Memorandum submitted by the Home Office
INQUIRY INTO ASYLUM AND IMMIGRATION
1. The powers to remove a person subject
to immigration control from the United Kingdom are contained in
Schedules 2 and 3 to the Immigration Act 1971 and section 10 to
the Immigration and Asylum Act 1999. A person is liable to be
removed from the United Kingdom for the following reasons: following
a refusal of leave to enter, if they are an illegal entrant, if
they overstay the period of leave which they have been granted,
if they breach a condition attached to their leave (for example
by working or claiming benefit when the terms of their leave do
not permit this), if they have obtained leave to remain by deception
or if they are the subject of a deportation order. In certain
circumstances, the member of the immediate family of a person
who is being removed or deported may also be removed or deported.
2. In 2000, the last year for which comprehensive
data has been published, 46,645 people were removed under Immigration
Act powers or made recorded voluntary departures: 8,980 of these
were principal asylum applicants, of whom 550 left under an Assisted
Voluntary Return (AVR scheme); 37,665 were non-asylum cases. Dividing
the figure of 46,645 between cases refused entry at port and "in-country"
removals (the remaining categories described in the previous paragraph)
shows that 38,275 people were removed following refusal of entry
at the port (including asylum applicants) and 8,370 "in-country"
cases were removed or made a recorded voluntary departure (again
including asylum applicants).
3. The most recent published data on asylum
removals covers the financial year 2001-02. During that period,
9,630 principal asylum applicants were removed or made a recorded
voluntary departure (of which 935 were AVR departures). The Home
Secretary in June 2001 indicated to the House that he would make
all figures include dependants. The total number of removals and
voluntary departures, including dependants, was 11,600 (of which
1,190 were AVRs).
4. A person who applies for and is refused
leave to enter (whether or not as an asylum seeker) may be removed
in accordance with directions given by an immigration officer
who, in the case of an asylum seeker, is acting on behalf of the
Secretary of State. An illegal immigrant, overstayer, a person
in breach of their conditions of leave or a person who has obtained
leave to remain by deception may be removed in accordance with
directions given by either an immigration officer or the Secretary
of State, although in practice such directions are generally given
by an immigration officer. In addition, the Secretary of State
may decide to deport someone on the grounds that their deportation
is conducive to the public good or following a recommendation
for deportation by a court. Once a deportation order has been
made, the Secretary of State may give directions for the removal
of the person concerned. Again, in practice this will usually
be done by an immigration officer acting on behalf of the Secretary
5. In certain circumstances, there will
be a right of appeal against the decision resulting in removal.
In some cases this cannot be exercised until after the person
concerned has left the United Kingdom. In terms of numbers, the
most significant appeals against removal which result in removal
being suspended are asylum- or human rights-based appeals under
sections 69 and 65 of the Immigration and Asylum Act 1999 respectively.
6. Where a person is seeking leave to enter,
or subject to deportation action, or is a person in respect of
whom removal directions may be given, they may be detained pending
a decision whether or not to give removal directions and pending
removal or departure from the United Kingdom.
7. Applications for leave to enter are considered
in accordance with the Immigration Rules. In considering whether
or not to remove a person already in the United Kingdom (an "in-country"
case), the factors listed in paragraph 364 of the Rules are taken
into account. These include:
(iii) Strength of connections
(iv) Personal history, including character,
conduct and employment record
(v) Domestic circumstances
(vi) Previous criminal record
(vii) Compassionate circumstances
(viii) Representations received on the person's
Where the removal on the basis of family membership
is being considered, the additional factors listed in paragraph
367 of the Rules are also taken into account.
Are the Government's targets for removals
realistic and capable of being carried out?
8. The Government's targets for removal
of failed asylum seekers were set out in the annex to the 1998
White Paper Fairer, Faster and FirmerA Modern Approach
to Immigration and Asylum. In 1998, 6,990 failed asylum seekers
were removed. The target for 2001-02 was initially set as 12,000.
(Both figures exclude dependants.)
9. The Public Service Agreement was described
in SR 2000 as "enforcing the immigration laws more effectively
by removing a greater proportion of failed asylum seekers".
As part of the PSA process, the Treasury and spending departments
agreed, in the Technical Notes, the definition of the target and
how its achievement would be measured. The 30,000 asylum removals
target, including dependants (assumed to be at about one-fifth
of the overall target), was published in the autumn 2000 as part
of SR 2000 Technical Notes. The decision to include dependants
was an acknowledgement of the higher costs accruing as a result
of their remaining in the UK. The increase to 30,000 was recognised
to be a challenging one.
10. The target in SR 2002 PSA is worded
in the same way as that for SR 2000, but the technical note has
not yet been published. Discussions are taking place as to the
figure that should be attached to the targets for the coming period.
