1. Memorandum submitted by
amnesty international uk
Amnesty International UK is the United Kingdom
section of the worldwide Amnesty International human rights campaigning
movement. We represent the views of approximately 200,000 members
and other supporters from across the United Kingdom. Below, we
cover those areas of enquiry which fall under our mandate.
WHAT ARE
THE REASONS
FOR THE
RISE IN
ASYLUM APPLICATIONS
TO THE
UK OVER THE
LAST 10 YEARS?
1. The Home Office asylum statistics for
4th Quarter 2002 show that the top four nationalities claiming
asylum in the UK are Iraq, Zimbabwe, Somalia and Afghanistan.
These are all countries in which widespread and continuous human
rights violations are known to occur. Large refugee movements
to all parts of the world have a clear relationship to disastrous
events including war, particularly in the most directly affected
countries.
2. Objective evidence from a wide range
of sources shows that the principle aim of asylum seekers in the
UK is to reach a country where they can seek refuge. Safety is
their priority rather than the intention to travel specifically
to the UK. The final destination of many asylum seekers is in
the hands of agents, who simply offer a "safe country"
and do not permit the individual asylum seeker a choice about
the destination country. Many asylum seekers are forced to leave
their country as a matter of urgency and do not have time to debate
the merits of individual countries.
3. It has been shown that the majority of
asylum seekers do not have a detailed knowledge of the UK, or
its work, welfare and benefits system. The rise in asylum applications
in the UK has shown that the dismantling of access to welfare
for asylum seekers, and other restrictive legislative developments,
have not been a successful deterrent to asylum seekers entering
the UK.
4. Where persuasive factors have influenced
claimants to apply for asylum in the UK, they have been shown
to be as follows (in no order):
— The location of relatives and friends
in the UK, who can help the asylum seeker.
— Links between the country of origin
and the UK, such as colonial ties.
— The ability to speak or "get
by" in the English language.
— The reputation of Europe as a whole,
as safe, tolerant and democratic.
— The UK's reputation as a country
which has shown sympathy to those in need of protection.
HOW ADEQUATELY
AND FAIRLY
ARE ASYLUM
APPLICATIONS MANAGED
TODAY? HOW
DID THE
BACKLOG OF
ASYLUM DETERMINATIONS
ARISE? IS
IT BEING
DEALT WITH
SATISFACTORILY?
5. Amnesty International believes that asylum
applications are not being managed adequately or fairly in line
with international refugee law. The back-log of undetermined
asylum claims is a direct result of the problems inherent in asylum
decision-making.
The problem of initial decision-making
6. Amnesty International is concerned that
there has still not been any recognition by the Government of
the importance of good quality initial decision making. Delays
in the appeals system are the direct result of the quantity of
initial decisions that are appealed against. The most effective
solution to the problem of delays is therefore to improve the
quality of the initial decision.
The need for an independent documentation centre
7. In order to make an accurate assessment
of an asylum claim, it is essential to have reliable, up-to-date
information about the human rights situation in the country where
the asylum seeker claims to be at risk of persecution. At the
moment, the responsibility of providing this assessment rests
with the Home Office "Country Information and Policy Unit"
(CIPU). This raises clear concerns about the impartiality of the
reports - concerns which have been borne out over the years in
terms of the quality of some of the reports - for example when
it emerged that the Home Office's policy of rejecting most Zimbabwean
cases (on the basis of the country report) was in direct conflict
with the Foreign Office's assessment of that country.
8. Amnesty International proposes the establishment
of an "Independent Documentation Centre" which would
be responsible for producing the assessments of countries of origin
on which asylum decisions are based.
9. The Home Secretary has recognised the
strength of the arguments against the current approach, but has
only gone as far as proposing a consultative body to comment on
the reports. This does not address the key issue of independence.
The need for advice and representation from the
beginning of the asylum process
10. All asylum seekers should have access
to legal advice. Legal representatives have a crucial role in
ensuring that asylum seekers are able to make a full presentation
of their claim for refugee status. This is due (a) to the detailed,
technical nature of the criteria and jurisprudence associated
with the 1951 UN Convention on Refugees; and (b) the need to deal
with the "culture of disbelief" which pervades the Home
Office's approach to the asylum determination process. Early access
to legal advice also enhances the quality of the initial decision,
and so avoids wasting valuable Home Office and Lord Chancellor's
Department resources on unnecessary appeals against ill-founded
refusals. The combination of fast-track procedures, and dispersal
to areas where legal advice is in desperately short supply, means
that large numbers of asylum seekers are denied access to legal
representatives.
The problems presented by the re-emergence of
the "White List"
11. Amnesty International believes that
any policy which pre-judges a claim on the basis of nationality
is contrary to our international obligations towards refugees.
Every asylum claim should be considered fully on its individual
merits, and not pre-judged on the basis of nationality. This is
a cornerstone of international refugee law.
The problems of the back-log
12. Amnesty International believes that
the recent history of UK asylum policy teaches us one clear lesson—that
the problem of the asylum backlog will not be resolved by the
progressive withdrawal of safeguards within the current determination
process. One of the main causes of the current shambles is that
the Home Office time and money are diverted away from tackling
the backlog, and instead devoted to the resource-intensive business
of trying to defend unsustainable decisions at the appeal stage.
