Examination of Witnesses (Questions 500-519)
MS NICOLA
ROGERS AND
MRS SALLY
TARSHISH
TUESDAY 4 FEBRUARY 2003
500. You know where they are and you can proceed
quickly.
(Ms Rogers) If people are given conditions of their
stay (for instance, they must live at a certain address or a certain
facility, that they must report at certain times of the week or
month) you know where they are. I do not see why a person's fundamental
right to be at liberty—and that is a fundamental right—needs
to be interfered with in these circumstances. Secondly, whilst
in an ideal world all this could happen very quickly, we all know
that ideal worlds do not exist and we all know that bureaucracy
is such that at a certain point in time things will slow down,
that people will be detained for longer periods. There are people
who are in detention at the moment who are in detention for a
longer period. We know where those people are and for some reason
the system is not serving them very efficiently or very fast.
To deny a person their fundamental right for liberty on the excuse
of administrative convenience is in my view unlawful and unjustified.
501. And a bit of national security thrown in.
(Mrs Tarshish) There are lots of other ways of making
sure that people do not abscond. For most of them, it is in their
interests, I think, when they are on bail, that they do report.
502. And you think the disappearance rate is
fairly minimal, do you?
(Mrs Tarshish) I do not have those statistics, so
I do not know what numbers we are talking about. The other point
is that there are lots of other programmes that could be looked
at. There is the appearance assistance programme in the USA. You
do not have to keep all of them in one secure place.
Miss Widdecombe: Thank you, Chairman.
Chairman
503. Yes, Ms Rogers.
(Ms Rogers) May I return to a very small point that
Miss Widdecombe raised about needs in detention. Whilst detainees'
needs in terms of food and water might be met, their needs as
human beings are not necessarily being met. If you look at the
situation, for instance, of children being detained, it is quite
a fallacy to suggest that their needs are being met as children.
In that respect, I think children should always be treated first
as children and second as detainees or asylum seekers. I am thinking,
for instance, of their educational needs. In fact, within a detention
facility it is very difficult—and I am not criticising the
providers—to provide education when you have one facility,
perhaps one teacher, children of different English speaking abilities,
different education backgrounds, a variety of ages from two up
to 15 or 16. It is actually very difficult to meet their needs
as children.
Miss Widdecombe
504. And the local mainstream schools could
do it so much more easily, could they?
(Ms Rogers) Yes, I think they could.
(Mrs Tarshish) Absolutely.
Miss Widdecombe: At 16 they—
Chairman: Miss Widdecombe, if you want
to give evidence, we will call you as a witness! Mr Winnick.
David Winnick
505. If there are arguments about locking up
all of those seeking asylum in the United Kingdom—and there
is a political debate on that which I am not going to go into
now, and no doubt there are all kinds of financial reasons why
that which is being suggested cannot be done—would you accept,
nevertheless, that there is a public impatience about those staying
in the United Kingdom for long periods while their cases are outstanding,
and they have a general perception, rightly or wrongly, that a
good number of those people never leave the country simply because
once their appeals are exhausted they go underground?
(Ms Rogers) We talked before about the efficiency
of the system. I think to a large extent the public fears, such
as they exist, could be allayed by some kind of knowledge and
confidence in a system that is efficient. You do not need to detain
people in order to make the public feel the system is efficient.
In fact when those detention centres are in their back yard the
public might not think that in fact detention is such a good idea
after all. In my view, we are simply pandering to uninformed opinion
by suggesting that detention is the answer.
506. Ms Rogers, can I be absolutely blunt and
put to you what many people believe, rightly or wrongly, that
there are lawyers, there are those engaged in representing those
claiming asylum, who use every possible means, lasting years,
literally years, in order to keep the case going, therefore those
who without any real claim to be in the United Kingdom stay here
legally, let alone illegally afterwards, for years on end and
that it is not just the Home Office which has a certain amount
of responsibility but those whom you represent. Unjust accusation?
(Ms Rogers) I hope that accusation is not levied at
me personally.
507. No, I do not mean you personally, of course
not, Ms Rogers, but the organisation generally.
(Ms Rogers) Members of our organisation, as I said,
are regulated by professional bodies. If people have complaints
about the way in which they are regulated, then perhaps they would
draw them to the attention of the regulating authorities. The
fact is that as a barrister I have a duty to the court: I would
get a wasted costs order for bringing a case that was not arguable
or for simply stringing out things unnecessarily where there was
no legal basis for the challenge. Lawyers who are professionals
will only make challenges where they are sustainable and it is
for the courts to determine whether they are sustainable. Indeed,
I am quite sure we would be disciplined if we were bringing claims
that were wholly unsustainable.
