Examination of Witnesses (Questions 320
- 339)
THURSDAY 20 JULY 2000
PROFESSOR GUY
GOODWIN-GILL
AND MS
HOPE HANLAN
320. Can I put something which I quite accept
is potentially controversial, and I will try to phrase it in a
fashion which is as straight down the line as I can? There are
a lot of conflicts going on around the world, there always have
been, but today they are seen on our televisions and people sitting
in their sitting rooms around the country observe and get very
upset about what is going on. Under the 1951 Convention we are,
of course, obligated to do what we can to help, but I wonder whether
there is not a countervailing duty to our own citizens that if
you follow the Convention to its absolute logic then wherever
there is persecution—and there is a lot of it around the
world, I am sure you will agree—somehow the British people
ultimately are the back-stop who have the responsibility for accepting
all these people, and we are talking literally of hundreds of
thousands of people. I wonder whether, therefore, the point that
was made by the Professor is actually not the real issue, we should
give people a reason not to move, we should be doing more to deal
with those countries which do persecute their people. May I put
an example to you? What are we doing in Zimbabwe, where the Government
has behaved and the president has behaved in a wholly inhumane
and barbaric fashion, to stop him not just hoofing out the Europeans,
but those of the MDC who disagree with him?
(Ms Hanlan) Again you are preaching to the converted.
321. I did not expect to have such a friendly
response, but thank you very much.
(Ms Hanlan) As you might know, at the level of the
EU there is the High Level Working Group. They are supposed to
be addressing the issue in a global comprehensive manner, because
you are quite right, by the time an asylum seeker reaches the
country of asylum, think of the numbers who are left behind to
suffer and who become internally displaced. UNHCR is very familiar
not only with the suffering outside in refugee camps, but also
with the suffering inside by the internally displaced person.
We fully support and give a lot of evidence to the High Level
Working Group, which is supposed to be looking comprehensively
at the source of the problem. Unless the source of the problem
is addressed we will never cease to have this human misery wandering
around the world, being misunderstood by taxpayers and pensioners
and all kinds of people. Therefore, it is important, I would venture
to suggest, that governments should give the fullest impetus to
the High Level Working Group who are looking at six countries—the
six countries which generate the largest number of refugees coming
into the EU—and they are looking at those countries and
they are trying to look at developmental and foreign policy issues,
because it is not sufficient that it is just a Home Office matter.
It starts way before that.
Mr Cawsey
322. Professor, I would like to ask you about
present UK procedures for border and immigration control. In your
note which you sent the Committee you said that " . . . the
United Kingdom's international obligations, its own interests,
and the system of international protection of refugees are best
served by, as a minimum: . . ." which you then laid out for
us and that included legislation, clear administrative instructions
to border control authorities, prompt referral and fair and effective
decision-making. These are all laid out. It is not my job today
to sit here and try to speak on behalf of the Government but if
they were here I think perhaps one of the things they might say
in response to that would be "We do not necessarily disagree.
Part of the Immigration and Asylum Act that we brought into effect
was to try to deal with some of those issues". I know it
is still fairly early days bearing in mind that only became effective
in May and we are now in July. Are you saying ipso facto
from that memorandum to us that you think the United Kingdom is
falling short of these minimum standards that you have laid out?
(Professor Goodwin-Gill) I ran out of words at that
time, my limit had been reached. There was more that I might have
said. I think at a certain level one can see that in the United
Kingdom minimum standards are being achieved but they are not
meeting the problems, for example, of the 70,000 which were mentioned
earlier. We have in process a procedure but it does not do the
job. The world has changed and we have not. If we are getting
a massive influx like that and we cannot deal with it, why are
we blaming the influx instead of ourselves? I think we need, as
I said a moment ago—and this is what I would have added
to my paragraph 24—to front end load, to put decision makers
in front of the people about whom they are making decisions. Until
you do that, if you continue taking decisions at several removes
of time and space you are going to fall into error, you are going
to have delays and you are going to have challenges, and rightly
so too. Front end loading is what I would emphasise. The European
Commission is coming up with some quite interesting standards
for procedures which it is hoped will be common to all European
Union countries with a first level decision maker who will have
country of origin information, who will deal directly with the
asylum seeker, who in turn will receive appropriate advice, and
we can have a debate about what is appropriate advice. There will
then be an appeal and a level of review, a rather quite short
minimum procedure. Those are the sorts of standards that I think
we should be looking at quite seriously. Unless you aim to get
it right the first time around then you are going to be in problems,
in situations of delay and exploitation quite frankly.
323. I agree with that. Also I agree with the
comment that was made earlier about the fact that if you cannot
do something about getting a fair and fast decision then you will
attract more people to come in because it is just inevitable for
all the reasons you said earlier on. One of the things that the
Government is trying to achieve now through its latest Act of
Parliament is that very sort of process where there is a two month
decision and a four month appeal making it six months in totality.
All right, that has yet to be achieved but nevertheless it is
in place now. When the Government manages to reach that standard
would you still say that will not be enough? What is the gap going
to be between what you see as a minimum ideal and what the Government
is trying to achieve in reality at the moment?
(Professor Goodwin-Gill) I am a lawyer, I evolve.
One is always going to be building on expectations. One of the
curious things about due process is that it does develop over
time so I do not think we will ever achieve a finished product.
