35. Memorandum submitted by
The Refugee Council
Summary of Position: we do not believe
that the Government has put in place measures that will deliver
an efficient and fair asylum consideration process or one that
will honour our international obligations.
We are concerned by a growing emphasis on deterrence
although there is little evidence of these measures being effective
and the likelihood is rather that they force people into the hands
of traffickers. There is too an increasing concentration on measures
such as accelerated procedures and non-suspensive appeals—removing
safeguards to protection whilst failing to improve the decision
making process itself. Twenty per cent of decisions are overturned
at appeal.
This is being reinforced by increasingly harsh
measures for those that are here—enforced destitution of
"in country applicants" and the growth in the use of
detention, including that of children.
We are concerned that these do not address the
basic issue—that of processing of asylum claims efficiently
and fairly—the greatest contribution to a more efficient
and credible asylum system would be an improvement in the quality
of initial decisions.
As measures of deterrence have proved ineffective
so far the government is being driven to increasingly drastic
and questionable measures such as "safe havens". We
are extremely concerned at the prospect of this displacement of
our international obligations to states and regions already struggling
to meet far greater needs and to circumstances of questionable
provision.
Above all we feel the effect of numerous legislative
and other high profile initiatives which have clearly not achieved
the results intended have themselves brought the system into disrepute.
We believe the government should instead set
a positive agenda by:
— restoring the balance in the tone
of the public debate by focussing on those found deserving of
protection rather than those who are not, and the importance of
supporting the international human rights regime. It is essential
that debate moves away from a blinkered focus on numbers: it was
not the numbers of Jews in Europe that led to the Holocaust;
— developing better quality asylum
decisions in the UK, combined with repatriation of asylum seekers
found not to be in need of protection;
— prevent refugees from having to flee
their countries of origin by addressing the root causes (eg through
conflict prevention and resolution in countries of origin, institutional
capacity building and the promotion of human rights and good governance).
In the long run the only sustainable solution is to work on the
root causes of conflict;
— ensuring that efforts to tackle "push
factors" are not undermined by other aspects of foreign policy,
such as the promotion of arms sales. (Which policy was more successful
in achieving the 42% reduction in Sri Lankan asylum claims last
year; the UK's reliance on deterrence and non-arrival policies
and sales of arms to the Sri Lankan government, or Norway's efforts
to mediate a cease-fire in the civil war?);
— preventing refugees from having to
flee their regions of origin by improving protection in neighbouring
countries, sharing responsibility by offering assistance with
refugee protection, sufficient funding to UNHCR and refugee-assisting
NGOs and through resettlement programmes;
— keeping the promise made at the 1999
Tampere EU summit to maintaining a balance between immigration/border
controls and guaranteeing access to protection for those in need,
including by opening up more legal routes to the EU for people
in need of protection, as well as economic migrants;
— achieving a level playing field across
Europe, so that the chances of being offered protection and the
corresponding rights and entitlements are the same; this process
of harmonisation should aim at driving up standards of protection
generally—not reducing all to the lowest common denominator;
— negotiating with other EU member
states a mechanism to share responsibility for asylum seekers
fairly and in a way that takes into account asylum seekers' family
and other ties to a particular country.
RESPONSES TO
SPECIFIC QUESTIONS
ASKED
1. What are the reasons for the rise in asylum
applications to the UK over the last 10 years?
1.1 The reasons why people come to the UK
are many and complex. The most obvious are ties of family and
community. This is associated with the fact that the English language
is spoken and often relates to colonial history.
1.2 If is often said that the majority of
asylum seekers are economic migrants but this is not born out
by the fact that consistently over the last 10 years the greatest
numbers have come from the very countries where persecution, upheaval,
war and human rights abuse are greatest. In 2002 of a total of
85,865 applications 47% came from just five countries—Iraq,
Afghanistan, Zimbabwe, Somalia and China.
1.3 The Home Office's own research on the
decision making of asylum seekers,[91]
as well as confirming the points above, shows just how little
asylum seekers, often in the hands of human smugglers or traffickers,
are able to make their own decisions about their destination.
It also questions the extent to which they actually possess information
on which to base their supposed judgements about levels of provision
in respective countries.