508. I was not of course referring to yourself—I
think you accept that entirely.
(Ms Rogers) Yes.
509. But you accept that there is stringing
around by some organisations involved in representing people,
who use any means they possibly can in order to keep these cases
going, and hence one of the reasons why there is undoubtedly a
good deal of genuine public impatience with those cases where
there is no real claim whatsoever to be in the United Kingdom
but where people nevertheless stay for years on end.
(Ms Rogers) I do not accept that claim is justified
for reasons I have set out: if it is the case that lawyers are
bringing claims that are wholly unjustified, unmeritorious and
simply stringing out cases, they would be flung out of court within
minutes, and probably with a wasted costs order. We cannot do
that as professionals. Indeed, if there is a suggestion that we
were doing it, undoubtedly we would be disciplined. Furthermore,
we would not get public funding to do that. We have to satisfy
a merits test in order to get public funding for cases and a barrister
will have to give an opinion as to the merits of the claim. If
we deem it less than meritorious, the case will not be publicly
funded, so stringing out will not be an option.
510. There is no stringing out at all?
(Ms Rogers) I am suggesting that it does not happen
. . . .
511. At all?
(Ms Rogers) Well, I have no evidence of it happening.
David Winnick: I see. So be it. Thank
you.
Chairman
512. Just before we move on, looking at the
figures—this is two years ago, taken as a snapshot—of
immigration detainees, excluding Oakington: 41% in detention for
less than a month; 18% between one and two months; 18% between
two and four months; and 23% for more than four months. Why, in
your experience, are people held in detention centres for much
longer periods than is necessary either to remove them or else
to process them when they are in the process of arriving?
(Ms Rogers) I think particularly if you look at the
end of the process and the 23% who are in detention for very long
periods of time, in my experience that normally reflects the fact
that they are probably non-returnable, so there may be a problem
with returning them to the country when they are still in detention.
There are also people who are, unfortunately, in the system forgotten.
An inquiry to the Minister will undoubtedly reveal that there
are occasions where simply the case has been overlooked within
the asylum determining unit and somehow they have been missed
out. There are, unfortunately, a large number of longer term detainees
who are not represented and for some reason have found it hard
to get representation. That can also add to delays.
513. Are they people whose representation has
run out, really? They are no longer represented rather than not
represented.
(Ms Rogers) They may not have been able to access
their representation in the first place. Unfortunately, we have
come across cases where people have been very badly represented
or once they have gone into detention their representative has
forgotten about them. I am not talking about regulated members
of the profession, necessarily; unfortunately, we all accept there
are people outside that who take detainees and others, very vulnerable
people, for a ride. There may be a variety of reasons why people
are in detention for a very long period but in my view those have
to be reviewed because they are not lawful detentions.
(Mrs Tarshish) We do have some Home Office statistics
about this. In the last quarter of 2002 there were 45 detainees
that had been held under detention for more than a year, 40 of
them were asylum seekers. Out of that number, we know, but there
may be more, at least one of them has been for more than three
years in detention.
514. Why would that be?
(Mrs Tarshish) I do not know the specifics of the
case but it is something that does need to be looked at into thoroughly.
515. You must have come across cases that have
been held for more than a year.
(Mrs Tarshish) Yes, some one year, two years, two
or three of them.
516. Just give us an anecdote as to why in your
experience.
(Mrs Tarshish) I will just look this up for you. (Pause)
One is partly to do with the fact that he has no understanding
of the system and no one has bothered to explain it to him. He
has no English and there is no one to translate for him. This
is a real problem, throughout the detention estate, the problem
of translators, particularly for people who speak a language that
may be a very unusual one. This is a genuine difficulty and they
find themselves shunted from pillar to post and sometimes, sadly,
there is not access to legal help, which goes back to our point
about the independent welfare provision, to ensure that these
people are properly represented, to ensure that they can access
the legal services to which they are actually entitled.
Chairman: Okay. Thank you for that.
Mr Prosser
517. What is the nationality of the person that
you mention?
(Mrs Tarshish) I was asked not to reveal this to you.
518. I understand.
(Mrs Tarshish) If you want some more detail, I will
ask permission.
Chairman
519. If you have one or two examples that you
want to draw to our attention that we can then pursue, just as
a way of illustrating the wider problem, we would be glad of that.
It is a bit difficult when there is no chapter and verse.
(Mrs Tarshish) It can be provided but I was asked
not to do this on this occasion.
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