42. Memorandum submitted by
Tamil Welfare Association (Newham) UK
Tamil Welfare Association (Newham) is a community
organisation that has provided advice, support and representation
to Tamil asylum seekers from Sri Lanka since 1986. This representation
to the Inquiry into Asylum Applications is based on our casework
for our clients.
REASONS FOR
THE RISE
IN ASYLUM
APPLICATIONS IN
THE UK
Asylum applications in the UK by Tamils from
Sri Lanka have continuously risen since 1983. 2002 saw the first
drop in applications by Tamils of 42% compared to 2001. These
changing application rates can be directly related to the civil
conflict occurring in Sri Lanka since 1983. The drop in applications
in 2002 was the direct result of a cease-fire agreement between
the Sri Lankan government and the Liberation Tigers of Tamil Eelam
(LTTE). Additionally, some Tamil asylum seekers now feel safe
enough to return to Sri Lanka voluntarily. For example, Mr Sivaruban
arrived in the UK in May 1998, and has been awaiting the appeal
against his refused asylum application in June 2003. However,
as a result of the cease-fire Mr Sivaruban feels it is safe to
return to Sri Lanka and will return to Colombo on 19 May 2003.
Thus for our clients the reason for the rise in asylum applications
in the UK was the continuing need for safety from conflict and
persecution in Sri Lanka. As the conflict is resolved, we expect
asylum application numbers to drop.
In our view, a further reason for the continuing
rise in asylum applications is the failure of the UK and other
western governments to facilitate broader international participation
in refugee protection. For example, Singapore, Malaysia and Thailand
are not signatories to the Geneva Convention for Refugees, and
therefore Tamils cannot enter these countries to avoid persecution.
Additionally, there are no formal asylum procedures in India,
and therefore Sri Lankan Tamils who were temporarily housed in
refugee camps in Tamil Nadu were forcibly removed when the ADMK
was elected to the state government. The UK government should
consider providing material assistance to Sri Lanka's neighbours
in order to encourage them to provide temporary protection for
Tamils. This would prevent the need for Tamils to travel to the
UK to seek asylum.
A third reason for the continuous rise in applications
is the continued sale of arms to warring parties by European asylum-providing
countries, despite cease-fire agreements. For example, it has
emerged that since the cease-fire was agreed, the LTTE has been
sold military equipment by Denmark, itself an asylum-providing
country (17 March 2003, The Lanka Academic 3, 345). Until
the UK Government collaborates to prevent the sale of arms in
such circumstances, we expect the number of asylum applications
due to continued conflict to rise.
Fourthly, in the last 10 years changes in border
and immigration controls have meant that previous avenues for
legal temporary residence in the UK (such as student and employment
visas) are no longer easily available. Following the Immigration
and Appeal Act 1996, a visitor from Sri Lanka may not change his
status by obtaining an employment or student visa once in the
UK. Instead, in order to avoid returning to an area of political
unrest, he is forced to apply for asylum. For example, Mr Ramasamy
came to the UK in May 1999 on a valid visit visa. When his application
to extend his stay as a dependent of family members was refused,
this elderly man applied for asylum in the UK. His case was finally
allowed by the adjudicator on human rights grounds in April 2003.
Had Mr Ramasamy been allowed to continue his stay as a family
dependent there would have been no need for him to apply for asylum.
Thus if the UK government were more flexible with regard to other
forms of temporary admission to the UK, many asylum applications
would be unnecessary.
ADEQUACY AND
FAIRNESS OF
MANAGEMENT OF
ASYLUM APPLICATIONS
According to Home Office statistics for the
third quarter of 2002, 92% of initial asylum applications by Sri
Lankan Tamils were refused. In the same period, the adjudicators
allowed 18% of appeals by Tamils. This indicates that the Home
Office is not fairly treating the initial applications of asylum
seekers.
We have several examples of specific unfairness
in the management of asylum applications. In the case of Mr Sutharsan,
our client was detained at Dover in preparation for removal because
it was stated that his asylum claim had been refused and there
were no outstanding appeals procedures. However, neither our client
nor ourselves had received the refusal letter and appeal papers,
and the Home Office was unable to show that these documents had
been posted to us. Following our appeal, the adjudicator allowed
the applicant's asylum appeal to proceed further to a full hearing
(appeal number HX/05119/2003). This is but one of several examples
of the Home Office's accusation that applicants have failed to
follow correct procedure when either our clients have followed
the procedure (such as timely return of forms), or the Home Office
has failed to follow its own procedures, and hence appeal rights
have been illegally denied.
In a second case, Ms Kalaichelvi was refused
asylum after two interviews at which no legal representation was
present. Ms Karaichelvi was detained at Oakington Detention Centre
immediately after her arrival in the UK on 19 March 2003. Her
brothers approached us and we agreed to represent the client.
However, despite repeated attempts to arrange to interview our
client we were prevented from doing so by Group 4. The Home Office
also refused our request to change the interview date in order
to ensure she had been legally advised. After the asylum refusal
our client was released, and we are now appealing against her
refusal. The case demonstrates the unfair management of asylum
applications in that legal representation was unavailable to our
client. The fact that our client was released after refusal demonstrates
that she is not felt to be a threat to the community. We believe
that such detentions occur largely to ensure that applicants do
not have adequate access to legal representation.
