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
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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