1. Memorandum submitted by Citizens
Advice
INTRODUCTION
1.1 This paper represents the second supplementary
submission by Citizens Advice to the Home Affairs Committee's
inquiry into Asylum Applications. It updates, in the light of
recent developments, our previous written evidence to the inquiry,
as set out in our original submission of 21 March 2003 and our
first supplementary submission of 22 May 2003.
1.2 In this second supplementary submission,
we address the following issues: the provision of welfare support
by the National Asylum Support Service (NASS); the denial of such
support under section 55 of the NIA Act 2002; delay in the processing
of asylum appeals; the recent "amnesty" for some families;
and the Government's proposed new legislative measures on asylum.
THE PROVISION
OF WELFARE
SUPPORT BY
NASS
2.1 In July, we warmly welcomed the conclusion
of the independent review of NASS (established by Ministers in
March) that NASS "needs urgently to improve its operational
performance and standards of customer care", and "get
better at working with its partners and stakeholders, and much
slicker at sorting out basic processing errors". The acceptance
of these key findings, and the associated development of an action
plan for a "major programme of work" to improve the
performance of NASS, represents a sea change in Ministers' stated
perception of the organisation and we await the promised action
plan with great interest.
2.2 However, the regionalisation of some
NASS functions from 1 April 2003 does not appear to have had any
beneficial impact on the asylum support-related work of CAB advisers,
who continue to rate NASS as the worst government bureaucracy
they have ever had to deal with. Nearly all operational decision-making
and post-dispersal casework remains centralised in Croydon, and
processing errors in these functional areas continue to form the
bulk of the NASS-related work of CABx. The following comments
by CAB advisers are typical of the reports received by Citizens
Advice from CABx in recent weeks:
An adviser at a CAB in the North West of England
reports trying to assist a non-English speaking Turkish man, his
wife and their two babies: "Over the past few months, the
client has experienced repeated interruptions of his regular voucher
supply. Although I and other advisers have contacted NASS repeatedly,
we have not received any explanation for these administrative
errors. Following the most recent of these interruptions, the
family has now been without money for food for several weeks—they
are in a desperate state and are becoming very despondent. I have
tried to speak to a figure of authority at NASS, without success,
and NASS does not seem to have a complaints procedure. This client
is very low and does not know where to turn. Someone somewhere
should be accountable."
An adviser at a CAB in the North East of England
reports trying to assist a single (Iraqi) Kurdish man: "The
client has been awaiting a decision on his asylum claim for several
years; he is a fully qualified nurse but is not allowed to work.
Every few months, his supply of NASS vouchers ceases for no apparent
reason. On each occasion, we have to contact NASS to get his vouchers
restored. This leaves a gap in payments, usually of six to eight
weeks, when he has no money. We then repeatedly try to get these
missing payments backdated, but to no avail. We cannot get through
to any department dealing with back payments, and calls to the
voucher helpline—which is simply a call centre—do
not get returned or acted upon. There seem to be no rules or Regulations
in respect of missing payments, and no procedure for claiming
back payments."
2.3 In particular, in recent months CABx
have reported dealing with a large number of incorrect terminations
of support by NASS, most commonly where the individual is in fact
still awaiting a hearing of his or her appeal (against an initial
refusal of asylum) to the Immigration Appellate Authority. In
one such case, Stoke-on-Trent CAB reports having to send documentary
evidence of the client's outstanding appeal to NASS on five separate
occasions, as on the first four occasions the evidence somehow
failed to reach the file; eventually NASS conceded that it had
"lost" the client's file two months previously, and
that the re-instatement request was "in a queue with hundreds
of other cases". In recent weeks, a number of CABx have reported
being told by NASS officials that NASS is currently taking eight
months to process such re-instatement requests, even where
the termination was patently incorrect. And, as indicated above,
CABx are currently finding it difficult if not impossible to get
NASS to issue back payments in respect of the support not paid
between the incorrect termination and the eventual re-instatement
of regular support payments. It is not clear how NASS expects
such individuals to exist during such lengthy interruptions of
their voucher supply, but it is evident that, in many such cases,
it is only the kindness and generosity of other asylum seekers
that has saved the individual from extreme hardship. In our view,
it is unacceptable to expect people to beg or borrow from others
living on a low income.
2.4 In this context, we note that the Annual
Report 2002-03 of the Asylum Support Adjudicators (ASA), published
in September, reports that the reliance by NASS on errors in the
IND database has "resulted in substantial numbers of appeals
[to the ASA] being successful where NASS have wrongly discontinued
support on the basis that an asylum seeker has exhausted their
appeal rights". More generally, the Annual Report expresses
the ASA's concern "about the quality of the NASS decision-making
process and poor preparation by NASS of their evidence . . . [and]
a tendency on the part of some NASS caseworkers to have little
or no regard for NASS published policies when making their decisions".[1]
2.5 With regard to the Government's proposed
replacement of the NASS-administered system with a new, "seamless"
system of induction and accommodation centres—a move that,
subject to serious reservations about the proposed rural
location of the accommodation centres, we have welcomed—we
note that only one (small) induction centre has opened in 2003,
and that since March there has been little real progress towards
the establishment of the proposed pilot accommodation centres
in Oxfordshire and Nottinghamshire.
DENIAL OF
NASS SUPPORT UNDER
SECTION 55 OF
THE NIA ACT
2002
3.1 In recent months, CABx have reported
being approached by a growing number of asylum seekers refused
NASS support under section 55 of the Nationality, Immigration
& Asylum Act 2002. In the absence of any right of appeal against
such a refusal of support to the Asylum Support Adjudicators,
and faced with the seemingly automatic rejection by NASS of any
re-application or request for reconsideration of the original
decision in the light of subsequent developments, CABx can do
little more than try and find a solicitor willing and able to
consider making an application for judicial review in the High
Court. In common with other organisations, CABx are aware that
the vast majority of the hundreds of such legal challenges to
date have been successful (and with costs being awarded against
the Treasury Solicitor).
