Memorandum submitted by Immigration Advisory
Service (AI 2)
OUTLINE OF ISSUES FOR HOME AFFAIRS COMMITTEE
IAS
IAS is the largest not-for-profit service provider
of free immigration, asylum and nationality legal advice and representation
with over 30 years' experience. It has sixteen offices in the
UK and one abroad and more than 300 staff. It is not a campaigning
organisation other than within its charitable object to advance
the education of the public in the law relating to immigration
in the United Kingdom. It is mindful of the "Compact—Getting
It Right Together: Compact on Relations between Government and
the Voluntary and Community Sector in England" [Government
Command Paper (CM4100) presented to Parliament in November l998]
Clause 9 "Undertakings by Government" of which
states "9.1 To recognise and support the independence
of the sector, including its right within the law, to campaign,
to comment on Government policy and to challenge that policy,
irrespective of any funding relationship that might exist, and
to determine and manage its own affairs."
SUMMARY OF
RECOMMENDATIONS
— There should be a period of stability
in immigration[1],
asylum and nationality law and practice with changes made only
in accordance with a strategic plan and based on sound evidence
and research. We believe that the change in emphasis to a policy
based on economic and social needs of the UK provides a foundation
for this.
— While immigration policy should be
determined by Government the implementation of that policy and
the evidence on which decisions are made should be provided by
an independent body.
— UK policy should be seen in the context
of achieving a common European Union policy which should be based
on best practice rather than minimum standards.
— There should be universal early access
to legal advice by all those affected by immigration control.
— Actions of the executive in immigration
matters should be subject to effective judicial scrutiny especially
where this affects life and liberty. There should be a presumption
of liberty for immigration detainees, thereby putting them in
no worse position than persons accused of criminal activity (subject
to the Bail Act 1974).
— Decisions and appeals in all immigration
matters should be as speedy as is commensurate with the interests
of justice. Procedures with tight deadlines, however, can be counter-productive.
— Reception ("accommodation")
centres should be based on the experience of other countries and
what is likely to reduce tension among both the resident population
and asylum seekers.
— The Government should consider how
best to improve research and statistics in immigration matters
in order to reduce tendentious and irresponsible debate.
— There should be a review of the way
in which human and financial resources have been deployed on immigration
matters.
— Removals should be effected in a
humane way with incentives and opportunities for persons to resettle
permanently in their countries of origin. Part of the process
of resettlement is allowing persons while in the UK to develop
and learn new skills. Greater use of reporting should be used
for those likely to overstay on the basis that the greatest deterrent
to overstaying is the fear of detection and that this may prejudice
subsequent entry to the UK.
1. BACKGROUND
1.1 In 30 years' experience IAS has not
known a period of greater turmoil and legislative change in immigration
than within the last 10 years. The period has been characterised
by the appearance of a lack of strategic planning, ill-considered
experimentation based on inadequate research and reversal of previous
policies, all of which have undermined public confidence. Consistently,
targets have not been met whether in the timescale for achieving
timely decisions or in removals of those no longer lawfully entitled
to remain. The Bill presently before Parliament is the fourth
major piece of legislation within that period which appears to
have established a triennial cycle in addition to significant
changes in the Immigration Rules and immigration procedures and
appeals. We are concerned that this has led to an inappropriate
use of public money and feel that greater scrutiny should be given
to this aspect of IND.
1.2 In immigration the 1993 Act[2]
abolished the right of appeal against refusal of visitors' visas
but this was then partially re-established, after considerable
criticism from Britain's ethnic communities whose families were
greatly affected, by the reintroduction of a right of appeal for
family visits. Although welcomed, this was marred by the Government
introducing fees for exercising the new statutory right of appeal
(for the first time in a social welfare tribunal). This stimulated
concerted criticism which led to the fees being reduced on two
occasions and then abolished by a provision in the 2002 Bill.
Vouchers were introduced for asylum seekers in the 1996 Act[3]
on the basis that benefits were a main draw or "pull"
factor for asylum seekers coming to the UK.[4] This
was not based on any sound evidence or research and involved creating
a parallel benefits system which provoked criticism both as to
the principle of stigmatising asylum seekers and its bureaucratic
inefficiency. Vouchers were abolished by the present Home Secretary
in April 2002. There have been other examples of dramatic changes
of direction.
