House of Commons - Home Affairs

Select Committee on Home Affairs Fourth Report

Before removal: initial decisions

33. The first stage in the process which leads to removal is the initial decision on an asylum-seeker's claim, made by a case worker or immigration officer in the Immigration Service. The Refugee Council told the Committee that "the key to dealing with the removals process" was

getting the initial decision right and making the decisions credible so that everyone can be assured that people who need protection are quickly identified and allowed to rebuild their lives and people who do not are also promptly identified and sent back.[30]

34. We have received evidence questioning the quality of initial decisions. The Immigration Law Practitioners' Association, which represents around 1,100 "immigration practitioners" in the United Kingdom—largely barristers and solicitors in immigration law—told us that "the experience of our members is that the quality of initial decision making is poor" and that decision-makers were inadequately skilled and trained.[31] The Refugee Council pointed to the rate of successful appeal as an indicator of poor initial decision-making:

Every year, a significant number of people recognised as refugees by the Government have first been through the trauma and delay of having their cases rejected by the Home Office [ ... ] As the Home Secretary himself has acknowledged, the real success rate of asylum claims is somewhere between 40% and 50% [ ... ] About 77% of refusals made in 2001 resulted in an appeal, with a fifth of appeals that year being upheld [...] nearly one in four appeals are now upheld by adjudicators [ ... and] many refusals are overturned by the Home Office before they reach the appeal authorities.[32]

35. In September 2002, the Home Secretary told us that a programme of "robust" training was being put in place for new decision-makers, and of re-training for those already in post. He said that the speed of decisions had already been improved as a result.[33] The Minister of State told the Committee that she was satisfied that the quality, as well as the efficiency, of initial decisions was good:

We have got a fairly robust process in place at the moment to review on a sampling basis initial decisions. Around 2,400 are chosen at random each month and are reviewed by senior caseworkers who review the decision against ten criteria. They are finding at the moment a high level of either satisfactory or excellent decisions—about 85%.[34]

36. We are concerned at the number of initial decisions which are not sustained, and this is an issue to which we shall return in our forthcoming inquiry into Asylum Applications.

Non-suspensive appeals

37. In 2002, around 49,500 appeals were received by the Home Office, of which 13,875 were successful.[35] Most appellants have the right to remain in the country until their appeal process is concluded; however, a recent change in the law allows removal to take place while an appeal is still pending, if the claim is certified as "clearly unfounded". Between 7 November 2002, when the non-suspensive appeal process for "clearly unfounded" cases began, and 31 December 2002, 115 cases were refused and certified as clearly unfounded, 110 of those people were removed and 20 appeals were received. Information for 2003 is not yet available.[36] Claims from those entitled to live in particular states will be certified, unless the Secretary of State (or, in practice, an immigration officer) is satisfied that the case is not clearly unfounded. The states are Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia.[37] In March 2003, Parliament approved a Statutory Instrument adding to the list the Republic of Albania, Serbia and Montenegro, Jamaica, Macedonia, the Republic of Moldova and Romania.[38] States may only be added in this way where the Home Secretary is satisfied that:

(1) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

(2) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention.[39]

38. The Minister of State told us that there may be other grounds for certifying a case as "clearly unfounded", other than the source country of the asylum seeker, although the Government has not yet set out the criteria for such certification. The Minister stressed the need to "proceed very cautiously" in establishing criteria because of the need to be clear before applying general guidelines to complex cases. Mr Bill Jeffrey, Director of the Immigration and Nationality Directorate, gave us an indicative example of a possible "clearly unfounded" case:

there are cases which anyone would recognise as "clearly unfounded". It is not completely unknown for people to say they are claiming asylum because they want a house, for example.[40]

39. In its report on the Nationality, Immigration and Asylum Bill in June 2002, the Joint Committee on Human Rights expressed the view that "it should not be possible to remove a person before he or she has had the opportunity to challenge, before an independent and impartial tribunal, the Secretary of State's certificate asserting that the claim to have had a convention right violated is clearly unfounded".[41] The Law Society told the Committee in evidence that it was "gravely concerned" about the provision for non-suspensive appeals, and stated that the rate of successful appeals against initial decisions gives cause for concern that decisions that applications are "clearly unfounded" may be made in relation to cases that would subsequently prove successful on appeal, thus sanctioning the return of a genuine refugee. The Society believes that "it is vital that the essential safeguard of an effective ability to appeal against poor initial decision-making prior to removal remains in place".[42] The Refugee Council concurred, stating that "it can never be the case that a country can be safe in all respects for all people for all time and to so designate the whole of the EU, together with prospective members of the EU—and to take powers to extend the list beyond even the accession states—significantly undermines the 1951 Refugee Convention".[43] The Council also cited the view of the House of Lords Select Committee on the European Union that the Roma people represent a group "who may be persecuted on racial grounds" in present or prospective EU countries.[44]

40. The Minister of State countered these arguments by stating that it was indeed practicable to conduct a credible appeal from abroad, citing the example of visa appeals, which must be conducted from the source country, as a comparable process which operated satisfactorily. On the question of the Roma people, the Minister judged that those states regarded as "safe" for the purposes of non-suspensive appeals "can provide sufficient protection and sufficient redress if people are subjected to criminality [ ... ] those countries do have a level of infrastructure around policing and criminal justice to be able to meet that test".[45]

41. We accept that in most, if not all of the countries so far designated, it is reasonable for there to be a presumption against a wellfounded fear of persecution. Even in these countries, however, there may well be occasional exceptions, usually arising from the inability of the State to protect the citizen from nonState persecution.

