to establish the case for continued detention falling on the detaining
authority, and legal aid should be available to cover representation
at oral hearings before the review body. The Sub-Committee can
see no particular reason why the operation of satisfactory safeguards
should itself interfere with the expeditious processing of asylum
claims, so long as the safeguard mechanisms are adequately resourced.
Moreover, the targeting of detention at those for whom removal
is imminent would minimise the workload of such safeguard mechanisms.
USE OF
PRISONS
11. On the basis of practitioners' experience,
it is patently not the case that the use of prisons is currently
limited to "those who are disruptive or have a very serious
criminal history". Of those currently held in prison accommodation,
many have not previously been held in an immigration detention
centre and only a tiny minority have a "criminal history"
of any kind. It is the view of the Sub-Committee that prison accommodation
should be used only in the exceptionally rare case where it is
demonstrably necessary for the protection of the public, other
detainees, or the individual concerned.
12. More generally, the Sub-Committee would
submit that the conditions of detention should reflect the special
circumstances of asylum-seekers. In particular, there should be
adequate recreational and medical facilities, and unhindered access
to free legal advice and representation. Furthermore, there should
be formal and transparent grievance, disciplinary and transfer
procedures. Minors should not be detained.
CONCLUSION
13. The Sub-Committee would submit that
a policy shift of the nature outlined above could increase the
efficacy and cost-effectiveness of the asylum process, while reducing
the hardship and distress caused to vulnerable individuals. However,
the benefits associated with such reform are unlikely to be realised
without both a more general improvement in the speed of decision-making
throughout the asylum process and the re-introduction of adequate
social welfare provision for all asylum-seekers.
2 Not printed. Back
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