I think we can do far better than we are at the moment. I am afraid
also there is one area we have not touched on today that does
need to be discussed and that is the extent to which our human
rights obligations beyond the Refugee Convention require to be
integrated into our policy and decision making procedures, into
our legislation as well. What worries me greatly is that we have
not yet done that, we do not have a process that fully takes into
account our obligations under the Torture Convention or that takes
into account what we recognise as humanitarian obligations on
ourselves, the need not to send people back to conflict, which
finds a way of dealing with that, dealing with those whose treatment,
if returned, falls short of Convention style persecution. We should
be considering how we can develop complementary and credible systems
of protection. Here when I talk about "credible" I am
talking about credible vis a« vis the public, credible
systems of complementary protection that necessarily can involve
a political dimension. This again came up in Mr Straw's statement
in Lisbon. They can involve a political dimension in so far as
the policy decision might be involved, for instance, to grant
refuge to nationals of this particular country, what terms of
protection should be granted and when that protection should be
brought to an end. It will be credible only if those policy decisions
are based on some sort of transparent process referring to what
is commonly known from public domain information, which reflect
a process of consultation with UNHCR, with community based groups,
and which ultimately are compatible with human rights. These are
the issues that we need also to be looking at in addition, I am
afraid, Chairman, to your Committee's interest in the 1951 Convention.
324. We were discussing earlier how wide the
brief for this particular report is getting. One thing we will
want to do whenever we reach the end of it is to say to Government,
"these are the areas that you really need to make very quick
progress on if you want to make things better". Just listening
to you in the last few minutes you have spoken about decision
makers being at the front of the process, a fast, fair and effective
system, and now the human rights issue is to be considered as
well. If you were to advise this Committee of one specific area
where we should go back to the Government and say "this is
the thing you really must make immediate improvements on",
what would it be?
(Professor Goodwin-Gill) Decision making.
325. The speed of the decision making?
(Professor Goodwin-Gill) Absolutely. And the quality.
The Home Office has some interesting initiatives, for example,
on gathering of country of origin information. I think decision
makers are better informed than they were 25 years ago and it
has done that with some difficulty because there has not always
been a united position, for example, amongst the suppliers of
information in this country. That is an important initiative which
should be commended. Quite frankly, and experience surely tells
us this, I think we have to go the steps further that I have been
suggesting.
326. Thank you for that. Ms Hanlan, in the memorandum
we got from the UNHCR that said to us "The countries of the
European Union, including Britain, have built up a formidable
range of border control measures which make it practically impossible
for refugees fleeing persecution in their own countries to gain
legal entry into their territories and exercise the right to seek
and enjoy asylum from persecution . . ." Are you effectively
saying, therefore, that in this country our current policies,
procedures and practices for controlling our external borders
are inconsistent with our obligations under the 1951 Convention?
(Ms Hanlan) No, because the Convention is not intended
to address the issues of access or denial of access to a country.
We cannot therefore conclude that current UK procedures are inconsistent
with the letter of the Convention but they are inconsistent with
the spirit. What we can also conclude is that in not applying
Article 31 to asylum seekers and thereby criminalising them, that
is inconsistent. We cannot go into details about border controls,
visas, carrier sanctions and that kind of thing. These issues
to which you refer are not covered by the Convention in other
words.
327. If there was a genuine asylum seeker who
was trying to get protection under the provisions of the Convention,
is it possible for them to reach the UK without actually breaching
immigration law?
(Ms Hanlan) I think there are a few who still can
access the state without having to use forged documentation.
328. But only a few?
(Ms Hanlan) In fact, the majority do.
329. So it is the majority?
(Ms Hanlan) Yes, it is the majority. Not being cynical,
the majority of asylum seekers are not arriving on forged documentation.
330. Perhaps the answer to this is no. Do you
think that we need to consider or at least advise our Government
that we need to reform the law and practice to assist legitimate
asylum seekers to come to this country without breaching border
controls? You do not think there is a problem that we need to
address there?
(Ms Hanlan) We cannot be numbers driven. Every single
asylum seeker is a valid individual as far as we are concerned,
whether it is one or whether it is 1,000 or whether it is 100,000.
331. But is there a category of asylum seeker,
whether coming to the UK or wherever, that is finding it difficult
to get into any country they can claim asylum from without breaching
border controls and immigration law?
(Ms Hanlan) I would not say there is a category, no.
332. There is not?
(Ms Hanlan) No. If I can just go back to a previous
question that you raised. If one looks at the system here, there
are two big important flaws. One, from UNHCR's point of view,
is the delay in processing claims and the second one is that there
is no removals policy because the integrity of the system is seriously
affected if people having failed in their claim simply are not
removed. I think that is much more an issue than the issue of
whether there is a particular category of person who might or
might not be forced to breach controls.
333. If I can put to you the same question I
put to the Professor, although I think you have already answered
it in one respect. If there was one thing that you think we should
advise the Government on in terms of improving the situation would
it again be speed of decision making that would be the best thing
to concentrate our minds on?
(Ms Hanlan) Provided that people have legal advice
up front, that is really important.
Mr Cawsey: I do not just mean speed.
Chairman
334. I think Professor Goodwin-Gill said quality
as well.
(Ms Hanlan) Yes, quality. Speed and quality and then
removals.
335. Let me ask you, Ms Hanlan, if I may, we
are very interested in the answer you gave us earlier about the
work the UNHCR is carrying on, hopefully to come before us in
a recommendation, I think you said, at the end of next year, 2001?
(Ms Hanlan) I am sorry?
336. Did you say that you hope to get some recommendations
out by the end of next year?
(Ms Hanlan) That is right.
337. At the moment, do you have a relationship
with the Government over, for example, development of the Asylum
and Immigration Act? Do you have any input into that?
(Ms Hanlan) Indeed, at every single stage.
338. You have a regular relationship with them?
(Ms Hanlan) Yes, we have a regular relationship with
them.
339. Do you visit Oakington, or have you?
(Ms Hanlan) Our staff have on more than one occasion.
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