Select Committee on Home Affairs Appendices to the Minutes of Evidence


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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