2. How adequately and fairly are asylum applications
managed today? How did the backlog of asylum determinations arise?
Is it being dealt with satisfactorily?
2.1 We welcome the fact that the number
and rate of decisions has been increased Also some of the new
measures—such as Induction Centres to brief asylum seekers
on the process and a resettlement programme to allow an alternative
route for people fearing persecution to arrive here (although
this should not be at the expense of the processing of cases in
the UK).
2.2 That said there has been no attempt
to improve the decision making process itself in the terms of
adopting recommendations included in earlier submissions to the
Committee—in particular for "frontloading" legal
advice or providing for an independent documentation centre.
2.3 There is still no guarantee of quality
legal representation from the outset of the asylum process even
though the Government has previously acknowledged that it can
contribute to an efficient system. Also increasingly the government
is requiring stringent tests of the merits of appeals and judicial
reviews to be applied by representatives before granting legal
help. This means it remains a matter of chance whether an asylum
seeker secures qualified legal advice from the start of her claim
and she is increasingly likely be unrepresented at the end of
the process too.
2.4 The effect of this is to shift the burden
of decision making on to the appellate authority with a consequential
loss of credibility for the decision making process itself. The
new changes announced—accelerated procedures; non-suspensive
appeals; tightening access to legal help—can only further
undermine credibility in the fairness of the system overall. Measures
not yet announced but clearly being assessed, such as Transit
Processing Centres, are further steps down this questionable road.
2.5 Transit processing centres seem to us
particularly problematic—shifting responsibility to centres
on the edge of Europe with questionable jurisdiction; unknown
access to legal rights and appeal rights; no real certainty that
the countries where they are placed are any better able to return
them if judged not in need of protection and above all sending
the most negative possible message to the rest of the world about
our attitude to our international obligations. Consider the impact
if other nations were similarly to close their borders.
2.6 Further, despite some initial interest
in the idea, there is still no agreed body of independent information
on which all can rely in the form of an independent documentation
centre. It is still the case that decision letters either conflict
with the Home Office's own country information or fail to address
the individual's own personal circumstances.
2.7 Instead there is a growing dependence
upon the use of ever more accelerated procedures and of devices
such as non-suspensive appeals. This despite the clear view of
the House of Lords Select Committee to the European Union on asylum
procedures.[92]
There are now 17 countries listed from which it is presumed that
all asylum claims will be "clearly unfounded". This
can never absolutely be the case for any country and there are
for example concerns about the position of the Roma in Albania
and Romania and gay people in Jamaica and Romania.[93]
2.8 The position on backlogs is a little
unclear. Whilst there was the welcome programme of backlog clearance
for claims up until the end of 1995 it seems there may be backlogs
continuing since then. For example there was at one stage a very
high level of non-compliance which turned out to be erroneous—forms
had been returned in time but not married up with the file. Although
formally reinstated it seems many of these remain to be resolved.
3. How adequately is support provided to asylum
seekers by the National Asylum Support Service?
3.1 We are pleased that the Government has
ended the voucher scheme; there are examples of good practice
in the regions and services and communities are developing in
dispersal areas.
3.2 However to offset against this there
is our disappointment that the government has removed the right
to work after six months thus condemning people to quite unnecessary
dependency during the period of their claim.
3.3 This has also had the wholly detrimental
and unforeseen side effect of depriving people from access to
ESOL, orientation and prevocational training programmes which
are funded by the European Social Fund and for which the right
to work acts as a passport. We are deeply concerned about this,
we suspect, unintended impact, and urge that this may be rectified
as a matter of urgency. We also note that under the devolved arrangements
in the UK the Scottish Executive has seen fit to include asylum
seekers without permission to work in their mainstream ESF programmes.
3.4 In addition there is the growing problem
caused by people who are excluded from NASS support—in particular
under section 55 of the 2002 Act. This has been of course the
subject of a legal challenge but quite apart from the rights and
wrongs of leaving people subject to destitution whilst they pursue
their asylum claim it also appears to undermine the Government's
own objectives. The Government's aim is to develop a system of
close case management and is keen to ensure that regional solutions
based on dispersal do work. If a significant proportion of people
are cut adrift from this system, on what is essentially a technicality,
then it is difficult to see how this does any other than undermine
the government's main objective. It is far more likely that people
will be driven underground, forced to work unlawfully and gravitate
to the major cities, in particular London, thus cutting across
the objective of dispersal and with a corresponding strain on
services. In particular how are people to remain in contact with
IND if homeless and destitute?
