Select Committee on Constitutional Affairs Written Evidence


Evidence submitted by Bail for Immigration Detainees (BID) (AIA 23)

INQUIRY INTO ASYLUM AND IMMIGRATION APPEALS (THE INQUIRY)

1.  INTRODUCTION

  1.A  Bail for Immigration Detainees (BID) is a registered charity that prepares and presents free bail applications on behalf of those detained under Immigration Act powers. BID also carries out information and research work on the policy and practice of immigration detention in the UK. BID has offices in London, Portsmouth and Oxford and makes bail applications for those held at any of the detention centres in the UK. BID was established in 1998, since which time we have presented over 500 bail applications. BID does not represent people in relation to their substantive immigration or asylum matter, but usually has sight of documents from the substantive case in order to prepare a bail application.

  1.B  BID welcomes the opportunity to respond to this Inquiry. The processes to be considered by this Inquiry are of the utmost importance for people who are claiming asylum in the UK and for whom the asylum process is literally a matter of life or death. Asylum seekers and migrants who are detained are particularly vulnerable. This is due to the psychological and physical impact of indefinite detention, which is prejudicial to an individuals' ability to pursue his or her asylum case. BID is opposed to arbitrary and unnecessary use of immigration detention and wish to emphasise that there are alternatives to detention, such as reporting requirements (see BID submissions to Home Affairs Committee Inquiries into Removals, October 2002, and into Asylum Applications, March 2003—not printed here).

  1.C  In BID's experience, detention inhibits an individual's:

    —  ability to progress his or her case, such as instructing solicitors on all aspects of the case, obtaining evidence from his or her home country, contacting potential witnesses, etc;

    —  ability to disclose a history of trauma, particularly torture/rape, and this in turn affects the outcome of the asylum claim;

    —  access to good quality legal advice and representation;

    —  access to specialist psychological/psychiatric services, for example those available for survivors of trauma, and reduces the likelihood of the trauma being documented by a qualified person;

    —  access to support organisations in the community, such as church groups and refugee community groups; and

    —  access to educational facilities.

  Detention also creates obstacles that vary between removal centres, but which include:

    —  restricted access to telephones—through low phone card allowances, often a need for long distance calls, poor rate telephone cards, lack of telephones for number of detainees, restricted times in which to telephone in, sometimes poor switchboard services.

    —  restricted visiting times, especially at Lindholme (three afternoons per week for 1½ hours per visit), long distance from legal representatives, friends, family.

    —  frequent movement of detainees between removal centres. This can lead to a detainee losing representation from his or her solicitor because of being moved to a distant detention centre. If this happens shortly before the detainee's appeal, or when appeal papers need to be lodged, the effect can be severe (see below).

  Where someone is kept in a criminal prison (which may happen even while he or she is preparing for an appeal, etc), there is no opportunity to receive incoming telephone calls. The detainee is also likely to be restricted in access to telephones and to telephone cards. The prison will often be at some distance from the legal representative.

  1.D  There are no figures available as to the application status of those detained, but in BID's experience, a significant number of people are detained at the beginning of the process, with outstanding rights of appeal. We would ask the Committee to bear in mind that this remains the case, despite the fact that detention centres have been renamed removal centres.

  1.E  Furthermore, as was identified in research by Cambridge Institute of Criminology[131] in many cases the initial decision to detain is flawed. There are no statutory detention criteria and there is no automatic, effective, independent oversight of the initial decision to detain and decisions to maintain detention. The effect of this is that many people that the government says should not be detained, or should be detained only briefly, are in fact detained for many months[132] This includes families with children.

  1.F  BID is concerned that recent government targets on asylum applications emphasise preventing entry, rejecting claims and increasing removals, to the detriment of a fair decision-making process, based on up-to-date independent country assessment information. Against this backdrop, the role of the IAA and the role of the LCD in protecting the right of asylum seekers to a fair and independent appeals process, is even more important.

2.  MATTERS FOR THIS COMMITTEE

  2.A  The two key matters that we wish to draw to the attention of this committee are:

    (i)

    the reduction of time for appeals for all detained cases, under the 2003 Appeals Procedure Rules, and

    (ii)

    the introduction of a new Harmondsworth pilot fast track scheme.

  2.B  We also wish to raise some points regarding efficiency of the IAA in relation to bail, and the availability of legal representation for detained people. We have previously raised these issues in detail with the Lord Chancellor's Department, the Immigration Appellate Authority and the Legal Services Commission.

3.  LCD PROCEDURE RULES, APRIL 2003

  3.A  The Immigration and Asylum Appeals (Procedure) Rules issued by the Lord Chancellor's Department in January 2003 and introduced in April 2003 formally establish a link between detention and a fast track procedure. In BID's view, this seriously undermines the balance between fairness and justice, and efficiency.

