APPENDIX 3
Further supplementary memorandum submitted
by the Home Office
1. How many non-suspensive appeals cases
have been processed to date?
I regret that I am unable to provide information
for the current year. The NSA process commenced on 7 November
2002. Between then and 31 December 2002, 115 cases were refused
and certified, 110 were removed and 20 appeals were received.
(All figures rounded to the nearest 5.)
2. Where I can find the costing of the VARRP
programme?
I am afraid comprehensive costings of all the
elements of the programme are not available.
3. What are the "EU letter" and
Chicago Convention Travel Document?
Under the Chicago Convention, where an
arriving passenger is refused entry, the country from which he
embarked is required to accept him back (unless he was in that
country only as a transit passenger). If he does not have a valid
travel document (eg if he was found to be travelling on a false
passport), the Immigration Service can use what is called a Chicago
Convention document to return him. (The false passport would normally
be impounded, and a photocopy attached to the Chicago Convention
document.)
The document is a single A4 sheet, and gives
details of the passengers name, date of birth and nationality,
and where he arrived from, and requests the destination state
to accept him back. It will normally include a photograph of the
passenger.
An EU letter is also a single A4 sheet,
and contains similar personal details. It does not include details
of the in-bound journey, nor, for obvious reasons, does it invite
the destination state to accept the passenger back under the terms
of the Chicago Convention. The EU letter is a common format agreed
between Member States, but enquiries a few years ago suggested
that the UK made much greater use of it than any other Member
States did.
4. What is the process for bringing a challenge
in the courts to prolonged detention of an asylum seeker?
Applicants can either seek Judicial review of
the decision to detain them, or to maintain the detention, or
bring an action for habeas corpus.
5. At what point in the asylum appeal process
are human rights grounds considered?
It depends when the issue is raised. Human rights
appeals only came into existence on 2 October 2000. So if an asylum
application was refused before that date, the case could go through
the appeal process, and be refused, get to the point of removal
and the applicant could then say that removal would be in breach
of his human rights.
The process for later cases should be more straightforward,
as a person applying for asylum is also asked to list any other
grounds on which they are seeking to rely. (Of course, if the
human rights ground only comes into being at a later stage, the
applicant will not be able to raise the matter at this earlier
stage.)
6. Where is "Exceptional Leave to Remain"
defined?
The Immigration Rules set out the basis on which
people subject to immigration control qualify for leave to enter
or remain. Exceptional leave to remain is leave granted outside
the criteria set out in the Rules. (An exception is made in the
applicants favour.) It is extra-statutory, and is therefore not
defined in statute.
7. Which part of the NIA Act 2002 provides
for private companies such as Wackenhut to remove people direct
from their homes?
Section 64, which amended paragraph 17 of Schedule
2 to the Immigration Act 1971, allows detainee custody officers
to enter private premises in certain circumstances in order to
search detained persons prior to escorting them to a place of
detention. The power only applies where an immigration officer
or constable has already entered the premises on the authority
of a warrant, and has detained someone. It does not allow detainee
custody officers to operate without the immigration service or
the police being present.
8. On what terms are asylum seekers offered
support, including those who claimed before the creation of NASS?
Prior to the introduction of the Asylum and
Immigration Act 1996 all asylum seekers who were destitute were
eligible to support under ad hoc arrangements under the
Income Support Regulations. This equated to 90% of the full income
support rate with access to housing benefit. The 1996 Act sought
to restrict this support to people who applied immediately on
arrival, and to the period covered by the initial consideration
(ie it would not have been available during any appeal). However,
legal challenges established that those excluded from support
under the Regulations could be supported by local authorities
under the National Assistance Act 1948. This meant that local
authorities were required to provide support in a way that was
reasonable and met essential living needs, but was not defined
beyond that.
NASS support is subject to conditions (see section
95(9) of the Immigration and Asylum Act 1999). The conditions
must be given in writing but are not set out in either primary
or secondary legislation. The Nationality, Immigration and Asylum
Act 2002 amended section 95(9) to say that a condition may in
particular relate to any matter relating to the use of support
provided or compliance with a restriction imposed under paragraph
21 of Schedule 2 to the Immigration Act 1971 or paragraphs 2 or
5 of Schedule 3 to that Act.
