APPENDIX 15
Memorandum by the Immigration Advisory
Service
ENQUIRY INTO PHYSICAL CONTROLS AT UK PORTS
OF ENTRY
INTRODUCTORY
1. IAS is the largest national charity giving
free legal help and representation to persons with immigration
and asylum cases with nine offices throughout the UK, funded both
by the Home Office and the Legal Services Commission. Together
with its predecessor organisation, UKIAS, it has 30 years' experience
of undertaking this work and is consulted by Government on such
matters. It is funded by the Home Office to provide legal advice
to asylum seekers on-site at Oakington Reception Centre, visits
all immigration detention centres regularly and provides a service
to dispersed asylum seekers. Apart from its offices in Birmingham,
Cardiff, Glasgow, Hounslow, Leeds, central London and Manchester
IAS opened a new office in Liverpool last month (as well as Oakington)
and will open one in Norwich next month.
2. IAS would wish to give oral evidence
to the Committee on the subject of the enquiry, namely the physical
controls at ports of entry and whether the 1951 Convention on
the Status of Refugees (hereinafter referred to as the "Convention")
requires revisiting.
3. IAS has read the submission of the Immigration
Law Practitioners' Association (ILPA) dated 6 April 2000 and wishes
to be associated with its conclusions.
EVIDENCE
4. The penalties on carriers, extended deployment
of Airline Liaison Officers, visa regimes and other pre-entry
controls mean increasingly that genuine asylum seekers have little
choice but to enter clandestinely or on false documents (also,
see evidence of Mr Mike O'Brien MP, then Immigration Minister,
to the Home Affairs Committee on 12 May 1999). These controls
have been increased by the 1999 Immigration and Asylum Act.
5. Such attempted exclusion of genuine as
well as unfounded asylum seekers is contrary to the spirit of
the Convention as set out in the ILPA submission 2 and 3 (Article
31 of the Convention and 1950 Memorandum from the UN Secretary-General).
6. Home Office statistics show that of Home
Office decisions some 40 per cent of those claiming asylum are
granted refugee status or exceptional leave to remain (33.67 per
cent and 6.86 per cent respectively for the 12 month period to
July 1999). This percentage will change constantly depending on
the profile of asylum seekers at any one time (indeed, the grant
of refugee status and exceptional leave to remain was 44.33 per
cent and 5.88 per cent respectively giving a total of 50.21 per
cent for the second half of 1999). The Home Secretary estimated
that some 20-30 per cent of the 70,000 applicants for asylum last
year will be granted the right to remain in the UK (Today Programme,
Friday 14 April 2000). This is a substantial proportion of the
whole and is certainly not so small as to justify on de minimis
principles, as a policy, the attempted exclusion through deterrence
of all asylum seekers, whether genuine or unfounded.
7. The assumption that asylum seekers who
are not genuine are drawn to the UK rather than to other European
countries because of generous benefit payments is not borne out
by the facts. Benefits in some other European countries are more
generous. Since cash benefits were abolished for all asylum seekers
other than those who apply immediately on arrival or in certain
other limited circumstances (the 1996 Act) the fact that benefits
are not payable will be well known to those potential asylum seekers
who are properly advised before embarking on their journey to
the UK. Yet there is little evidence of this acting as a deterrent.
Either they do not have this knowledge or there are other reasons
for their arrival in the UK. In either case the withdrawal of
benefits is ineffective as a control. Moreover, if benefits were
a draw, it might be expected that asylum seekers now receiving
vouchers would go voluntarily to Scotland where cash is still
payable yet there has been no such discernible trend.
8. IAS contends that the historical links
between asylum seekers' countries of origin (such as Commonwealth
countries), the existence of members of the same community already
in the UK, the fact that English is so widely spoken as a second
language and the reputation abroad that the UK is a country fair
to minorities with an independent judiciary as a safeguard against
unlawful executive action are principal factors in asylum seekers
coming to the UK rather than benefits or other reasons advanced
by Ministers. Another factor in persons deciding to come to the
UK to seek asylum or seeking asylum when already in the UK on
limited leave to remain is the well-publicised delay in Home Office
initial decisions which result in an asylum seeker being able
to remain in the UK for several years, even if the claim is unfounded.
Even on the latest figures of the last two months of some 1,500
more decisions being taken than applications for asylum in the
same period this would mean a period in excess of five years to
clear the current backlog of 100,000 cases awaiting initial decision—unless
there were to be a dramatic reduction in the number of claims.
Physical controls at ports of entry rather than pre-entry controls
and deterrence will not have any great effect on this.
