House of Commons - Home Affairs

Select Committee on Home Affairs Written Evidence

5. Memorandum submitted by JUSTICE

INTRODUCTION

1. JUSTICE is an independent all-party law reform and human rights organisation. It is the British section of the International Commission of Jurists. Our central concern with asylum issues is that international human rights standards are upheld in the UK government's policy and practice.

2. We welcome the Committee's call for further evidence in relation to the government's announcement of new measures and legislation on asylum. We offer below our critical views on the proposed legislation on asylum. In respect of the proposed new powers of the Office of the Immigration Services Commissioner, we believe that they address in a large measure ongoing problems of quality of representation and abuse of the legal aid system without the need to impose restrictions on publicly-funded immigration and asylum work, as proposed by the Department for Constitutional Affairs (DCA). JUSTICE is a part of the coalition calling upon the government to abandon this proposal that would deny essential legal representation to asylum seekers and their access to justice, as guaranteed by Article 6 ECHR. We have set out our concerns in relation to the DCA's proposals in our response to the consultation paper issued in June 2003. [13]

GRANT OF STATUS TO FAMILIES

3. We welcome the government's decision to give 15,000 families the right to stay without resolving their claim to asylum. This is a long overdue measure and should be extended to all those who have been caught in the backlog for a considerable amount to time. [14]Chronic administrative inefficiency and the more recent emphasis on meeting targets for deciding new applications within two months has resulted in older cases being deprived of resources and subjected to prolonged delays. [15]Those concerned are, thus, kept in a protracted legal limbo causing considerable hardship and anxiety. The Home Office should operate a concession whereby people are granted leave to enter or remain on the basis of criteria such as length of time since application, humanitarian and other connections with the UK.

NEW ASYLUM MEASURES

(i) Introduction of a single tier of appeal

4. JUSTICE notes that the asylum appellate system has been subject to frequent overhauls as part of the wider reform of asylum policy brought about by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum (NIA) Act 2002. The new Acts have comprehensively restructured the appeals process but have not dealt with any of the underlying or procedural problems of the appeals process. In particular, they have singularly failed to address inefficiency, inaccuracy and incompetence within the initial decision-making process which directly cause inefficiencies and delays at the appellate stage. The Committee may be aware of poor initial decision-making and administrative inefficiency within the Immigration and Nationality Directorate (IND) from evidence received in the course of this inquiry by JUSTICE and other concerned organisations and practitioners in this field.

5. JUSTICE believes that in the absence of a sound, robust initial decision-making process, provisions for due process review by an independent appellate body if the claim is rejected are of fundamental importance. As the Immigration Appeals Tribunal (IAT) has noted, "the lack of skilled and professional care in reaching the initial decision necessarily places extra burdens on adjudicators".[16] All too often the adjudicator is, in effect, the first person to provide a serious analysis of the factual and legal situation presented by the applicant. [17]The increasing complexity of the decisions that adjudicators have to make is illustrated by the number of cases in which the Tribunal grants leave to appeal. [18]A two-stage appeal process is desirable where adjudication involves complex factual issues, all the more so in asylum cases where country conditions change frequently or further evidence comes to light which was not before the adjudicator but which could have a major impact on the case.

6. JUSTICE notes recent statements to the effect that policy on asylum appeals is developed jointly between the DCA and the Home Office. The DCA is responsible in government for "upholding justice, rights and democracy".[19] It is the guardian of the judiciary, which should operate freely as an arbiter, against clearly defined canons of law, and without favour. However, the DCA is increasingly involved in designing procedures geared towards implementation of the Home Office's policy on asylum seekers. Many aspects of the appeals process appear to be driven by the operational needs of immigration control, particularly by focusing on the disposal of asylum appeals rather than serving the interests of justice. This creates a regrettable tension in seeking to reconcile the policies of the Home Office and the demands of justice.

7. We have already expressed concern at the succession of unfair and potentially unsafe due process provisions under recent reforms to the appeals system, such as the statutory closure date, the non-suspensive appeals process, the fast-track appeals procedure etc. [20]We would not favour the flattening out of the two-tier appeal system without a fair and effective asylum procedure underpinning the system, and increased guarantees of procedural fairness and independence of the review process within a new framework where responsibility for tribunals and their administration does not lie with those whose policies or decisions it is the tribunals' duty to consider. Retaining a two-tier appeals structure would also ensure that asylum law is developed in a consistent way. The second-tier tribunal has in recent years improved its ability to set precedents and provide consistent and clear interpretative guidance for adjudicators, thanks to a new system of selecting decisions which would normally be treated as binding (starred decisions).

