Examination of Witnesses (Questions 80-99)
MR KEITH
BEST, MR
NICK HARDWICK
AND SIR
ANDREW GREEN
TUESDAY 17 SEPTEMBER 2002
80. You would change the deadline, would you?
(Mr Hardwick) I would certainly change the deadline.
81. To what would you change it?
(Mr Hardwick) What I would like to change is the whole
process by which the reception of asylum seekers is managed and
how it is integrated with the decision-making process. What we
have put forward to the Home Officeand this brings us on
to a question of interestis that asylum seekers should
go through a properly individually managed process. If you have
that individual case management system, you would set deadlines
and time limits, but that can be based on individuals and things
could be picked up when things are followed through. I would go
for an individually casework managed approach.
82. Some limits would obviously have to be set
otherwise cases would drag on for years.
(Mr Hardwick) Of course I would set limits but if
you are talking about the current system, I would extend them.
I would have to take advice on what is the appropriate time.
83. Okay, just one point on your advocacy of
the Canadian system or something similar, independent of government.
The other point you make is that you do not want more legislation
and upheaval. How do those two marry up?
(Mr Hardwick) They do not marry up very well. This
is a flaw in the argument and why we appear a bit schizophrenic
on this, I do understand that. What we want to avoid is the constant
changes that happen at operational level in terms of what people
are doing on the ground, that sort of confusion.
84. You said a moment ago or somebody did that
you did not want a new Act every three years, but you are drafting
a fifth Act for us, are you not?
(Mr Hardwick) I understand precisely the point you
are making, but I think if it is the case that the current Act
is unsuccessful, as many of us fear it will be, and we do go back
to the position of trying again, I would suggest at that point
we try and learn the lessons of what went wrong. There is no institutional
memory in the Home Office. It just seems to make the same mistakes
again and again and again. One of the ways of avoiding that in
future would be an independent board. My preference would be to
be surprised and for the system that the Home Office is now introducing
to work perfectly.
85. We know it will not work perfectly, but
work better. That is a reasonable ambition.
(Mr Hardwick) Work better.
86. Sustained improvement?
(Mr Hardwick) Not get worse. That would do me.
(Mr Best) Very many of these changes have been procedural
ones. They have not been ones of primary legislation, they have
been experimentation in the Home Officeideas coming with
lack of consultation, as Mr Hardwick was saying a moment or two
ago, and being bounced upon the system without thought for the
implications of how it will have a knock-on effect. There could
be a lot done procedurally without having to change primary legislation.
Chairman: Thank you for that. Mr Malins
has some questions about EU harmonisation.
Mr Malins
87. Moving towards an EU dimension, I am not
sure who the question is for but you might each have a short view
about it. Given that the EU is pretty large and getting bigger
in the future, do any of you think that it is a good idea to seek
harmonisation of immigration and asylum policy procedures throughout
the EU and, if you think it is a good idea, do you think it is
ever going to be achieved with an unwieldy body of that size?
(Mr Best) I think it is essential, Chairman, that
that is done, not least because some of the measures that the
Home Office are trying to introduce at the present time in the
Bill will not work unless that is done. How can you return people
to another country even if it is an EU country, that administers
the 1951 Convention in a different way according to different
norms? We saw recently the problem of the Ahmadi family returned
to Germany, which we think ought to be a warning shot across the
bows of the Home Office as to what is likely to happen if we go
down the route of non-suspensive appeals, for example. Germany
administers the 1951 Convention in a different way to the United
Kingdom.
Chairman
88. Your answer is yes?
(Mr Best) Yes, there needs to be harmonisation. What
we are ending up with, though, is that very often the EC Draft
Directives that are coming out in this field are ones that do
have adequate safeguards and are ones that many of us could live
with quite happily, but by the time individual ministers have
got their hands on it, they are being cut down to such minimum
standards that they are not harbouring the safeguards that we
would want to see in a common European policy.
(Mr Hardwick) I would also say yes. Clearly it is
a good thing to move in that direction. I agree with Keith's analysis.
I think some of the proposals coming out of the Commission are
quite positive. If we simply go down to the lowest common denominator,
it will be a missed opportunity. I would say about a harmonisation
process that it is not a panacea. We do not think that is going
to solve everything and make the whole system work better right
across Europe and make it perfect, but I think it would help
Mr Malins
89. Sir Andrew?
(Sir Andrew Green) I think not if we can avoid it.
I think it will be an absolute nightmare. We also need to bear
in mind that our whole system is completely different to the European
one. We have up until now relied on water's edge controls, that
is to say on the border. Those controls are in very serious difficulties
at the moment and are perhaps even breaking down, but that is
the basis of the system. If we are going to go European, we are
going to have to go for ID cards and police powers very much greater
than we have now. I am not necessarily against that, but it certainly
would follow.
90. Can I follow that up. When the Home Affairs
Select Committee went on a trip two or three years agoan
inspection, a trip sounds rather as if we enjoyed ourselveswe
went to different countries around the EU and found some different
approaches in other countries to asylum seekers. Some people said
to us that they thought it was a great advantage proceeding by
way of bilateral agreement with one's neighbouring countries ie,
a series of bilateral, closely-knit arrangements which would mean
we would not have a common policy throughout the EU. That seemed
to a number of us on that trip, particularly as we knew about
the bilateral agreement we had with France whereby you could be
sent back to France, quite an attractive proposition. What do
you think about that?
