House of Commons - Home Affairs

Select Committee on Home Affairs Written Evidence

7. Memorandum submitted by The Law Society

EARLY ACCESS TO GOOD QUALITY LEGAL ADVICE

The Society is convinced that early access to good quality legal advice can serve only to assist in the proper and speedy determination of an asylum seeker's application. We endorse the conclusion in the then Legal Aid Board's report "Access to Quality Services in the Immigration Category" that:

The joint report by Justice, ILPA and ARC "Providing Protection; towards fair and effective asylum procedures" states that fair and effective determination systems:

The Society agrees.

In his evidence to the Constitutional Affairs Committee, Lord Newton, the Chair of the Council on Tribunals, favoured early advice to eliminate risks of things going wrong at a later stage and resulting in greater expense in the long term. [40]The Society agrees that resources, including legal advice, should be front-loaded in order to achieve a credible and rigorous system, and to reduce costs and delay. Whilst asylum applicants should be dealt with speedily and efficiently, this must not be done at the expense of full and good quality decision making at an early stage, which will have the knock-on effect of leading to fewer appeals which will free up the appeals system.

SINGLE APPEAL TIER

While the proposal to create a single tier of appeal is designed to simplify the system and avoid delay, we have real concerns that this will conflict with the interests of justice.

We agree with the comments of the Constitutional Affairs Committee (made in relation to recent Government proposals regarding maximum time limits for publicly funded immigration and asylum cases) that stringent constraints on time could only:

This is a general principle which should be kept in mind in relation to all attempts to speed up the asylum process.

The Society believes that a second tier appeal is essential in view of the poor quality of Home Office decision-making at the initial stage. Recent figures from the Refugee Council show that one in five appeals are successful, rising to around 35% for some nationals, such as Somalians and Zimbabweans. [42]

The poor quality of initial decisions means that the hearing carried out before a special adjudicator is often the first proper factual assessment of the case. As a result, the IAT appeal becomes the first appeal level. If the IAT second tier appeal is removed, it is absolutely essential that improvements to Home Office initial decision-making are made concurrently.

In our response to the Department of Constitutional Affairs' consultation on proposed changes to public funding for immigration and asylum cases, we set out the current problems with Home Office decision making and ways in which it could be significantly improved. This included the provision of identified Home Office caseworkers, advisers being able to intervene at substantive interviews and the setting up of an independent document centre. We also made suggestions to improve the operation of the IAA. [43]

Moreover, we note the Committee's widespread concern about poor quality decision-making by the Home Office in the first instance and the low level of Home Office representation (around 35%) which can result in unnecessary appeals to the IAT. [44],[45] We are concerned that the Government is considering ways to restrict access to the higher courts. It is essential that asylum appeals, which deal with life and death issues, are subject to full and proper judicial scrutiny. Furthermore, it is right that there should be oversight of the operation of all specialist tribunals, including the immigration tribunal. Indeed, if a single tier appeal system is introduced, access to the higher courts will become more vital than ever, in order to ensure that asylum applications are being properly determined.

We note that the consultation states that there will be new judiciary, with the vast majority of appeals being heard by a single immigration judge, working closely with more senior judiciary. We would welcome clarification about how the new judiciary will be appointed and trained, and how the close working relationship with senior judiciary will work in practice.

INDEPENDENT DOCUMENT CENTRE

We remain disappointed that the Government has failed to take this opportunity to establish an independent document centre, which we believe is an essential component of a credible asylum system. We welcome the establishment by the Government of the Advisory Panel on Country Information, but do not think that this is a substitute for a fully independent and properly resourced document centre. We have concerns about the quality of country information used by the Home Office and believe that the Canadian model would improve the situation by provide publicly accessible and independent country of origin information.

UNDOCUMENTED PASSENGERS

The Law Society is concerned that the proposal to sanction asylum seekers for arriving without travel documents will lead to a breach of Article 31 of the 1951 Refugee Convention (acknowledged in domestic law by section 31 of the Immigration and Asylum Act 1999). This provides that:

"The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, come directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry and presence."