1.3 In addition to these domestic changes
there are significant moves to achieve a European Union common
immigration and asylum policy yet there is uncertainty as to how
many of the domestic changes are based on achieving greater uniformity
rather than being particular to the UK. It would be helpful for
the Government to be more explicit on this. We are concerned,
also, that despite draft directives and other proposals which
set out reasonable standards initially these are then reduced
in the light of inter-governmental discussions.
1.4 The effect of all this has been to make
immigration law one of the most complicated and volatile areas
of law in the UK. Following the report of the Wilson Committee
the present immigration appeals structure was set up in the 1969
legislation (later consolidated into the Immigration Act 1971).
The tribunal system (rather than the courts) was chosen not least
because it was felt that the matters for adjudication would be
mainly fact rather than law. That is now questionable. All adjudicators
appointed since 1986 have been legally qualified (although there
was no requirement for this).[5]
It means that there is now even greater need for access to legal
advice for those affected and proper judicial scrutiny. To use
the words of a previous White Paper "The more complex a system
of immigration control, the greater the risk of unfairness."[6]
There is strong evidence to suggest that there will be a considerable
shortage of competent legal advisers in this field.
1.5 We welcome the change in the basis of
immigration policy set out in the White Paper Secure borders,
safe haven away from one rooted, arguably, on racist considerations
of the 1960s to one based on the economic and social needs of
the UK. We feel that this change of emphasis forms a good base
on which to proceed.
2. A WAY FORWARD
2.1 Against this background IAS feels that
what is now needed is a period of stability without experimentation
other than that based on sound research and within a strategic
framework. This should take account of the experience of those
agencies with knowledge of the effect of policies. Yet, despite
appearances of taking account of such views, there is little evidence
that the Government is heeding such advice. We understand that
the 330 responses to the Government White Paper Secure borders,
safe haven were not read until after the Bill had been published
and were not placed in the House of Commons Library until after
Second Reading debate in the Commons: there has still been no
digest of these produced by the Government. The present proposals
for accommodation centres are being pushed ahead and there seems
little room for an adverse evaluation[7]
despite universal opposition and experience from abroad and the
Home Office's own research; yet there is a general consensus,
which could be harnessed, that reception centres in a different
format are worthy of consideration. We would expect a true pilot
project to look at several other forms of reception centres, such
as smaller ones in urban environments, the Dutch model of using
rented barges in ports close to urban areas, etc.
2.2 Our major concerns about the legislative
changes proposed in the Bill are set out in the letter from the
Chief Executive Keith Best to Lord Filkin dated 4 September (see
Attachment). These concentrate on various attempts to exclude
effective judicial scrutiny of the actions of the executive, whether
in respect of those in detention or with rights of appeal. We
consider early access to legal advice and effective judicial scrutiny
as essential elements in a system that can command public confidence
and not lead to injustice.
2.3 Such confidence would be enhanced in
our view by establishing an element independent of Government
on both information about countries of origin of asylum seekers
and also decisions on applications. We accept and would endorse
the right of a democratically elected Government to set immigration,
asylum and nationality policy but believe that the execution of
such policy would inspire greater public confidence if it were
seen to be independent. We commend to the Committee elements of
the Canadian system.
2.4 We support the Government's desire to
see greater speed in processing applications so long as this is
commensurate with justice. We regret that the time, effort and
money which has been devoted to trying to achieve this in asylum
cases has not been replicated in immigration (non-asylum) ones.
In the latter there is an absence of effective targets and monitoring
and the length of time between refusal of applications and the
hearing of appeals leads to a blight of applicants' lives, whether
students, spouses or dependent relatives, on the basis of justice
delayed being justice denied. Yet haste can also be the enemy
of speed. Tight deadlines for submitting appeals and preparation
of cases which leads to inadequate representation is a false economy.
There has to be a balance and we feel that the Government has
not yet got this right.
