Examination of Witnesses (Questions 400-419)
MS NICOLA
ROGERS AND
MRS SALLY
TARSHISH
TUESDAY 4 FEBRUARY 2003
400. What do you mean, "the due process
of law"?
(Ms Rogers) After an independent review by an independent
decision maker—
401. Which could go on for years, presumably.
(Ms Rogers) Absolutely not. It is perfectly possible
to have an appeal system that is efficient and speedy that can
hear an appeal in a sufficiently short amount of time without
putting even one person at risk.
(Mrs Tarshish) I would like to make some comments
on what Mr Winnick has been asking. Just to go back one or two
stages about the initial decision-making, I concur with Ms Rogers
that the evidence we have is that about 50% of the decisions are
overturned at judicial review. So, clearly the initial decision
making is not as effective as it should be. The other point we
would like to make is that, at this stage, the process and initial
decision making is not subject to any external scrutiny. It is
an administrative decision and we feel quite strongly that this
is something that should be addressed.
402. And the countries that I mentioned to Ms
Rogers?
(Mrs Tarshish) No, I am not talking about non-suspensive
appeals, I will come to that in a moment. I just want to make
this abundantly clear. Our membership feels that there should
be some external scrutiny right from the word go. Also, there
is quite a lot of factual information that is up to date. I have
here in front of me a piece from the Home Office concerning a
Ukranian who committed suicide last week in Haslar. The information
on torture in the Ukraine is very detailed indeed—that comes
from the Home Office website. Regarding non-suspensive appeals,
I think it is important to understand that we have no idea whether
we are visiting or have any contact with somebody who may or may
not be a terrorist, we are just visiting somebody who is detained,
and it seems to me that the idea that somebody can be removed
from the UK but that they are still entitled to make an appeal
is fraught with impracticalities. How would they know? How would
it work?
Mr Clappison
403. Could I just take you up for a moment on
the point you made about the number of cases which are allowed
on appeal following an initial decision. I think you mentioned
a figure of 50%.
(Mrs Tarshish) Roughly speaking.
404. I think you said that was on judicial review.
(Mrs Tarshish) Yes.
405. On ordinary appeals to a higher tribunal,
the figure is less than that but it is still a figure which many
people regard as being quite a high proportion of cases which
are allowed on appeal.
(Mrs Tarshish) It is significant and must be taken
into account.
406. On the question of suspensive appeals,
if I could ask you, Ms Rogers, intuitively—and this may
be an obvious question—is not one of the problems with non-suspensive
appeals where the person is removed before he is allowed the right
of appeal that that in itself may well pre-empt decision one way
or another because it establishes either that they are not being
subjected to persecution or it may result in fact in persecution,
inhumane treatment and so forth, as well as all the practical
difficulties which have just been mentioned?
(Ms Rogers) That is right and I think it predetermines
the question almost and that is the problem.
407. Are the people who are going to be eligible
for non-suspensive appeals or be subjected to that form of treatment
people whose cases are certified as being unfounded? I think it
would be helpful if you could say a little more to us about your
understanding of which people are likely to have their cases certified
as unfounded. There has been mention of certain countries which
bring back to mind certain earlier policies described as the "white
list". Is it going to operate something like that?
(Ms Rogers) Although the Government announcement suggested
that there was not a white list, it does, in our view, amount
to a white list insofar as there is a presumption that those countries
are to be safe and that a case from those countries is clearly
unfounded. There is an opportunity for that list to be expanded
should the Government seek to do so. At the moment, they are the
10 accession countries, the countries that are forerunners to
the EU. My understanding is, however, that a claim can be certified
as clearly unfounded for other reasons. However, at the moment,
those detained at Oakington, which is where these clearly unfounded
cases are being dealt with, are from the 10 accession countries.
408. As my colleague has said, many people would
say, those countries are accession countries and they are not
countries that are usually associated with problems with human
rights, but it is still possible for somebody to have their case
certified as unfounded although they may come from another country.
Is that right?
(Ms Rogers) That is my understanding and, furthermore,
although the Home Office may take the view that those countries
are safe, there are claimants who have won on appeal. Polish Roma
for instance, who very recently have succeeded in making out a
claim as a refugee before Special Adjudicators and, in my submission,
that demonstrates the point that there are people from those countries
who can make out a claim and a presumption against them is very
dangerous.
