House of Commons - Home Affairs

Select Committee on Home Affairs Second Report

9 MORE RADICAL OPTIONS

Schemes for the segregation of asylum seekers

300. The Committee considered evidence on policy proposals designed to ensure that asylum seekers are segregated from wider UK society until their applications have been finally determined, in an attempt to remove the incentive for 'economic migrants' to apply for asylum. These proposals were as follows:

Originally proposed by Rt Hon Ann Widdecombe MP when Shadow Home Secretary: that all asylum seekers should be detained at sites within the UK, until their cases had been finally determined.

Proposed during our inquiry by Rt Hon Oliver Letwin MP, then Shadow Home Secretary: that all asylum seekers should be transferred to an "offshore processing centre"—an unspecified offshore location—where their case would be determined. Mr Letwin also proposed that the UK should accept a quota through UNHCR.

301. It is worth noting that some elements of these schemes are common to current or recent government proposals. For example, as we have noted in paragraph 274 above, the Government's plans for regional processing zones, which now appear to have been dropped, required the transfer of asylum seekers from the UK to centres outside the EU. The Government is increasing (albeit from a small base) the number of asylum seekers whose cases will be fully determined in detention, through the fast-track schemes at Oakington and Harmondsworth. The Government is expanding support offered through the UNHCR for accepting a quota of asylum seekers from overseas. It is also seeking to reduce the overall number of asylum applications—one of the key aims of those proposing to detain or transfer overseas all asylum applicants.

302. It would appear that there is some common ground between the Government and the advocates of these more radical approaches. We now consider each option individually.

DETENTION OF ALL ASYLUM SEEKERS?

303. A policy of detaining all new asylum seekers until their claims are determined would, it is argued, send out a clear message that the UK was acting to discourage abuses of the asylum system. It would prevent asylum seekers melting into the illegal economy, and be a major disincentive to those seeking to enter the country for economic reasons rather than as genuine refugees. It could be argued that, in the absence of a system of identity cards, this is the only option which can provide a near guarantee of achieving those ends. A policy of universal detention, to achieve maximum effectiveness, would require efficient interception of potential asylum seekers at ports, as well as detention of those who, having previously entered the country, subsequently claim asylum. It would also require fast processing of claims and efficient removals (though these are, of course, desirable objectives irrespective of whether this proposal is adopted).

304. Universal detention might be an expensive option, though it is difficult to calculate its costs with precision as so many variables are involved. Amongst the factors difficult to predict are:

a) The capital costs of building new detention centres or converting existing buildings;

b) the extent of a deterrent effect in reducing overall numbers applying;

c) the speed with which claims could be processed and unsuccessful asylum seekers returned;

d) the extent to which some existing costs could be reduced, for instance through providing more efficient services to asylum seekers and enabling more efficient processing of claims; and

e) the costs of provision for Immigration Officers to meet arrivals at ports.

305. The human rights implications of a policy of universal detention are open to debate. On the one hand, it could be argued that such a policy, if properly resourced, would bring benefits to asylum seekers in that medical help, legal advice, interpretation and possibly education services would all be provided in the detention centres, which would thus form a 'one-stop shop'. Asylum seekers would also be protected from destitution, being guaranteed basic standards of secure accommodation, food and drink, and would be isolated from the traffickers and organised crime.

306. On the other hand, asylum seekers, including genuine claimants, would be deprived of their liberty until their claims had been determined. In the case of those eventually granted refugee status, this would have a retarding effect on their integration into British society. It also raises the specific question of whether a policy of universal detention would involve the UK in a breach of its treaty obligations. Article 5 of the European Convention on Human Rights provides that an individual may be deprived of his liberty in the case of "the lawful … detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition". However, Article 6 provides that an individual has a right to "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Mr Martin Howe QC told us that—

"the courts have interpreted this, both the Strasbourg court and our own domestic courts, in a way in which they say that the detention has to be proportionate to come within Article 5, and it can only be proportionate if the deportation is imminent, or if you have a specific factor like a flight risk in a particular case. [However,] because the courts cannot deal with judicial reviews in particular very rapidly, they say, 'Once you have filed a judicial review application, because we, the courts, are so slow in dealing with it, therefore your deportation cannot be imminent and therefore you have to be released from detention'. This is … Alice in Wonderland logic which of course results in it being the case that, in order to get sprung from detention, you go and file a judicial review application."[

