APPENDIX 23
Memorandum submitted by JUSTICE
JUSTICE is a British-based, all-party, law reform
and human rights organisation. It seeks greater fairness, effectiveness
and the advancement of human rights within the legal system. JUSTICE
works through policy-orientated research; interventions in court
proceedings; education and training; briefings; lobbying and policy
advice. It is the British section of the International Commission
of Jurists.
INTRODUCTION
The legal regime for removals
1. The Immigration and Asylum Act 1999 (the
1999 Act) made very significant changes to the way immigration
law is enforced in the United Kingdom. Under the Immigration Act
1971, the principal means of removing those who entered the United
Kingdom but subsequently overstayed their limited leave to remain
or broke a condition of that leave, was deportation. Deportation
is an order whereby the Secretary of State can require the expulsion
of a person who is not exempt from deportation, and which precludes
lawful re-admission to the United Kingdom while such an order
is in force. Before a deportation decision can be implemented
there is a right of appeal; to an independent adjudicator who
can review the merits of the exercise of the discretion, as well
as its legality. If, on consideration of the compassionate circumstances
then in evidence before him or her, the adjudicator can allow
the appeal on the basis that the discretion to deport should have
been exercised differently.
2. By this means, there was a safety net
of justice and an independent evaluation of the merits of cases,
where persons with no claim to remain under the immigration rules
could present compassionate circumstances and ask for deportation
not to be enforced. The compassionate circumstances of the case
might include "without fault" failures to comply with
the rules: accidental omissions to renew visas and leave to remain,
unforeseen breakdown in employment and business records, oppression
and hardship in matrimonial relations, strong community ties in
the form of presence of children, grandparents or siblings in
the UK, or severe ill health and social isolation in the country
of origin.
3. The 1999 Act finally removed this right
of appeal in overstay cases (earlier legislation had severely
restricted it in the case of those who had not been resident here
for seven years). Indeed, it removed the power of the Secretary
of State to deport for immigration breaches. Henceforth this power
was confined to those who had a current leave to enter or remain,
but were guilty of or suspected of conduct that made their presence
no longer conducive to the public good. Instead, overstayers were
to be administratively removed from the UK under s.10 of the 1999
Act as if they had been refused entry at the port or were being
treated as illegal entrants. Administrative removal carried no
right of appeal on the merits: that is to say, hard cases could
not be sympathetically reviewed by an adjudicator.
4. There was to be a human rights appeal
under s65 and, subsequently, a discrimination appeal in all cases
of intended administrative removal, but this appeal was concerned
with the high threshold question of whether removal was compatible
with the Human Rights Act 1998 and the European Convention on
Human Rights, rather than the lesser threshold of the balance
of discretion.
5. Doubtless the ambitious targets set for
removals by the Home Office in 1999-2000 were based on the assumption
that tens of thousands of cases could be processed quickly through
the system, and after asylum issues and any rare human rights
points were dealt with, departures would be enforced by removal,
with the use of detention immediately prior to removal. It is
well known that these targets were predictably over-ambitious
and have not been met.
Summary of JUSTICE's views
6. JUSTICE welcomes this discrete inquiry
into this central aspect of immigration control and would commend
four propositions to the Home Affairs Committee for consideration:
(i) the system for asylum removals under
the 1999 Act is counter-productive to co-operation and voluntary
surrender;
(ii) humane departures essentially require
that those to be removed accept the justice of the decision and
the system underpinning it—forcible removals must be confined
to the absolute minimum of intransigent cases;
(iii) removals have not been effected because
many people do not think that they have had a fair opportunity
to put their case when their circumstances are considered, and
exceptional leave to remain has been inappropriately refused in
cases where it could have been granted;
(iv) there should be more imaginative re-settlement
incentives for those willing in principle to return but having
concerns about so doing.
ASYLUM REMOVALS
7. The present regime for processing asylum
claims has been the subject of frequent criticism elsewhere. JUSTICE
finds it strange that what were perceived to be the weakest claims
for asylum, and those with the greatest prospects of removal,
should have been targeted for detention in the Oakington centres,
and then, when their claims were rejected, the candidates were
released into the dispersal system pending appeal and removal.
Nothing was more designed to promote disappearances and promote
lack of co-operation.
8. Dispersal frequently meant that claimants
lost touch with legal advisers and community groups. They faced
enormous difficulties in travelling to meetings, or to appeal
hearings, where important decisions were made. They were thus
processed in absentia without a full understanding of their case
and the particular issues that arose.
9. A more holistic approach to dealing with
a particular case, and rather less emphasis on each section of
the system merely shifting the file off its desk, would encourage
greater co-operation and promote effective removals.
10. The dispersal policy is now to be abandoned,
but the damage it may have done to law-abiding instincts is great.
The system should reward contact and co-operation, and penalise
deliberate absconding and abuse of the system.
EXCEPTIONAL LEAVE
TO REMAIN
11. One way of reducing contested or impractical
removals is to increase the use of exceptional leave to remain
in cases not presently covered by the Immigration Rules, where
those concerned have genuine links with the United Kingdom or
where removal is not practical because transport or other obstacles
or other obstacles prevent it.