  Rule 7(1) reduces the appeal time limits for people detained under the Immigration Acts from 10 working days to five working days. The stated intention of this change is to reduce the time spent in detention. However, this change fails to address the fundamental issue of access to adequate legal representation, which is more difficult, rather than less difficult for people in detention. As such, this proposal may result in people being removed without an opportunity to lodge an appeal because they could not access legal advice in time.

  3.B  The proposal also fails to address the need that arises in many cases, to draft complex grounds of appeal, particularly for appeals to the Immigration Appeals Tribunal (IAT). This is likely to result in meritorious applications to the IAT being lodged incomplete or out of time because of the need to seek counsel's advice prior to drafting grounds to the IAT. In BID's view, it is the responsibility of the government to operate a fair asylum procedure, and to justify why detention is necessary against the detention criteria. Instead, this measure seeks to amend the appeals procedure to justify the use of detention.

4.  HARMONDSWORTH FAST TRACK SCHEME

  4.A  The model of Oakington reception centre is being expanded to include detention through a speeded-up appeals process at Harmondsworth removal centre[133] and it has been indicated that this pilot will be "rolled-out" if successful. As with Oakington, there is a list of nationalities that are considered suitable for fast track processing, including at the present, Ivory Coast. This process is only supposed to apply to those "with straightforward claims" who also fit the detention criteria.

  4.B  The fast track scheme envisages two days for applicants to lodge appeal papers (whether notice of appeal to the Adjudicator, leave to appeal to the IAT or leave from the IAT to appeal to the Court of Appeal). The hearing, in the case of appeals to the adjudicator, is to take place within four days of the appeal papers being lodged. Similar time limits apply on applications for leave to the IAT and Court of Appeal. The effect of this is that an applicant and his or her representative must prepare the substantive appeal within six days of the initial decision (including obtaining statements, translations of documents, medical/psychological and/or specific country evidence). The applicant's legal representative must consider and draft full grounds of appeal to the IAT/Court of Appeal within two days of the decision of the adjudicator (including formulating what may be complex legal arguments, backed by precedent). There are restricted provisions for adjourning and for cases to be removed from the fast track: "in exceptional circumstances, if the adjudicator or the Tribunal is satisfied by evidence filed or given by or on behalf of a party that the appeal cannot otherwise be justly determined".

  4.C  A precondition for the fast track scheme is that a person is in immigration detention throughout the process. There is no provision for either automatic bail applications or any review by the courts as to whether the detention of the individual fits government criteria. Notably, the provisions on removing cases from the fast track do not allow for a consideration by the courts of whether detention criteria have been properly applied.

  4.D  In BID's experience the Immigration Service has in many cases failed to properly apply the criteria for detention, which are in many cases ignored completely. This leads us to be concerned that that the criteria for detention may be ignored in favour of other criteria (that may not be published) and that victims of torture and rape and other trauma will be subjected to the pilot scheme. No evidence has been presented which supports the suggestion that it is possible to identify a "straight-forward" claim. There is no protection built into the system to prevent cases being put into the fast track merely because they fit criteria such as nationality. BID is aware from bail summaries that the Immigration Service has already sought to justify detention on the grounds of the "fast tracking" of the appeal. This is the case even though this is not a detention criteria. For these reasons, we believe that the policy will inevitably create a circular process—a person is suitable for the fast track because he or she is detained and detention is justified because the person is being dealt with under the fast track.

  4.E  A recent example from our caseload demonstrates both how detention criteria are not properly applied and how a similar case under the new "fast-track" scheme would have resulted in a child being removed from the UK without an opportunity for his claim to be determined.

  Case study: unaccompanied minor detained for over two months before being released on temporary admission (TA) following an application by BID.

  Peter claimed asylum on arrival at the airport in the UK. He immediately stated that his documents were false. He gave his real name and date of birth. He said he was 16 years old.

  Current detention critiera, contained in the Operation Enforcement Manual, state that unaccompanied minors should not be sent to Oakington, and that "Unaccompanied minors must only ever be detained in the most exceptional circumstances and then only overnight, with appropriate care, whilst alternative arrangements for their safety are made." (OEM 06-07-01)

  In spite of Peter having said from the outset that he was 16, the Immigration Service decided that he did not look like a minor and sent him to Oakington for his claim for asylum to be processed, in contravention of guidelines. After receiving an initial refusal on his asylum application, Peter was then detained in Harmondsworth.

  Whilst in detention, Peter arranged for his birth certificate to be sent to him from his country of origin, as evidence of his age. It was faxed to him via a family friend and a copy given to the Immigration Service. This document confirmed Peter's date of birth as X/X/1985.

  The Immigration Service maintained detention whilst seeking confirmation of the veracity of the birth certificate from his country of origin; a process that takes weeks rather than days.

