Evidence submitted by the Immigration
Advisory Service (AIA 11A)
SUPPLEMENTARY SUBMISSION
Thank you for your request for further evidence
on clauses 10, 12 (and schedule 3) and 16 to 19. We are particularly
concerned about clause 10 and I enclose a copy of a detailed analysis
of parts of that clause by our Director of Legal Affairs, Zahir
Chowdhury. Additional comments are set out clause by clause below.
One of the themes to emerge from our criticism
of the various provisions is that the quality of decision-making—currently
demonstrably poor if one looks at the success rate at appeal in
immigration and asylum appeals—will deteriorate without
proper judicial supervision. Where there is immunity from criticism
or review, a decision-maker has no incentive to make good quality
decisions. The cuts to Legal Aid, when combined with the new Bill,
will come close to granting virtual immunity to Home Office asylum
caseworkers, the new Asylum and Immigration Tribunal and Entry
Clearance Officers abroad.
Success at appeal will inevitably decline, and
this will be heralded by the Home Office as evidence that the
quality of initial decision-making has improved. This wrong-headed
analysis could not be further from the truth.
Before launching into the detail of our response,
we wish to note that the impact of these proposals on immigrants
will be at least as severe as those on asylum seekers. In the
recent campaigns and discussions around the cuts to Legal Aid
and the new Bill, the rights of immigrants have been all but forgotten.
IAS has high rates of success on appeal in immigration as well
as asylum cases and this Bill will mean many spouses, family visitors,
students, legal economic migrants and even overseas British nationals
being denied their right to come to the UK. The impact on race
and community relations could be comparable to the hated primary
purpose rule on marriage applications, as Entry Clearance Officers
revert to increasingly arbitrary decisions in the knowledge that
challenging such decisions will be increasingly difficult.
CLAUSE 10
REMOVAL OF
JUDICIAL OVERSIGHT
OF DECISIONS
RELATING TO
REMOVAL
The proposed section 108A(2)(e) in clause 10
is the single most worrying provision in the new Bill, even though
it certainly has its rivals for this dubious honour. This provision
would entirely exclude judicial oversight of the removals process.
It removes the protection of the rule of law for anyone who is
the subject of—or whom the Home Office thinks is the subject
of, at least—a removal or deportation decision. Not only
is the decision to remove beyond judicial oversight, which could
be disastrous in cases of mistaken identity, where appeal rights
are actually current, or in countless other past examples where
injunctions preventing unlawful removals have been granted, but
a decision to detain pending removal is also beyond the supervision
of the higher courts. This is particularly worrying when there
have been several recent high profile examples of long-term detention
of families and children, a policy that was recently heavily criticised
by the Inspector of Prisons.
Further, the clause would prevent human rights
challenges to decisions relating to removal, thereby forcing claimants
to seek redress from Strasbourg. Far from bringing rights home,
the intention of the Human Rights Act, this provision invites
criticism by the Council of Europe of failures to protect human
rights.
These provisions would amount to a breach of
the unwritten rules of our constitution by a Home Secretary who,
frustrated by the courts' striking-down of the way in which he
has in the past exercised his powers, seeks to place himself above
and beyond the rule of law.
REMOVAL OF
JUDICIAL OVERSIGHT
OF APPEALS
Any practitioner will know that many Immigration
Adjudicator decisions are manifestly perverse or absurd. In one
recent IAS case an adjudicator found that paternity was not established
in a child immigration case, despite the Entry Clearance Officer
himself having commissioned a DNA test that revealed a 99.96%
chance of paternity. The decision was overturned by the Immigration
Appeal Tribunal (IAT) and sent to be re-heard by another adjudicator.
That such decisions will be unchallengeable (see below on the
worthlessness of the internal review) is very deeply worrying.
The proposed secton 108A explicitly states at
sub-section (3) that a lack of jurisdiction, irregularity, error
of law and breach of natural justice cannot be subject to review.
The current Immigration Appellate Authority (Immigration Adjudicators
and the IAT collectively) have often found to have acted in one
of these ways, and appeals to the Administrative Court or Court
of Appeal have in the past righted serious wrongs. This will no
longer be possible. The impact on individuals whose fundamental
rights—whether immigration or asylum—are at stake
would be bad enough, but even more worrying is the impact that
complete immunity from review will have on the IAA. The quality
of decision-making in future could be dire.
A comparison can be drawn with the removal of
the right of appeal against the refusal of visit visas. This led
to a marked deterioration in the quality of decision-making by
Entry Clearance Officers and the widespread use of standard "refusal
formulae", in breach of race relations legislation. The reinstatement
of the right of appeal in family visit refusals led to a 90% and
over success rate at appeals.
The higher courts have contributed a great deal
to the development of case law in immigration and asylum law.
While this may appear to be a rather esoteric concern, the case
law of the higher courts has led to the reuniting of thousands
of families that would have remained split and to the recognition
as refugees of groups such as oppressed women in Pakistan and
victims of pogroms and other non-State persecution. The IAA has
been extremely conservative in its approach and there is no reason
to think this will change when it is re-designated as the AIT.
INTERNAL REVIEW
The internal review by the Asylum and Immigration
Tribunal is worthless for claimants. The narrow grounds of review
are unprecedented and utterly incapable of ensuring appeal outcomes
are just and fair. The current Immigration Adjudicators regularly
make manifestly perverse or absurd decisions which are overturned
by the current Immigration Appeal Tribunal. Legal Services Commission
statistics show that IAS is successful in gaining permission to
appeal in 39% of asylum cases and 56% of immigration cases and
then, once those cases reach full hearing, overturning 76% of
asylum cases and 70% of immigration cases.