2.5 Part of ensuring confidence in an effective
immigration and asylum policy is to ensure that those who are
not lawfully entitled to remain are encouraged to leave or, if
they fail to do so, are removed. It is essential to have figures
as accurate as possible in identifying the nature of the problem
(see Absence of Meaningful Statistics below) and to have targets
which are realistic. The original target set by the then Home
Secretary Rt Hon Jack Straw MP of 30,000 removals a year (subsequently
modified to 2,500 per month, now abolished altogether) was unrealistic
in the light of experience of being able to remove only c.1,000
per month. In view of fluctuating figures of asylum applications
and grant of status (very much depending on the profile of asylum
seekers which in turn depends on the situation in countries which
generate asylum seekers) it is better, in our view, not to have
numerical targets. We are concerned that some of the longest overstayers
may be the most difficult to detect and that resources are diverted
consequently into removing "soft" targets, namely those
who, although overstayers, are complying with Home Office requirements
(such as reporting).
2.6 We feel that greater use should be made
of reporting for those who are likely to become overstayers so
that contact with the Home Office is not lost. Some presently
thought to be overstayers will not have had contact with the Home
Office for several years and, indeed, may have already left the
country unknown to the Home Office. The most effective deterrent
to overstaying is the likelihood of detection and the prospect
that this may prejudice a further visit to the UK.
2.7 We are concerned at frequent reports
of cases where persons reporting to the Home Office are taken
into detention without any prior warning and removed the following
day without them being able to collect their personal possessions
or make arrangements regarding their accommodation, engagements
etc. IAS has personal examples of this inhumane treatment. There
is little evidence to the contrary that in most cases persons
informed that they must leave will do so in an orderly fashion
without the need for detention.
2.8 The most effective way of ensuring that
asylum seekers return to their country of origin is for this to
be done voluntarily (as with the Kosovans) with incentives and
we support in principle the new policy of the Government in respect
of Afghanistan so long as this is done with those affected having
prior access to independent competent legal advice and disclosure
of the full facts about their country of origin and not as some
sort of bribe.
2.9 IAS recognises that the greatest desire
of most refugees is to be able to return to their familiar surroundings
in their country of origin and to be able to live in peace without
fear of persecution. This can be achieved effectively only by
having agencies on the ground in those countries which can help
find accommodation away from areas of persecution and which can
assist in finding employment or self-employment. Funding individuals
and families to do this is a necessary concomitant. IAS accepts
that this could be regarded as a "pull" factor if applied
universally to all who apply for asylum rather than those whose
claims are accepted either as refugees or with exceptional leave
to remain so there would have to be flexibility. A failure to
provide such assistance is likely to lead to those returned seeking
to come back to the UK (a circular movement experienced by Pakistan
regarding Afghan refugees).
2.10 Part of preparation for return is for
persons while in the UK being able to develop existing or learn
new skills and this is why IAS regards the Government's new policy
or refusing to allow asylum seekers to work even after a period
of six months to be ill-advised as well as expensive in terms
of extra benefits, demeaning to the asylum seekers who wish to
provide for themselves and their families and contrary to opinion
polls which indicate that the British public expect asylum seekers
to support themselves where possible. One valuable contribution
that can be made by the UK as host country is the teaching of
English.
2.11 It is axiomatic that the desire to
return to a country of origin is lessened the longer persons remain
in the UK and put down new roots, especially where this involves
children attending school, making friends, becoming fully familiar
with the English language etc.
3. OTHER AREAS
OF CONCERN
Accommodation Centres
Despite the Home Office stating that it wanted
a pilot to see if accommodation centres may provide a way of processing
asylum seekers there is little evidence that models other than
the large, rural ones proposed are contemplated. The Government
has proposed three similar centres rather than a variety of different
ones. It seems that at the end of the evaluation process the decision
has already been taken that these centres will be successful,
whatever the difficulties. IAS would like to see experiments with
clustered centres as proposed by the Refugee Council and the use
of moored accommodation as used widely on the continent as well
as any other appropriate models. We are concerned at the capital
cost (undisclosed) of the building of such centres and the annual
costs of provision of services. We do not see why a broad estimate
of these costs cannot be given for reasons of commercial confidentiality.
