21. Second supplementary memorandum
submitted by the Immigration Advisory Service
1. REGIONAL PROTECTION
AREAS AND
TRANSIT PROCESSING
CENTRES
Since the original leaked document from the
Home Office with these proposals termed "A New Vision"
they have been modified in the light of various comments and the
views of UNHCR[36].
IAS can see the benefits of a fair and transparent system of identifying
refugees closer to their country of origin so long as this is
done in accordance with judicial and other safeguards, such as
early access to legal advice. IAS is more concerned about Transit
Processing Centres in the absence of any clarification as to the
method of decision, safeguards as set out above, the application
of UK law, appeals etc. We set out our concerns more fully in
a letter dated 24 March 2003 to Mr Ruud Lubbers the United Nations
High Commissioner for Refugees jointly signed by ourselves, the
Refugee Council, International Rescue Committee, Liberty and the
Refugee Legal Centre.
2. VARIATION
IN APPROACH
AND DECISIONS
ON ASYLUM
APPLICATIONS
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. This variation in initial decision making needs to be
subject to a supervisory authority with more transparent guidelines
as to the relevant factors. IAS has suggested an independent body
as in Canada. The Canadian experience is that with only 170 decision
makers a substantial number of cases can be dealt with expeditiously.
Productivity has increased recently owing to a panel of two decision
makers now being reduced to single decision makers. At a meeting
on 20 May 2003 with M. Jean-Guy Fleury, Chair of the Canadian
Immigration and Refugee Board, and Paula Thompson, his special
adviser, it became apparent that the profile of applicants and
the success rate of applications are not dissimilar from that
in the UK but that these are achieved on initial decision rather
than after appeal.
3. DISPARITY
IN APPROACH
AND DETERMINATIONS
BY ADJUDICATORS
In our earlier paper we referred to the fact
that many adjudicator determinations are overturned on further
appeal. It is, perhaps, unsurprising that with so many new adjudicators
there will be a disparity in their determinations. This can be
observed especially by IAS with sixteen offices and staff appearing
in all hearing centres. It is disturbing that some staff indicate
that they know that the approach to a particular case will be
different according to the identity of the adjudicator. This,
of course, is a matter for training through the Immigration Appellate
Authority but it also emphasises the importance of the Immigration
Appeal Tribunal setting down guidelines and starred determinations
which must be followed in order to ensure greater uniformity of
approach. IAS is concerned at any proposals to limit this necessary
judicial oversight.
4. THE NUMBER
AND NATURE
OF ASYLUM
APPLICATIONS
IAS regards setting absolute targets for reducing
numbers of asylum seekers as unhelpful and likely to create greater
loss of public confidence in the current system if not reached
as this fails to recognise that the number is largely dependent
on events in asylum producing countries over which the Government
has little control. It is noted that the Home Secretary himself
seems to acknowledge this[37].
Consistently, the countries of origin of claimants have demonstrated
this. Unsurprisingly, the figures for 2002 suggest the number
of people applying for asylum from Iraq more than doubled to 14,940,
from 6,705 the year before (in 1982 there were 4,223 asylum seekers
applying in the UK, compared with 110,700 in 2002). The conflict
in Iraq is now over. As might have been expected following greater
normality in parts of Afghanistan, applications from Afghans continued
to fall (by 30% to 950) in the first quarter of 2003. This fall
has been reflected elsewhere as shown by the figures of the UN
High Commissioner for Refugees that show that asylum applications
in Europe, North America and Japan have fallen by 16% in the first
three months of this year, compared with the previous three months.
The total number of registered would-be refugees was about 120,000,
and the downward trend is now well established. The UNHCR report
mentions as a main factor at work the ousting of politically repressive
regimes in Iraq and Afghanistan, which has reduced the outflow
of asylum-seekers from those two states.
Applications in the UK from Zimbabwe fell by
61% continuing the lower monthly levels seen in December, following
the introduction of a visa regime, even though there is widespread
and well-publicised persecution in that country. These figures
underpin the fact that the effect of Government policy is to try
to prevent as many asylum seekers as possible from entering the
UK irrespective of the validity of their claims. There is evidence
to suggest that genuine refugees are forced more and more into
the hands of smugglers who are often more adept at securing clandestine
entry than individuals themselves in the absence of any transparent
route to the UK, especially since the closure of Sangatte. IAS
is concerned that the effect of these measures may be to increase
clandestine, undetected, entry and the further likelihood that
such entrants will not claim asylum but remain undetected for
as long as possible if there is no benefit in claiming asylum
shortly after arrival. IAS acknowledges that asylum seekers should
be encouraged to claim asylum as soon as possible after arrival
but it is unrealistic to expect them to do so immediately before
contacting existing communities and learning about the process
from what might be regarded as a sympathetic source. Notices at
airports do not explain this. The Government might well require
all asylum seekers to claim asylum within a few days of them having
access to legal advice but at present there is no mechanism whereby
such access can be guaranteed. Indeed, the Home Office has stressed
that it is not their intention to facilitate access to legal advice
during the induction process.