We would normally expect a provision on statutory
interpretation to be interpreted by the courts are broadly as
possible, especially when such draconian restrictions on judicial
oversight are proposed. Theoretically it would be possible to
interpret this review as equivalent to the jurisdiction of judicial
review, ie unlawfulness by exceeding the authority granted by
Parliament, or otherwise ultra vires. However, there is
no prospect of the AIT adopting this broad interpretation when
reviewing its own decisions and there is no possibility of such
an approach being forced upon it by a higher court because no
higher court has a supervisory jurisdiction (see above).
Having struggled to understand why the Home
Office included clause 6 (on credibility of claimants) in the
new Bill, being as such provisions already exist in the Immigration
Rules, we suspect the reason to be that this will allow the Home
Office to appeal allowed decision on the basis that the AIT failed
to apply clause 6 considerations properly.
The internal review will be worthless for claimants
but will allow the Home Office to appeal against positive credibility
findings. An already steeply sloping playing field will tip yet
further against the claimant.
REFERENCE TO
APPELLATE COURTAs
with the internal review, this provision is barely worthy of the
description it is given. A reference can be made by the President
of the AIT only if he so chooses and he will be under no obligation
to abide by any opinion he receives. This reference should not
be mistaken for an appeal; only a legal question can be referred
to the Court of Appeal (or Court of Session in Scotland) and not
the way in which it is applied in practice.
CLAUSE 12 AND SCHEDULE 3
The provisions in the proposed Part 3 of Schedule
3 are explicitly against the letter and spirit of the UK's legal
obligations under the Refugee Convention. Removal of a person
to a country from which he or she does not come, through which
he or she has not travelled and with which he or she has no association
is highly dubious under international law as well as being simply
plain wrong.
We believe these provisions will be widely used,
a considerable number of countries are likely to be added to the
list under Part 3 of Schedule 3 and that these provisions are
an attempt to revive the extremely controversial and widely condemned
proposals to create "Transit Processing Centres" on
the periphery of Europe and permanent "Regional Protection
Zones" in countries close to refugee-producing countries.
The former would be detention centres to which asylum claimants
would be instantly removed for processing of their claims, the
latter would be akin to the permanent Palestinian refugee camps.
We consider that Clause 12 and Schedule 3 are
intended to transfer the perceived "problem" of asylum
claims to a safe country, rather than resolve issues of Home Office
delay and inefficiency—shifting rather than sharing responsibility.
NO INDEPENDENT
DEFINITION OF
"SAFE"
The assessment of whether a country is deemed
safe is carried out by the Home Secretary, not an independent
body. There are already serious concerns about some of the countries
that have been designated safe for the purposes of the existing
"White List" under s.94 of the 2002 Act, particularly
Bangladesh and Jamaica. There are undoubtedly specific minorities
in those countries which are subject to serious human rights abuses.
IAS recently published a detailed examination of the Home Office's
country information reports, on which asylum policy and individual
asylum decisions are based, and found them to be remarkably selective
in their use of source material. A summary of the report can be
located on the IAS website or the whole report can be made available
to the committee if desired (it is 250 pages long).[53]
IAS and others have long called for the creation of an independent
documentation centre, which would produce credible and reliable
country information, on which credible and reliable asylum decisions
and policy could then be based.
UNCHECKED EXTENSION
POWERS
The Home Secretary would be granted unchecked
extension powers for this "safe list", without him having
to provide reasons. When the previous "White List" (s.94
of 2002 Act) was introduced, assurances were given that the list
would only be extended beyond the EU accession states after very
careful deliberation. There is no evidence that this took place
and, as stated above, some of the decisions on inclusion are very
questionable indeed. Similar assurances will no doubt be given
but these are likely to be as little respected as in the past.There
is also no mention of a mechanism for review if, for example,
the human rights situation deteriorates, new and damning human
rights information becomes available or a war or civil war breaks
out.
INDIVIDUAL CIRCUMSTANCES
Although a country may be safe in general, it
might not be for certain individuals and minority groups. There
is no mechanism in the Bill for considering the merits of individual
cases, unlike under the existing White List. This at least allows
for individual consideration of the claim through a rebuttable
presumption that the claim is unfounded (which, if not rebutted,
removes the right of in-country appeal). Some claims from current
White List countries have been successful. The new provisions
allow for blanket removal of claimants no matter what their individual
circumstances. This is against the letter and spirit of the Refugee
Convention and is strongly opposed by UNHCR. It will lead to individuals
being persecuted and suffering breaches of their fundamental human
rights.
CLAUSES 16 TO 19
We welcome powers which will result in more
immigration advisers being brought within regulation who, contrary
to the legislation, are presently unregistered. Individuals and
organisations must, however, be safeguarded against abuse or misuse
of these powers. To give the current Government credit where credit
is due, the regulation of the immigration and asylum advice sector
is becoming effective and the quality of work and advice is improving.
We do not think these provisions will necessarily accelerate or
decelerate this process, as the OISC has already shown that it
can be effective.
Colin Yeo
Head of Higher Appeals, Immigration Advisory Service
2 January 2004
53 Under "Media Releases" see Home Office
country information dangerously inaccurate and misleading, or
see link: http://www.isauk.org/documentstore/Doc308.doc Back
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