8. We would further question the need for yet another radical overhaul of the appeals system in the absence of a thorough evaluation of the impact of the reforms introduced by the 2002 NIA Act, such as the restriction of the IAT's jurisdiction to appeals on points of law[21] and the introduction of a statutory review process. [22]Moreover, the decision to introduce a one-tier appeal system in the field of asylum and immigration is not consistent with the unified tribunal service, which the government has favoured in response to Sir Andrew Leggatt's review of the tribunal system. [23]The appeal system for all tribunals must be seen as a common issue.

9. JUSTICE has commented upon the various reforms to the system of appeal and review and consistently expressed concern over their focus on speed of process and on limiting avenues for challenges to decisions of the executive. Our view is rather that, in the absence of a natural constituency whereby the interests of asylum seekers can be represented through the political process, there is a particular need for scrutiny of the law governing asylum seekers by the courts. The courts have stressed their special responsibility to subject administrative decisions in this area to the most anxious scrutiny where an applicant's life or liberty may be at risk. [24]The high degree of politicisation of this issue makes the case for a dispassionate assessment by the courts even more compelling.

10. We are, therefore, concerned by the suggestion in the consultation letter that the Home Office/DCA are looking at ways to restrict access to the higher courts. Resort to judicial review against refusal of leave to appeal to the IAT has already been denied by provisions in the 2002 NIA Act, which introduced a special and more restrictive remedy, ie statutory review—a procedure that does not offer the same degree of judicial protection as judicial review, as time limits are dramatically curtailed (from 3 months to 14 days) and oral argument is specifically excluded. Placing further restrictions to judicial review would erode an important mechanism for maintaining the rule of law and subjecting executive decision to proper scrutiny. Such a move would be of particular concern in cases where judicial review constitutes the only remedy against removal, such as currently under the non-suspensive appeals process when the Home Secretary certifies a case as "clearly unfounded"[25] and in the case of "safe third country" certificates (ie in respect of EU or other designated countries). [26]Attempts to oust the review jurisdiction of the courts would be regarded with some concern by the courts themselves and, as a matter of general principle, should be avoided.

(ii) Sanctions for undocumented passengers

11. Attempts to reduce and remove independent and effective judicial scrutiny of administrative decisions are also evident in the proposal to create a statutory presumption affecting the credibility of those asylum seekers who fail on arrival to provide adequate documentation to satisfy immigration control. The use of false documents (visa and passports) as a method for determining credibility is a fundamentally flawed policy since visa controls make the possession of false documents virtually inevitable for asylum seekers.

12. The Refugee Convention recognises that people trying to escape persecution may not be in a position to comply with the requirements for legal entry into the country of refuge, such as possession of a national passport and/or visa, and may often rely upon the use of false documents and unusual means of travel and/or place themselves in the hands of agents with a vested interest in retaining and recycling documents or covering their tracks. Article 31 provides that refugees should not have penalties imposed on them as a consequence of illegally entering or being present in the country of refuge in order to seek sanctuary, provided that they come "directly from a territory where their life and freedom was threatened", "present themselves without delay to the authorities and show good cause for their illegal entry or presence". According to UNHCR, "good cause" is a matter of fact, and may be constituted by apprehension on the part of the refugee or asylum seeker, lack of knowledge of procedures, or by actions undertaken on the instructions or advice of a third party. [27]

13. In Adimi the Divisional Court held that the policy of prosecuting refugees travelling on false documents was contrary to Article 31 of the Refugee Convention. [28]Simon Brown LJ observed that the need for Article 31 had by no means diminished since it was drafted: the combined effect of visa requirements and carriers' liability has made virtually impossible for refugees to travel to countries of refuge without false documents. The Court identified the broad intended purpose of the provision as being "to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law", adding that it applied as much to refugees as to "presumptive refugees", and as much to those using false documents, as to those entering clandestinely.

14. The Court also looked at the administrative process by which prosecutions are brought. It found that no consideration was given at any time to the refugee elements, but only to the evidential test of realistic prospect of conviction; the "public interest" offered no defence to prosecution, but rather the contrary. Simon Brown LJ also had no doubt that a conviction constituted a penalty within the meaning of Article 31, which could not be remedied by granting an absolute discharge. Although the government subsequently introduced section 31 of the 1999 Act to offer a defence against prosecution in compliance with international obligations, there have continued to be high levels of prosecutions of asylum seekers for false documentation as a result of lack or inadequate procedural guidance to immigration service, the Crown Prosecution Service, and criminal duty solicitors. A recent court case, awarding compensation to two asylum seekers who were prosecuted and jailed for travelling on forged passports, brought to light the fact that up to 5,000 asylum seekers appear to have been wrongfully convicted and imprisoned for using false documents without considering whether or not Article 31 provided a defence. [29]

15. The narrowly defined statutory defence under section 31, has not provided sufficient protection of Article 31 rights and miscarriages of justice are only likely to increase as a result of the new criminal offences for undocumented arrival being proposed in the consultation letter. [30]Refusal of the authorities to consider the merits of claims or their inability to do so by reason of a general policy on prosecutions will almost inevitably constitute a breach of the UK's international obligations.

