Select Committee on Home Affairs Memoranda



  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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