Examination of Witnesses (Questions 120-139)
MR KEITH
BEST, MR
NICK HARDWICK
AND SIR
ANDREW GREEN
TUESDAY 17 SEPTEMBER 2002
Angela Watkinson
120. There has been a recent change in the way
asylum cases were dealt with where the case has been certified
as manifestly unfounded and they are now detained at the end of
the Oakington process. Do you think that is justified and what
problems do you foresee arising from this?
(Mr Best) Our understanding is that it is not working
at all. I think you are referring to expedited appeals. This was
an idea that was bounced out at the end of July, as I recall,
and I think both the Refugee Legal Centre and ourselves were expected
to somehow provide legal representation to people who were leaving
Oakington, had had their cases certified, and who were put in
Harmondsworth Removals Centre for their appeals to be listed in
not less than six and not more than eight days. The evidence so
far is anecdotal but what I can say from that evidence is that
it is not working at all. We had one case of a certified woman
who was sent to Harmondsworth and who was immediately sent on
to Tinsley House near Gatwick, so of course the whole thing fell
to pieces. Neither the Refugee Legal Centre nor ourselves felt
within that time-frame which was being proposed, because this
was going to start on 19 August (and this was only announced by
way of written Parliamentary Answer by the House of Lords in the
recess at the end of July) we could not possibly expect all our
caseworkers to drop their existing court commitments and suddenly
concentrate on what we were told was likely to be ten cases a
day. I am afraid it encapsulates some of the things we have being
saying already here today. It is another little piece of experimentation
coming from nowhere, not based on any proper consultation or any
proper research as to what the implications are, and I am afraid
from that point of view are therefore destined to fail.
121. These cases will be listed for hearing
between six to eight days after they are received by the immigration
appellate authorities. Does that imply an additional period?
(Mr Best) Yes, certainly, it implies a period of maybe
some weeks before that happens, but the whole point is that the
adjudicators want to have cases represented before them because
that helps them come to a decision. Obviously in criminal jurisdiction—and
I know Mr Malins is very familiar with this—if you have
people who are represented, then the administration of justice
goes much more smoothly and that is true in the immigration and
asylum field. The problem is that when you start trying to list
these cases very rapidly, there is little chance of having a proper
representative. It is very true now in Oakington cases where cases
are listed within four weeks of people being dispersed, they will
have got very good, competent legal advice in Oakington from the
Refugee Legal Centre and ourselves. If we cannot deal with those
cases in the areas of dispersal, and very often we cannot because
we do not have the resources to do so, we have to try to refer
those on to other lawyers. Some of those lawyers cannot see people
for a first interview until after the date of the hearing.
122. Would you like to comment on that?
(Mr Hardwick) As Mr Best has said, our difficulty
in this is much more the point of principle here. We do not think
people should be detained unless there is evidence that they have
committed a crime or are likely to abscond which will stand up
in front of a court. We think it is a shame that the Government
is to repeal part of the 1999 Act.
Chairman
123. That bit which provides for bail hearings?
(Mr Hardwick) That is right.
(Mr Best) We endorse that. We cannot understand why
the Government, first of all, has put Part III into the 1999 Act,
presumably on legal advice that this was a necessary measure,
and then never implemented it, and is now seeking to abolish it
altogether when that abolition includes something which had universal
assent at the time of the 1999 Act, and that is the presumption
of liberty. At the moment immigration detainees do not have a
presumption of liberty. They are treated worse than those who
are caught with their hands in the till in Woolworth's.
(Sir Andrew Green) I will not go into the detail,
Chairman, because I think there is a risk of getting lost in it.
I would only say that if we cannot construct an effective removals
policy then we do not have an effective border control. It is
all very well making all these arguments, and I accept that they
do have some merit, but we have to keep the policy issue in mind.
If we cannot stop very large numbers of people coming into this
country one way or another, and if we cannot remove them, then
what has happened to our border control?
124. Surely we can all agree on the point made
by Mr Hardwick, namely that in circumstances in which detention
is justified or where there is a danger of absconding—and
what was your second point?
(Mr Hardwick) Where there is evidence that he has
committed a crime or there is a danger of absconding that will
stand up in court.
