8. Memorandum submitted by Mr Ken
Livingstone, The Mayor of London
PROPOSED NEW
LEGISLATION ON
ASYLUM AND
IMMIGRATION ISSUES
1. Introduction: the Mayor's perspective
1.1 UK asylum and immigration policy is
likely to succeed only if it takes London's experience as a central
point of reference. London is—on available evidence—home
to more new immigrants than any other UK region, and home to most
who have reached the UK seeking asylum. The arrival of migrants
from abroad, whether voluntary or driven by persecution, is accordingly
a key factor in London's development in the 21st century as it
has been thoughout the city's history.
1.2 Mayor of London, Ken Livingstone, recognises
that asylum and immigration policy is thus interlinked with many
areas of his statutory responsibility: for London's social, economic
and cultural development, for promoting equality of opportunity,
health of Londoners, and policing and community safety. In the
interests of all Londoners, he seeks an asylum and immigration
regime that will
— promote social inclusion not exclusion;
— help diverse communities to live
in harmony, not demonise some of them; and
— enable the city to gain from new
migrants' skills and energy—asylum seekers and refugees
included—as readily as it does from international trade
and investment.
1.3 From this perspective, the Mayor views
with concern the package of asylum measures announced by the Home
Secretary on 27 October. He draws the Select Committee's attention
in particular to the following proposals:
— reduction of appeals process to a
single tier;
— new criminal offences in relation
to documentation;
— withdrawal of support from rejected
asylum seeking families;
— enhanced powers to act against unqualified
legal advisers.
1.4 His concern is deepened by the exceptionally
limited nature of Home Office consultation on this package. Plans
for legislation with substantial social and judicial consequences
call for more than a three-week consultation on a four-page sketch
of what is proposed. If the Government seriously wants to find
policies that work, in an area as complex and sensitive as asylum,
it will allow time for genuine dialogue with those involved in
the area.
1.5 The Home Secretary's announcement also
highlighted moves by the Department for Constitutional Affairs
to limit access to legal aid in asylum and immigration cases.
It made clear that these legal aid curbs, though introduced separately
by administrative action, were closely tied to the Home Secretary's
legislative package and are part of its context. This submission
refers also to their possible effects in London.
1.6 The Mayor's remarks on specific items
in the new package are set out in section 4 onwards. First, he
addresses what he feels are two basic misconceptions underlying
the Home Secretary's legislative package: about the nature of
forced migration, and about the link between asylum policy and
community relations.
2. Forced migration—a long-term process
2.1 The Mayor sees the arrival of people
seeking sanctuary not as a temporary or criminal phenomenon, but
as a long-term historical process which—tragically—is
likely to continue for the foreseeable future, driven by deep
and chronic tensions in many countries of the South: economic
dislocation, gross inequality and abuse of state power, and a
dangerous degree of militarisation. Asylum-seeking is primarily
a response to real and sustained "push" factors built
into a highly dysfunctional global system, as recent research
confirms. [49]
2.2 Policy-makers, in the Mayor's view,
thus face a clear choice on the asylum issue:
— They can focus on control and deterrence
in a bid to stem forced migration, treating it primarily as a
threat to UK interests. The probable result will be social and
humanitarian crisis, as controls collide with the externally-driven
movement of vulnerable asylum seekers.
— Alternatively, policy can seek to
turn that process into an opportunity by helping UK society (in
particular its major cities) to adapt to the continued arrival
of forced migrants and to benefit from it—whilst also seeking
cooperation with countries of origin, in the spirit of the EU
Council's 1999 Tampere declaration, to address "push"
factors within their societies over the longer term.
2.3 The Mayor believes that the interest
of all Londoners calls for a commitment to the second approach,
working with basic processes of global change not against them.
3. Asylum policy and the threat to community
relations
3.1 The Home Secretary's statement suggests
community relations in Britain could be jeopardised 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 inference is that community relations will
be at risk unless the present reform package is adopted, further
constraining asylum seekers' ability to pursue claims in the UK.
3.2 The Mayor questions this analysis. He
notes that:
— there is no evidence that actual
abuse of the asylum system has been a factor in any significant
incident of inter-community conflict in the UK;
— the most determined challenge to
good community relations in the UK today comes from racist groups
whose arguments rely not on objective facts about asylum (such
as cases of actual abuse), but on fictions about it;
— riots in northern metropolitan cities
in 2001, to which subsequent Government proposals on building
community cohesion have largely been a response, had virtually
nothing to do with the asylum issue; [50]
— current guidance on community cohesion
agreed between Home Office, ODPM, local government and other stakeholders
proposes a range of practical actions at all levels (including
central government) to maintain good community relations in areas
receiving asylum seekers—most related to public awareness
and values, and none of them related to abuse of the asylum process;
[51]and
— the Home Secretary's own wording
("what may be seen in many quarters") acknowledges that
the link if any between asylum and community relations lies not
so much in abuse of asylum rules, as in public perception of abuse.
