24. Memorandum submitted by
Joint Council for the Welfare of Immigrants (JCWI)
JCWI is the leading, independent voluntary organisation
working in the field of immigration, asylum and nationality law
and policy. Established in 1967, JCWI provides expert legal advice
and representation, runs training course for solicitors and other
practitioners, and undertakes research and analysis in all areas
of immigration, asylum and nationality law and policy.
1. What are the reasons for the rise of asylum
applications to the UK over the past 10 years?
JCWI is of the view that asylum policy in Britain
and Europe during the past decade and a half has been badly managed.
Many of the negative aspects of the refugee situation during the
recent past have arisen precisely because of this mismanagement.
The basic fact is that the forces that give
rise to refugee movements have not diminished in recent times.
Amnesty International recorded significant human rights abuses
in 152 countries and territories in 2002 only slightly less than
the cases recorded in 161 countries in 1993. In addition, Europe
saw a whole series of armed conflicts emerge in the region during
this period, the most significant of which occurred in the Balkans.
All of these events required a bold and imaginative approach from
the EU countries if the system of international protection for
refugees was to continue to operate effectively.
This was not the course that was taken in the
EU. Member States failed to cooperate to ensure the maintenance
of international protection standards. Sweeping changes to national
asylum law and policy in the mid-1990s—symbolised by Germany's
amendments to its "Basic Law", which had provided constitutional
guarantees to refugees—produced a "race to the bottom"
as each country sought to minimise the impact of refugee movements
on its own territory. The UK contributed to this process with
two major pieces of legislation—in 1993 and 1996—that
played an important role in reducing the coherence and structure
of asylum policy across the EU.
Current levels of asylum seeker movements to
the EU are running at relatively modest levels, with 384,000 applications
lodged in 2001. During the first 10 months of 2002, UNHCR statistics
refer to a fall in the volume of applications in Europe of 6%.
The relative increase in the numbers seeking asylum in the UK
has, in our opinion, to be attributed to the reduction in the
coherence of EU policies over the past ten years and the rise
of pathological aspects of asylum movements under the direction
of agents and people smugglers who have sought to take advantage
of the disordered state of policy.
2. How adequately and fairly are asylum applications
managed today? How did the backlog of asylum determinations arise?
Is it being dealt with satisfactorily?
It is difficult to believe that there are many
aspects of asylum procedures in the UK that can be considered
satisfactory. The largest part of policy is proclaimed by government
ministers as being designed "to send a message" to persecuted
people around the world that Britain is hostile to asylum seekers.
Access to the UK is impeded by restrictive visa policies, the
movement of individuals is obstructed by carriers liability and
such new developments as "juxtaposed controls".
Application procedures for those who do arrive
have been made even more shambolic by the introduction of s55
of the 2002 Act. The need to avoid destitution whilst applications
are processed requires a herd-like stampede to IND offices across
the country, though admittedly this is handled better in some
regions than in others. The emphasis of procedural issues is gravely
prejudicial to the task of fair consideration of each application—with
in the region of 15% still being refused on "non-compliance"
grounds alone.
The standard of decision-making is poor, with
around 22% of initial decisions being overturned on appeal. In
addition to this figure the Home Office withdraws a high number
of initial decisions before they come to appeal and grants ELR
to the applicant. A further 24% are granted ELR at other stages
of application consideration, or post appeal.
The backlog of asylum application arose in the
mid-1990s onwards as a consequence of a number of elements. Firstly,
there was the discernible trend at this time to a more forensic
approach to the consideration of individual applications, requiring
evidence of persecution of a high standard. Decision-makers in
the immigration and Nationality Directorate were seldom equipped
with the skill or resources to reach speedy decisions in accordance
with these criteria and procedures became more drawn out as a
consequence. Secondly, the disastrous PFI-contract with Siemens
Business Services, entered into in 1996 and intended to upgrade
IT-resources in IND, precipitated the collapse of established
procedures without replacement by improved systems. The extensive
refurbishment of IND's Lunar House headquarters during this period
also added to problems.
We do not consider that adequate progress is
being made to clear asylum backlogs. Official figures on decision
times are generally limited to new applications. We have experience
of many applications made in the period to April 2001 which continue
to languish without any assurance of being dealt with in accordance
with any sort of deadline.
3. How adequately is support provided to asylum
seekers by the National Asylum Support Service?