Following the same process, the SR 2002 Technical Notes will be
agreed with the Treasury and published in the autumn. The Home
Secretary believes that the previous 30,000 target is not attainable
in the timescales previously envisaged despite the progress made
in achieving the highest-ever number of removals. Challenging
and realistic targets will be set shortly. Initial discussions
have suggested that the target be measured as a percentage of
appeals dismissed and no-appeal cases and that, as an additional
measure, improvement of performance against the previous year
will be used.
11. The Home Secretary told the House of
Commons in June last year that the target was to remove 2,500
failed asylum applicants per month (including dependants) and
revised the March 2002 target date to March 2003. For reasons
indicated above, further revision to this will be part of ongoing
discussions. We are currently removing around 1,000 failed asylum
seekers and their dependants per month, a record number and the
highest in Europe.
12. The removal of people who have not sought
asylum presents fewer difficulties. There is no numerical Public
Service Agreement target for non-asylum removals. However, last
year the internal targets for both "in-country" and
port non-asylum removals were reached.
What are the most effective and humane methods
13. The recent Commission Green Paper on
a Community Return Policy on Illegal Residents rightly emphasised
that voluntary returns are inherently preferable to enforced returns.
We share this view. Voluntary returns are a vital component of
our returns policy. We aim to expand this and to ensure that information
about the voluntary return option is made more widely available,
for example by explaining the process as part of the asylum induction
programme and reminding those applicants whose applications are
refused that this option is available. At the same time, we have
to accept that a balanced approach will also include enforced
returns where a voluntary approach is not viable. Therefore, the
availability of voluntary return has to be backed up by a clear
message on enforced returns.
14. In some circumstances, for example where
families are involved, an explanation of the process may reduce
their concerns and assist removal, but we have to recognise the
risk that any attempt to prepare a person for removal carries
a risk that they will go to ground.
What are the constraints on removal to specific
15. The country-specific constraints on
removal fall into the following three broad categories:
16. Over 80 per cent of port asylum applicants
and 90 per cent of "in-country" asylum applicants provide
no travel document or other proof of nationality and identity.
17. The return of failed asylum applicants
and others who have no legal basis for remaining in the UK can
sometimes be achieved by the use of two types of pro forma
travel documents. The first is the common format EU letter
used by EU member states. The number of countries which will not
accept this letter has increased over the past two years and now
numbers around 28 countries. The second is the Chicago Convention
travel document. The Chicago Convention comes under the control
of the International Civil Aviation Organisation (ICAO) and sets
standards for air travel. Virtually all countries of the world
are members of ICAO and signatories to the Chicago Convention.
However, the number of countries failing to honour their obligations
as signatories to the Chicago Convention has increased. One of
the considerations for issue of the Chicago Convention Document
is country of embarkation.
18. Without travel documentation removal
cannot take place. The reluctance of some countries to document
their nationals, as well as the propensity for individuals not
to co-operate in the process, impacts adversely on the issue of
documents, resulting in a major blockage to successful removal.
19. Some countries have lengthy verification
processes before they will issue travel documents. These include
the requirement to refer all applications to the relevant authorities
in their own countries so that visits can be made by consular
officials to the applicant's home town or village. While it is
understandable that the authorities in those countries wish to
satisfy themselves that the person being returned is indeed one
of their citizens, the costs of the delay, for example the cost
of support to families and in detention costs where the person
is detained, can be considerable.
20. To help overcome some of these problems
a dedicated documentation unit was established four years ago.
IND officials have in place a programme of liaison visits to Embassies
and High Commissions in the United Kingdom, and also to the relevant
authorities in the countries themselves. These provide the opportunity
to address difficulties in relation to documentation, and foster
a better understanding of practices and procedures. The programme
is being extended to facilitate the resolution of individual problematic
21. Consideration is being given to providing
financial assistance to meet the extra administrative costs faced
by embassies in the UK as a consequence of documentation problems.
(b) Perceived Non-Co-operation
22. Some of the countries to which IND seek
to return are reluctant to co-operate in accepting back their
own nationals. Where this appears to be the case, IND officials
seek to negotiate with the authorities in the country concerned.
They initially remind governments of their obligations to accept
their own nationals back and then look for ways in which an agreement
on returns can be reached. Where necessary such agreements are
formalised by Memoranda of Understanding (MOUs) or Readmission
23. Readmission Agreements set out reciprocal
obligations as well as detailed administrative and operational
procedures to facilitate the return and transit of those persons
who do not qualify for leave to enter or remain. As yet, the UK
has not finalised any bilateral agreements, but we are in the
process of negotiating agreements with several countries, mainly
in Eastern Europe, and are party to two agreements negotiated
by the EU.
24. MOUs can relate to a particular issue
concerning the returns such as documentation, or they can cover
a range of issues relating to returns (both voluntary and enforced)
with a particular country. They can also be tripartite agreements
with not only the particular country concerned but also organisations
such as UNHCR.