Lack of documentation or even the deliberate destruction of documentation does not mean that an application for asylum is without merit. As the Government accepts, many people who arrive without documents are granted refugee status. By the very nature of their circumstances those fleeing prosecution arrive at the UK in a distressed state.

Therefore, they may not have acted in a comprehensible or composed fashion or be in a position to give a fully coherent explanation of their actions. Asylum seekers often destroy their documents because they are advised to by traffickers or because they fear that those documents will put others in the country they are fleeing in danger. We believe that to destroy documents in such circumstances should amount to a "good explanation". In addition, asylum seekers may be genuinely unaware that they have passed through a safe third country. We are therefore very concerned that these proposals will penalise the victims of trafficking, rather than traffickers.

We also have specific concerns about the drafting of criminal offences in relation to the proposals. An offence of being undocumented without reasonable explanation must include knowledge on the part of the accused that it was an offence to destroy documents and to do so in the UK having relied on that documentation to get into the UK. We are also concerned about the extra territorial nature of this proposed offence, as the basis of the offence will be an action carried out in another jurisdiction before that person has any links with the UK.

In addition, we are concerned that any offence should not breach the right to not self incriminate. Any offence of failing to incriminate and give evidence against a third party would be a new precedent for the UK. If this is pursued, such an offence must contain a without reasonable excuse clause, to protect those who are afraid to incriminate a carrier because of the risk this might pose to family members at home.

SAFE THIRD COUNTRY

The Law Society opposes the use of blanket assumptions in relation to the safety of certain countries, particularly when based on evidence of questionable quality. The Law Society agrees with the Refugee Council that:

We also support the conclusions of the Joint Committee on Human Rights that:

In relation to European accession countries, the Joint Committee on Human Rights concluded that:

The Society agrees. The assumption that all applicant countries to the European Community are "safe" to return asylum seekers to is therefore highly questionable.

We are concerned that the use of the "safe third country" concept will result in a failure to consider the particular facts of each individual case. This is particularly so in view of our concerns about the quality of country information available to the Home Office.

Article 33 of the 1951 Geneva Convention prohibits the return in any manner whatsoever of a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. We are gravely concerned that to prevent applicants from challenging their removal to a "safe third country" on the basis of how they will be treated will lead to refoulement (ie the return of persons to a country from where they have fled persecution) and will thereby be a fundamental breach of the Refugee Convention.

UNHCR has suggested that in all cases, the authorities of the third country should be informed in advance of the return of an asylum seeker whose application has not yet been substantively examined so that the appropriate notification can be given to the border officials and the necessary protection guaranteed. Without such procedures, there is a real risk that the "safe third country" may be unaware of its responsibility for the asylum seeker and may not have in place appropriate asylum procedures and systems to provide adequate protection. The receiving country may also erroneously assume that the person returned has been rejected by the UK after a substantive examination of their asylum application.

As a result of its emphasis on deterrent and by the creation of further barriers against the legal access to the UK, we are concerned that the Government is likely to be indirectly increasing the numbers of those who do not have legal status in the UK and that it will be providing added impetus to the illegal trafficking of people.

UNHCR Executive Committee's Conclusions clearly state that the intentions of the asylum seeker as regards the country in which they wish to request asylum should as far as possible be taken into account. Furthermore, the Executive Committee states that asylum should not be refused solely on the grounds that it could be sought from another State.

UNHCR has also noted that, in line with the relevant Executive Committee Conclusions, that due regard should be given to any links which the applicant has with them, as compared with a third country, with which they have no such links. UNHCR has also stated that special regard should be given to situations where the applicant has close family ties to the country concerned.

THE OFFICE OF THE IMMIGRATION SERVICES COMMISSIONER

26. The Law Society will respond in detail to the proposals put forward in the consultation document. Our immediate concern is that the proposed extension of OISC's powers is wholly disproportionate to the perceived problem identified by the ISC in his second annual report.

November 2003