We would hope that the Government would be prepared to look at
cheaper options such as those that are rented and involve no capital
cost—so long as these provide reasonable accommodation and
services for their residents and if at the end of the evaluation
are deemed to be unsuitable are returned to the lessor. The Home
Office proposals appear to be contrary to the advice of every
agency working in the field and against the evidence of its own
Immigration Research and Statistics Service officers who visited
Belgium, Denmark and Sweden and that of the continental experience.
Yet all major agencies agree that the UK should experiment with
reception centres. Our concern is the difficulty in providing
adequate legal advice to a large number of persons in a remote
rural area.
Non-suspensive appeals
The proposal that failed asylum seekers whose
cases are certified by the Secretary of State (in reality, delegated
to a caseworker) should exercise their statutory right of appeal
from a country abroad to which they would be returned was put
into the Bill after the conclusion of the Commons Committee stage
and two days before Report. From this it would appear to have
been considered for only a short time and, in our judgement, will
not work but will lead to an increase in expensive judicial challenges
in the Administrative Court. The Home Office failed to send its
response to the Joint Parliamentary Human Rights Committee on
time and this measure was not considered by the Committee. Even
so, its report itemises fourteen areas of human rights concern
and the Bill has been described by a leading member of the Committee
as the worst yet to be considered.
Expedited appeals
Without any prior warning a major change in
the way in which asylum appeals would be heard was announced by
way of a written Parliamentary Answer in the Lords on 30 July.
We understand that this has emanated from the No 10 Delivery Unit
and we should like to know what, if any, prior consultation was
undertaken by the Unit with the Home Office. Certainly, there
was no prior consultation with those most affected (IAS and the
RLC) who could have pointed out the difficulties. This is another
example of a failure to consult those affected and the appearance
of a hastily conceived and ill-considered measure.
Absence of meaningful statistics
In its report in 1995 the National Audit Office[8]
stated (at §2.5) that "the number of immigration offenders
cannot be estimated with any confidence, and the total cost to
public funds, in terms of unemployment, housing and other benefits,
is unknown." The absence of such information and research
has led to public speculation which has contributed significantly
to raising tensions and continuing a debate based on prejudice
rather than facts. The number of overstayers is clearly an issue
of general public importance yet there are no accurate figures
as individuals are not counted in and out of the UK (unlike in
countries such as Australia). As only some 20 per cent of passenger
arrivals in the UK are from non-EEA countries both the volume
and technology should now be available to achieve this. We urge
the Home Office to undertake a feasibility study along these lines.
4. IAS POLICY
IAS published a manifesto before the last general
election setting out its views in response to various requests.
The main issues are as follows:
General
1. Immigration and asylum policy should
serve the needs of Britain and not political and public prejudice.
To that end it would be preferable if the Government set broad
guidelines but the actual decisions and responsibility for implementing
the guidelines were those of an independent body: much can be
learned from the Canadian system. This would help to remove party
politics from the issues, just as an independent Bank of England
has taken politics out of setting interest rates. Indeed, there
are other examples of public services, such as the Royal Mail,
which used to be politically charged when a Minister was responsible,
but have not been the case since they became separate bodies.
2. A common European immigration policy
is a good goal so long as it encompasses the best practice in
member countries and not merely minimum standards. This should
include, for example, an extension throughout the European Union
of the British model of independent adjudicators in public hearings
capable of overturning on appeal the decision the Secretary of
State. It should also include the right to free, independent,
competent legal advice and representation for all those unable
to afford it from their own resources.
3. The Government should create a coalition
across the governmental, media and voluntary sector to promote
the historic and future benefits of immigration and a positive
image of immigrants in the interests of racial harmony.
4. Justice delayed is justice denied. Notwithstanding
the desire of the Government to speed up the system (which IAS
supports so long as this is commensurate with justice) this policy
is being frustrated by delays by the Home Office sending appeals
to the Immigration Appellate Authority. For those appellants whose
appeals are successful this is a denial of justice.
Immigration
5. There should be greater honesty in immigration
policy. This should recognise that demographic projections show
that the UK needs both skilled and unskilled immigrant workers
(beyond the numbers which might be achieved through lowering unemployment
and retraining the British workforce) if the UK is to sustain
economic growth and security for its ageing population. To that
end economic migrants who wish to come to the UK for work (although
not necessarily for settlement) should be entitled to come in
as such rather than having to masquerade as asylum seekers. Those
who continue to make a contribution to the economy should, if
they wish, earn the right to settlement.