Chairman: We all agree about that, do
we not?
Angela Watkinson
125. There is also the matter of non-suspensive
appeals where people are not allowed to remain in this country
while the appeal is being heard. We have the case in the paper
whereby an appeal is being heard from abroad. Would you like to
comment on that?
(Mr Hardwick) I am not familiar with the details of
the individual situation.
126. Speak generally.
(Mr Hardwick) In principle, it illustrates the point
that a non-suspensive appeal is no appeal in reality. The rigmarole
that we have had to go through in the current case in order for
the appeal to be heard illustrates the difficulty of non-suspensive
appeals. A very serious example of this was when this case could
apply, for instance, to nationals in Zimbabwe and there have been
country assessments in Zimbabwe and people being sent back there
where they would be at real risk. Independent legal advice, good
decision making and a suspensive right of appeal seems to me are
quite the critical elements of a credible system.
(Mr Best) We feel that non-suspensive appeals are
likely to lead to a very great number of challenges by way of
judicial review, which we have just seen with the Ahmadi case,
but also that they are unworkable at the present time, and I think
the Home Office would accept this. My understanding is that there
are only bilateral agreements at present with Iceland and Norway
and in the absence of bilateral agreements you are not going to
be able to send people back to a third country because they will
not accept them. Then the very concept that people can have access
to legal advice and exercise a statutory right of appeal from
abroad becomes almost risible when you think that the most telling
evidence that needs to be given is by the appellant him or herself.
Most of these cases hang on the credibility of the applicant.
How does a person from abroad give evidence in front of an adjudicator?
It cannot be done.
(Sir Andrew Green) I do not think we can beat the
Home Office over the head every time they try to do something
that looks broadly sensible. The legal system seems to me to be
in a complete muddle. It is a total log jam. All the points being
made are perfectly fair within that system, but I suspect that
we are going to have to have an entirely different approach to
the legal structure if we are to get to a situation where we can
control our borders.
127. These are cases which have been certified
as manifestly unfounded.
(Mr Best) And which it is proposed should not be subject
to any judicial scrutiny.
(Sir Andrew Green) How many times do you go on scrutinising?
(Mr Best) I think it is a matter well understood by
Parliamentarians as to whether it is right that the executive
should not be subject to any kind of judicial scrutiny, because
my understanding is if you go down that route it is a short route
to tyranny.
Chairman
128. Sir Andrew, do you want to comment on that
last point?
(Sir Andrew Green) I do not think it is worth a comment,
Chairman.
Chairman: In that case we will move on
to illegal immigration and the mechanisms that deal with those
who disappear.
David Winnick
129. Would you accept that from a public perception
it is a negative view as far as immigration is concerned, that
people whose applications have been refused manage to stay on
in quite large numbers. Whether or not you exactly accept the
figure produced by MigrationWatch, do you think that is negative?
(Mr Best) I agree. I think it is probably the biggest
cause of concern to the general public. I do not think that the
numbers necessarily are a matter of concern if people feel they
are being dealt with properly, in a way that ensures justice at
the end of that process, and then those who are not entitled to
remain lawfully in the country go. Our view all along has been
that if you are going to be effective in what I described earlier
as a civil libertarian country where you do not want the gendarmes
going round on motorbikes collecting the hotel registration of
everyone as in The Day of the Jackal or something like
that because people will start to resent that kind of intrusion
on their civil liberties and it would have to apply to a large
number of people, then the only way you effectively do that is
by the carrot rather than the stick. You have to ensure that you
do not get a complete circular flow of refused asylum seekers
who go back to their country, discover there is nothing there
waiting for them, and then get on the back of the next truck to
come back to this country, which is certainly the experience of
Pakistan. Two years ago I was in the office of the United Nations
High Commission for Refugees representative in Islamabad there
and there they gave Afghan refugees a bag of grain, a plastic
tarpaulin and $100 in cash at the time, took them to the border
and the Afghans went back into Afghanistan, found there was nothing
in their villages (which had been razed to the ground) and they
just came straight back across the border.
130. Could I ask Mr Hardwick, do you more or
less accept that statement?