13. The successive overhauls of the system
have failed on their own terms, because we still have a system
which leaves many asylum seekers waiting years for a decision
on their claim, and we still have a massive backlog of undetermined
claims—the difference being that much of the backlog has
been transferred from the Immigration and Nationality Directorate
to the Immigration Appellate Authority.
HOW APPROPRIATELY
IS DETENTION
BEING USED
IN RESPECT
OF ASYLUM
APPLICANTS?
14. Amnesty International believes that
the Government's current policy regarding the detention of asylum
seekers is in clear breach of international standards governed
by Article 5 of the European Convention and Art 9 of the International
Covenant on Civil and Political Rights (ICCPR).
The need for judicial scrutiny
15. Amnesty International believes that
asylum seekers should not be detained without just cause. Only
in exceptional cases can the detention of asylum seekers be justified—where
the detaining authorities can demonstrate that there is real risk
that the asylum seeker would otherwise abscond, and that other
measures, such as reporting requirements, would not be sufficient.
16. In such exceptional cases, full written
reasons should be provided in each case, and reviewed on a regular
basis. Amnesty International recommends that the Government introduces
proper judicial oversight of the decision to detain an asylum
seeker.
17. Amnesty International is deeply concerned
about the repealing of Part III of the Immigration and Asylum
Act 1999—which introduced automatic bail hearings for detainees—by
the Nationality, Immigration and Asylum Act 2002. Amnesty International
considers the non-implementation of this measure by the UK Government,
and the repealing of it, a negation of the UK's responsibilities
under the European Convention of Human Rights (ECHR).
18. Amnesty International believes that
a right to automatic bail hearings should be implemented, allowing
asylum seekers detained under the Immigration Act powers the right
to challenge the lawfulness of the deprivation of liberty, promptly
before a competent, independent and impartial authority in accordance
with international law.
Access to legal services in detention
19. Amnesty International believes that
access to legal advice and representation within detention, "accommodation"
and "removal" centres should be a basic right enshrined
in legislation. Currently it is not listed alongside the fundamental
facilities provided for by Part 2, s.29 of the Nationality, Immigration
and Asylum Act 2002.
The designation of "removal" centres
20. Amnesty International believes that
the re-naming of detention centres as "removal" centres
is inappropriate, as not all those held in detention are failed
asylum seekers pending removal.
The detention of children and families
21. Amnesty International is aware that
the number of asylum seekers to be detained is escalating and,
following the Nationality, Immigration and Asylum Act coming into
force, this includes an increasing number of families.
22. Amnesty International has recommended
that the UK Government should ensure that unaccompanied refugee
children are not detained under any circumstances.
23. The majority of children detained under
Immigration Act powers are held because they are believed to be
adults who are claiming to be under the age of eighteen. Amnesty
International believes that in such cases, children should be
given the benefit of the doubt by Immigration Officers and confirmation
should be sought by a paediatrician in those cases where there
may be any doubt, to avoid the detention of unaccompanied minors.
WHAT WILL
BE THE
EFFECTS ON
THE MANAGEMENT
OF ASYLUM
APPLICATIONS OF
CHANGES MADE
IN THE
NATIONALITY, IMMIGRATION
AND ASYLUM
ACT 2002 AND
THE PRIME
MINISTER'S
PLEDGE TO
HALVE THE
NUMBER OF
ASYLUM SEEKERS
BY SEPTEMBER
2003?
24. Amnesty International's concerns regarding
the Nationality, Immigration and Asylum Act 2002 in relation to
appeal rights and detention, are dealt with in some detail in
the sections above.
Additionally:
The problem of the guiding principle of the Nationality,
Immigration and Asylum Act
25. Amnesty International is concerned that
the objective of the Nationality, Immigration and Asylum Act is
to massively increase the number of unsuccessful asylum applicants
who are removed to their country of origin. Due to the existing
flaws in the asylum determination process, which have been exacerbated
by the restriction on appeal rights in the 2002 Act, the increase
in removals is bound to mean returning genuine refugees to countries
where they will face persecution.
The restriction of appeal rights
26. Amnesty International believes that
adequate appeal rights represent an essential safeguard against
erroneous decisions, and therefore against the removal of asylum
seekers who have a well-founded fear of persecution in their country
of origin. Home Office statistics indicate a steady increase in
the proportion of successful appeals, which suggests that an adequate
appeals system is more important than ever to correct Home Office
errors.
27. However, Part 5 of the Nationality,
Immigration and Asylum Act constitutes a profound attack on asylum
seekers' appeal rights which will result in an increase in erroneous
decisions. Significant numbers of applicants who no longer have
any "in-country" right to appeal against refusal of
their claim, will be expected to exercise their right of appeal
after they have been returned to the country in which they claim
to be at risk of human rights violations. Those who have been
granted exceptional leave to remain or "humanitarian leave"
for less than twelve months will lose their right to appeal for
recognition as a refugee under the 1951 UN Convention on Refugees.
28. The re-introduction of a White List
of supposedly safe countries of origin, and the power to withhold
payment from legal representatives in cases which are deemed to
have been without merit, are part of a legislative package that
is simply not consistent with the need to ensure that our asylum
system effectively identifies people who are entitled to international
protection.
29. Amnesty International believes that
the Government's approach in the Nationality, Immigration and
Asylum Act will have the effect of condemning victims of human
rights violations to continuing persecution.
April 2003
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