3.3 Concerns about specific measures in
the current legislative package, set out in the remainder of this
submission, follow from these points about forced migration and
the real risk to community relations.
4. Single tier of appeal
4.1 Data for 2002 suggest that between 1,000
and 2,000 applicants succeeded in their asylum claim only at Tribunal
or higher levels of appeal. Compression of the appeals process
into a single tier, now proposed by the Home Office, must increase
the risk that some people with a valid claim will in future be
deemed to have failed. The risk is sharply increased by proposed
curbs on legal aid for asylum applicants.
4.2 The probable result is some rise in
the number of asylum seekers living in the UK illegally. On the
one hand, those whose claim is erroneously rejected by a single-tier
process are unlikely to accept its judgment and return to countries
of origin where they will be in danger. On the other hand some
applicants whose claim has not yet reached appeal (or even initial
decision stage) may perceive the new, truncated determination
process as so inadequate that they might as well abandon their
claim. This outcome seems especially likely, again, if their DCA
allocation of legal advice hours is exhausted.
4.3 On past experience most people dropping
out of the asylum decision-making process are likely to end up
in London. While numbers attributable to the change in appeal
arrangements may be small, the net effect would be extra pressure
on refugee communities and deeper social exclusion in the capital.
5. Undocumented passengers
5.1 Practitioners confirm that people genuinely
escaping persecution will, of necessity, often have to travel
without documentation. The proposal to create a new offence of
"being undocumented without reasonable explanation"
therefore seems likely to catch a high proportion of asylum applicants
including many with a genuine need for protection. Such a proposal
must rest on the assumption that would-be asylum seekers will
hear about it before arrival and somehow get the documentation
demanded by the Home Secretary. But since that is often impossible,
a more likely outcome is that forced migrants who hear about the
new criminal offence before reaching the UK will—rather
than face the certainty of arrest and criminal prosecution—abandon
the idea of seeking asylum and try instead to survive here illegally,
without declaring themselves to public authorities.
5.2 The likelihood is, on past indications,
that most would try to so in London. There are two disturbing
implications for the city:
— increased demand for the services
of people smugglers or traffickers, intensifying the damaging
impact of these "services" on London communities and
strengthening the networks of organised crime into which they
are integrated; and
— an increase in the scale of extreme
social exclusion in the city, on top of the destitution created
by ending support to in-country asylum applicants under the Nationality
Immigration and Asylum Act 2002 s.55.
5.3 The Home Secretary further proposes
to make it a criminal offence for a rejected asylum seeker to
"fail to cooperate with re-documentation". The offence
is drawn in particularly wide terms. A rejected asylum seeker
could be liable for prosecution under this measure if they "did
or did not do something that had the effect of frustrating, obstructing
or otherwise interfering with the re-documentation process".
5.4 The Mayor is concerned that a rejected
applicant could fall foul of this measure in many ways, other
than mischievously trying to defy UK immigration law. Arrangements
for re-documentation may go awry for a variety of reasons, especially
given the poor record of some Home Office agencies in communicating
with asylum applicants. Will the onus rest on the rejected applicant
to demonstrate that s/he was not "frustrating the process"?
Again, someone who had been deemed not to need protection in the
terms of the Refugee Convention or human rights legislation may,
nevertheless, have real and legitimate anxieties about their return.
Would they face prosecution and imprisonment if they object to
conditions for issuing new documents laid down by authorities
in the country of origin?
5.5 An offence cast in the terms now proposed
could rapidly criminalise a sizeable number of people in London
for whom voluntary return would be, in the Mayor's view, the more
reasonable option. It could put new pressure on the Metropolitan
Police Service, including its overstretched custody facilities.
The Mayor would urge that Parliament not proceed with this ill-conceived
addition to the battery of powers already available to deal with
immigration offences.
6. Restricting family support
6.1 The Home Secretary proposes that where
asylum seekers with dependent children have had a final negative
decision but fail to take up an offer of voluntary return, all
forms of public support be withdrawn from adult family members.
Provision would still be made for their children under the Children
Act 1989. It is suggested that, besides saving money, this would
create an extra incentive to leave the UK "voluntarily".
6.2 The Mayor agrees that if an asylum seeker's
claim fails after fair and objective consideration, they cannot
be supported indefinitely in the UK from the public purse. But
he believes the present proposal is ill-conceived and could jeopardise
the orderly and humane management of failed asylum cases, putting
at risk not only the welfare of family members but also—ultimately—community
relations in London.
6.3 By introducing financial compulsion,
firstly, it would weaken the integrity of voluntary return programmes
designated for rejected families. This would be a real setback.