(Mr Hardwick) Yes I do.
131. In that case could the Home Office do more,
as indeed a number of organisations would suggest, to make sure
that those whose applications have been refused and are not going
through the legal process in any way are removed?
(Mr Hardwick) I think there are two things that they
could do. The first goes back to what we were talking about before.
I think the key to successful removal is not the enforcement part
at the end of the process, it is getting the decision right and
being seen to get decision right at the beginning. We have covered
that ground before. I might talk about unenforced removals a bit
more, although let me say I would accept that enforced removals
will be necessary as well. In terms of voluntary removals, I do
not think up to now the Home Office has done nearly enough to
encourage those. In our day-to-day experience there are people
who would return but who do need advice and assistance about the
practicalities.
Chairman: Can we come to that in a moment.
We have got some questions on that.
David Winnick
132. Is there a problem so far as the Home Office
is concerned, bearing in mind the very recent case where a couple
were deported with their children to Germany after they had tried
to stay in a mosque, where the police took action and the Home
Office was harshly criticised. Would you accept, perhaps Sir Andrew,
that the Home Office, and the Home Secretary in particular, does
face a rather delicate problem arising from the very recent case
where, as I understand it, the court has ruled against the Home
Secretary?
(Sir Andrew Green) I think they have appealed that.
Chairman
133. That case is sub judice.
(Sir Andrew Green) I will not talk about that
particular case, but it is very delicate and we cannot have people
hiding in mosques and people breaking into them every day of the
week. That is extremely unfortunate. May I just point out that
over the last nine years the total number of people who have failed
all the tests but not been removed is about 335,000, nearly a
third of a million, so this is a situation that has been allowed
to drift by successive governments. That is, firstly, very unfortunate.
Secondly, the Home Office must have known that there were going
to be vastly greater numbers of people to be removed. If you look
at the table I gave you, the number of decisions have shot up
but clearly the resources devoted to removals have not. The removals
are more or less at the same level. That seems to me to be a lack
of foresight and a lack of management and I suspect also a lack
of political will. There was nobody like we new boys on the block
pointing out what these numbers are and what is involved. I should
also make the point that where the Home Office claim voluntary
departure, there is no check made that they have actually left
the country. That may seem surprising, but the fact is that somebody
signs a form to say they have given up their claim but nobody
checks they have gone out of the country, so even the 10,000 the
Home Office claim are doubtful. We asked them how many are actually
forced removals and how many are voluntary and they did not know.
David Winnick
134. In your figures, Sir Andrew, I notice of
course your 9,285 removals and voluntary departures. That is,
for what it is worth, a much higher figure than 1993/94/95. Am
I not right?
(Sir Andrew Green) That is right. Also the decisions
are six times as many from 23,000 to 126,000.
135. So the actual removals have gone up?
(Sir Andrew Green) I am not saying they have not gone
up. I am saying that the Home Office should have had more foresight.
(Mr Best) Could I make the point, and members of the
Committee will have read the Home Office submission, about the
problem of trying to remove undocumented asylum seekers, whether
they are failed or not. It is an enormous problem. There are two
documents that are used for undocumented asylum seekers. One is
the EU letter used by EU Member States, but the number of countries
which will not accept that letter has now increased over the past
two years and numbers about 28. The other is the Chicago Convention
travel document and again many countries are failing to live by
their obligations under that travel document. It is a major problem.
Whether by choice or by happenstance people are undocumented,
it is very difficult to make them go back. I come back to the
point I made right at the very beginning, and that is the only
effective way to get people to leave the country, whether it is
from not having too intrusive an intrusion on civil liberties
of those resident here or whether it is to deal with undocumented
asylum seekers whom we cannot remove anyway, is to give people
incentives and assistance to re-settle back in their country of
origin. That is the only effective route by which we are going
to see increasing numbers of people leaving this country and hopefully
enjoying a better life in a more secure environment back in the
country of origin, which is where most of them want to be.
136. We are having the Home Secretary giving
evidence to us tomorrow so no doubt these questions will arise.
What is the main problem so far as the three of you see it for
the Home Office to have the technology—up-to-date computers
and the rest—to be able to show those who are overstaying
and the action to be taken?
