38. Memorandum submitted by
the Refugee Legal Centre
1. The Refugee Legal Centre welcomes the
opportunity to contribute to the Committee's inquiry into asylum
applications. The RLC is an independent charity providing advice
and representation to asylum seekers and those seeking protection
on human rights grounds. In drafting these submissions we have
drawn on our practical casework experience throughout the organisation.
We have not sought to address all the Committee's terms of reference,
but have instead concentrated on those that appear to us to raise
issues of particular concern.
How adequately and fairly are asylum applications
managed today?
2. We represent individuals throughout the
asylum determinations process; from the making of initial applications
for asylum (and leave to remain on human rights grounds) through
to representation at all levels before the Immigration Appellate
Authority and in the High Court.
3. A significant number of those individuals
who are refused on application to the Home Office, go on to succeed
on appeal: at Second Reading of the Nationality, Immigration and
Asylum Bill, Lord Filkin admitted that of those who appealed negative
Home Office decisions in 2001, 19% were successful[95].
Moreover, at the Asylum Aid AGM on 25 September, the Minister
for Immigration, the Rt Hon Beverly Hughes MP revealed that a
Home Office review of initial decisions found that upwards of
85% were "satisfactory"; leaving up to 15% which, even
on the Home Office's own analysis, amounted to unsatisfactory
decisions. The quality of decision-making is, in our view, a matter
of real concern: it pushes cases into the appeals system with
the attendant cost, delay and uncertainty for the individuals
concerned.
4. The system needs to be "front-loaded"
so that resources are put into good-quality decision-making, based
on accurate country research. Home Office country information[96]
is insufficiently objective (and occasionally, plain wrong) in
its interpretation of country conditions, reflecting a culture
at the Home Office whereby decision-makers not infrequently look
for reasons to refuse applications—rather than attempting
to conduct an impartial analysis of their merits.
How appropriately is detention used in respect
of asylum applicants?
5. There is a lack of scrutiny of decisions
to detain, as individuals without access to legal advice frequently
find themselves without any practical means of challenging those
decisions. The Immigration and Asylum Act 1999 (Part III) proposed
the introduction of automatic bail hearings for those in detention.
This never happened. The Nationality, Immigration and Asylum Act
repealed these provisions without their ever having been brought
into force. Our experience has shown us that that those without
access to competent legal advice are either unaware of their ability
to apply for bail—or, if they are, are unable to exercise
this right in a meaningful way. This is unacceptable, and in our
view requires urgent review to ensure that individuals are able
to challenge decisions to detain whether they have access to legal
advice or not to ensure that their detention is not arbitrary.
What will be the effects on the management of
asylum applications of changes made in the Nationality, Immigration
and Asylum Act 2002?
6. The 2002 Act brought in fundamental changes
to the procedures governing asylum applications, in particular
the access of individuals to the IAA. In cases certified as "clearly
unfounded"[97]
by the Secretary of State there is no longer an in-country right
of appeal against a refusal of asylum. Individuals must pursue
their appeals from the country where they fear persecution.
7. Our experience of this new system to
date has shown it to be flawed in several material aspects: individuals
who are nationals from the designated countries are sent to the
Oakington Detention Centre where their claims are processed within
a very short timescale of approximately one week. Some however,
are released from that process where it becomes clear that their
applications are not appropriate for determination within that
timescale. They remain, however, vulnerable to certification and
summary removal in accordance with the provisions of the Act.
It is our fear that insufficient procedural safeguards are in
place to ensure that these individuals have access to legal advice
in the event that they are certified as unfounded. In one such
case recently, an RLC client was detained when complying with
reporting requirements on a Friday morning. He was served with
removal directions only later that day, whilst still in detention.
However, these were copied to the RLC only very late that afternoon.
The client was removed the next day without having been able to
talk to the RLC about the merits of any challenge to his certification.
It was a matter of record that the RLC had been actively involved
in his representation at every stage of the process. It is quite
simply unacceptable that individuals should be given no meaningful[98]
opportunity to contact their legal advisers when facing imminent
removal back to a country where they fear persecution.
8. Our concern is that a combination of
poor original Home Office decision making and a lack of respect
for procedural safeguards mean that the removal of in country
appeal rights in certain asylum cases will result in removals
which put our clients' life and liberty at risk. The Home Office
is not at present using the power that it has been given to certify
cases as being clearly unfounded where the applicant does not
come from a country on the so-called "white list". In
the event that this power is used for claims where the applicants
come from countries such as Zimbabwe, the importance of ensuring
good quality initial decision making and access to procedural
safeguards as part of the management of these claims is clear.