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307. Mr Howe said that the courts' interpretation of the European Convention raised obstacles in the way of implementing a policy of universal detention. However, he thought these obstacles were not insuperable, and that such a policy could be lawful, with some "necessary adjustment" of the law, and a speeding up of the processing of asylum seekers' claims.[307]

308. An acknowledgement that detention on a large scale might be justified in some circumstances was given by Mr Michael Kingsley-Nyinah, Deputy Representative at the London office of the UN High Commission for Refugees, who told us that the international "processing camps" within the EU which were envisaged by UNHCR would be "closed" and "secured".[308] However, Mr Kingsley-Nyinah made clear that UNHCR's general principle was that detention should be avoided wherever possible, and that "we frown upon detention other than detention immediately prior to removal".[309]

309. The Minister of State, when invited to comment on the proposal for universal detention, said that "It would take a very large amount of resources, that, as a Government, we think we can deploy better elsewhere … it is not necessary, in order to have a good system, to detain everybody".[310] She added that it would be possible to develop 'one-stop shop' facilities which all asylum seekers would be free to access, without needing to be detained; this would be piloted shortly at two 'accommodation centres'.[311]

AN OFFSHORE PROCESSING CENTRE?

310. In June 2003 the Rt Hon Oliver Letwin MP, the then Shadow Home Secretary, submitted to us a written proposal for a new asylum system.[312] Mr Letwin criticised the existing system. He argued that the current asylum rules encourage young, resourceful males to use the system as a means of economic migration, and that it is in effect "a system of rationing by wealth and ingenuity". It "discriminates in favour of the relatively rich and relatively ingenious—rather than favouring those who are most disadvantaged".[313]

311. In his paper Mr Letwin proposed that any person claiming asylum in the UK would be removed to an offshore asylum-processing centre, where their rights would be protected but which by its location would discourage those seeking economic migration. Asylum seekers' claims would be assessed at the offshore centre, and successful claimants would form part of an annual quota for refugees to be set by Ministers. The UNHCR and the International Organisation for Migration would act as agents for the UK Government in nominating refugees to fill the quota. A full resettlement package would be provided for those in the quota.

312. Mr Letwin argued that his proposed system would "reconcile in an appropriate way (1) the requirement for a rational and humane approach to the fulfilment of Britain's moral obligations to the most needful refugees, and (2) the requirement to persuade the British public that those entering the country are welcome guests who have been brought here in an orderly manner".[314]

313. Mr Letwin stated that "our intuition is that the number of people making such journeys, and such applications under these conditions [i.e. asylum seekers who qualify under the criteria rather than economic migrants] would be at or below the 8,000 recognised by the courts as incoming refugees in Britain last year". He proposed to set the annual quota at a higher level than this, at "around 20,000".[315]

314. We sought the views of some of our other witnesses on Mr Letwin's proposed scheme. The following is a selection of comments received:

Mr Peter Gilroy, Strategic Director of Social Services at Kent County Council, called the proposals "interesting", but mentioned that they do not appear to take account of a number of issues including child protection.[316]
The Immigration Advisory Service stated that "in their present form we do not consider Mr Letwin's proposals to be workable and we recognise that he acknowledges himself that much more work needs to be done on them".[317]
The Refugee Council described the idea of offshore processing centres as unprincipled, legally problematic, unworkable and expensive.[318]
Ms Harriet Sergeant supported the proposals, which she said were in line with the recommendations she made in her report Welcome to the Asylum. [319]
The Law Society commented that "it is unclear exactly how the quota figure stated in the memorandum has been decided upon, and as such it appears somewhat arbitrary". They argued that "situations around the world can change very quickly", and in consequence any quota set could be overtaken by events, leading to people who need asylum being denied it on the basis that the quota was full.[320]

315. When he gave oral evidence to us about his proposed scheme, Mr Letwin admitted that it would not be possible for his quota to represent an absolute ceiling on applications, because in-country applications by those genuinely fleeing persecution would still have to be accepted:

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He added that if the number of genuine asylum applications were to prove greater than the quota, the quota would have to be raised: "I think one has to … envisage the quota as dynamic rather than static".[322]

316. Mr Letwin also told us that "I do not have a view at present about the best location" for the proposed offshore processing centre. He thought that it was not critical where the centre was "as long as it is somewhere which is not economically attractive".[323]

SEGREGATION SCHEMES: CONCLUSIONS

317. As we have noted, it has not been possible for us to conduct a full assessment of the costs and practical implications of these two proposals. We note that Mr Letwin acknowledged that his proposal is at an early stage of development.[324] We do not have full costings of the proposal for detention of new applicants nor indeed of the Government's own proposals for accommodation centres, processing centres and zones of protection.