3.2 To our mind, this is an extremely inefficient
and costly way in which to determine an individual's entitlement
to NASS support. We continue to believe that the provisions of
section 55 should be applied sparingly, and that all section 55
decisions should be subject to a right of appeal to the Asylum
Support Adjudicators (who, apart from anything else, are well
placed to give feed-back to NASS on the quality of such decision-making).
During the 2002 Act's passage through Parliament, Ministers indicated
both that section 55 would be applied only to those making an
asylum claim, after long periods in the UK, simply to delay deportation,
and that all section 55 decisions would be subject to a right
of appeal to the Asylum Support Adjudicators.
DELAY IN
THE PROCESSING
OF ASYLUM
APPEALS
4.1 Further to our supplementary submission
of 22 May, delay on the part of the IND Appeals Processing Centre
(previously known as the appeals support section of IND) in issuing
the "appeal bundle" to both the IAA and the appellant
continues to be the appeal-related issue of most concern to those
CABx that offer advice and representation in relation to asylum
appeals. Since that date, we have again raised this issue with
officials in both the Home Office IND and the IAA, to no avail.
THE "AMNESTY"
FOR FAMILIES
WHO APPLIED
BEFORE OCTOBER
2000
5.1 We welcome the "amnesty" exercise,
announced by the Home Office on 24 October, for those families
who applied for asylum before 2 October 2000. It is particularly
welcome that the exercise covers both families whose asylum claim
has not yet been finally resolved, and those in respect of whom
final decisions have been made but removal has not been affected.
5.2 However, given that the exercise covers
the latter group, it is disappointing—and in our view unjust—that
the exercise appears not to cover those families who applied for
asylum before 2 October 2000 and have since been granted temporary
leave to remain.
THE PROPOSED
NEW LEGISLATIVE
MEASURES ON
ASYLUM
6.1 We are somewhat surprised by the emergence
of these proposed legislative measures so soon after the 2002
Act. The consultation paper issued on 27 October has very limited
content, and too little time has been given for responses. Indeed,
the three-week consultation exercise does not comply with the
Cabinet Office code of practice on written consultation. This
suggests to us that the consultation is little more than a paper
exercise.
The asylum and immigration appeals system
6.2 We understand the rationale behind the
proposal to merge the current two tiers of the asylum and immigration
appeals system into a single-tier system, and might well be sanguine
about this proposal if we were confident that every appellant
would be assured of timely access to good quality legal
advice and representation before the proposed, single-tier Asylum
& Immigration Tribunal (AIT). However, given the existing
shortage of good quality legal advice and representation, especially
in the regions, and the current confusion and uncertainty over
the future of legal aid for immigration and asylum work, we cannot
be confident of this.
Undocumented passengers
6.3 We strongly oppose the proposed new
criminal offence of being "undocumented without reasonable
explanation". This measure is clearly intended to be a deterrent
(to the destruction of one's documents during the journey to the
UK), but to be effective as such it would necessitate significant
numbers of prosecutions and (costly) terms of imprisonment. Apart
from anything else, this might well prove to be in breach of Article
31 of the 1951 UN Convention on Refugees (which prohibits the
punishment of refugees for illegal entry). We note that the Home
Office is still paying out large sums in compensation to some
of the hundreds of individuals prosecuted and imprisoned in the
1990s, in breach of Article 31, for using forged travel
documents to transit the UK. [2]
6.4 In our view, the second proposed new
criminal offence of "failing to co-operate with re-documentation"
is unlikely to prove to be an effective remedy to the problem
of failed asylum seekers refusing to co-operate with the re-documentation
process. Under existing policy and practice, such individuals
already face indefinite detention under Immigration Act powers,
and it is difficult to see how the prospect of a (relatively short)
prison sentence will be any more effective as an inducement to
co-operation. And, of course, upon completion of any such prison
sentence, the individual will still be in the UK. Will a person
who continues not to co-operate with the re-documentation process
be prosecuted a second, third or fourth time?
Safe third country cases
6.5 In our view, all such matters should
be determined on a case by case basis, in the light of all the
circumstances of the individual case, rather than on the basis
of pre-determined lists of supposedly "safe" third countries.
Restricting family support
6.6 We strongly oppose the proposed early
termination of support for families, as soon as their asylum claim
is finally rejected rather than, as now, if and when they fail
to comply with a removal direction. This would simply result in
families being left homeless and in destitution pending removal.
Apart from our concern about the individual hardship and wider
health and social problems that this would inevitably cause, we
note that the families concerned would have no incentive at all
to co-operate with the authorities with regard to their eventual
removal. How will the Home Office communicate removal directions
to homeless families for whom it has no address?
6.7 This proposal raises wider questions
about the lack of any coherent Government policy in respect of
the rapidly growing population of finally refused asylum seekers
left homeless and in destitution without any real prospect of
removal. Inevitably, some such individuals are exploited through
illegal employment or forced into criminal activity. And, as the
Home Office no longer holds an identifiable address for the vast
majority of these individuals, any likelihood of their timely
removal is simply much reduced. As the Committee has noted previously,
this makes little sense.
The Office of the Immigration Services Commissioner
6.8 We welcome and support these proposals,
which should improve the effectiveness of the OISC regulatory
scheme.
November 2003
1 Asylum Support Adjudicators, Annual Report 2002-03. Back
2
"Asylum error to cost UK millions", The Guardian,
2 October 2003. Back
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