Appendix
Joint letter from the Home Office and the Department
for Constitutional Affairs inviting responses to the Government's
consultation exercise
The Nationality, Immigration and Asylum Act 2002
enabled us to make significant progress in reforming the UK's
nationality, immigration and asylum systems. For asylum this has
meant that the number of claimants has halved, removals are at
record levels and the number of claims awaiting an initial decision
is at the lowest for a decade. The Government is determined that
there should be a balanced approach in asylum and immigration
policy, so that we bear down on those who would seek to enter
the UK illegally and who make unfounded claims, whilst ensuring
effective help for refugees who need our protection. Our policy
on asylum has to be seen in the wider context of managed migration,
through which we are opening up routes for people to enter the
UK legally. That is why we are committed to continued reform,
as necessary, of the asylum system to ensure that those in need
of protection are identified quickly and those who try to exploit
the system are prevented from doing so.
The Government has made it clear that we seek to
tackle two remaining problems in the asylum system: applicants
who lodge groundless appeals to delay removal and the problem
of asylum seekers who deliberately destroy or dispose of their
documents to make unfounded claims.
We reformed the appeals process in the Nationality,
Immigration and Asylum Act 2002 and the changes made are already
producing real improvements. However, we must increase the speed
and finality of the appeals system still further. An efficient
and speedy system which provides an effective remedy but discourages
dishonesty is in the interests of all.
We also need to tackle the problem of asylum seekers
who deliberately destroy or dispose of their documents and refuse
to co-operate with the re-documentation process in order to frustrate
removal after making unfounded claims. This can lead to delays
in removal, pressure on detention space and is an unacceptable
exploitation of the system.
We believe that these are important and urgent reforms
and intend to introduce legislation to enact the measures we have
announced today as soon as parliamentary time allows. We are therefore
seeking your comments on these proposals as a matter of urgency.
Our proposals are set out at Annex A.
BEVERLEY HUGHES MP DAVID
LAMMY MP
Minister of State, Home Office Parliamentary
Under-Secretary, Department for Constitutional Affairs
27 October 2003
Annex A
NEW LEGISLATIVE PROPOSALS ON ASYLUM REFORM
We are writing to outline new legislative proposals
on asylum reform and to seek your comments on these proposals.
Responses are requested by 17 November 2003.
Asylum and Immigration Appeals System
The Government is determined, through incremental
change, to safeguard the appeals system from misuse and protect
the credibility of the process. The Government is also concerned
to ensure that community relations are not adversely affected
by what may be seen in many quarters as continuing evasion and
exploitation of immigration and asylum controls at significant
cost to the taxpayer.
The changes made in the Nationality, Immigration
& Asylum Act 2002 are already showing real improvements in
the appeals process. However, more still needs to be done to improve
the system. That is why we are proposing to move to a single tier
of appeal. Such a change would continue to safeguard the right
of appeal and provide an effective remedy for those whose application
has been refused by IND or an Entry Clearance Officer. A single
tier would simplify the appeals system and reduce the risk of
people seeking to play the system by making unfounded appeals
to frustrate final resolution of their case.
The current appeals system is still too long and
complicated. It provides people with opportunities to abuse the
system in order to cause delay or abscond. We therefore propose
to replace the current structure with a single appeal to a new
single-tier Tribunal, the Asylum & Immigration Tribunal (AIT),
headed by a President.
The new judiciary will generally be titled Immigration
Judges or Senior Immigration Judges, but the precise hierarchy
remains to be determined. The vast majority of appeals would
be heard and decided by a single immigration judge, working closely
with more senior judiciary. Appellants, as now, would be expected
to raise all of their grounds of appeal at their one hearing.
The judicial oversight provided by the designated
senior judge will ensure high-quality justice without allowing
cases to drag on for many months through the legal process. Fairness,
finality and speed would be the hallmarks of our new appeals system.
Together with the creation of a single tier of appeal, we are
looking at ways to restrict access to the higher courts.
Undocumented passengers
We have already taken tough measures to tackle illegal
immigration. The deployment of high-tech freight screening equipment
at French and Belgian ports and moving UK border controls to France
are already preventing undocumented and inadequately documented
people from travelling to the UK. However, we also need to tackle
the problem of asylum seekers deliberately destroying or disposing
of their documents and refusing to co-operate with the re-documentation
process in order to prevent removal. We therefore propose to
introduce measures which would ensure that those asylum seekers
who fail to provide documents without a good explanation and/or
have travelled through a safe third country and/or who claim late,
would have this taken into account when considering the credibility
of their claim. These measures would require the decision-maker
and appellate bodies to take account of the above situations when
assessing the credibility of statements made by such persons in
support of their asylum claim. Immigration rules already make
a similar requirement for undocumented arrivals and those who
delay making their application, but the proposed measures would
make this requirement clearer and enable us to extend the policy
to include those who have travelled through a safe third country.
In support of this proposal, we also propose to create
two new criminal offences. The first offence of being undocumented
without reasonable explanation would apply to anyone, subject
to certain exceptions (EEA nationals for instance), arriving at
a UK port without adequate documentation to satisfy immigration
control. The second offence of failing to co-operate with re-documentation
would impose a duty on those with no right to remain in the UK,
including failed asylum seekers, to co-operate with the re-documentation
process. Prosecution would follow where it could be established
that a person did or did not do something that had the effect
of frustrating, obstructing or otherwise interfering with the
re-documentation process.
We also wish to consult on the introduction of measures
to diminish the benefit of passengers destroying or disposing
of documents in transit and before reaching passport control.
