Select Committee on Home Affairs Minutes of Evidence


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.


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