Select Committee on Home Affairs Minutes of Evidence


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 Office—and this brings us on to a question of interest—is 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 Office—ideas 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 ago—an inspection, a trip sounds rather as if we enjoyed ourselves—we 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 different—geographically, 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 Union—perhaps 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 time—and I mentioned how it is going to be tightened up even more next year anyway—coupled 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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