409. I am thinking off the top of my head here,
but would it make this new system any more palatable to you if
there were countries in the case of which if it was established
that the person was from that country and the system of having
an appeal certified as being unfounded could not apply to them,
that they were not eligible? I am thinking of countries where
we obviously know there are problems with persecution such as
Iraq. If it were said that somebody who came from Iraq could not
have their case certified as unfounded.
(Ms Rogers) I think the system of certification is
actually unhelpful whichever way it goes. It would be very nice
that whole groups of people could not have their claim automatically
unfounded, but I think a system of certification becomes a system
that is almost self-serving. But the problem is efforts are concentrated
on looking to certify one way or another rather than just getting
on with the business of looking at the case. Experience has shown
in the past that trying to make two-tier or three-tier or different
streams of systems actually ends up making the whole system more
inefficient. I think that the most efficient way is to look at
each case on its basis and just on with the business of assessing
the claim, although of course there are certain claims that we
would not want on a so-called white list, but we would argue against
a white list in any event.
410. I have to say that what you have been describing
to me, without knowing every single technicality, reminds me very
strongly of the system which was vigorously opposed which was
introduced by the last government of a white list. You mentioned
the efficiency of the system and you will be aware of the considerable
public concern which there is about the asylum system and the
way it is working at the moment. Do you think there is a link
between the efficiency of the system and that public concern and
that, if the system could be made to work more efficiently than
it does at present, some at least of that concern could be allayed?
(Ms Rogers) Absolutely and it also leads on to different
problems. When a system is inefficient, you have decision making
that becomes slow and people who remain on the territory for a
very long time waiting for a decision. As they are people, they
form human ties; they might get married; they might have children.
In the meantime, while they are waiting for their decision, they
form links that then mean that they do not want to leave whatever
the outcome of their asylum claim, quite understandably. If a
person arrives in the country, meets someone, falls in love and
gets married, it is quite understandable that they then do not
want to leave after four years. So, the inefficiency of the system
also leads to other problems other than simply public perception,
I think that, if the system were more efficient, it would certainly
allay the public fears that people are allowed to remain here
beyond the time that is necessary.
Miss Widdecombe
411. Have you any idea of the percentage of
people who apply for asylum without any documents at all?
(Ms Rogers) I am afraid, I do not. You would have
to ask the Home Office that.
412. Would it surprise you to hear that the
Home Office say that 90% of in-country applications and 80% of
at-port applicants?
(Ms Rogers) Do not have documentation?
413. Yes, do not have documentation?
(Ms Rogers) It does not necessarily surprise me because,
if they fleeing countries of persecution, they are not necessarily
going to avail themselves of their authorities to get documentation.
414. I was not looking for the rationale, just
the confirmation that rather a lot of people turn up without documents.
Do you not think that absence of documentation might be just as
big a contributory factor as the level of qualifications of the
person looking at it?
(Ms Rogers) I do not necessarily agree with that at
all. I think the question of whether someone is a refugee is not
dependent on whether they can produce a passport.
Chairman: It does help if they tell you
which country they come from.
415. And tell you truthfully.
(Ms Rogers) Absolutely but I do not have statistics.
Chairman
416. Did you hear our witness last week say
that 85% of people claiming to be Kosovans turn out to be Albanians?
(Ms Rogers) That is the experience of that contractor
and I cannot really comment on it, although I did notice that
he qualified his evidence in relation to other countries. So,
it may be a particular problem in relation to those people, but
I am not going to comment on what is within his knowledge and
not within mine.
417. I am interested in your knowledge. Has
it turned out that a lot of people turn out not to be of the nationality
that they claim, perhaps even when they seek your advice?
(Ms Rogers) That is not my experience, no.
418. That is very odd, is it not? It is quite
clear that, when the bus sets off from the detention centre to
the airport, on the journey, people who were thought to be Kosovans
when you start out turn out to be Albanians and yet that has not
reached you. That puzzles me.
(Mrs Tarshish) Can I make a—?
419. Just a minute. What is your answer, Ms
Rogers?
(Ms Rogers) I can only speak from my personal experience.
My personal experience is that I have not come across many cases
at all, in fact I am finding it hard to think of any case, where
someone has turned out to be a different nationality from what
they claimed to me, but I am their representative and I am to
put their claim forward as presented to me.
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