APPENDIX 33
Supplementary memorandum submitted by
Richard Lumley of the Refugee Council
1. INTRODUCTION
1.1 I am the Protection Adviser of the Refugee
Council, the largest NGO in the UK working on issues of advice,
support and resettlement for asylum seekers and refugees. The
Refugee Council recently submitted written and oral evidence to
the Committee on the wider issues of asylum and we welcome this
opportunity to raise some areas of concern specifically in relation
to the policy of returns and which we have written for this enquiry.
2. BACKGROUND
2.1 Firstly, let me state that of course
the Refugee Council recognises there is a role within immigration
policy for a strategy of returns. The asylum system is a selective
process. If people are found not to be in need of protection,
and there are no other compelling humanitarian reasons why they
should remain, then we do not object to their removal. Clearly
it is far more desirable for this to be on a voluntary basis,
with assistance where necessary, than for people to be forcibly
removed. However, we accept that enforced returns will also be
necessary.
2.2 However we were concerned when the Home
Office announced a sudden increase in the removals target to 30,000
cases—concerned that this was an aspiration not founded
in operational realities and likely to lead to pressures to deliver
that would in turn conflict with human rights considerations.
2.3 We therefore published in October 2001
a "Returns Policy" containing 16 principles. These can
be viewed on our website at http://www.refugeecouncil.org.uk/publications/pub007.htm#returns
and may be summarised as follows:
— an absolute commitment to non refoulement,
upholding the principles of international refugee law;
— refusals should be "safe"—cases
should be legally represented throughout a full substantive procedure
and with a full, suspensive, appeal;
— that people's human rights and welfare
should be protected throughout and that they should not be subject
to arbitrary detention;
— that they should be removed in a
humane and dignified manner, and able to make arrangements to
secure their belongings a sort out their affairs.
2.4 I regret to say that none of these criteria
are met and that since we produced these principles the impetus
has been almost entirely in an adverse direction.
3. CONCERNS
3.1 A commitment to non refoulement: the
most serious failure here is the recent announcement in relation
to the creation of a "White List" of countries to which
will be applied accelerated procedures and non-suspensive appeals.
This latter means people will be removed and required to pursue
any appeal from their country of origin. In its report on the
proposed European Directive on Minimum Asylum Procedures, the
House of Lords Select Committee on the European Union concluded:
3.2 "The risks of wrongly returning an
applicant to an unsafe country of origin, and the potentially
devastating consequences, are too great to justify the retention
of the `safe country of origin' concept.[38]
"
3.3 It can never be the case that a country
can be safe in all respects for all people for all time and to
so designate the whole of the EU, together with prospective members
of the EU—and to take powers to extend the list beyond even
the accession states, significantly undermines the 1951 Refugee
Convention. Again, this view reflects that of the House of Lords
Select Committee on the European Union which commented:
3.4 "For a major regional grouping of
countries such as the Union to adopt a regime apparently limiting
the scope of the Geneva Convention among themselves would set
a most undesirable precedent in the wider international/global
context."
3.5 There is a danger that if States, on the
basis of EU citizenship (ie nationality of a Member State), bar
from refugee protection such a group as the Roma, who may be persecuted
on racial grounds, or other groups, who may be persecuted on religious
grounds, this would seriously undermine the effectiveness of Geneva
Convention protection within Europe.[39]
3.6 Refusals should be "safe":
people are not guaranteed access to legal advice and that the
quality of that advice in known to vary enormously.
3.7 They may then be put through accelerated
procedures that do not allow them time to seek advice or to gather
evidence. On such accelerated procedures the House of Lords observed:
3.8 "We can see no benefit in the retention
of such procedures and we have doubts whether an accelerated procedure
has a place in the Directive. All cases, including manifestly
unfounded ones, should be dealt with on their merits speedily
within an efficient `regular' procedure.[40]
"
3.9 Using non-suspensive appeals removes
a crucial safety net. At least at present there is the back up
of the appeals system where often the case is fully considered
for the first time. Appeals from the country of origin cannot
possibly provide the same safeguards.
3.10 Again the House of Lords observed "The
general principle that appeals shall have suspensive effect is
one of the major procedural safeguards established by the Directive.
It follows that any dilution of that principle has to be viewed
extremely critically.[41]
"
3.11 Peoples rights and welfare should be
protected and they should not be subjected to arbitrary detention:
People cease to be entitled to NASS support once their appeal
has failed—there are growing numbers of people not being
removed, for a variety of reasons, but who are being thrust into
absolute destitution. There is in existence a "hard cases"
fund but the criteria for this are very narrow, access has proved
problematic and the support provided is even more restricted than
normal NASS support and with no cash.
3.12 In many instances people are being
placed in this position even though they cannot currently be removed.