While we have at this stage taken no decision on this, we will
consider including powers that would allow us to require carriers
to take copies of passengers' identity documents before they travel.
We will be discussing the proposal with industry representatives
to obtain further information on the practicalities of such a
proposal ahead of taking a decision on the policy.
Safe Third Country
A further proposal would deal with situations where
it is decided that a country other than the United Kingdom is
best placed to consider someone's asylum or human rights claim
substantively. We intend to legislate so that a person will not
be able to challenge their removal to certain safe third countries
on the basis of the way they will be treated. The designated
countries will be those where we are satisfied that an individual
will be neither persecuted nor subjected to torture or inhuman
or degrading treatment or punishment, nor one which would remove
a person in breach of the principles of the Refugee Convention
or the ECHR. This would facilitate their faster removal from the
UK, consistent with our international obligations.
Restricting family support
Since Section 54 of the Nationality, Immigration
and Asylum Act 2002 came into force, it has been possible for
us to withdraw NASS support from families with dependent children
who have had their asylum claim determined (either because their
claim has been determined and they choose not to appeal or because
they have exhausted all appeal routes), if they have failed to
comply with a removal direction. We propose that the law should
be amended so that support for families whose claim for asylum
has been rejected and who have no avenue of appeal left, will
end as soon as it is confirmed that the family is in a position
to leave the UK. This would provide an additional incentive to
leave the UK promptly either via the Immigration Service or via
a voluntary assisted return and would reduce the waste of public
funds when such a family fails to comply with a removal direction.
Support would continue in cases where the family would require
a travel document to leave and they are complying with the re-documentation
process. The process for removing support from those without dependant
children when their claim is determined would remain unchanged.
If asylum support is withdrawn from a family in this way, other
forms of support, including that provided under section 2 of the
Local Government Act 2000, would no longer be available except
to the children under Section 20 of the Children Act 1989.
The Office of the Immigration Services Commissioner
The Immigration Services Commissioner's Annual Report
for 2002-3 suggested there was scope for improving the effectiveness
of the regulatory scheme he administers. The Commissioner expressed
particular concern about the activities of those non-legally qualified
advisers who do not come forward for regulation. He was also concerned
by these unqualified advisers evading regulation by setting up
false supervision arrangements with solicitors. Furthermore, the
Commissioner in his Annual Report, continued to be concerned about
the handling of complaints by certain designated professional
bodies (DPBs). In addition, the Commissioner's statutory duty
to provide the Secretary of State, in his Report, with his opinion
as to the extent to which each DPB had provided effective regulation
of its members in the provision of immigration advice/services
was limited by their lack of co-operation in providing necessary
information. Following dialogue with the Commissioner, we are
minded to introduce the following measures. We are considering
making provisions extending the Commissioner's current powers
under paragraph 7 of Schedule 5 to the Immigration and Asylum
Act 1999 so that, when investigating a complaint, a member of
his staff would be able to enter a solicitor's office, require
the production of relevant documents and an explanation of them.
We are also looking at making provisions enabling the Commissioner,
when investigating a complaint of suspected sham supervision of
an unqualified immigration adviser by a solicitor, to enter the
solicitor's office and seize material, subject to obtaining a
court warrant.
We are also considering placing a duty on designated
professional bodies to provide timely information to the Commissioner
and to co-operate fully with any reasonable request from his staff
so that he can fulfil his statutory duties.
Under these proposed measures, in order to deal with
those who are suspected of flouting the regulatory scheme, thereby
committing a criminal offence under section 91 of the Immigration
and Asylum Act 1999, the Commissioner would be empowered to enter
the private or business residence of anyone suspected of providing
immigration advice or services from those premises when unqualified
to do so, subject to obtaining a court warrant. There would also
be a new criminal offence of advertising or offering to provide
immigration advice or services when unqualified. The investigatory
powers set out in paragraph 7 of Schedule 5 to the 1999 Act would
be extended to those advisers to whom the Commissioner has granted
an exemption certificate. The Commissioner would be empowered
to enter a private residence being used by a registered or exempted
adviser for the purposes of providing immigration advice or services,
subject to obtaining a court warrant.
Race Equality Impact
We are currently in the process of assessing the
race equality impact of these proposals, in line with our statutory
obligations under Section 71 of the Race Relations Act 1976 (as
amended). These assessments will consider to what extent the proposals
have due regard to the need to eliminate unlawful discrimination
and promote good relations between persons of different racial
groups. As part of this process we would therefore welcome comments
on the proposals from a race equality perspective. The Government
is concerned to ensure that community relations are not adversely
affected by what may be seen in many quarters as continuing evasion
and exploitation of immigration and asylum controls at significant
cost to the taxpayer. A strengthened and credible immigration
and asylum system that treats all applicants fairly and with integrity
will increase public confidence in the system and help to preserve
good community relations.
Responses
We firmly believe that we need to take action in
these areas as a matter of urgency and intend to introduce legislation
at the earliest opportunity. We would therefore welcome your
comments on these proposals as soon as possible, to be received
by 17 November 2003. Your comments should be emailed to INDLegislation@homeoffice.gsi.gov.uk
or alternatively addressed to the IND Legislation Unit at the
following address:
IND Legislation Unit
Room G19
Horseferry House
Dean Ryle Street
London
SW1P 2AW
A copy of this letter can be found on the IND website
at www.ind.homeoffice.gov.uk and the DCA website at www.lcd.gov.uk.
Copies of this letter are also being placed in both Houses of
Parliament. Please notify us if you would prefer your comments
to remain confidential as all comments may otherwise be published.
A list of consultees can be found at Annex B.
Home Office
Department for Constitutional Affairs
October 2003
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