12. JUSTICE is dismayed by the recent announcement
of Home Office sponsored amendments to the present round of immigration
and asylum legislation that move in the opposite direction. It
was, we suggest, regrettable for Home Office policy to change
with respect to Iraqi Kurds in the year 2000 when there were no
arrangements in place to give effect to the changes. Until then,
it was recognised that Kurds could only (at best) return to the
supposedly safe enclave of northern Iraq, and as there were no
means of removing Kurds to this part of the country, one year's
exceptional leave to remain should be granted to those who could
not be returned elsewhere. In fact, Kurds remain irremovable today,
but hundreds have been processed in perfectly unreal appeals,
and left in limbo for years, without any status, right to work
or social support, awaiting the day when conditions on the ground
drastically change. This class of failed removals should never
have been classified as removals at all. We hope that the Committee
will be able to report in relation to this issue in time to influence
the final shape of the current Nationality and Immigration Bill.
13. Other classes of people whose departure
is presently frustrated by human rights appeals and judicial reviews
could have benefited from a more generous discretion in respect
of policies dealing with the sick and infirm, those with children
who have established connections in the UK, and those with other
legitimate connections that might have been considered compassionate.
14. The objective that policies should aim
for is a full, frank and fair system, with an early interview
to identify whether there are reasonable prospects of remaining,
and an action plan for enforcing the removal of those who manifestly
fall outside that criterion. This has not happened. Decisions
have been slow and have not commanded respect by clients and counsellors
alike when delivered.
INCENTIVES TO
DEPART
15. Greater imagination could be used to
achieve removals in difficult cases. Those who fear that their
medical conditions will not be treated in a poor country could
be assuaged if medication were to be made available at government
expense for the foreseeable future. The costs of such a scheme
would be considerably less than the costs of appeals, judicial
reviews, detention, and enforced departure.
16. One the biggest fears causing people
to dig in and challenge removals by means both legal and unorthodox,
is the concern that once removed they will never be allowed to
return to the UK again to visit spouses, elderly relatives, children
or even friends. An imaginative approach would enable the fast
tracking of in-country entry clearance applications, with indications
given as to the likely outcome, if people co-operate by returning
to their own countries to collect the requisite visa. Entry clearance
queues have been used as a deliberate instrument of immigration
policy in the past. Reduction of the queue by in-country processing,
and an indication that a visa can be delivered within 28 days
of return, would do much to restore confidence in those who have
married whilst asylum seekers, or have other legitimate connections.
Most of these cases have to be referred back to the Home Office
by the Entry Clearance Officer in any case, adding six months
or more to the anxiety of a disputed application.
17. One classic example is the Roma asylum
claims from Eastern Europe. If some of these people were told
that, instead of making weak asylum claims, they could be assisted
to return to set up their own small business under the Association
Agreements, a significant number of cases could be taken out of
the system and speedy returns accepted. Instead of re-writing
the Refugee Convention and making candidate countries of the EU
inadmissible for asylum, the Home Office could anticipate the
outcome of negotiations and reserve a number of work permits,
skilled and unskilled, for these future beneficiaries of free
movement rights.
DETERRENTS
18. By contrast, those with manifestly unfounded
and abusive claims, who seek to disrupt the system by absconding,
or offering violent resistance and the like, could be warned that
if they persist in such behaviour this fact will be recorded and
it will prejudice future claims for work permits or visitors visas.
19. Again, a transparent system of rewards
and deterrents explained at the outset and communicated through
professional advisers might well enable mutual respect and avoidance
of the more bitter confrontations.
TIMING
20. It is obvious that it is deeply unfair
for the Home Office to spend four years or more in deciding a
protection claim from a difficult country and then to suddenly
enforce the decision with a view to summary removal. Lives change.
Community ties build up. Return may become more unjust and difficult.
21. Until the Home Office can deliver on
a six months period for the fair and effective review of decisions,
then special measures still need to be adopted towards those who
are processed outside the targets set by the Home Office. Intervening
community links should be considered with greater sympathy than
at present.
ENFORCED DEPARTURES
22. Enforced departures will still occur,
and they will be controversial and painful for all involved. However,
removing appeal rights merely increases the bitterness and sense
of injustice. The recent Ahmadi family case is very much in point.
In order to make a propaganda point about firm immigration policy,
a family with young children and a psychiatric history resulting
from terrible experiences in Taliban Afghanistan were unlawfully
removed, without their human rights appeal being heard, at great
public expense.
23. The Committee may be interested to know
how much by way of public funds this removal cost. There was some
£40,000-£60,000 for chartering the special plane, and
several thousand pounds in legal fees in respect of four hearings
concerned with the legality of the removal. There were then the
package of offers made by the Home Office to avoid the embarrassing
effect of its unlawful decision; flying lawyers and experts to
Germany and video links for the substantive appeal. The lesson
is less haste and greater speed, at considerably less cost in
terms of both public funds and a sense of unjust treatment.
24. Where lawful and fair removals must
be enforced, then using a cadre of trained and sympathetic officials
to diminish conflict is necessary. Gags and manacles, compulsory
sedation and undignified denial of access to sanitary facilities
are demeaning to all who operate the system of immigration control.
October 2002
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