(c) Lack of Routes to Source Countries
25. Some of the countries to which we seek
to return do not have direct scheduled flights to the UK. In these
cases, IND officials consider alternative routes and means of
26. There is often reluctance by third countries
to allow returnees to transit through their countries. When possible
transit routes have been identified, IND officials negotiate with
the third countries regarding the possibility of them being used
as a transit point. These negotiations can relate to both voluntary
and enforced returns.
27. The transit countries may have migration
problems of their own. Where this is the case, consideration is
given to offering assistance. There are already schemes in place
at EU level for funding to tackle illegal migration through third
28. Where no direct route is available,
consideration is given to the use of chartered aircraft. IND and
Foreign Office officials negotiate agreements for the use of charter
flights. Some countries will only accept the use of charter flights
once a Readmission Agreement is in place.
29. Even where direct routes on scheduled
aircraft exist, there are often restrictions on the number of
returnees who can be returned on each flight. When there is no
alternative, IND officials negotiate with the carrier to see if
these restrictions can be lifted.
What compassionate factors should be taken into
30. Compassionate factors will vary from
case to case, and each case is judged on its individual merits.
Human rights grounds and compassionate factors are not synonymous,
but there may be an overlap between the two. In some cases, the
Home Office has accepted that it would not be safe at the time
when the case is considered to return a national to a particular
country, or to return certain groups to a particular country,
and exceptional leave to remain has been granted for that reason.
Similarly, circumstances such as the length of time spent in the
UK, and the ties formed as a result, may make it unreasonable
to remove a particular individual. It should be stressed, however,
that there is an overriding public interest in avoiding precedent
or recourse to variation dependent on ministerial or official
whim, varyingly described as "generosity" or "response
to special pleading". Either way, the lack of consistency,
the creation of precedent and the undermining of the legal framework
and Europe-wide agreement, totally undermines any managed and
defendable public policy in this field. Clearly, public policy
cannot be run on the basis of pressure group or media campaigning
but only on a stable and defendable legal and procedural framework.
31. We will not normally seek to remove
a family group where there are children who have spent in excess
of seven years in the UK, or anyone who has been continuously
resident here for more than 14 years. Similarly, marriage or a
relationship akin to marriage may be a reason to allow someone
who does not meet the strict conditions under the Immigration
Rules to remain in the United Kingdom.
32. The health of the person concerned,
including whether or not he or she is fit to travel, will also
be a consideration.
What incentives are there to encourage those who
are refused asylum to leave voluntarily and to assist with resettlement
in their country of origin?
33. The Voluntary Assisted Returns Programme
(VARP) has been operating since February 1999. It is designed
to assist asylum seekers and those with exceptional leave to enter
or remain who wish to return to their country of origin if they
so wish. It is funded jointly by IND and the EU Commission's European
Refugee Fund. Returns are arranged by the International Organisation
for Migration (IOM), supported by Refugee Action. IND provides
policy advice and determines the eligibility of applicants.
34. VARP aims to achieve the voluntary return
of asylum seekers who are still in the process of applying for
asylum, those who have been refused asylum, and those granted
Exceptional Leave to Remain. IOM and Refugee Action provide information
to those considering leaving the UK, including information on
the situation in the return country, so those applicants are able
to make an informed decision about returning. Flight costs are
provided for the returnee and returning family members. Voluntary
return is arranged within a timeframe consistent with the wishes
of the returnee.
35. Since March 2002, VARP has included
the provision of reintegration assistance for returnees, in order
to help the return to be sustainable, and to act as an incentive
to increase applications. At present the focus of reintegration
assistance is to facilitate access to employment, training, or
education. However, other non-cash benefits could also be provided
if they would remove a person's barrier to return home and would
help to ensure the sustainability of that return. The value of
reintegration assistance available is approximately £500
per returnee. Those provided with reintegration assistance will
be monitored by IOM after their return in order to assess the
impact of the assistance on the returnee's stay. Research, which
has recently been commissioned, will also explore factors to measure
and monitor sustainability and reintegration.
36. At present, funding of reintegration
assistance is provided by the European Returns Fund. Provisions
in the Nationality, Immigration and Asylum Bill for funding voluntary
return will give wider scope for reintegration work to be undertaken.
37. Advertising the provision of voluntary
return is also being stepped up. All those arriving via induction
centres will receive briefing on voluntary return, and literature
and advice on voluntary return is being made available at every
stage of the asylum process.
38. A voluntary assisted return programme
to Afghanistan is also being established with IOM, along the same
operational lines as VARP. It will trial the provision of incentive
payments to encourage return and assist sustainability, along
with "explore and prepare" visits. "Explore and
prepare" visits will enable those considering return to gauge
accurately its feasibility (whether their house is habitable,
whether there are adequate food supplies, or if there is medical
provision in the place of destination for example). The provision
of both incentive payments and "explore and prepare"
visits will be kept under review.