(Sir Andrew Green) That sounds right to me, Chairman.
The situation in each European country is so totally differentgeographically,
the source of migrants and the need for migrants. The birth rate
in Italy is 1.1; here it is 1.64. It is a completely different
situation. To try to have a harmonised situation, except where
it is unavoidable, is a serious mistake.
91. Mr Best?
(Mr Best) I think Sir Andrew may be in error in thinking
that such a system would have some kind of quota as to how many
people would go to each country. That is not what a harmonised
system is about. What it is about is having common standards,
having common procedures and having a common definition of the
principal instrument which governs these matters; the 1951 Convention.
A common immigration and asylum policy is important for other
reasons, bearing in mind that within the European Union there
are the Treaty rights, there is the so-called level playing field,
and if you are going to avoid asylum shopping, if you are going
to avoid some countries in the European Union seeking to get an
advantage over others, it seems to me you cannot get away from
the inevitability of the concept of having a common policy in
both fields.
Chairman
92. Sir Andrew, what do you say to that, that
some things are worth harmonising?
(Sir Andrew Green) I would agree we should harmonise
what we have to harmonise.
93. What is that?
(Sir Andrew Green) I will not go into detail.
94. Just the headings. What things would you
harmonise?
(Sir Andrew Green) I think probably I would like to
have a closer idea of how the 1951 Convention is interpreted.
The Germans, I understand, grant asylum to 3% of applicants; we
grant to 20%. So that needs to be harmonised. The Germans and
French do not accept people who are being persecuted by other
groups; they only accept people being persecuted by governments;
we accept any kind of persecution.
95. Non-state persecution?
(Sir Andrew Green) Yes. There are a lot of areas like
that where it would be sensible to harmonise. Surely the whole
experience of the European Unionperhaps I am biased, but
there are some of us who think that the efforts to harmonise across
the European Union in many, many fields have been very difficult.
Chairman: Yes, okay, without opening
up that can of worms, if you will forgive me, Bridget Prentice
has a question on legal advice.
Bridget Prentice
96. What difference would it make if the applicants
have legal advice at the earliest opportunity.
(Mr Best) First of all, they would be receiving what
they see as a disinterested assessment of the validity of their
claim. However much the Home Office may try to explain to them
in an induction centre, which is how the process is proposed to
work out, it will be seen to be tainted by those who are being
told of it because of its source from the Home Office. It is very
true, if I may say so, in immigration applications at posts overseas
that the sifting process is done with the best will in the world
to try to say to people, "We do not think you have got much
of a chance in making an application, therefore do not waste your
money", but by the time they have got to the British posts
overseas they are committed and they are not going to listen to
an entry clearance officer because they almost think it is somebody
who "would say that, wouldn't they"? Our experience
of dealing with 1,000 or 2,000 people a year in our Sylhet office
is that it is welcomed by the British High Commission in Dhaka
because people do take our advice as to whether they have got
a good case and we do help them get their documentation together
and in order so that it makes it easier for the entry clearance
officers at the British High Commission then to be able to grant
that application. We have also said to people, "Do not waste
your money if you do not stand a chance of being successful".
That is the importance of disinterested legal advice at an early
stage in the asylum process.
97. You have had a 100% success rate from your
Sylhet office?
(Mr Best) I cannot say it is a 100% success, no. What
I can say is that certainly our advent in Sylhet has been welcomed
and fully supported by the British High Commission in Dhaka because
they see the benefit to them of having a filtration process done
by an independent body for many applicants who come to make their
application.
98. On in-country application, do you really
believe that lawyers in this country would give a disinterested,
objective analysis to asylum seekers and not look to keeping the
process going in some form or another? Do you really seriously
believe that?
(Mr Best) Yes, I do believe it because anybody who
has had to deal with the Legal Services Commission, as I do on
a daily basis, will know that if you do not apply the merits test
correctly they come along and take away your franchise or take
away your contract. There is a great deal of auditing being done,
quite properly so, on behalf of the taxpayer to make sure that
those who are given franchises or given contracts in the not-for-profit
field by the Legal Services Commission do apply the merits test
as to the validity of the claim and turn people away who do not
have a valid claim. I cannot say that has always been the case
and I cannot say that that is 100% the case now, I think in the
course of time the fact that people now are regulated who are
not solicitors will have a marked effect. I think the work that
Mr Scampion is doing at the Immigration Services Commission is
very welcome indeed. We have to look at the competencies of people
and that is a move now that the Legal Services Commission next
year will be looking at, not just the procedural compliance requirement
but more into the competence and the nature of the advice given
as well. So it is not perfect at the moment but it is moving there
and it is becoming increasingly obvious that lawyers who seek
to string out the process will find themselves not getting any
more public funds.
99. How long do you think it will take before
we get to that position?
(Mr Best) I do not think I can speculate. All I can
say is that the auditing regime of the Legal Services Commission
at the present timeand I mentioned how it is going to be
tightened up even more next year anywaycoupled with the
way in which the Immigration Services Commission is finding its
feet and is just about to commence doing auditing itself, is going
to have a very marked effect, in my judgment, on the professionalism
and responsibility of those giving legal advice.
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