9. If IAS is correct in this assessment
then physical controls at ports of entry will have little effect
on migration flows and the cost and effort in maintaining them
could better be deployed in further improving the decision-making
process and enforcement on those who have exhausted all legal
avenues for remaining in the UK. Members of the Committee will
be aware of the Immigration (Leave to Enter and Remain) Order
2000 which will come into force on 30 July 2000 which ensures
that "An immigration officer, whether or not in the United
Kingdom, may give or refuse a person leave to enter the United
Kingdom at any time before his departure for, or in the course
of his journey to, the United Kingdom" [Article 7(1)]. This
has wide-ranging implications. It means that immigration officers
travelling on Eurostar or on a ferry or other vehicle may refuse
leave to enter to a passenger before actually arriving at the
UK port of entry or, indeed, before embarking on the transport.
10. No doubt this is a reactivation of the
concept of Operation Rawhide piloted over six weeks in early 1999
at Dover which involved immigration officers working closely with
loading staff of a major carrier; the immigration officers did
not leave the vessel but assisted the vessel's staff in identifying
vehicles which were likely carriers of illegal entrants. The recommendation
to do this is referred to in the BDO Stoy Hayward (now VantagePoint)
report commissioned by IND and submitted to the IND Board in June
1999. We are sure that members of the Committee will have seen
a copy of this report which also makes other recommendations about
physical controls at ports of entry such as deferment of the substantive
asylum interview for five days and a research project into the
impact on refusal rates of the cessation of Article 15 (Dublin
Convention) searches and to terminate the searches immediately.
11. Such pre-entry controls, however, although
they may be effective in preventing asylum seekers coming to the
UK will not be able to distinguish genuine claimants from unfounded
ones unless a full examination of every claim is undertaken prior
to arrival. This would require the immigration officer to have
the training and ability to examine fully the claim but given
that a right of appeal attaches to a refusal it is unlikely that
this would prevent many claimants from coming to the UK. Moreover,
the effect of such pre-entry controls is likely to lead to further
sophistication and racketeering in bringing asylum seekers to
the UK clandestinely or on false documents.
12. IAS believes that the only effective
way to deal with asylum seekers in accordance with the UK's international
obligations under the Convention as well as with justice is to
devote adequate resources to the initial decision making process
and to ensure that asylum seekers are given a proper opportunity
of articulating fully their reasons for contending that they should
be granted refugee status or exceptional leave to remain. This
means that they should have access at the earliest possible stage
to legal advice and to examination by an independent physician
if torture is alleged through properly trained and qualified interpreters.
The improvement in the quality and relevance of information proffered
by asylum seekers as a result would greatly improve the ability
of ICD caseworkers to come to well-informed correct decisions
thereby minimising the disruption and cost of extended appeals.
Although the overall level of success for those refused asylum
who are granted refugee status or exceptional leave to remain
may be small the percentage rises considerably when competent
legal representation is given (IAS currently is successful in
some 20 per cent of asylum appeals) or where particular nationalities
are concerned. IAS is satisfied that the experiment of providing
initial immediate legal advice and attendance at substantive interviews
afforded to those detained at Oakington will endorse this point
which also forms part of the recommendations of the report of
the consultants BDO Stoy Hayward (op.cit). The report states "Such
representation may improve the quality of information obtained
in the interview and reduce the potential for subsequent challenge."
The report also suggests that tape-recording of interviews could
speed them up. It also recommends the merging of the role of interviewer
and decision-maker.
13. The consultants state that "it
is apparent that many of the current delays in backlogs are as
a result of inadequate resources. This is particularly true of
the ICD, where in a steady state, cases could be processed within
13 working days." Their vision is of a fast track process
for cases where the grant of leave is the most likely outcome,
improving the quality of the substantive interview through investment
and process improvement and unification of the decision-making
and interview process in order to speed decisions.
14. It is IAS' view that unfounded claimants
and those seeking to migrate for their own economic reasons rather
than Convention reasons are likely to be deterred from seeking
entry to the UK only if the system gives fast decisions after
a full investigation of all the evidence in support of the claims,
a swift adjudication on any appeal commensurate with individual
justice and human rights and removal from the UK once all legal
avenues for remaining have been exhausted. This has been the stated
objective of the Government but there remain many barriers to
its realisation. A renegotiation or changed interpretation of
the Convention is unlikely to assist, assuming even that this
would gain the necessary consent. There are other instruments
besides the Convention which would prevent the arbitrary refusal
or removal of persons from the UK in contravention of their legal
rights.
Keith Best
Chief Executive
14 April 2000
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