Note submitted by the Immigration Advisory
Service
GENERAL
IAS is the only national charity with offices
throughout the UK giving legal advice and representation to those
with rights of appeal in immigration and asylum cases. Together
with its predecessor organisation (United Kingdom Immigrants Advisory
Service: UKIAS) it has almost thirty years' experience of undertaking
this work. It has seven regional offices and 86 staff. Many of
the counsellors are professionally legally qualified as barristers
or solicitors. It has an Immigration Solicitors Unit which supervises
Green Form legal aid work and undertakes judicial review cases
and appeals to the Court of Appeal (and beyond if necessary).
It has a Legal Research Unit which produces the two leading publications
on immigration/asylum law for practitioners which are published
under the aegis of The Stationery Office and are read avidly by
adjudicators of the Independent Appellate Authority as well as
being marketed among practitioners. IAS undertakes over 7,500
new appeals instructions (including to the Immigration Appeal
Tribunal) every year (statistics for 1997-98 attached3).
IAS co-operates with other organisations in
various ways and serves on groups established to bring together
organisations in the same field. It is a leading participant in
the Electronic Immigration Project (EIN: to be launched formally
by the Home Secretary in June) and its Chief Executive Keith Best
is a trustee of EIN. IAS is consulted by Government on immigration
issues and has submitted papers as part of the review of immigration
detention and a response to the Government's consultation document
on the regulation of unscrupulous immigration advisers. The then
Shadow Home Secretary was good enough to consult the Chief Executive
prior to the last general election. IAS produced a Manifesto (copy
attached3). Consequently, IAS was delighted when, within weeks
of coming into office, the Home Secretary abolished the notorious
"primary purpose" rule and gave a commitment to introduce
a registration scheme for immigration practitioners as well as
a renewed right of appeal for refused visitors with close family
links to the UK (which causes so much resentment among residents
who invite relatives from overseas to come for family events).
CONCERNS
The main concerns of IAS at the present time
are as to the timescale and nature of the implementation of these
commitments together with the level of funding for IAS and, in
particular, the withdrawal of £500,000 specifically for assisting
vulnerable asylum appellants. The chronology of funding decisions
and action taken on Spend-to-Save is attached[3].
BACKGROUND
The right of appeal for refused asylum seekers
was introduced in the 1993 Asylum and Immigration Appeals Act.
This entitles the refused asylum seeker to appeal to a special
adjudicator. Legal Aid for such an appeal hearing, however, has
never been available (even though the preparation for a case can
be undertaken on the Green Form Legal Aid scheme for those who
are financially eligible) and such asylum appellants have had
to rely for competent legal representation on voluntary organisations
which give their services free of charge. The only two which are
well established and give a reputed good quality service are IAS
and the RLC. Only IAS is a national charity offering such a service
throughout the United Kingdom.
The financial plight of asylum seekers was exacerbated
when the then Secretary of State for Social Security, the Rt Hon
Peter Lilley MP, removed entitlement to income support. This was
overturned in the courts but later enshrined in the 1996 Asylum
and Immigration Act resulting in only a few asylum seekers (ie
those who apply immediately on arrival in the United Kingdom or
in certain other limited circumstances) being entitled to receive
benefits. Despite wholehearted opposition to this measure by the
then Labour Opposition—the measure was then described by
the present Home Secretary: "The government's denial of social
security benefits to asylum seekers is inhumane. Applicants must
be allowed the means to live while their case is being considered"
[Fairer, faster, & firmer—Labour's approach to asylum
and immigration by Jack Straw MP, Shadow Home Secretary, and
Doug Henderson MP, Shadow Home Affairs Minister]—the present
Government has failed to restore benefits to asylum seekers. Consequently,
few, if any have financial resources of their own to enable them
to fund legal representation.
In answer to a written Parliamentary Question
(No. 119, 23 March 1998) by Mr Humfrey Malins CBE MP, who asked
the Secretary of State for the Home Department what existing resources
of free competent legal representation are available to destitute
asylum appellants ineligible for benefits to pursue appeals against
refusal of refugee status, Mr Mike O'Brien MP, on Thursday 26
March replied "the Immigration Advisory Service and the Refugee
Legal Centre provide free legal representation to asylum appellants.
It is also open to appellants to seek assistance from other voluntary
bodies." As already stated, there are few other voluntary
bodies offering a competent legal service in an area of rapidly
changing and complex law.
FUNDING OF
IAS
For 1996-97 and 1997-98 the Home Office gave
an additional grant of £500,000 in each year to IAS specifically
to increase the number of asylum appeals cases which could be
undertaken. Over these two years IAS has taken on some 4,000 new
asylum appeals instructions. This extra grant was "Spend
to Save" money transferred from the DSS to the Home Office
to seek to accelerate the processing of initial claims and subsequent
appeals by asylum seekers who were in receipt of benefits (the
rationale for which was effectively removed by the decision of
Rt Hon Peter Lilley). The Home Office also gave a similar sum
of money to the RLC for 1997-98 only. Although the Home Office
had always indicated that this funding was finite and would end
on 31 March 1998 it was maintained throughout this period by IAS
that, having taken on instructions for appeals which would be
listed beyond 31 March 1998, it would be necessary to increase
IAS core funding to enable the retention of staff to be able to
undertake those appeals which had been taken on.
