Attachment
NATIONALITY, IMMIGRATION
AND ASYLUM
BILL
Thank you for your letter of 29 August inviting
me to set out the areas of interest and concern to IAS in the
Bill for the kind consideration of Lord Filkin on his return to
work in early September with a view to a meeting in which to discuss
these. I set out below the main areas (there are others).
IAS' interests are limited to what we see as
our areas of competence, namely the impact of the proposals in
the Bill to the provision of legal advice and representation to
immigrants and asylum seekers, their legal rights and how the
proposals will affect them, based on our experience over more
than thirty years of dealing with cases as the UK's largest charitable
provider of such services.
IAS wishes to put forward constructive proposals
within what we see as the Government's objects in the Bill, namely
to have a system which enjoys confidence, is durable and delivers
a speedy service commensurate with the interests of justice. We
are concerned at any diminution of effective independent judicial
scrutiny of executive action so as to ensure that such action
remains within the law. We have welcomed the apparent change in
emphasis in immigration policy to one that reflects the economic
and social needs of the UK as set out in the preceding White Paper.
Deprivation of citizenship
We are concerned that these provisions appear
to discriminate against those with dual citizenship (referring
to removal not being applied to those whom it would render stateless)
and for whom there may be no guarantee that they will be afforded
protection by the other state. We are concerned also that the
provisions can be applied to those who are born British citizens
and are retroactive.
Accommodation Centres
We have visited one of the Dutch barge centres
(accommodating 400 asylum seekers at a unit cost of less than
£5 per day) and listened to the advice of the Dutch officials.
It appears that the Government is proceeding with its plans as
a fait accompli rather than as a genuine experiment or
pilot (a recent Ministerial Parliamentary Answer makes this clear)
despite contrary evidence from the continent, responses to the
White Paper consultation and the Home Office's own researchers.
Our concern is that scarce resources could be better spent in
a way which would lessen tension rather than in large centres
as proposed in remote areas where the provision of legal advice
will be very difficult.
Presumption of liberty and judicial oversight
of detention
We believe that the Government was right to
introduce both elements in Part III of the 1999 Act and regret
that this has never been implemented despite the training of magistrates
in order to deal with bail applications (a cheaper option for
obvious reasons than having hearings before adjudicators). We
hope that the Government will accept that the arguments in favour
of giving no less a presumption of liberty to those who are not
alleged to have committed any criminal offence as to those who
are (in the criminal jurisdiction) as valid now as they were in
1999. We accept that there will continue to be occasions when
immigration detention is justified but that its lawfulness should
be subject to effective judicial scrutiny. Although the 1971 Act
allows for bail applications to be made this is effective only
where immigration detainees have access to legal advice and representation,
despite efforts by the Home Office to set out reasons for detention
and to draw to the attention of detainees their right to apply
for bail which our experience indicates is not always applied
effectively. In many cases immigration detainees are inarticulate
in the English language and unknowing of their rights and how
to exercise them. Again, in our experience, the decision to detain
often appears to be arbitrary and inconsistently applied in different
cases. We feel that regular reporting could be used more widely
as a cheaper and more humane option to detention in many cases.
There is currently a high success rate for bail applicants. Routine
bail applications before trained magistrates would overcome these
problems.
Non-suspensive appeals in human rights/asylum
cases (Clause 85)
The absence of a common approach to the application
of the Refugee Convention (even in the European Union with no
guarantee that a harmonised policy will be achieved by December
2004) by third countries and the difficulties in presenting appeals
from abroad (both in terms of evidence by the appellant and credibility
and access to effective legal representation) indicate to us that
this provision can lead to great injustice. We feel that no asylum
seekers should be sent to a country in which persecution or refoulement
is feared until the final determination of their applications
(ie exhausting all legal remedies) and that the decision of the
Secretary of State as to certification should be subject to judicial
scrutiny.
Earlier right of appeal (Clause 87)
We feel that the question of whether a further
appeal is allowed should be decided by an adjudicator and not
by the Secretary of State or an immigration officer.
Statutory Review (Clause 92)
You will be aware of the high success rate of
judicial review applications once permission has been granted.
We accept the legitimate desire of the Government to reduce the
number of applications for permission where these are not justified.
There are existing safeguards against this such as the application
of the merits test. You will be aware also of the large number
of cases in which permission is granted on oral renewal of the
application. A denial of oral renewal is likely to lead to injustice.
If the Government's concern is delay in proceedings then this
can be avoided by setting shorter deadlines for oral renewal once
permission has been refused on the papers.
Appeals to Immigration Appeal Tribunal (Clause
92)
We feel that removing the ability of the Immigration
Appeal Tribunal to decide issues of fact as well as law will lead
to other challenges and to possible injustice.
Improvements to the immigration (non-asylum) process
There is an absence of measures needed to speed
up immigration decisions and appeals and no proposals were brought
forward by the Government at Report Stage. In Standing Committee
the Minister indicated that the Government was addressing this
issue (Mrs Winterton: "As I said, we are looking into the
administrative processes. I can set out in writing some of the
details we are considering, but at present we must analyse where
the difficulties occur to see what can be done to improve the
situation"). With the emphasis and funding which the Government
has been prepared to put into asylum measures in speeding up the
process we very much hope that the opportunity of the Bill will
be used to show a similar commitment to speeding up immigration
procedures.
I hope that these comments, which in deference
to the length of this letter are in outline only, are helpful
and look forward to a meeting with Lord Filkin in which to develop
them further.
Keith Best
Chief Executive
4 September 2002
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