The numbers of asylum claimants in the UK, therefore,
do not necessarily reflect the global situation regarding refugees.
Indeed, placing visa restrictions on countries that generate a
considerable number of valid claims may increase, perversely,
the proportion of invalid claims. This is acknowledged in the
report on the official statistics themselves[38].
The significant reduction in claimants from the ten EU accession
states may be more resultant on the fact that their nationals
will have free movement from 1 May 2004 rather than non-suspensive
appeals (the effect of which on the intention of claimants to
come to the UK is unproven). Taking account of successful appeals
those allowed to remain lawfully represent up to 50% of all claimants.
In the first quarter of 2003 26% of claimants were allowed to
remain on initial decision and 17% of appeals were allowed. These
percentages have remained at around these levels irrespective
of new Government measures.
Despite uncorroborated assumptions which have
underscored Government policy on deterrence based on so-called
"pull" factors there is evidence to show that the greatest
factor in refugee migration is conflict in countries of origin[39].
IAS would prefer to see the Government stressing
the number of deserving cases which have been given protection
from persecution and considers that the emphasis on refusals and
dismissed appeals as well as reduction in numbers without reference
to the protection needs of claimants contributes to the negative
debate on immigration issues.
5. ATTRIBUTED
PROPOSALS TO
HAVE A
SINGLE TIER
OF APPEAL
AND PENALISE
UNDOCUMENTED APPLICANTS
It has been reported that the Home Secretary
intends to place before Cabinet with a view to legislation in
the new Parliamentary term suggestions to introduce a single tier
of asylum appeals and penalties for undocumented asylum seekers[40].
We appreciate that in the public domain these ideas are as yet
inchoate. Nevertheless, for the reasons we have advanced above,
we would be greatly concerned at the reduction of judicial oversight
of the Immigration Appellate Authority by the institution of a
single tier of appeal, presumably through further reduction in
the work of the IAT. This could lead to even greater disparity
in determinations and an increase in judicial review work. We
wonder how much consultation has been undertaken by the Home Office
with the Chief Adjudicator and the President of the IAT on these
proposals and what their responses have been. We are surprised
that such a fundamental change should not be subject to wider
consultation in order to ensure that there is an early identification
of any aspects that would render it unworkable. As to undocumented
asylum seekers we acknowledge that those who destroy their documents
should be discouraged from doing so, not least because a failure
to establish the identity of an asylum seeker may lead to detention.
Again, early access to competent legal advice could assist the
prevention of this. Many asylum seekers, however, will arrive
without documentation either because it has been lost or because
they have been unable to obtain any from their country of origin.
It would be unjust to penalise them for a failure to have documentation.
June 2003
36 "Since that report was originally prepared,
the UK has modified its proposals a little, while retaining the
central concepts of regional processing and protection in regions
of origin. At the same time, UNHCR has made its own proposals
in relation to the future of asylum in Europe, which would limit
regional processing to asylum seekers from countries that do not
normally produce refugees, and which would bring any regional
processing centre within the boundaries-and the legislation-of
the European Union." presentation by Jeff Crisp, Head, Evaluation
and Policy Analysis Unit of UNHCR on 21 May 2003 in London. Back
37
Blunkett says Blair's pledge on asylum seekers "undeliverable".
By David Bamber and Colin Brown (Filed: 09/02/2003) in the Telegraph
"Tony Blair's pledge to halve the number of asylum seekers
arriving in Britain by September was seriously undermined yesterday
after David Blunkett warned colleagues that the promise was "undeliverable". Back
38
"The proportion of initial decisions granting asylum in
Q1 fell to 7% in Q1 from 11% in Q4 2002, partly due to fewer decisions
being made on Zimbabwean cases." Back
39
BBC News 13 May 2003 "The Institute for Public Policy Research
(IPPR) studied the 10 countries from which the majority of asylum
seekers in the UK have come over the last decade. War and ethnic
conflict were the key factors linking all those countries, the
centre-left think tank found." Back
40
"The Home Secretary, David Blunkett, intends to bring in
legislation this autumn to introduce a national identity or "entitlement"
card for all adults as part of a package of measures to tackle
illegal working by migrants. The package will include a further
clampdown on the appeal rights of rejected asylum seekers and
measures to tackle those who destroy their documents on arrival
in Britain." Reported in the Guardian 23 May 2003. Back
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