3.5 We welcome the NASS regionalisation
project, however remain concerned that the Operations aspect will
not be regionalised within the first phase, and to date there
is no indication if or when it will be. This clearly is the area
that has the most impact on the quality of support that asylum
seekers are entitled to receive.
3.6 There remains the problem of people
with special needs—the division of responsibility between
local authorities and NASS has still not been clearly resolved
despite the clear ruling by the House of Lords (R v LB
Westminster Ex Parte NASS). This ruling stated that where
an asylum seeker has needs that do not arise solely out of destitution
or the effects of destitution, the local authority rather than
NASS is responsible for supporting that individual. However, this
has not been implemented effectively by NASS or the local authorities
and as a result there are asylum seekers with needs over and above
destitution that are living in inappropriate emergency accommodation
as neither NASS or the local authority will accept responsibility
in line with the ruling.
3.7 Similarly there is the continuing problem
of age disputes as to whether somebody should be treated as a
child. There still is no acceptable procedure for dealing with
this with the result that children are still passed between NASS
and Social Services without their position being properly resolved.
3.8 Finally there are problems for people
accessing NASS support who are in detention and need an address
for bail purposes. Despite NASS being now in its third year the
procedures for ensuring that people are able to provide a future
address in time for their bail hearing are not in place. This
means that people remain detained unnecessarily.
3.9 Beyond this there are also growing numbers
of people who are either dependent on the cashless "hard
cases" support or, worse still, denied even that and condemned
to destitution even though they will not be removed in the foreseeable
future. This affects Iraqi Kurds, Zimbabweans and Afghans in particular
but it does go much further. People should receive support up
to the point that they are actually removed as a matter of common
humanity.
4. How appropriately is detention used in
respect of asylum applicants
4.1 The Government has redesignated Detention
Centres as Removal Centres but nevertheless people continue to
be detained on arrival. Since October 2001 this includes families
with children—a fact that the Refugee Council finds particularly
repugnant. Visiting groups report that of the cases they see a
significant proportion are still awaiting an initial decision
or the outcome of an appeal. Others are being detained awaiting
the provision of travel documents. We do not know the precise
figures by category of case as these figures are no longer available.
4.2 In addition there is the process whereby
people are detained as a matter of policy in order to have their
application processed—initially at Oakington but recently
extended in an even more accelerated form to Harmondsworth. This
latter arrangement appears to envisage timescales so curtailed
they can only have a detrimental effect on the presentation of
cases. We remain opposed to any detention which is purely a matter
of administrative convenience.
4.3 Such detention should be unnecessary
given the closer "hands on" type of case management
system being introduced with, for example, provision for wider
and more rigorous reporting arrangements that could and should
be used instead. Only people in breach of such requirements should
be subject to possible detention prior to the final determination
of their claim. This is particularly true of families with children—the
Refugee Council remains totally opposed to the imprisonment of
children and believes alternatives such as reporting should always
be used. The research evidence that is available shows that people
released on such terms are unlikely to abscond.[94]
4.4 We remain concerned that there is still
no independent judicial scrutiny of the process of detention and
no automatic right to a bail hearing. We were particularly disappointed
that the statutory right to an automatic bail hearing contained
in the 1999 Immigration and Asylum Act was repealed in the 2002
Act. We understand that it remains commonplace that people are
unclear about the reason for detention and still do not get given
clear written reasons for their detention. We also believe there
should be an absolute time limit on the length of detention.
4.5 It also remains the case that people's
rights and treatment within a removal centre will vary depending
on where they are held. This is not in relation to trivial matters
but rather such significant factors as times available for visitors
and periods of time for free association or during which they
are actually locked up. These are after all people who have committed
no crime and yet are locked up, with no trial for an indefinite
period. They should not be treated like convicted prisoners and
should as far as possible enjoy the freedoms and liberties that
they would enjoy if not detained. It certainly should not be the
case that such basic rights should depend on the almost random
manner in which they are allocated to removal centres or prisons.
