19. Memorandum submitted by
the Immigration Advisory Service
IAS is the leading charity giving a free legal
advice and representation service to immigrants and asylum seekers.
IAS was created in 1993 out of the former United Kingdom Immigrants
Advisory Service (UKIAS: established in 1970) as an independent
organisation publicly funded under the 1971 Immigration Act to
provide free advice and representation to persons with rights
of appeal against refusal of their applications. Together with
UKIAS, therefore, IAS has over 30 years' experience of helping
those facing immigration and asylum difficulties. IAS has more
than 300 staff working at 16 UK offices and one in Sylhet, Bangladesh.
1. What are the reasons for the rise in asylum
applications to the UK over the last 10 years?
The Home Office published two pieces of commissioned
research in July 2002 on the specific question of why the UK is
selected as a destination country: The Social Networks of Asylum
Seekers and Understanding the Decision Making of Asylum
Seekers. These intelligent and thoughtful reports suggest
factors such as language, the existence of established communities
in the UK, perceptions of fairness and tolerance and the role
of traffickers all influence the selection of the UK as a destination
country. IAS considers that the legacy of Empire and the Commonwealth
of close liaison with and familiar institutions in other countries
as well as London being a global communications hub are other
factors. These are factors over which the UK has little control
and of which, arguably, it should be proud.
2. How adequately and fairly are asylum applications
managed today? How did the backlog of asylum determinations arise?
Is it being dealt with satisfactorily?
The problems
The management of asylum applications and appeals
remains very poor:
— The time lapses between initial application
and decision on the claim and then between decision and final
determination of the appeal remain considerable.
— There are enormous problems in communication
between and within the bodies responsible for different aspects
of the process.
— There is a confusing diversity of
process in the asylum determination system. Claimants can have
their applicants processed by a variety of methods. Inconsistencies
and inefficiencies abound.
The quality of decision-making at each stage
of the process, particularly the early stages, is poor. This has
an important impact on the overall management of the process:
— The reasons given by the Home Office
for the rejection of asylum claims often bear little relation
to the basis on which the claim was made. This gives rise to two
important problems later in the process:
1. The relevant issues have not been
identified, which hinders an efficient and effective appeal.
2. Many meritorious claims have to be
unnecessarily appealed. The overall success rate for appeals is
around 20%.
— It is the experience of good practitioners
that many adjudicator determinations are overturned on further
appeal. These appeals are either allowed or are sent back ("remitted")
to be reheard by another adjudicator, creating further delay in
the process.
Decisions are often arbitrary. Claims are too
often determined on the basis of set criteria bearing little relation
to the protection needs of the individual. Two examples of recurrent
problems are as follows:
— A claimant who maintains an identical
account throughout the process is likely to be successful, whereas
a claimant who changes his or her account is likely to be rejected
on the basis that he or she is inconsistent and therefore not
a credible witness. Research and plain common sense suggest that
factors such as early access to good legal advice and the nature
of human memory and recall are likely to be as relevant to consistency
as is truthfulness. Moreover, early access to legal advice enables
the elements of the asylum seeker's details relevant to the Convention
claim, rather than other matters, to be fully articulated thereby
making the decision-maker's task more focused and easier.
— Claims are often rejected on a "damned
if you do, damned if you don't" basis. For example, a claimant
who explains that he left his country at the first sign of trouble
is rejected because he has not suffered any sustained problems.
A claimant who remains in his country despite suffering persecution,
perhaps because he did not have the resources to leave or felt
tied or loyal to his country in some way, will be rejected on
the grounds that he cannot be telling the truth otherwise he would
have left sooner.
Underlying reasons
The reasons for poor initial decisions include:
— insufficient time being spent on
claims;
— lack of contact by the decision-maker
with the individual claimant.
A way forward
The fundamental underlying reason for poor decision-making
is, in the view of IAS, the unnecessarily confrontational approach
to the determination of asylum claims.
UNHCR has always emphasised that both the claimant
and the receiving state should be responsible for the investigation
of an asylum claim.[32]
The UK asylum system does not allow for investigation, only for
the presentation of evidence by either "side" and an
acceptance or rejection of that evidence. Proceedings become a
game. If the asylum seeker plays well and sticks to rules such
as repeating an identical account, he or she will win. If not,
he or she will lose.
IAS proposes a more co-operative approach to
the asylum determination process, in which the decision-makers
actively assess a claim rather than judging it from afar. This
would require fundamental reform of IND and the creation of a
new agency more independent from the Home Office. By "front-loading"
resources and investing in a more thorough initial decision-making
process, considerable cost and time savings could be achieved.
The Immigration Appellate Authority must be enabled finally to
fulfil its real function as an appellate body as opposed to the
first-instance decision-maker it is often forced to become by
shoddy initial decision-making.
The backlog
The asylum claim backlog arose from one or more
complete collapses in the management of the Immigration and Nationality
Directorate, a department now notorious for its poor administrative
performance,[33]
and from several ongoing problems, already discussed above. IAS
makes the following suggestions for dealing with these problems:
— more resources earlier in the process;
— more training for caseworkers;
— specialisation of caseworkers by
country; we understand that the Home Office is now taking this
advice and returning to a system of specialised teams of caseworkers—something
that IAS has advocated for a long time—but more information
is needed as to how this will be done;
— amnesties and the grant of status
for claimants trapped in the backlog for more than three years;
— an acceptance of the reality of the
existence of countries to which returns cannot be made and granting
of temporary status to claimants from those countries at the earliest
opportunity thereby reducing stress and enabling claimants to
establish themselves even if determination of refugee status takes
longer. On 21 March the Home Office announced the suspension of
decision-making on asylum claims from Iraqi nationals and adjournments
on all appeals. For how long will the uncertainty continue for
such claimants? The policy on Afghans, for example, is to be reviewed
on 1 April 2003—a full year and a half after the war there
was supposedly over. Are Iraqi asylum seekers to wait for a year
and a half for their appeal? There is no reason to think that
the situation in Iraq will settle more quickly than that in Afghanistan.