9. The introduction of s.55 has resulted
in NASS support only being available to those applicants who make
an asylum claim as soon as reasonable practicable, except for
those who have dependent children with them or for those for whom
the failure to provide support would result in a violation of
their rights under the European Convention of Human Rights1. Leaving
aside the obvious objection that this provision will place a proportion
of refugees into destitution, applicants who are left without
any means of support will find it increasingly difficult to prepare
and present their applications let alone access legal representation
and thereby challenge any error made in the handling of their
application. This is likely to have a counter-productive effect
on the management of asylum cases. There will be an increase in
refusals for reasons of non-compliance because destitute applicants
are unable to submit forms in time or be given notice of interviews
they are required to attend. Further, attempts to make such applicants
comply with reporting restrictions are likely to be frustrated
as they are likely not to have the funds to finance travel to
reporting centres. The opportunity to access any meaningful in
country appeal rights will be severely restricted. This will make
it more difficult for the Immigration Service to locate them in
the event that enforcement action becomes necessary.
The Prime Minister's pledge to halve the number
of asylum-seekers by September 2003
10. The Prime Minister has pledged to halve
the numbers of new asylum seekers by September 2003. However,
the root causes of conflict and instability are first addressed
it is difficult to see how such a pledge is attainable unless
it is at the expense of access to protection and, in particular,
access to the territory of the UK.
11. The "New Vision" proposals
which have been widely leaked to the press and the NGO sector
give an insight into government thinking on how to "better
manage the asylum system globally", and appear to confirm
that the approach is one of deterrence and the exporting of the
UK's obligations to refugees. We have not yet seen a definitive
version of the proposals and they have yet to be made public.
However, from the draft papers we have seen, the proposals are
not, in our view, either fair or workable. Some of our concerns
are set out below:
— The proposals are formulated from
the perspective of reducing the numbers of asylum seekers in the
UK and denying access to asylum procedures to those who arrive
spontaneously. The aim is to discourage "spontaneous"
migration to the EU in general and the UK particularly.
— The proposals undermine protection
and effectively further shifts the burden of asylum seekers disproportionately
to developing countries, including the issue of returning failed
asylum seekers.
— The regional processing of claims
envisaged does not demonstrate how individuals could effectively
present their case, nor do they provide for an effective independent
right of appeal. We are concerned at the low priority given to
access to legal advice.
— The proposals do not make clear what
would happen to those people in a "safe haven" who are
not recognised as refugees.
— Under the procedures envisaged for
temporary protection, it appears that individuals could be kept
in holding camps for upwards of a year, with no final decision
on their status. Even in the event of a positive determination
the proposals talk of this merely "securing" a place
in the area, again in the apparent hope that individuals would
be able to return home at some unspecified time in the future.
— On a practical level, refugee camps
have a dubious record in terms of guaranteeing human rights and
adequate protection and are notoriously difficult to manage. Conversely
any camp which did manage to provide higher standards would inevitably
become a magnet particularly if access to a determination procedure
and resettlement was seen to be part of the package. It would
thereby become even less manageable.
— The proposals talk about the narrowest
possible definition of refugee being used to determine who can
qualify for resettlement, with the "Geneva test . . . . strictly
applied". Additional requirements outside the scope of the
1951 Convention may be required to establish a right to be considered,
subject to quotas, for resettlement (for example that a person
be particularly vulnerable).
26 March 2003
95 "Around 9% of applicants were granted asylum
in 2001, with a further 17% being granted exceptional leave to
remain. A high proportion, 74%, were refused on the ground that
their claim was unfounded; that they were economic migrants rather
than refugees. Of those who appealed in 2001, 19% of those who
appealed, not of the total, successfully appealed against the
decision." Lord Filkin; 2nd Reading, 24th June 2002; Col
1090. Back
96
The Country Information and Policy Unit (CIPU) produces country
information reports. Back
97
Section 115 of the 2002 Act has already brought this provision
into force. For nationals of EU Accession countries, as well as
those designated by further order, there is a presumption that
any human rights or asylum claim is manifestly unfounded, unless
the contrary can be shown. An order coming into effect on 1 April
2003 designates seven additional countries, including Albania
and Jamaica. Back
98
The Court of Appeal's examination of the limits of this provision
is contained in R. (Q and Others) v SSHD [2003]EWCA
Civ. Back
|