6. There should be an open recognition that
British immigration policy of the last thirty years which has
been based on restricting non-white immigration is no longer appropriate
to a more multi-cultural, multi-ethnic and multi-religious society
which obtains today nor does it reflect the bases of various skills
around the world (the most obvious examples being computer software
programming, education and health workers required from non-white
countries).
7. There should be a requirement that all
explanatory statements (explaining the reasons for refusal, without
which an appeal cannot be heard) from overseas posts following
a refusal of entry clearance should be sent to the Home Office
within two months of the refusal and that the appeal should be
listed within two months thereafter: currently, some explanatory
statements are not being despatched for several months to a year.
If an appeal is allowed there should be no further delay in issuing
entry clearance.
8. A common European Immigration Policy
should recognise and preserve the special status in UK immigration
law of Commonwealth citizens.
9. The Government should implement the presumption
of liberty and routine bail hearing provisions of the 1999 Immigration
and Asylum Act without any further delay.
Asylum
10. There should be a fast-track procedure
to identify those asylum seekers who are likely to be allowed
to remain in the UK, by being given either refugee status or exceptional
leave to remain, and their skills should be harnessed as soon
as possible allowing them to lead economically productive lives
and integrate into society.
11. The refusal of asylum claims on grounds
of non-compliance for those who are unable to return their Statement
of Evidence Forms (SEFs) within the required time of 10 working
days is a breach of the UK's obligation under the 1951 Convention
on the Status of Refugees; it is scandalous that the percentage
of these refusals rose to as high as 40 per cent. Strict time
limits for return of SEFs should be applied only where an applicant
has access to legal advice and assistance in their completion
and only from the date of such legal advice.
12. The current practice of early interviews
when asylum seekers are traumatised after an often long and tortuous
journey is inhumane. No asylum applicant should be interviewed
by a Home Office official within a few hours of arriving at a
port of entry unless legally represented and consent is given
to an early interview. Otherwise, asylum seekers should be given
temporary admission and required to complete a Statement of Evidence
Form.
13. No appeal against refusal of asylum
before the Immigration Appellate Authority should proceed in the
absence of the appellant unless good cause is shown and the adjudicator
is satisfied that the non-attendance of the appellant is wilful.
14. Other than in exceptional circumstances
asylum seekers should not be detained; families should be allowed
to remain together and should not be detained.
15. Asylum seekers should be afforded the
same human dignity as other UK citizens, in line with the UK's
obligations under the 1951 Convention: it is clear from Home Office
research that benefits are not a significant draw factor and asylum
seekers should be given the same benefits in amount and extent
as other claimants in the UK.
16. Dispersal of asylum seekers to areas
to which they do not want to go among an unprepared resident population
is a recipe for racial tension and violence: dispersal should
be only as a result of the informed choice of asylum seekers to
areas which have the necessary facilities and welcome.
September 2002
1 Unless otherwise specified the term "immigration"
in this paper includes asylum and nationality issues. Back
2
Asylum and Immigration Appeals Act 1993. Back
3
Asylum and Immigration Act 1996. Back
4
The latest Home Office research indicates that benefits do not
constitute a significant reason for asylum seekers coming to the
UK. Back
5
see Home Office and Lord Chancellor's Department a joint consultation
document about this published on 13 July 1998 referred to in Fairer,
Faster and Firmer-a modern approach to immigration and asylum
Government White Paper Cmnd 4018 which preceded the 1999 legislation. Back
6
Fairer, Faster and Firmer-a modern approach to immigration and
asylum Government White Paper Cmnd 4018 §3.8. Back
7
Hansard Written Answer 3 Jul 2002: Column: 430W Beverley Hughes:
"We set out the likely criteria for evaluating accommodation
centres in the White Paper published on 7 February 2002 (Cm 5387).
We are still considering the details of the evaluation process.
We expect the trial centres to be successful. If in the light
of the evaluation of the trial there is a need to modify any aspect
of the centres, we will address that at the time." Back
8
"Entry into the United Kingdom" Report by the Comptroller
and Auditor General HC 204 Session 1994-95 22 February 1995. Back
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