This is true at present for example of Iraqi Kurds and people
from Zimbabwe. Such cases should either be granted Exceptional
Leave to Remain or continue to be eligible for full NASS support.
People should not be faced with homelessness and destitution where
there is no foreseeable prospect of removing them.
3.13 The failure to implement Part III of
the Immigration and Asylum Act 1999 in relation to bail, or provide
a meaningful alternative, means that significant numbers of people
are confined in detention quite arbitrarily and unnecessarily
and often for substantial periods of time.
3.14 This now applies to children of families,
being imprisoned as a matter of administrative convenience with
no real effort to explore alternatives. The Refugee Council has
heard people argue that at least they are fed and accommodated—such
people should hear the testimony of the children themselves who
understand all too clearly and indelibly the traumatic nature
of their family's existence.
3.15 Removed in a humane and dignified manner
and able to secure their possessions: there have been concerns
about the nature of removals—recent high profile removals
to Prague with film crews in attendance can hardly be described
as dignified.
3.16 Another significant problem area is
the fact that people are so often caught unawares by detention
and subsequent removal. This may be a necessary part of the technique
of successful removal, and I accept the force of this, nevertheless
there has been to date an almost total indifference to the subsequent
fate of the people involved.
3.17 Most serious is that even their legal
advisers have difficulty finding out what is happening with them.
Another common casualty is people's belongings. We have also had
examples of people removed without any knowledge of the families
concerned. In one instance a child was left with a minder whilst
the parents were detained and it took two days to find out what
had happened. Legal representatives also say that they are often
unaware of people's imminent removal and there are not adequate
procedures to contact people to find out what is happening.
3.18 Detention and removal often happens
unexpectedly after a considerable lapse of time. People are getting
on with their lives. There must be some recognition that there
are repercussions and a need for some formal welfare support to
enable them to regularise their lives. At present there appears
to be a wilful indifference, as if "they have brought it
on themselves" somehow justifies a basic lack of concern.
3.19 The Detention Centre Rules should stipulate
that there must be provision within each detention establishment
of a service to meet the welfare needs of the detainees, either
directly or by involving the voluntary sector.
4. VOLUNTARY
RETURNS
4.1 We are pleased that the government recognises
that voluntary return is by far the most preferable and sustainable
approach to returns and believe this approach should be extended
as far as possible.
4.2 In particular approaches such as "explore
and prepare" so people may assess their prospects; the payment
of resettlement grants to all returnees at appropriate economic
levels; the provision of employment and training support and advice
have all worked well for the Kosovan Programme and are now being
developed in relation to the Afghanistan Programme.
4.3 Assistance to returnees should extend
to support through appropriate training in order to promote re-integration
and the reconstruction of the state and the economy. Training
should be available both in the UK and in the receiving country
and be linked to areas of skill shortages in order to promote
re-integration and the reconstruction of the state and the economy.
Such initiatives should be seen as a way of providing the necessary
incentives for people to repatriate and a way of removing obstacles
to return.
4.4 Consideration should be given to the
impact of the loss of remittances when people are returned. Experience
shows that remittances are a significant source of income for
countries re-emerging from conflict.
4.5 Crucial within these programmes is to
ensure that they are conducted on the basis of informed choice
and conducted in circumstances of safety and security to the individual.
They should also be long term programmes and not confined to limited
periods such as six months in order to develop sustainability
and build confidence.
4.6 Experience shows that confidence in
voluntary returns programmes is undermined where these are accompanied
by punitive measures such the removal of support or loss of status.
4.7 It is equally important that regard
is paid to the impact on the receiving country—that fragile
infrastructures are not jeopardised by an unrealistic rate of
return. We would be concerned about any programme of large scale
returns that did not have regard to these factors. In addition
the government should maintain its commitment to reconstruction
by ensuring that returns programmes take place in tandem with
long term development programmes.
5. MONITORING
OF OUTCOMES
5.1 One final concern to which we would
like to refer is the need to monitor what happens to people once
they have been returned. This is important both for voluntary
and forcible returns and may be an area where UNHCR should have
an enhanced role.
6. CONCLUSIONS
6.1 We recognise the need to plan for returns
within an overall strategy of managed migration. Equally we welcome
the government's acknowledgement that voluntary return is the
preferable and more sustainable approach to return.
6.2 However, as I hope the concerns above
have demonstrated, it is our belief that the political impetus
to highlight the returns aspect of immigration policy is now seriously
compromising the very principles of protection and human rights
and the government claims to uphold.
October 2002
38 Minimum standards in Asylum Procedures, House of
Lords, March 2001. Back
39
Defining Refugees status and Those in Need of International Protection,
House of Lords 2002. Back
40
Minimum standards in Asylum Procedures, House of Lords, March
2001. Back
41
Minimum Standards in Asylum Procedures, House of Lords, March
2001. Back
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