  When detained, Peter was given a form which gave the reasons for detention. It stated that "There is insufficient reliable information to decide on whether to grant you temporary admission or release" and "You need to be detained whilst alternative arrangements are made for your care." There was no indication in his monthly reports from the IS that the reasons for detention had been reviewed in the light of the birth certificate nor was any information given on why it was necessary to detain him. His monthly detention reviews only stated that the Immigration Service was awaiting the outcome of his appeal, rather than explaining why he was still in detention nor why he was not being treated as a minor.

  The Refugee Council Children's panel had no record of this case being referred to them by the Immigration Service, despite Home Office instructions that referral must take place. BID referred Peter to the Children's Panel who visited and were deeply concerned for him, believing him to be a minor.

  Peter was finally released on Temporary Admission following an application by BID, after spending over two months in detention. Whatever the outcome of his appeal, he will be granted leave to remain in the UK until he is 18.

  We believe that people such as Peter are very likely to be placed in the fast track scheme, in the same way that they are frequently placed in the Oakington scheme, despite guidelines to the contrary. The result of this could easily be that Peter would be returned to his home country before being able to obtain his birth certificate. The Home Office would have sought no experienced, independent assessment of his age in choosing how his case should be dealt with.

5.  EFFICIENCY OF THE IAA ("THE EXTENT TO WHICH THE IAA COULD BE MADE MORE EFFICIENT WITHOUT SACRIFICING FAIRNESS")5.A  BID's experience of the IAA is in relation to applications for bail. We are concerned that it is difficult to assess the efficiency of the court due to the lack of statistics made available. BID suggests that information be made available regarding the total number of bail applications listed, the number heard and the numbers granted, refused and withdrawn.

  5.B  At the present time, applications for bail must be listed at the hearing centre nearest to the detention centre if an applicant is to be produced. Production of an applicant, as well as presence of any sureties, are often key to the successful presentation of a bail application. Many detainees are moved around the detention estate and so may not be accessible to their representatives even if they are willing and able to make a bail application. We are concerned that the inflexibility of listing locations and production means that detainees are not able to exercise their right to apply for bail. We recommend that there should be sufficient flexibility in the procedure to allow for the production of an applicant where there is good reason for the hearing not to be listed near the centre, for example due to the location of the legal representative or the sureties.

  5.C  The current system for listing bail applications is not efficient. The applications are invariably listed at 10 am although in a majority of cases the applications cannot be heard until the detainee has been brought from the detention centre. In the case of detainees being brought from Harmondsworth or Dover and being taken to York House or Taylor House/Bromley Magistrates Court respectively, the usual arrival time is between 11 am and 12 noon. However, adjudicators, interpreters, representatives and sureties must all be at court by 10 am, thus wasting considerable time and public money. BID recommend that usual arrival times be taken into account when listing bail applications and consequently, that applications be listed "not before 11 am" or at 2 pm, as appropriate. This follows practice in the criminal courts.

6.  AVAILABILITY AND PROVISION OF LEGAL ADVICE AND REPRESENTATION, AND OF INTERPRETATION FACILITIES

  6.A  It is BID's experience that many detained people do not have proper access to good quality legal advice and the very fact of being detained makes it difficult for asylum seekers to progress their case. The report of HM Inspectorate of Prisons, published 8 April 2003, draws attention to the lack of access to legal advice and interpreters at Haslar and Lindholme. The reports also identified that key interviews with immigration staff were not interpreted. Due to these practical obstacles, many representatives simply refuse to take on detained cases, and the very fact that BID exists is an indication of the inadequacy of representation in relation to obtaining release from detention.

  6.B  A particular restriction on legal representation for detainees is the merits test for Controlled Legal Representation (CLR) for representation in bail applications. This requires representatives to assess the application as having at least a 50% chance of success before proceeding. Due to the fact that Adjudicators often require sureties, and the fact that many asylum seekers do not have sureties available, many representatives take the view that they cannot proceed with a bail. The result of this is that the reasons for detention are never challenged and cases in which sureties should not be required in any event are not identified. Also, it is BID's view that all detainees have the right to a bail application, as this remains the only real mechanism for challenging continued detention. BID has been lobbying for some time for the merits test to be reworded in recognition of the fundamental importance of the right to apply for bail.

May 2003





131   "Deciding to Detain: how decisions to detain asylum seekers are made at ports of entry", Weber, L & Gelsthorpe, L, Cambridge Institute of Criminology, 2000, and "Deciding to Detain: the organisational context for decisions to detain asylum seekers at UK ports", Leanne Weber & Todd Landman, University of Essex Human Rights Centre, May 2002 Back

132   For example, A Crying Shame: Detention of pregnant asylum seekers and their babies, 2002 by BID and Maternity Alliance documented cases where pregnant women had been detained for long periods, in spite of Home Office guidelines which state that pregnant women are "not normally suitable for detention other than in exceptional circumstances" Back

133   See Home Office Press Release, Tuesday 18 March 2003, New Fast Track Pilot for Asylum Claims Back


 
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