Select Committee on Home Affairs Written Evidence


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 1090Back

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


 
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