JCWI has not made a specific study of support
provided to asylum seekers by NASS. However we are aware of the
extensive criticism of dispersal procedures, adequacy of levels
of support, standards of accommodation, and lack of appropriate
forms of support which have been made by other organisations working
in the field.
4. How appropriately is detention used in
respect of asylum applicants?
JCWI is of the view that the detention of asylum
seekers in the UK is used wholly inappropriately, and believes
that the use of detention against asylum seekers is against international
law and guidelines. The powers of detention under the Immigration
Acts are very wide, and even though safeguards have been widened,
they remain inadequate. People who have committed no crime should
not be detained. There has been a relentless increase in the number
detained in recent years with a Home Office policy aimed at increasing
the use of detention, in particularly for asylum seekers. There
is no evidence that this "policy of deterrence" to stem
the flow of asylum seekers coming to the UK is working, the number
of asylum applications have not decreased as a result. JCWI is
particularly concerned about the following:
— There is no time limit and no presumption
in favour of liberty in statute.
— There is no automatic judicial oversight
of immigration detention.
— There is no requirement to set out
in details why an asylum seeker is detained. The current "tick
list" is ineffective and inappropriate. There is a lack of
transparency with regard to Home Office policy on detention;
— Inconsistency in decision-making
and subject to different interpretation.
— "Removal Centres" is a
misleading name for the centres used for detention, as many people
are not just detained prior to removal, but may be detained at
any time during the asylum process which leads to prolonged detention.
Prolonged detention is also a problem for those who have been
detained and cannot be removed.
— JCWI is deeply concerned about the
provision for the detention of families. Detention for children
can never be in their best interests.
— Vulnerable categories (torture victims,
children, people with mental and/or physical health problems etc.)
should not be detained under any circumstance. The response to
any claims of unfitness is inadequate, and there is a lack of
appropriate (mental) health expertise in order to assess and to
treat detainees.
— There is restricted access to legal
information and advice.
— There is no consistency in the operation
of the centres.
— There are inadequate facilities for
interpreters and translated material.
— Despite a promise by the government
to discontinue the detention of asylum seekers and immigrants
in prisons, statistics show that a large proportion of asylum
seekers that are currently detained are in fact detained in prison
establishments[45].
— The bail provisions, in particular
CIO Bail, are inadequate. Asylum seekers should not have to forfeit
large sums of money, or have to rely on sureties in order to be
granted bail.
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?
We have already commented on the negative aspects
of Section 55 of the 2002 Act and the effect of detention procedures
without the right to a bail hearing—Section 68 which repeals
Part III of the 1999 Act. To return to the themes mentioned in
our comments on Question 1, we would say that the 2002 Act in
general marks another stage in the withdrawal of the UK from the
standards of protection of refugees which had been intended to
be provided by the 1951 Geneva Convention. By these measures,
asylum procedures in Britain are in grave danger of being turned
into a conveyor belt designed to maximize the capacity to deter
and remove asylum seekers, whilst simultaneously reducing protection
and safeguards to an absolute minimum.
The Prime Minister's statement on halving applications
implies changes of an even more radical nature. Very little which
can be considered definite has emerged from the Home Office on
what these changes might consist of, but speculation in the media
gives rise to the gravest of concerns.
We expect that there will be greater use of
fast-tracking procedures and detention of a higher proportion
of asylum seekers to act as a deterrent to others planning to
come to the UK. It is clear that fast-tracking is an extremely
blunt instrument for determining the genuineness of an application.
Its negative effect on the protection rights of certain persecuted
minorities of Central European nationality—in particular
the Roma—has been widely commented upon.
Beyond these expectations, we would express
concern about the idea for "regional processing" which
has been flagged in newspaper articles. In the form suggested—of
establishing vast holding centres on the territory of third countries
to which most, if not all, asylum seekers would be sent pending
consideration of their applications—the impact on properly
ordered asylum procedures would be disastrous. Assuming that proposals
of this type can be put into action over the summer months, we
would anticipate a considerable drop in asylum applications since
many people in need of protection would not be willing to submit
voluntarily to procedures with such a large punitive element.
This drop in numbers would, however, be illusory, because the
procedure is likely to increase the incentive to undetected entry
into the UK and prolonged unauthorised residence. We would expect
that in this way the regional processing centres would take their
place in the long list of measures taken by national governments
over the last decade which have undermined the order and structure
of international protection regimes and have rendered refugee
flows largely unmanageable.
March 2003
45 Home Office statistics as at end of December 2002,
"Asylum Statistics: 4th Quarter 2002. Back
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