Such cases not only cause our clients unacceptable
distress, but result in additional delay and court procedures
at considerable cost to the British government.
BACKLOG OF
ASYLUM APPLICATIONS
In our experience a backlog of asylum cases
accumulated since 1993 because of a huge reduction in the number
of our clients given Exceptional Leave to Remain (ELR) on compassionate
grounds. Prior to 1993, most Tamil asylum seekers received ELR,
and therefore did not appeal against the asylum application. Since
1993, without the temporary security offered by ELR, our clients
have appealed against failed asylum applications, which has led
to a backlog of unresolved applications.
However, since September 2001 the government
has taken action to reduce this backlog, at the expense of quality
decisions. As a result appeals to the Appellant Authority have
accumulated, a high number of which are allowed by the adjudicators
and the higher courts. The backlog has not therefore been cleared,
but has been shifted to the Appellant Authority.
ADEQUACY OF
SUPPORT PROVIDED
TO ASYLUM
SEEKERS BY
THE NATIONAL
ASYLUM SUPPORT
SERVICE (NASS)
Support provision by NASS is not running smoothly.
Our clients continue to face considerable difficulties in receiving
subsistence-only support. In some cases, Post Office staff have
not received the necessary documentation to provide our clients
with their support, but are unable to explain why. At the same
time, our clients have not received an explanation from NASS regarding
the cessation of support. If a person's benefits are to be stopped,
the applicant should be informed in advance of the cessation.
We find it very difficult to assist our clients
with these issues. NASS telephone lines are frequently engaged,
and our letters to NASS often go unanswered. We have also encountered
NASS's unwillingness to co-operate to sort out simple discrepancies.
In one case, our client's benefits were suddenly withdrawn, as
NASS stated that he had exhausted his appeal rights. The NASS
officer refused to accept that this was a case of mistaken identity,
and that the client in question was not the one for whom appeal
rights were exhausted. It took our representation to an appeal
hearing for this matter to be resolved, and the clients benefits
to be reinstated.
Only two working days are allowed to make appeals
to NASS against their decisions to refuse support. We feel strongly
that this is an insufficient period within which to lodge an appeal.
For example, Ms Sebastiampillai's benefits were stopped because
the Home Office stated that there were no outstanding appeals.
However, the law states that support may be provided until a removal
order has been served. Ms Sebastiampillai's appeal is still under
consideration, and on this basis we appealed for continued support.
Our appeal to NASS was delayed because we needed to clarify the
status of our client's asylum appeal. After several weeks the
Immigration Authority had not replied to our request for information,
so we appealed to the Home Office. The Home Office asked why we
had not submitted the appeal within two days. Over two months
after writing to the Immigration Authority we have still not received
information regarding the status of our client's asylum appeal,
and the Home Office will not consider the appeal against the cessation
of support until we provide this information.
A third case demonstrates the problems faced
by some applicants who arrived in the UK before 1997. Mr Ratnasingam
Tharmalingam first applied for asylum in 1994. His appeal against
refusal of his fresh application will be heard in June 2003. In
the intervening period, our client worked legally and has bought
a house. However, he recently lost his job, and is now unable
to claim support from any agency. NASS will not support him because
his original application was submitted prior to 1997. The local
council, which would otherwise support pre-1997 applicants, need
not support him because he is a house-owner and is therefore not
destitute. And he is not entitled to social security benefits
because he is "subject to immigration control". He is
therefore trapped without support until his house is repossessed
by the bank, and he and his family become destitute.
DETENTION OF
ASYLUM APPLICANTS
In our experience, detention of asylum applicants
is used inappropriately. If the person is to be detained, he should
be informed of the reasons for detention. The applicant's legal
representative or immediate relative should be informed in the
event of detention. Access to legal advice should be provided
within 48 hours. In our experience, there is no systematic adherence
to any of these standards. Unfortunately, at present there is
no legal requirement in immigration matters for these practices,
in contrast to the requirements for the detention of suspected
criminals.
We have several examples of clients who have
been detained for inappropriate or inaccurate reasons. For example,
our client Mr Kanapathipillai was arrested at his home on 28 March
2003 and detained in Dover. His asylum appeal is outstanding,
and is due to be heard in July 2003. At the time of arrest he
was not told why he was detained. When the applicant was informed
that he was being held because his removal was imminent, we immediately
sent details of the outstanding appeal. Mr Kanapathipillai was
eventually released on 28 April. There remains no clear reason
for his month-long detention. This is only the most recent case
of inappropriate detention amongst our clients. On average, one
or two clients are inappropriately detained each month.
EFFECTS OF
CHANGES MADE
IN NATIONALITY,
IMMIGRATION AND
ASYLUM ACT
2002 AND THE
PRIME MINISTER'S
PLEDGE TO
HALVE THE
NUMBER ASYLUM
SEEKERS BY
SEPTEMBER 2003
As a result of the High Court's order regarding
the limitations placed on those who are eligible for NASS support
following the 2002 Act, the Home Office has been unable to implement
these changes to support. Therefore we have not noticed any effect
on the management of asylum applications as a result of these
changes.
Since the Prime Minister made his pledge, we
have not seen any change in the management of asylum applications.
As far as we are aware, no system has been implemented in order
to reduce the number of applications. There is a huge gap between
the Prime Minister's statement and the existing law, and Home
Office regulations.
Mr V Jana
Advisory Worker
19 May 2003
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