In particular the Centres that were formerly prisons and are still
run by the Prison Service are of a clearly poorer standard of
provision and are run with far more restrictive regimes in a manner
betraying their origin. We have always said that these establishments
should not be being used for immigration detainees.
4.6 There continue also to be problems of
access to legal advice, and to welfare support to assist with
problems created when someone is suddenly and unexpectedly detained.
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?
5.1 As indicated above we believe the 2002
Act is about deterrence, management, control and removal. It is
silent on the issue of improving the decision making process.
5.2 The Prime Ministers pledge is a matter
for some concern. Firstly in the rhetoric used there seems to
be shift away from deterring people with unfounded claims towards
a simple and crude reduction in numbers overall with consequent
risks to human rights. Secondly it depends on the measures in
place succeeding on an extremely short time scale—most of
the measures to achieve such a reduction have been in place for
some time—border controls, juxtaposed controls, use of technology,
increased targets for removal—and have not produced the
level of changes that the Prime Minister seems to expect. The
monthly removal targets had to be dropped as they proved to be
unrealistic, as the Committee has heard. Even if met in the short
term the target may be difficult to sustain.
5.3 The concern thus becomes that the government
is betraying a growing sense of desperation and, in order to meet
a target wholly unrealistic on current expectations, is driving
the agenda in Europe towards increasingly draconian resolutions
of what it sees as the numbers problem. Thus the various discussions
surrounding the notion of "safe havens" are the most
serious issue that concerns us. Although not yet formal proposals
we know they represent a serious intent on the part of the government
and raise serious issues of protection and human rights.The desperate
plight of whole populations condemned to long term agonies in
refugee camps around the world is all too well documented and
previous experience does not suggest that "safe havens"
run by UNHCR; IOM or other non state agents can provide a sufficient
level of protection to allay such fears.
5.4 There are clear questions of the realities
of protection, with real risks of refoulement, crime, trafficking
and health and safety. There are also issues about the resourcing
of UNHCR and other agencies who might be involved, international
responsibility-sharing and the need for protection for those who
continue to arrive in the UK.
24 March 2003
91 Understanding the decision-making of asylum
seekers, July 2002 Vaughan Robinson and Jeremy Segratt University
of Wales: P 10 For those respondents who were in a position to
choose a destination country, several key factors shaped their
decision to come to the UK. These were: whether they had relatives
or friends here; their belief that the UK is a safe, tolerant
and democratic country; previous links between their own country
and the UK including colonialism; and their ability to speak English
or desire to learn it. There was very little evidence that the
sample respondents had a detailed knowledge of: UK immigration
or asylum procedures; entitlements to benefits in the UK; or the
availability of work in the UK. There was even less evidence that
the respondents had a comparative knowledge of how these phenomena
varied between different European countries. Most of the respondents
wished to work and support themselves during the determination
of their asylum claim rather than be dependent on the state. Back
92
House of Lords March 2001: 133. Notwithstanding that criticism,
if, as seems likely, Member States decide that the accelerated
procedure will remain, we do not believe that it should apply
to safe country of origin cases or, indeed, that there is any
substantial advantage to be had in retaining that concept in the
Directive. The accelerated procedure for applicants from safe
countries of origin means that their applications may not be scrutinised
in the same detail as other applicants. This means that there
is greater danger of a breach of the principle of non-refoulement,
ie that asylum seekers will be sent back to a country in which
they may be in danger of serious harm. It is particularly important
that the position of the individual is properly considered. This
may not be overly burdensome. Anyone coming from a country with
a widely acknowledged record of respect for fundamental freedoms
and human rights would, in practice, have a substantial evidential
burden to overcome. We agree with Professor Goodwin-Gill that
there is no need for the Directive to "take the sledge hammer
of country of origin to crack the very small nut of the occasional
abuse of claim". Back
93
IAS Research Paper March 2003. Back
94
Maintaining contact: South Bank University SS Research Paper
No16-June 2002. "What happens after detained asylum seekers
get bail": Irene Bruegel and Eva Natamba. Back
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