Select Committee on Home Affairs Appendices to the Minutes of Evidence


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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