Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum by the Immigration Advisory Service



  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.


  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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