Examination of Witnesses (Questions 360
THURSDAY 20 JULY 2000
360. Exceptional leave.
(Ms Finch)an Article 3 application, that is
the advice you would give.
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.
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 LTTELiberation 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.
(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.
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 yearswhich clearly
is an evil tradehas 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
373. I just wonder whether there might be something
else we should be looking atto try and discover the illegal
immigrant not at the border, but when they seek to obtain public
servicesfor 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 seekersthere is
no doubt about their statusare 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 answersI repeatare 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.
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
(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
(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
(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.