Evidence submitted by Asylum Welcome (AIA
9)
Not all of the specific bulleted points relate
to our work, as we have no information on costs and savings, but
I shall deal in order with those that are relevant. First, however,
we raise a general matter, which has long concerned us, but increasingly
so in recent years — namely, our doubts about the fairness
of the appeals procedure.
Are the appeal procedures fair?
We have discussed this with Judge Dunn in person,
and in correspondence with Judge Hodge, and we understand their
insistence on protecting the independence of the judiciary. But
we are very concerned that decisions vary greatly according to
the adjudicator who happens to be in charge, and sometimes according
to the ethnic origin of the appellant. This has resulted in decisions
we strongly believe to be unfair. We have had considerable experience
of visiting detainees over the last nine years (even longer for
some individual members), of providing sureties and attending
appeal hearings. Of course we recognise that some stories are
invented. Often this is easy to tell. But there are many whose
histories of political/religious harassment, persecution and even
torture we believe to be genuine, often from hard evidence, and
their fears of return to be well-founded. In many cases we have
seen the scars and symptoms of trauma. Yet many of these people
have lost their appeals, been removed and then handed over to
the authorities who had persecuted them.
There are three points here. One is the alleged
"culture of disbelief" which we are certain still exists.
Adjudicators tend to accept the word of the HOPO against that
of the detainee and his lawyer. Genuine birth certificates, obtained
with great difficulty, as required by the court, have often been
rejected in our hearing, on the grounds that they are "easily
forged". Thus many adverse decisions appear to us from hard
evidence to be unjust. Secondly, we see an apparent lack of humanitarian
considerations in deciding to remove. (This is not the same as
the routine consideration of human rights.) The third is the fact
that the Immigration Service is in touch with the authorities
in the receiving countries, and routinely hands individuals over
to them.
We are not asking you to look into individual
cases. But I should like to cite several examples, out of many,
in support of the above. We have the details of each individual,
but I will not name them.
A. One Zimbabwean, who had been repeatedly
tortured and suffered from acute PTSD, was removed against the
advice of four doctors, including one from the Medical Foundation.
He was escorted all the way, as he was so ill, handed over to
the authorities in Harare and imprisoned there. We have now lost
touch with him. This happened before the Home Secretary's temporary
suspension of removal to Zimbabwe.
B. A Ghanaian had been politically harassed
by the authorities, and fled, jumping into a poisoned lake. Two
friends with him were drowned but he managed to struggle out and
escape. The adjudicator at his first appeal refused to believe
him on the grounds of a slight discrepancy in the times he gave
for his escape from the lake, soaking wet, in the dark.
C. A Ugandan, who had been forcibly recruited
as a child soldier and later released on health grounds, was forced
back into the army to fight in the Congo. He refused to go, as
his father was Congolese, and deserted. The army found him and
beat him up mercilessly—he still suffers from chest pains—but
he fled to UK. The adjudicator refused to believe any of his story
about the army and rejected his appeal, in spite of evidence (which
she quoted from an official document) that Ugandan parents complained
of many young men being abducted by the army, against official
government policy.
D. One Tanzanian from Pemba (Zanzibar) remained
in detention for over a year, while his wife and four-year-old
daughter were lost in the UK. They had gone missing from the custody
of Immigration on the day they all first claimed asylum. He begged
to be released, if only temporarily, to search for them (they
spoke no English), but this was refused; the adjudicator rejected
his asylum appeal as unfounded, in spite of a clear history of
persecution and imprisonment for supporting the Zanzibar opposition.
The Minister ordered his removal, in spite of the intervention
of 29 MPs, who pleaded that he might never see his family again.
He was absolutely desperate, resisted removal, and was carried
on to the plane unconscious after being hit on the head by his
guards.
E. A man from Cameroon, whose father, mother
and brother had been assassinated (political) and his house destroyed,
was suffering from severe trauma on arrival. The adjudicator refused
to believe his story. He managed to obtain a photograph of the
house, but this was rejected because the person who had taken
it in Cameroon was not in court to verify it! He was moved around
various centres, so it was difficult to keep in touch with him,
but we believe he has been deported, though he was terrified of
what would happen to him.
F. A Nigerian, who had seen his wife and
children killed in riots, obtained bail last year from Haslar,
having been moved there from Campsfield. But he was not believed
by adjudicators, lost every stage of appeal, and was brought to
Campsfield for removal, but, as happens so often, his file had
been lost. He was sent to Tinsley House for one day, then to Haslar
again. He is in great fear, and his visitor is very distressed
for him, as she has known him for many months and is utterly convinced
by his story.
G. An Ivorien, who had been persecuted on
political grounds, lost his appeal. Although he was not sent to
Cote d'lvoire because of the instability, he was flown to Mauritania,
which refused to accept him, and he had to be flown back to UK,
at great expense to the taxpayer. We understand he has now been
deported, but we do not know where.
H. A Nigerian Catholic, who had been caught
up in the Muslim-Christian riots in Kaduna in May 2000, had also
lost his wife and child (feared dead) and had his home and business
destroyed. He hid with his mother in the south, but fled for asylum
here when some men came to her house looking for him. His most
recent appeal, on human rights grounds, was rejected.
I. A 16-year-old Nigerian was about to be
released from Campsfield to the care of Oxfordshire Social Services,
who had accommodation for him, when he was suddenly moved to Dover,
upsetting all the arrangements. This is an example where a sensible
decision on appeal was frustrated by the actions of the Immigration
Service.
