Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 360 - 379)




  360. Exceptional leave.
  (Ms Finch)—an Article 3 application, that is the advice you would give.

Mr Howarth

  361. As the Chairman suggested that would qualify for exceptional leave to remain.
  (Ms Finch) Yes.

  Mr Howarth: It begs the question as to how far we can be responsible for the way in which the authorities in the Ukraine police their local Mafia.

Mr Cawsey

  362. Can I ask a very quick question here. We were just talking about the problems in the 1980s and 1990s of slow and poor decisions. We have been told that the speed has now improved, which is good, but has the quality of decision making also improved at the same time?
  (Ms Rogers) Unfortunately not.

  363. Right, so we have got quick bad decisions?
  (Ms Rogers) In the areas where I have most experience, namely in decision making in Kurdish cases from Turkey and from Sri Lanka, the decision making is poor. In the case of Sri Lankan cases at appeal level I would say I win now 70 to 80 per cent of my appeals which demonstrates that the decision making is appalling.

  364. Why do you think that is?
  (Ms Rogers) That is because there is not this face to face decision making. There are a very large number of refugees, for instance, which come from Sri Lanka and of course there has to be a selection process here. You have to examine each and every case. Because the decision maker is in a different room and has never seen the individual, the initial interview process is very poor. It means that the information the decision maker has to work from is quite scant and then if it is scant and then poorly analysed, because the individual is not in front of you, it means the decision making has nothing to do with the individual claim at all. There are instances that I am aware of. At one stage Terminal 4 were tape recording their interviews and that was when one became so acutely aware of what happened at asylum interviews. In one particular case I was representing an individual was trying to tell the interviewing officer about torture. He said "I have not told you about my torture." "I do not want to know about it". "I have not told you about my activities with the LTTE—Liberation Tigers of Tamil Eelam" which is an opposition organisation. "I do not want to know about it". How is the decision maker then supposed to make a decision if that information is not before him?

  365. Are these entry clearance officers going into these interviews without the necessary open mind?
  (Ms Rogers) They are not properly trained.

  366. Right.
  (Ms Rogers) They do not have enough background country information and they are under time constraints also. They believe they should make decisions and interview within a very short space of time. Quite frankly, that is one of the major reasons why it is resulting in poor decision making and why these cases have to go to court and delays occur.

  367. More haste less speed.
  (Ms Rogers) That is right.
  (Ms Finch) Also, they are very low grades as well.

Mr Stinchcombe

  368. Can I ask, first of all, one question in clarification as to the point you have just made. When these cases go on appeal to court, is that on a point of law or is that an appeal on merits?
  (Ms Rogers) On the merits. It is on law and merit. The first point of call, the first appeal is to a special adjudicator who is there to adjudicate de novo for himself.

  369. On the merits.
  (Ms Rogers) On the merits and the law of the application.

  370. Can I ask some questions about border controls and refugee protection. A distinction has been drawn between border controls as a tool of immigration control and the Convention as a tool for the protection of the refugee. I just want to know how they might interact? For example, do border controls stand partly in the way of legitimate asylum seekers and, if so, to what extent and how?
  (Mr Hardwick) I think clearly they do. To my understanding, I can see very few ways, if any, in which someone who is a refugee, who has been accepted as a refugee, can get legally to the UK. One of the reasons why the trafficking business has grown so exponentially over recent years is that particular refugees who have been persecuted are forced into the hands of the traffickers because they have no other means of entry. The way it works is because of the Carriers Liability Legislation and the imposition of visa controls, in order to get on the plane you need a visa, you cannot get a visa for being a refugee, so right from the start you have to have false documentation. As the passenger profiling and the work of the airline liaison officers gets more sophisticated then the routes that people will take to get here get more and more complex and the prices and the profits of the traffickers go up.

  371. Does that mean in your view there is a direct causal connection between strengthening the boundary controls and border controls and the trafficking and exploitation of people, big crime, organised crime?
  (Mr Hardwick) I absolutely do think that. I think the growth in trafficking in the last few years—which clearly is an evil trade—has absolutely coincided with the tightening of border controls. It seems to me there are parallels with the Mafia in the States at the time of prohibition, organised crime will grow. I am a realist, the States are going to have border controls but I think there has to be some balance in the regime. Also I think we do have to explore ideas which will enable at least some refugees to reach safety without resorting to illegal means. I think there is a real danger in some of these things that we let the best be the enemy of the good. You may not be able to solve this problem altogether about getting that balance right, but the fact you cannot solve it does not mean you should not try to improve it.

  372. Can I ask a few more questions about the practicalities of this. The green land borders between the Schengen countries and Central Europe are virtually indefensible for obvious reasons. The sea borders on the southern part of Europe are again virtually indefensible for obvious reasons. The internal Schengen borders are by their very nature indefensible. What purpose is there to be achieved, therefore, in endeavouring to toughen up these border controls, knowing that they will have very little impact upon the determined illegal immigrant and knowing, also, that they will lead to greater exploitation by organised criminals?
  (Mr Hardwick) I have to say I do not understand the logic of the measures that have been taken. I agree with what Professor Goodwin-Gill was saying earlier that the key to a credible asylum system that protects refugees and discourages people who do not have an asylum claim is good quality decisions made quickly with the results enforced. I think if I was the Government I would be focusing like a laser on that. I think to some extent these other measures look tough but are ineffective. What will get results is improving the quality and speed of the decision making and I have yet to be convinced there is really anything else that will work.