As the Mayor has repeatedly made clear, London's interests call
for voluntary schemes to be given priority as the means of securing
return of failed asylum seekers. Developing them for family returns
is especially important because they prepare returnees before
departure from the UK and should be more sustainable, exposing
children to less trauma and instability. The present proposal
on the contrary risks blighting such schemes by using them as
surrogate forms of coercive removal.
6.4 Secondly the Home Secretary's proposal
implies splitting children from parents (or other adult family
members) pending departure from the UK, in breach of the Government's
obligation under international law to put the the child's interests
first. Section 20 of the Children Act 1989, cited as the means
of catering for children in these families, provides explicitly
for local authorities to accommodate children who are separated
from parents or carers. The Home Secretary's cursory proposal
does not explain whether this means that UK authorities, such
as London boroughs, may then assume permanent Section 20 responsibility
for the child—possibly including eventual duties under the
Children (Leaving Care) Act 2000. In any case separating children
from parents would be irresponsible and wholly unacceptable, almost
certainly causing real distress to them and to local communities.
6.5 Thirdly the result of this measure may
well be not a family departure from the UK, but an attempt to
survive here illegally or "underground". The Home Office
assumption that ending support to its adults will motivate the
rejected family to leave the UK is, the Mayor notes, in direct
contradiction to the view which the Home Office has put throughout
the Section 55 debate - that adult asylum seekers with no public
support can always find shelter and assistance in refugee communities.
In fact these family members, having by definition spent some
time in the UK, are particularly likely to have formed community
links that might encourage them to try surviving by their own
devices. In this case they may well, rather than leave children
in Section 20 care, take their children with them into that "underground"
existence outside all systems of public support and care.
6.6 The grim implications of such a development
are reinforced by current Department of Health proposals on charges
for NHS care. In its recent consultation on this issue, the Department
envisaged levying charges on anyone in the UK "without proper
authority" regardless of their length of residence here.
[52]Assuming
this change is implemented, rejected families who remained illegally
after the end of NASS support would also be rigorously excluded
from free NHS treatment.
7. Immigration advice¸powers of Immigration
Services Commissioner
7.1 The Mayor shares the Government's concern
to raise the standard of advice on immigration matters, including
asylum claims. He strongly supports the work of the Office of
the Immigration Services Commissioner (OISC) to improve the quality
of this advice work, and agrees with the Home Secretary that obstacles
identified in the Commissioner's annual report must be addressed.
7.2 The present proposals need careful clarification
and explicit safeguards, however, if they are not to undermine
the work of advisers and community agencies which are already
under severe pressure. Added to the strains arising from curbs
on legal aid, the proposals as they stand could do real damage
to the crucially important work of these providers in London.
The Mayor would urge the Home Secretary not to take them further
until he has consulted much more fully with all those involved
in immigration advice work, including community groups. Concerns
to be explored with them include the following:
— enhanced powers for the OISC to enter
premises may sharpen fears that it is an agency of immigration
control, not just within refugee communities but also among wider
BME communities;
— there must be firm guarantees that
any information on individual immigration cases seized by OISC
in raids on solicitors or non-OISC authorised providers will be
subject to confidentiality clauses in Immigration and Asylum Act
1999 s 93, and will therefore not be passed to the Home Office's
Immigration and Nationality Department or other agencies;
— the proposed criminal offence of
advertising immigration advice could pose real risks for bona
fide voluntary and community sector agencies which provide advice
on benefits, immigration, and other welfare matters over which
the OISC has no jurisdiction.
7.3 The risks to non-specialist, not-for-profit
agencies including refugee community organisations (RCOs ) are
of particular concern. Cuts to legal aid may prompt some solicitors
to quit this area of practice and will inevitably leave some asylum
seekers with cases not concluded. RCOs are likely to face intense
demand to step into this breach. They will need clear guidance
as to what constitutes immigration advice, and what work they
can do without OISC authorisation. The Mayor would warn against
allowing them to become casualties of the proposed change to OISC
powers.
November 2003
49 S. Castles, H. Crawley and S. Loghna, States of
Conflict: Causes and patterns of forced migration to the EU and
policy responses, (Institute of Public Policy Research, 2003). Back
50
Ted Cantle, Community Cohesion Review Team-Report (2001); Home
Office Building Cohesive Communities: Report of Ministerial Group
on Public Order and Community Cohesion (2001), para. 2.6 "Key
issues"; and see also P. Statham "Understanding anti-asylum
rhetoric" in S. Spencer (ed.) The Politics of Migration (Blackwell,
2003) on public perceptions in Bradford, one of the cities involved. Back
51
Local Government Association, ODPM, Home Office, Commission for
Racial Equality, Interfaith Network for UK Guidance on Community
Cohesion (2002), pp.26-27. Back
52
Proposed Amendments to NHS (Charges to Overseas Visitors) Regulations
1989: A Consultation (2003). Back
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