42. We recommend that—

(1) if the Secretary of State wishes to add further countries to the list in Section 94 of the Nationality, Immigration and Asylum Act, he should append a written memorandum to the relevant Statutory Instrument, explaining the rationale for believing those countries to be safe;

(2) if grounds other than nationality for considering an claim "clearly unfounded" are developed by the Home Office, an explanation of those grounds should be made available to this Committee; and

(3) a review of the practicality and effects of non-suspensive appeals should be carried out after they have been in operation for 12 months.

Voluntary returns

43. If a claim is refused, and any subsequent appeal lost, it is open to failed asylum seekers to return voluntarily to their source countries, rather than being subject to forcible return by the Immigration Service. Since 1999, the Home Office has funded the voluntary assisted returns programme run by the International Organisation for Migration, an intergovernmental body. According to the Home Office, "voluntary returns are inherently preferable to enforced returns" and "a vital component of [the Government's] returns policy".[46]

44. The voluntary return programme is open to those with pending or failed asylum claims, and those granted exceptional leave to remain. (Exceptional leave to remain is permission to remain which is granted outside the criteria for leave defined in the Immigration Rules, that is, on an exceptional basis.) Until March 2002, the programme provided basic assistance only, in the form of advice and information, predeparture, transit and postarrival assistance. Since that date, the package has also included reintegration assistance, in the form of "activity that benefits the returnees, but also, where viable, supports activities that benefit the overall community where returnees settle".[47] The International Organisation for Migration gave us the following example:

in the case of a family with dependent children, the reintegration component will aim to identify local employment or training courses for the parents (i.e. setting up small businesses, computing, tailoring or accounting courses) while for children, the programme will explore the possibility of supporting educational needs, and/or providing learning materials or teacher training support to the schools that the children will attend.[48]

45. During 2002 a total of 1,196 individuals of various nationalities returned to their countries assisted by this programme, and we were told that since the introduction of the reintegration element, the number of individuals applying for reintegration assistance has "increased significantly on a daily basis".[49] In July 2002 an evaluation of the programme carried out by Deloitte and Touche for the Home Office pronounced it "significantly cheaper" than enforced removals and able to return people to a greater number of countries, and recommended that the programme be expanded.[50] The Home Office told us that the specific costing comparison was not available.

46. The International Organisation for Migration told us that the programme allows for "orderly and dignified" returns and that "the feedback received by NGOs in the UK and potential returnees about the reintegration component of the [Voluntary Assisted Returns and Reintegration Programme] has been extremely positive". The Organisation told us that:

Research [ ... ] has demonstrated that sustainable return is significant in measuring the success of return programmes, in stemming irregular migration, and discouraging smuggling practices, along with safeguarding the integrity of legal and admission systems. Sustainable return is achieved when returnees are able to reintegrate in the community of return, often through a productive role as a member of the community, without immediate cause to leave again.[51]

47. We understand that the programme has not been made available to detainees in Removal Centres. The representatives of the private companies contracted to run Removal Centres for the Immigration Service told us that the voluntary return option "is not a process that we are involved with in any shape or form".[52] The Minister of State told us that more could and should be done by the Home Office to promote the voluntary return schemes, saying that "we do not do as much as we could in terms of maximising the potential of voluntary departure". She referred to the practice in Canada, where the possibility of voluntary return, in the event of a failed claim, is raised with asylum seekers much earlier in the legal process than it is here, and discussed with individuals face to face.[53] In regard to detainees, the Minister conceded that "in terms of voluntary returns [ ... ] we can do much more in the removal centres".[54]

48. We recommend that the Voluntary Assisted Returns Programme is opened up to detainees in Removal Centres, advertised in the Centres and otherwise brought to the attention of detainees. We further recommend that the Immigration Service advises asylum seekers of the option of voluntary return from the beginning of the asylum process.

30 Q 72 [Mr Hardwick] Back

31 Q 381 Back

32 Ev 163, para 2 (iii) Back

33 Home Office Issues, Q 70 Back

34 Home Office Issues, Q 73 Back

35 Asylum Statistics: 4^th Quarter 2002 United Kingdom Back

36 Ev 96, para 1 [Home Office] Back

37 Nationality Immigration and Asylum Act 2002, section 94 Back

38 Asylum (Designated States) Order 2003, (S.I., 2003, No. 970) Back

39 Nationality, Immigration and Asylum Act 2002, section 94 (5) Back

40 Q 632 Back

41 Joint Committee on Human Rights, Seventeenth Report of Session 2001-2002, Nationality, Immigration and Asylum Bill, HC 961/ HL Paper 132, para 98, cited at Ev 149 [The Law Society] Back