3. How adequately is support provided to asylum
seekers by the National Asylum Support Service?
NASS and the dispersal policy it was supposed
to administer were a disaster. The policy of dispersal was virtually
unplanned, no preparations for services to dispersed asylum-seekers
were made, as far as IAS could determine, implementation was a
shambles and the dispersal policy led to a number of racist attacks,
some of which were fatal. NASS and the dispersal policy have been
a classic example of Home Office incompetence.
While the worst problems are behind NASS, serious
ongoing problems remain:
— support is withdrawn illegally while
appeals remain outstanding. IAS has represented a number of claimants
entitled to NASS support but who have been left destitute;
— lack of integrated communication
between NASS and other agencies or government bodies;
— misdirected mail and failure to record
changes of address.
4. How appropriately is detention used in
respect of asylum applicants?
IAS recognises that detention must play a part
in a credible asylum process. However, IAS believes that detention
should be employed as a tool of last resort, and that its application
should generally be restricted to the end of the process, prior
to the removal of unsuccessful claimants. IAS has serious misgivings
about the planned continued detention in Harmondsworth Removal
Centre of persons during their appeal, which was announced on
18 March and is due to commence on 1 April 2003.
Detention is currently applied inconsistently
and often ineffectively:
— the wrong claimants are often detained;
— the "reasons" given for
detention are pro forma and bear little relation to the
circumstances of the individual claimant, rendering scrutiny virtually
impossible;
— detention is often for an inappropriate
length of time;
— there is little or no co-ordination
between different arms of the Immigration Service—different
Ports appear to apply different practices and criteria.
Bail applications have not provided an adequate
check on detention powers because of the lack of representatives
near key detention centres, the absence of accurate reasons to
justify detention and the absence of a requirement that adjudicators
hearing bail applications give reasons for their decisions. According
to a recent Government consultation paper, this latter problem
is being dealt with by the new Procedure Rules, a step welcomed
by IAS. There should be automatic independent review of detention
and a presumption of liberty, as exists in the criminal jurisdiction.
5. 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?
The Government has virtually abandoned its half-hearted
attempts to limit abuses of the asylum process through better
management and more efficient, effective processing of claims.
Instead, the Government has turned to the blunt instrument of
removing procedural rights and safeguards:
— In-country appeals are being curtailed
through the use of the "clearly unfounded" certificates.
In the view of IAS the imposition of one of these certificates
amounts to the unilateral removal of an appeal right by one of
the parties to that appeal, an unthinkable abuse of process and
affront to judicial independence in any other context;
— Judicial review of refusal of permission
to appeal to the Immigration Appeal Tribunal is being replaced
by a seriously foreshortened "statutory review" process;
— The failed attempt to deny support
to in-country "late" claimants was clearly intended
to deprive those claimants of their appeal rights by indirect
means.
These and other measures in the new Act are
ill-conceived and likely to be counter-productive. While the Government
seeks to limit the number of judicial reviews of Tribunal decisions,
other measures in the Act are likely to generate a considerable
number of judicial review claims, and indeed has so over the notorious
s55 welfare provision changes, recently overturned by the courts.
The "New Vision" proposals suggest
the Government is considering complete abdication of its responsibility
to manage an efficient and effective domestic asylum determination
process by removing in-country appeal rights completely. While
there is considerable benefit for asylum seekers to have their
legitimate claims determined closer to their country of origin,
thereby removing the lottery and personal danger of who is able
to travel to the UK, IAS is wholly opposed to the New Vision proposals
as presently proposed. Any such system must guarantee protection
and proper access to the asylum process and should be a supplement
to, not a substitute for, the process for spontaneous arrivals.
The replacement of a domestic asylum process with regionalised
"solutions" would deny the basic right to seek international
asylum and expose vulnerable and traumatised individuals to poorly
supervised and no doubt poorly resourced detention camps. Such
camps, which the government accepts will be "closed",
an obvious euphemism for involuntary detention, will inevitably
be surrounded by barbed wire and patrolled by security guards.
The camps will be out of sight, out of mind and, most importantly,
out of the tabloid press. It would be difficult to guarantee protection
in such circumstances. The earlier draft of the leaked paper mentioned
"safe havens", what Srebrenica was meant to be. IAS
would wish to make more detailed submissions on these plans.
IAS PROPOSALS FOR
REFORM
1. Short to medium term:
The Government should cease its endless and
counter-productive reform of the UK asylum process and concentrate
instead on managing the existing system effectively. Too often
reform has been reactive, unplanned with unforeseen consequences
on existing policy and a quick fix used to avoid confronting the
real problems undermining confidence in the asylum process: poor
quality decision-making and abysmal management of the multiplicity
of bodies responsible for operating the process.
2. Longer term
If reform is to be carried out, as the three-year
cycle of new legislation over the last twelve years suggests,
the Government must, instead of tinkering with the existing system,
fundamentally re-examine the ways in which asylum claims are determined.
IAS suggests the creation of an independent agency responsible
for investigating and deciding those claims and for determining
the vast majority of appeals, as in Canada. This would require
a total restructuring of the Immigration Service, the Immigration
and Nationality Directorate and the Immigration Appellate Authority.
It would also require a cultural revolution in attitudes towards
asylum claims.
March 2003
32 UNHCR Handbook para 196. Back
33
See the numerous reports of the Parliamentary Ombudsman on maladministration
in individual cases. See also The Sunday Times, 9/2/03,
Leak confirms asylum failure at Home Office by David Leppard. Back
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