It seemed that this argument had been accepted
when, by a letter dated 15 December 1997 from the Home Office,
IAS was told to plan on the basis that a similar sum of money
would be available for 1998-99. On 5 January 1998, however, this
position was reversed and IAS was told that no such money would
be forthcoming. Despite a statement by the Home Secretary, The
Rt Hon Jack Straw MP, in the House of Commons on 2 February 1998
(Home Office Questions) that "no decision has yet been made"
and intensive lobbying by IAS and representations to the Home
Office by Peers, Members of Parliament and the All Party Parliamentary
Group on Refugees the decision to withhold the £500,000 for
1998-99 has been maintained.
THE EFFECT
OF THE
CUT IN
FUNDING ON
ASYLUM APPELLANTS
During 1997-98 IAS took on 2,500 asylum appeals
instructions (and the RLC will have taken on a similar number)
which means that, in total, for 1998-99 some 5,000 asylum appellants
will effectively be denied competent legal representation and
have no other sources of income from which to fund it privately.
The effect of this will be that many of these asylum appellants
who would otherwise have established their legal entitlement to
refugee status will be denied it. IAS is successful in some 25
per cent of asylum appeals it undertakes (against a national average
of only 6 per cent) which indicates the importance of professional,
competent legal representation at the appeal stage. The future
of some of the asylum appellants who will be unsuccessful in their
appeals will be hazardous. They could be returned to their country
of origin to face persecution, torture or even death.
THE ARGUMENT
The Home Secretary in a letter dated 25 March
stated to IAS Chairman Dr Z U Khan OBE JP that funding of IAS
and the RLC never contemplated that a free service would be offered
to all asylum appellants. That is accepted. Nevertheless, being
able to offer free legal representation to some 5,000 asylum appellants
in a year represents about one third of the total disposals of
asylum appeals by the Independent Appellate Authority (the special
adjudicators). IAS accepts that in terms of public expenditure
constraint there cannot be sufficient funds made available to
assist all those who request legal representation on asylum appeals.
What is important, however, is that sufficient funding should
continue into 1998-99 to enable IAS to represent in those appeals
already taken on. In the IAS Hounslow office alone some 1,750
asylum appeals are listed for hearing in 1998-99 having been taken
on in the previous financial year. The Government should be pressed
to make this funding available immediately. Otherwise, IAS will
have to discontinue legal representation on those cases already
taken on or severely cut back on new instructions which will effect
both immigration as well as asylum appeals.
The Government should be asked to list the "other
voluntary bodies" (see Parliamentary Answer Thursday 26 March
above) which, in the view of the Government, provide competent,
free legal representation. It is unlikely that the Government
would be able to comply with this request as there are so few
such bodies. Moreover, the Government has now embarked on the
consultation process relating to its manifesto commitment to introduce
a registration scheme to control unscrupulous immigration advisers.
The whole point of this commitment is because there are so many
so-called advisers which give improper advice and representation.
Moreover, when asked what provision has been
made by the Government to ensure that destitute asylum appellants
who are ineligible for benefits can afford to pay for legal representation
on their appeals against refusal of refugee status (Written Parliamentary
Question No 121 on 23 March 1998) Mr Mike O'Brien MP referred
only to the grants made under section 23 of the Immigration Act
1971 to the Immigration Advisory Service and the Refugee Legal
Centre and made no reference to any other body or sum of money.
Clearly, the Government accepts that the only provision for destitute
asylum appellants is through both organisations. Yet the grant
given specifically to these two organisations to help asylum appellants
has been cut.
WHY THE
DELAY IN
THE COMPREHENSIVE
SPENDING REVIEW?
The report of the Government's comprehensive
spending review into asylum seekers has been with Ministers since
February and it was intended to publish it in April or May (confirmed
by Mike O'Brien MP at a meeting with Dr Z U Khan OBE JP and Keith
Best on 12 February). It was not satisfactorily explained why
there was to be such a delay between receipt and publication.
It has now been revealed that the report will not now be published
until July—yet no reason has been given for this further
delay. It could mean that with the Parliamentary Recess coming
up at that time that there will be little opportunity for Parliament
to scrutinise it. It looks as though the result of the review
will be increased use of detention and an accelerated appeals
procedure which could work great injustice against those not properly
represented—yet another reason for restoring IAS' funding.
The Government should be asked why there is this delay when destitute
asylum seekers are still without benefits.
CONCERN BY
THE UNITED
NATIONS HIGH
COMMISSIONER FOR
REFUGEES
To deny asylum appellants proper legal representation
not only effectively negates the benefit of a statutory right
of appeal but also casts doubt on the commitment of this Government
to our international obligations under the 1951 Refugee Convention.
The Deputy Representative of the UK Delegation
of UNHCR (Peter van der Vaart) wrote on 3 April 1998 ". .
. we are concerned at the reduction of State funding for IAS—and
RLC—and the consequences for the availability of competent
legal advice to destitute asylum seekers. We are particularly
worried about the reduction of IAS legal advice foreseen in Scotland.
In contacts with the Home Office we have voiced our concerns,
most recently in our reaction to the Consultation Document on
the Control of Unscrupulous Immigration Advisers."
Keith Best
Chief Executive
30 April 1998
3 Not printed. Back
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