Both F and H, above, were told by adjudicators
that they would be safe in another part of Nigeria, because it
is "a big country". But, given (a) the widespread violence
over the recent presidential elections (probably won by the incumbent
Christian against his Muslim opponent), and (b) the ease of communication
and the religious upheavals throughout Nigeria, it seems to us
that this assumption is very untrustworthy.
The extent to which recent reforms have improved
the quality of the appeals process
Recent changes include the emphasis on speed
of decisions, the extension of fast-tracking, the projected removal
of the right to judicial review, the extended requirements for
visas, along with the re-introduced and extended list of countries
from which claims are assumed to be unfounded. The amended Sections
54 and 55 reduce even further the right of appeal. Our contention
is that all these have simply exacerbated the problems outlined
above.
1. If decisions are made more hastily, the
risk that they will be flawed or unjust is clearly increased.
2. Fast-tracking involves a very limited
period to obtain crucial evidence from abroad; this is often impossible.
3. The right to Judicial Review has saved
many refugees from being removed, and is an important constitutional
check on the administration. (Adjudicators, unlike High Court
judges, are appointed by the Home Office.)
4. It is clearly unjust to require people,
especially from Zimbabwe, or Roma from the Czech Republic, to
go the authorities that have persecuted them to request the passport
they need to obtain a visa. Some are afraid even to approach the
British High Commission for fear of possible informers and even
of being seen in the capital. This requirement alone means that
genuine refugees have to resort to the traffickers that government
is trying to suppress.
The list of countries for "unfounded"
claims is a blanket attempt to rule out all refugees from these
whether genuine or not. Yet many countries officially judged "safe"
contain areas of severe violence and persecution. For example,
although Zanzibar is officially part of the United Republic of
Tanzania, and the mainland is relatively peaceful, the central
government has little influence over the Marxist government in
Zanzibar, and tends to condone the violence and political persecution
that takes place on the islands.
Furthermore, non-suspensive appeals are inherently
unfair. If removal takes place while such an appeal is still pending,
this reduces almost to nil their legal right of appeal. Many of
our cases who have been sent back have been told that they can
make another application from their "home" country,
but they have no access to good legal advice and absolutely no
funds to return here. Many have paid their entire family's savings
to come in the first place, and cannot afford the fare or lawyers
fees, while the visa requirement may be another barrier. So it
is almost impossible for them to get back, and we have no record
of any asylum seeker who has done so.
Whether the relevant procedure rules properly
balance justice and fairness with efficiency
We have not seen the procedure rules, and therefore
cannot comment on them. The first section above deals with fairness,
but we can add some comments here on efficiency.
Although there have been some improvements since
the introduction of a flawed computer system, the department does
not now seem to be making full use of it. Most appellants' files
are stored as hard copies by the IND as well as by lawyers. This
would not matter if they were efficiently handled, but they are
not. We know of countless cases where the files have been sent
by the IND to the wrong court, or have gone missing. This causes
numerous adjournments, which are costly not only to the government
but also to the lawyers whose time is wasted, and are very distressing
to appellants, their sureties and supporters.
Secondly, many hearings are adversely affected
by the non-appearance of the HOPO. Some adjudicators adjourn in
such a case, but others have been known to proceed without Home
Office representation. We recommend that the Committee should
investigate court files to obtain figures of these unnecessary
adjournments.
Thirdly, a number of appellants who have lost
their appeals are removed to countries which refuse to accept
them and send them back at the IND's expense. This is usually
because the Dept has failed to obtain clearance from the receiving
country—which has happened to many Nigerians. Or, when people
cannot be sent back to, say, Sierra Leone or Somalia, for policy
reasons, they may be sent elsewhere, either on the alleged grounds
that they falsified their true nationality, or that they fled
here from a country not their own and should go back to it. Sometimes
such countries seem to be chosen at random. Recently an Ivorien
was sent to, and refused entry by, Mauritania.
In all these cases, we believe that all these
examples of inefficiency could be eradicated without any sacrifice
of fairness
Whether there is sufficient availability
and provision both of legal advice and representation and of interpretation
facilities in asylum and immigration cases
There is not. We have struggled for years to
help detainees and appellants secure satisfactory legal advice
and representation. The problems are twofold: (a) the shortage
of efficient, qualified lawyers willing and able to undertake
immigration work; and (b) the profusion of inefficient and unqualified
advisers, who sometimes represent themselves as solicitors when
they are not, and who often charge exorbitant fees.
The situation has been improved considerably
by the Immigration Services Commissioner, who has instituted a
system of registration and acts on complaints. Unregistered lawyers
may not be eligible for legal aid, and therefore often charge
excessive fees, without which they refuse to take instructions.
We have complained successfully about several bad "lawyers".
But in Campsfield, for example, detainees often choose inefficient
reps, either because they are fellow-countrymen or because they
have been picked up a name from the centre's grapevine. We believe
that one lawyer is guilty of asking detainees and even visitors
to recruit clients for her.
On interpretation facilities, we have found
that these are usually satisfactory at appeals, but sometimes
bilingual appellants who choose to speak in their own language
have complained that the interpretation is unsatisfactory. We
are very concerned, however, over the lack of adequate interpretation
within Campsfield, when detainees need to speak to their lawyers
or their visitors. As a result, the lawyers may represent them
at appeals without having been properly briefed.
27 April 2003
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