318. The greatest gains are likely to be made by continuing with the Government's current strategy and the early adoption of the recommendations made in this report. We believe that this is where the Government's efforts should be concentrated. We think that the following factors should be taken into account:

More radical options could take a significant time to implement. We note the slow progress made in setting up accommodation and induction centres and the need to drop proposals for transit processing camps. The more radical options could take even longer to implement, whilst the need is for effective urgent action now.
Though we do not have detailed costings, the radical options could cost more. We believe that it would be better for resources to be devoted to improving decision-making and removals, and taking action against illegal working.
The proposals do not deal with the key issue of illegal migrants. By discouraging people from claiming asylum they may increase the flow of illegal migrants and illegal workers.
The proposals would not resolve all the problems raised by removals, for example the substantial number of failed asylum seekers present in the UK illegally, or failed asylum seekers whom the Government is unable to remove safely to their country of origin.
We are not convinced that all the issues of principle arising from the proposal to detain all new asylum applicants, rather than just those who may pose particular problems, have been resolved.
Asylum is a complex and sensitive issue to tackle. Care needs to be taken in proposing solutions that may appear simple but which would be hard to implement in practice.

A European Refugee Authority?

319. We also took evidence from Mr Simon Hughes MP, who was then (in September 2003) the Principal Liberal Democrat Spokesperson for Home and Legal Affairs. In September 2002, Mr Hughes had published a paper with the Centre for Reform, entitled Who Goes Where? Asylum—Opportunity not Crisis. This paper advocated a co-ordinated European asylum system. Initial decisions about asylum would remain with the member states but final decisions would be passed to a European Refugee Authority. This would be entirely independent and have three principal functions—to advise on and recommend common standards and procedures, and monitor and police them; to provide and manage the final appeals procedure, and to broker responsibility sharing for all asylum seekers in the EU between member states. The system would allow applications to be made at any EU mission around the world. Accepted asylum seekers could count towards the nationally determined total of permitted migrants, subject to no upper limit for genuine refugees, thus coordinating asylum obligations and immigration policy. This system would, it was argued, minimise the difficulty of removals and be a model for other regions of the world.

320. Possible objections to Mr Hughes's scheme raised in evidence were that it would require the complete harmonisation of standards and procedures across the EU, which would be very difficult to achieve; that it might entail considerable transfers of people from across national borders, if one country's quota was filled and another's was not; and that allowing applications at any EU mission anywhere in the world might lead to a massive increase in the numbers applying.[325]

321. We believe that Mr Hughes's scheme is premised upon a degree of pan-European harmonisation in the field of asylum which is not likely to be achieved for many years. In the short to medium term, we consider that a more realistically achievable option for the British Government to pursue would be the establishment of a central European body to monitor and report on the practical implementation of individual member states' policies, as we recommend in paragraph 271 above.

Changes to the Treaties?

322. Some of our witnesses urged that it would be desirable for the UK to renounce or renegotiate its obligations under the 1951 Geneva Convention on Refugees and the European Convention on Human Rights.

323. Mr Martin Howe QC argued that the right to asylum should be qualified by "what it is practical for us to achieve" and to protection against the terrorist threat. He advocated that the UK should reconsider its acceptance of treaty obligations relating to asylum, and in particular that:

The 1951 Geneva Convention should no longer be directly interpreted and applied by domestic courts. Instead, entitlement to asylum should be judged against criteria enacted in domestic law.

The UK should withdraw from the European Convention on Human Rights and not re-enter unless the convention is revised to take better account of the need to tackle terrorism.

