APPENDIX 24
Memorandum submitted by the Law Society
1. The Law Society of England and Wales
(the Society) is the professional body which regulates and represents
over 80,000 solicitors in England and Wales.
2. The Society is concerned that the principles
of effective access to justice and the operation of due process
are protected in the practice and operation of immigration and
asylum law. It is in this context that we comment on issues raised
by the Committee.
3. GOVERNMENT'S
TARGETS FOR
REMOVAL
3.1 We have concerns that Government targets
for removal should not override the need for full and good quality
decision making throughout the process. Whilst we recognise the
need for asylum applicants to be dealt with speedily and efficiently,
this must not be done at the expense of access to justice and
due process.
3.2 Anecdotal reports from our members reveal
that removals are being carried out on the basis of incorrect
information. One client was detained pending removal on the basis
of information provided by the Home Office that his application
for Exceptional Leave to Remain had been refused. In fact, this
client had been granted asylum two years before. We are concerned
that unrealistic targets will increase the pressure on the relevant
agencies to remove people as quickly as possible. This will only
increase the risk of people with legal status to remain in this
country being wrongly removed.
3.3 We suggest that those at risk of removal
should be advised of the availability of, and have effective access
to, independent legal advice at specific points in the removal
process.
— There should be a duty on all immigration
officers to inform a person they are attempting to remove about
their rights of appeal on human rights grounds and the availability
of legal advice.
— Those being encouraged to leave voluntarily
should be told that they can obtain independent legal advice before
signing any removal forms.
— Any person subject to immigration
control who is arrested for an immigration or criminal offence
should be able to access specialist legal advice about their immigration
status at the police station. The Legal Services Commission is
taking steps to make a specialist immigration advice-line available
to duty solicitors and accredited representatives. However, police
station staff should also inform the person that they can obtain
immigration advice.
4. HUMANE METHODS
OF REMOVAL
AND VULNERABLE
PEOPLE
4.1 The agencies responsible for removals
must acknowledge that, in many cases, the person they are attempting
to remove will be vulnerable. There are many categories of vulnerability
including people with disabilities, those with mental health problems
and/or other serious illness, and children. In these cases, special
efforts must be made by the authorities to ensure that the person
can legally be removed (see paragraph 3.2 above). They should
also organise appropriate care arrangements in the receiving country,
make full enquiries as to whether the person is fit to travel
and that, if appropriate, the person is escorted on their journey.
Other family members, friends and/or carers must be told about
the pending removal.
4.2 The following case illustrates the current
failings of the system to deal appropriately with a vulnerable
person. A child client of one of our members was arrested for
a driving offence. He could not remember his home phone number,
having always read the number from his mobile phone. He was carrying
the mobile at the time of his arrest but it was not charged. The
police officers refused to charge the mobile for him. The child
was unable to contact his mother and was removed from the country
unlawfully as his mother had a pending application under the Human
Rights Act. He was outside of the UK for three weeks before the
Immigration Service returned him. During this time his mother
did not know what had happened to him.
4.3 In light of this case, we are concerned
that speeding up the removals process will have a disproportionate
effect on vulnerable people.
5. APPEAL RIGHTS
5.1 The Society is particularly concerned
that there should be proper safeguards in the system and that
applicants should have effective appeal rights prior to removal.
5.2 The Law Society is gravely concerned
that Government proposals in the Nationality, Immigration and
Asylum Bill will mean that applicants certified as having manifestly
unfounded claims will be removed prior to their appeal being heard.
We agree with the Joint Committee on Human Rights which has stated:
"In our view, 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. Removing a person
in such circumstances might sometimes give rise to a violation
of ECHR Article 13."[24]
5.3 The Refugee Council has estimated that
51% of asylum seekers were successful either at different appeal
stages or where the Home Office reversed its own refusal decision.[25]
Indeed, the Home Secretary agreed at Report Stage in the Commons
that, if exceptional and indefinite leave to remain cases are
included, between 40 and 50% of all claims in the past 10 years
were accepted.[26]
These figures give cause for concern that initial decisions that
applications are clearly unfounded may be made in relation to
cases that would be successful on appeal. In view of this, it
is vital that the essential safeguard of an effective ability
to appeal against poor initial decision making prior to removal
remains in place.
5.4 Furthermore, we have serious concerns
that these proposals may lead to asylum seekers being passed from
country to country, particularly as there is as yet no agreement
in place that the countries to which rejected asylum seekers may
be returned will accept them. We are also concerned that asylum
seekers may be returned to a country which, although deemed safe,
may in fact not be, as was the case recently in relation to Zimbabwe.
October 2002
24 Joint Committee on Human Rights, 17th Report of
Session 2001-02, Page 35, Paragraph 98. Back
25
Refugee Council Statistics 2001. www.refugeecouncil.org.uk/infocentre/staats/stats004.htm Back
26
Hansard, House of Commons, 11 June 2002: columns 800 and 801. Back
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