(iii) Safe third countries removals

16. The Refuge Convention makes no reference to the notion of "safe third country" although the concept has gained acceptance among states in Western Europe. UK asylum law makes provision for the removal of asylum seekers, without substantive consideration of their claim, to EU member states under existing standing arrangements (ie the Dublin Regulation), and other safe third countries designed by order. [31]Under current UK and other EU member states' practice, "safe third countries" are countries through which an asylum seeker has passed before reaching an EU member state and had an opportunity to claim asylum and where they will be re-admitted without risk of being returned to their country of origin.

17. UNHCR argues that a transfer of such responsibility can be accepted in certain circumstances, where there exists a meaningful link or connection which would make it reasonable for an applicant to seek asylum in that state, and where the state is safe, that is capable and willing to determine needs for international protection and to provide effective protection if needed. [32]Mere transit through a third country would generally not constitute such a meaningful link. The consultation letter is vague in respect of the criteria for designation of "safe third countries" but we note that there is no requirement of any form of contact, let alone a meaningful link, with the designated "safe third country" where the person concerned would have had an opportunity to seek protection.

18. The aim of the proposed measure would appear to be to place responsibility for processing claims and providing protection on countries closer to the region of origin of asylum seekers. There is further evidence of an increasing drive towards sub-contracting protection duties to third countries in the context of the EU legislative process, where parallel attempts are being made to secure a broad interpretation of the "safe third country" concept, which allows the transfer of responsibility for the determination of asylum claims to other states. These can be states which do not have the resources, structures, and procedures required to assess asylum claims adequately.

19. In the context of European case law, non-refoulement precludes "the indirect removal . . . to an intermediary country" in circumstances in which there is a danger of subsequent refoulement of the individual to a territory where they would be at risk. [33]The state concerned has a responsibility to ensure that the individual in question is not exposed to such a risk. The concept of "safe third country" requires, therefore, that a state proposing to remove a refugee or asylum seeker undertake a proper assessment as to whether the third country concerned is indeed safe. UNHCR argues that this should include an assessment as to whether the refugee or asylum seeker can access effective protection, ie have access to fair and efficient procedures and be able to stay in acceptable conditions which match basic human rights standards. [34]

The evolving concept of "safe third country" is clear evidence of a marked trend towards "regionalisation" of refugee movements, ie their containment in their regions of origin. Within the context of a general policy aimed at deterrence and restriction, there is a certain logic in trying to "regionalise" forced migration. This can be achieved directly by use of carrier sanctions and visa controls but also indirectly by deploying convenient concepts - such as "safe third countries", "safe countries of origin" etc - which narrow the applicability of refugee law. Ultimately, they represent a total abdication of states' responsibility under the Refugee Convention.

(iv) End of support for families able, but unwilling, to return home

21. As stated in the consultation letter, the new power to withdraw support from families who fail to take up the offer of a paid, voluntary route home builds on existing powers to remove support from those who do not comply with enforced removal directions. These powers are provided for in the 2002 NIA Act in respect of those with refugee status abroad and their dependants, citizens of other EEA states, failed asylum seekers and persons unlawfully in the UK. [35]Only persons with dependant children are eligible for accommodation pending removal.

22. JUSTICE questioned whether the withdrawal of all benefits from the four classes of ineligible persons listed under the Act could be operated in conformity with Convention rights (such as the right to private life, which includes the right to physical integrity, under Article 8 ECHR), as well as the UK's international obligations. [36]We were particularly concerned that the exception in relation to children meant that, in a family judged ineligible for support under the Act, whilst support is withdrawn from the adults, the children will be taken into care in order to provide support for them. [37]We argued that this raised issues of family life rights under Article 8 ECHR, since it involves the state actively removing a child from his or her parents, in cases where this may not be in the best interest of the child.

23. The new measures might be used to argue that such families will not qualify for the safety net provided by "hard case" support under section 4 Immigration and Asylum Act 1999 unless they sign up to a voluntary return programme. However, in cases where the Home Office itself is unable to enforce removal due to conditions prevailing in the country of origin or difficulties with documentation, voluntary return may simply not be an option for the families concerned. Withdrawing support in such circumstances would de facto amount to enforced removal by threat of destitution and separation from their children. We believe that such a policy would be both immoral and unlawful.

November 2003