The full NASS support package includes fully
furnished accommodation. The costs of this accommodation, associated
utility bills and council tax are met centrally. There is also
a cash element, which varies according to the individual circumstances
of the person concerned.
| Person aged 18-24 | £29.89
|
| Person aged 25 or over | £37.77
|
| Couple | £59.26 |
| Lone parent | £37.77 |
| Child under 16 | £37.00
|
| Child aged 16 or 17 | £32.50
|
| |
9. What is Section 4 support?
The section referred to is section 4 of the Immigration and
Asylum Act 1999. Under that section, the Secretary of State may
provide, or arrange for the provision of, facilities for the accommodation
of anyone given temporary admission to the UK under paragraph
21 of Schedule 2 to the 1971 Act, anyone released from detention
under that paragraph, anyone released on bail from detention under
any provision of the Immigration Acts, or any failed asylum seeker.
Support under section 4 consists of full board and accommodation.
There is no cash payment.
10. To which EU Readmission Agreements is the UK party?
There are currently no European Community Readmission Agreements
in force. Readmission agreements between the European Community
and third countries have a Title IV base and are therefore subject
to the UK opt-in. The UK has opted into, and so is party to, all
of the Council Decisions authorising the Commission to negotiate
readmission agreements between the European Community and Hong
Kong and Macao Special Administrative Regions, Sri Lanka, Morocco,
the Russian Federation, Ukraine, Pakistan, Algeria, Albania, China
and Turkey. However, the UK's decision to participate in the adoption
of these negotiating mandates is without prejudice to its second
opt-in decision on the Council Decisions to sign and conclude
the resulting agreements.
Negotiations have finished in the case of Hong Kong, Macao
and Sri Lanka. The ratification process has begun for Hong Kong
and is about to be launched for Macao and Sri Lanka. These Council
Decisions (which include the text of the agreement) are deposited
with the European Scrutiny Committee and the European Union Committee.
To date, Council Decisions to sign and conclude the agreement
with Hong Kong SAR have been received and deposited with the Committees.
As other Council Decisions are issued, these will be deposited
in the normal way with the two European Committees.
As the Committee is aware, the UK has recently signed bi-lateral
readmission agreements with Romania and Bulgaria. The text of
these will be laid before Parliament in due course, but I understand
this may not be for a couple of months.
11. What is the legal authority for detaining asylum seekers
and who makes the decision to detain in an individual case?
It will depend on the individual circumstances. Either paragraph
16 of Schedule 2 to the Immigration Act 1971 (as amended), or
paragraph 2 of Schedule 3 to that Act, or section 62 of the Nationality,
Immigration and Asylum Act 2002. Where a decision to detain is
taken by an Immigration Officer, this has to be confirmed by a
Chief Immigration Officer. Decisions on behalf of the Secretary
of State are taken by someone of the grade of Executive Officer
or above.
12. What are the different legal grounds on which removal
of a failed asylum seeker may take place?
They are removed according to their immigration status.
An arriving passenger who is refused leave to enter can be
removed under the powers contained in paragraph 8 of Schedule
2 to the Immigration Act 1971. So an asylum-seeker who applies
on arrival at a port and whose application is refused will be
refused leave to enter, and removed under that power.
The power to remove an illegal entrant is contained in paragraph
9 to Schedule 2. (If those powers cannot be used, there is a general
power of removal in paragraph 10, which applies to both illegal
entrants and persons refused leave to enter.) In the case of an
illegal entrant, the fact of their illegal entry is the legal
ground for their removal.
The principal power to deport is on the basis either that
the Secretary of State is satisfied that the deportation of the
person concerned would be conducive to the public good (section
3(5)(a) of the 1971 Act, as amended) or that he has decided to
act on a court recommendation made under section 3(6). Once the
deportation order has been signed, this constitutes the authority
for removal (under paragraph 1 of Schedule 3 to the 1971 Act).
A person with limited leave who stays longer than the period
allowed, or who breaches the conditions attached to that leave
(eg by working or claiming benefit when the terms of his leave
do not allow this), or who enters legally and then attempts to
obtain, or obtains, further leave to remain by deception is liable
to removal by virtue of that fact under section 10 of the Immigration
and Asylum Act 1999. So a person with limited leave who stays
longer than the period initially allowed ("an overstayer"),
who claims asylum and whose application is refused can be removed
in accordance with section 10 of the 1999 Act.
13. THE
COMMITTEE HEARD
IN EVIDENCE
THAT THE
INTERNATIONAL AIR
TRANSPORT ASSOCIATION
ADVISES A
LIMIT ON
THE NUMBER
OF PLACES
FOR THE
USE OF
IMMIGRATION ON
A SCHEDULED
FLIGHT. IS
THIS A
FORMAL AGREEMENT
WITH GOVERNMENT?
We are not aware of any limit set by IATA. The Guidelines
for the Removal of Inadmissible Passengers produced by IATA and
the Control Authorities Working Group in April 2002 do not specify
a numerical limit. Our understanding is that the limit is set
by the airline themselves, and varies from airline to airline,
and even from route to route.
April 2003
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