  373. I just wonder whether there might be something else we should be looking at—to try and discover the illegal immigrant not at the border, but when they seek to obtain public services—for example, when they go to a doctor, when they attend school, when they try to find a job. In other words, should we go towards a national identity card system? Would that appeal or would that not appeal to you?
  (Mr Hardwick) I think it is important to make the distinction here between people who are here illegally with no status and asylum seekers who are here legally. I think myself that there would be real dangers in introducing an identity card scheme or in particular asking the providers of the public services to act in some ways as controllers of immigration. Of course that will have the effect of discouraging people from using those services and when you start to think about things like health and education, it will be the most vulnerable members of those communities who suffer. Our experience, even now, is that people who are in this country perfectly legally and are asylum seekers—there is no doubt about their status—are already so confused about the situation that they are anxious about using those kinds of services anyhow. I think that would have to be treated with extreme caution. I think if people are asylum seekers and are pursuing their asylum claim, the authorities are in touch with most of them anyhow. I think there is a distinction between asylum seekers and illegal migrants.

  374. Can I just press that one stage further. It seems to me that establishing as firm a control as possible on the borders may not be terribly effective but may play into the hands of the organised criminals and the exploitation of humankind. Also, it seems to me that relaxation of border controls without something such as an identity card scheme may simply lead to no control at all and further abuse. It seems to me, therefore, that one would have to go with the other in order to have a balance and have a control?
  (Mr Hardwick) As I say, I think that there are dangers in the identity card route. What I suppose also I think is we have tried successively a number of different approaches to tackle this issue and because they do not work quickly we then try something else. I do think the answers—I repeat—are very basic. The most effective thing that we can do is to concentrate on making decisions, helping those who are accepted to settle successfully and removing those who are refused. Without wanting to digress, one of the big problems with the whole new support system that was set up was that it distracted ministers at a crucial time from concentrating on getting the decision making removals and that part of it right and I would want to discourage anything that distracted ministers again.

  375. Can I just ask one final question. On the quality and the speed of the decision making process, do you agree with all of the other witnesses we have heard today that it is getting the face to face interviewing right that is going to be the most critical step forward?
  (Mr Hardwick) What I would say is I think it is like any business, you need to get the thing right first time rather than spending a lot of money down the track putting it right. Good quality and ethical legal advice early in the process helps you capture that information and then helps you make those decisions quick and fairly. I think it is also worth noting that a positive development in recent years has been that the number of asylum seekers granted refugee status or exceptional leave to remain has more or less doubled. I do not think that is because of the nature of the people coming, I think that is to do with some overall improvements in the quality of decision making although, as has been said, people coming from Sri Lanka in particular are a very clear example of where decision making seems to me to be perverse.

Mr Linton

  376. A couple of points I want to pick up on. You were describing the Home Secretary's proposals about safe countries as a return to the 1930s, but surely what he was talking about was not quotas of refugees, which is what we had in the 1930s, but quotas of applications to consider and they would still be considered on an individual basis. Surely that is rather a big difference?
  (Mr Hardwick) I think I did say that I was not sure I had completely understood what the Home Secretary was saying. I made the distinction that if the Home Secretary's proposals were in addition to what might happen to people who come here spontaneously then I would welcome that, but if they replaced the right of people to come here spontaneously then I would be very concerned. The point about what happened in the 1930s, as you say, was not about the decision making, it was that people were pre-selected to come and those who made their own way here were returned. I think it would be very regrettable if we go back to that. It is not completely clear.

  377. It does say "agree quotas for each EU State to consider applications for asylum".
  (Mr Hardwick) I understood that part to mean that if you had a situation of mass displacement the EU might consider asylum applicants in that situation. What I was not clear about was whether, as happened in Kosovo, some people were brought here on a programme and some people made their own way here individually. What I am not sure is where it leaves his proposal.

  378. They were not refugees, they were temporary admissions.
  (Mr Hardwick) I think you should have both processes.

  379. Another point from your public quotations on this issue, and you have repeated it here, is that border controls are forcing people into the hands of racketeers. Sixty or 70 per cent of them are actually coming from Holland, Belgium and France as their last country. It rather rides over the point that they may have very good reasons for escaping the country of origin but there is a completely separate issue about whether they should have the right to enter this country without making asylum claims in intervening countries. Do you not accept that is a completely different issue?
  (Mr Hardwick) Yes, I do accept that is a different issue. I think that goes back to the questions around the Dublin Convention. It goes back to a lack of attention given to the current interpretation of the Dublin Convention to the issues around family reunification. There are obviously inconsistencies in the interpretation of the Convention. Britain is by no means always the best, as I understand it other countries in some situations will be better. I think as long as you have that situation, and as long as people feel that in particular countries they have communities or language links or whatever, then you will have that section there.

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