(Mr Best) This is something that I raised many years
ago with the previous Government. As you know, it is different
in places like Australia where they do physically count people
now. I accept that the sheer volume of numbers in this country
would make it very difficult if you applied it to all. I mentioned
earlier that 85% of those 89 million visitors are from people
within the EEA. If you applied the process of counting people
in and out, as is done in other countries to those who are not
EEA citizens, then it seems to me that is a perfectly manageable
proportion with modern technology to be able to do that. At least
it would mean that you as Committee and others interested in these
matters would be able to point with certainty to statistics saying
that we know so many people have over-stayed in this country because
we know Mrs Smith, Mr Bloggs and whoever have left because they
came in but they have not been signed out as it were.
137. You would like to see that happen?
(Mr Best) I would like to see that happen.
(Mr Hardwick) I agree with that. In terms of the problem,
I think the length of the decision-making process is part of the
issue. I also think what happens to people at the end, those people
who cannot be returned, is a factor on its own. If I can give
you a current example, one of the issues that we are dealing with
at the moment is Iraqi Kurds whose asylum status has been finally
refused. Leaving aside any questions about the quality or otherwise
of that decision, let us assume for the sake of argument that
some of those have been properly refused and are economic migrants,
there is no possibility in the short term of them going back to
Iraq; it is simply not possible. So what happens to them? They
were in accommodation; they have been thrown out of that; they
are not entitled to any assistance to live on; they cannot go
back, so to live they have to find some friends or community with
whom they can stay and they have to find some way of keeping body
and soul together. Those people are lumped into this is a group
of people who have wilfully gone into hiding and gone underground.
That is not the case at all. People are desperate for assistance,
they are desperate to stay in the system, but they have been forced
out of it. There are other examples I could counter. I think sometimes
the Government's own programme of tough legislative action gets
in the way. Surely if they cannot be returned—and everybody
accepts that Iraqi Kurds cannot be returned—their stay here
should be legitimised so there will be a process by which you
could know where they were.
David Winnick: Sir Andrew, I will avoid
asking you that question because you may be rather sensitive on
that.
Chairman: Let him respond to the point
you were making.
David Winnick
138. I was going to put it in this way, if I
may Chairman; do you believe there is a lack of willingness on
the part of the Home Office to deal with overstayers or lack of
technology or what?
(Sir Andrew Green) It is all of the above. I do not
want to over-simplify the problem. Mr Hardwick is quite right
to say that there are different problems affecting different people.
I entirely agree with my colleagues that we should be counting
non-EU citizens out. It was a terrible mistake by the previous
Government to remove that. It is an invitation to any student
or visitor to over-stay undetected. It was a ridiculous decision
and the quicker it is reversed the better. As regards voluntary
returns, I think there is a lot in what Mr Best says. It does
have to be looked at. Again, we have to be careful. If you look
at an Afghan coming to Britain he now has three options. Option
one is to get on the back of the truck, come here undetected and
work. Option two, if you are detected, is to claim asylum and
you are here for some considerable time if not indefinitely. Option
three, if you do not like that, you can go to the British Government
and collect a sum of money that could be quite useful and go back
to Afghanistan. That package is a pretty good pull factor. I do
not like generalising but if, as Mr Hardwick suggests, people
who cannot be returned are then allowed to be made legal, the
pull factor will be astronomical.
139. It is not that I am not satisfied with
your answer. I understand that is the situation. What I really
asked you, Andrew, is do you believe there is a lack of willingness
on the part of the Home Office to act effectively against those
who over-stay or are there other reasons? That is simply my question.
(Sir Andrew Green) I think my answer is yes that is
part of the problem. Again, people do not understand the scale
or the nature of this. When they do there will be more interest
in it and more activity from the Home Office.
(Mr Hardwick) Can I just pick up one point Andrew
is making because he is in danger of damaging the voluntary return
programme, which I think is successful. The idea that an Afghan
would pay out however many thousands it is to a trafficker, would
spend six months in transit to come here to pick up the return
package is fanciful and should be dismissed.
(Sir Andrew Green) I am not saying that.
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