As an alternative, the UK could withdraw from the Convention and then re-adhere to it after a short period attaching 'reservations' under Article 57 in respect of anti-terrorist measures.[326]

324. Mr Oliver Letwin MP stated that his proposals would require "a recasting of all relevant legislation and (to the extent necessary) of Britain's relationship to international treaties and conventions, so as to make it lawful for any person entering the UK and claiming asylum (where the person is not part of the quota for that year) to be removed instantly to a safe, offshore asylum-processing centre".[327]

325. The Law Society, commenting on Mr Letwin's proposal, expressed concern that it "would lead to the complete undermining of the international system of protection which has been in place since 1951".[328] The Immigration Advisory Services claimed that the proposed "recasting of all relevant legislation" would involve withdrawing from the 1951 Refugee Convention and cast doubt over the UK's commitment to the European Convention on Human Rights. They argued that this "would be an enormous setback for the development of an international culture of human rights".[329] The Refugee Council likewise alleged that "the proposal would threaten the global safety net … many countries would be keen to use the UK's precedent as an excuse to renege on their own obligations".[330]

326. In its memorandum to us, the Government expressed its commitment to the 1951 Convention and the European Convention on Human Rights—albeit with some reservations. They stated that "the Government is committed to ensuring that this country adheres to its international obligations" under the two conventions, "and that those who are fleeing persecution are given the protection they need". However, they noted that:

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The memorandum concluded—

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327. We asked the Minister of State what the Government meant by saying it had "no current plans" to withdraw from its obligations, but might review them. She replied:

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328. The UN High Commissioner for Refugees is mandated by the United Nations to supervise, in co-operation with states, the application of the 1951 Convention and its legal protection regime. UNHCR has recently undertaken a global process of consultation on how to adapt this international protection regime to meet present challenges, including recent developments such as the mix of refugees with economic migrants, and the number of refugees fleeing from civil conflicts. What has emerged from this consultation process is a 'Convention Plus' initiative aimed at modernising the 1951 Convention. This will involve "the development of special agreements or arrangements which will promote fairer responsibility and burden-sharing, make durable solutions more accessible within a shorter time framework and reduce migratory pressure on asylum systems".[334]

329. UNHCR summarises its Convention Plus initiative as follows:

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330. The 1951 Convention and the European Convention on Human Rights are the bedrock of humane international arrangements for the reception of refugees. To seek to undermine them would send a very unfortunate signal to other countries, especially those with poor human rights records. However, the Government is right to point out that much has changed in the world, and in the pattern and volume of asylum seeking, since the two conventions were originally drawn up. We have drawn attention earlier in this report to the difficulties which arise from differing interpretations of the 1951 convention by national courts.[336] We note that our predecessor Committee three years ago, in its report on Border Controls, recommended that—

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331. We do not favour the option of withdrawal from the 1951 Convention or the European Convention on Human Rights. However, we endorse our predecessors' view that the 1951 Convention needs updating. This should be done on the basis of broad international consensus. We support the work of UNHCR through 'Convention Plus' in attempting to adapt the operation of the convention to modern circumstances, and urge the UK Government to continue to work closely with UNHCR in this endeavour.

More radical options: overall conclusions

332. As we have identified, there is more in common between the overall strategy of the main political parties than is apparent at first sight. In particular, they are advocating a reduction in in-country applications for asylum, balanced by a significant increase in the number of refugees accepted through UNHCR. There is broad agreement on the need for more effective processing of claims, a reduction in illegal working and effective action on removals. A greater public understanding of these constructive common elements in the main parties' approach, as well as of the undoubted differences of principle on some issues, would help to make asylum a less divisive issue in the wider community.

333. There is an urgent need to maintain recent progress in improving the applications system, to reduce the backlog further and to increase both the fairness and the speed of the system. The measures proposed in this report would command widespread support and would help to develop public confidence in the operation of the asylum system.

334. We have set out, as in our previous report on removals, recommendations that the Government should now consider in dealing with undoubtedly very difficult and sensitive issues, which face many other countries as well, and certainly not only in Europe. However, in doing this we have not forgotten that we are dealing with fellow human beings, whether genuine asylum seekers or economic migrants, many particularly of the latter who are the victims of unscrupulous international criminals.

335. Britain's reputation for fairness and tolerance should not be exploited by those with no genuine claim for asylum, and even more so by the criminals running the international gangs, nor should it be sullied by ill-informed or exaggerated debate. We hope that our report will contribute to a rational debate about the asylum issue.

306 Q 213 Back

307 Qq 215-16 Back

308 Qq 347-49; see para 276 above. Back

309 Q 380 Back

310 Q 118 Back

311 Q 120 Back

312 Ev 231-32 Back