Examination of Witnesses (Questions 360
- 379)
TUESDAY 20 MAY 2003
MS JAN
SHAW, MR
MICHAEL KINGSLEY-NYINAH,
MR TOM
BENTLEY AND
MR THEO
KEENCAMP
Q360 Chairman: Can you explain it
in terms of an asylum seeker turning up here?
Mr Bentley: For example, it means
that an asylum seeker, or somebody who has come through a transit
centre, under our system, would be a very specific kind of case
and might well be allowed the opportunity to work, but not for
guaranteed access to health care benefits, for example.
Q361 Chairman: Okay.
Mr Bentley: Also, it means that
the provision of welfare to native citizens would be based on
new forms of contribution and repayment as they progress through
life. Closer, for example, to the student loan principle than
to the automatic qualification for particular kinds of subsidy.
Q362 Chairman: It seems they are
not content with reforming our asylum system, they want to reform
our social welfare system as well?
Mr Bentley: Unfortunately, that
is Demos's outlook. We are not proposing that this is going to
happen over the next five years, we are proposing this is going
to happen over the next generation or two.
Q363 Chairman: Right.
Mr Keencamp: Maybe I could just
explain in a few sentences.
Q364 Chairman: Please do, Mr Keencamp.
Mr Keencamp: Also, it is very
much to do about the signals which you send out. In the transit
centres which we are thinking about, the signal is if you come
here nothing is free except for a very small introductory package.
If you are here, then you are being taken care of if you pay for
it because you have money, or you pay in kind. Then suppose that
after you have been there for some time and that it is a good
thing to continue to some European country because there is a
perspective for you, again—I am thinking now in 15 years'
time—you come into a Europe where you recognise the same
principle. The Government—the public sector—and the
things it is handing out to you for free is not there, but it
is facilitating you and loaning you things. So it is a facilitator
centre and a facilitator state. This is a huge statement and there
are a lot of problems. Anyway, we have been thinking about what
will be the best way to create new signals both to the migrants
coming to Europe and to its citizens, in order to decrease some
of the unjustified inequalities and to create more conditions
for an open and accessible system.
Q365 Chairman: Thank you. Can we
go back a bit because, as you say, you have been talking about
a much longer-term ambition?
Mr Keencamp: Yes.
Chairman: Can we just switch back for
a moment to the possible changes to the Treaty's obligations that
might be required for some of the more immediate changes? Mr Watson?
Q366 Mr Watson: If I could address
you all with this and, whoever wants to, answers it. We have had
evidence that the 1951 Geneva Convention should be changed. Do
you think there is a case for reviewing that and, if you do, what
changes would you recommend?
Mr Keencamp: I think you are starting
at the wrong end, on the basis of what I just said.
Q367 Mr Watson: Yes. Can someone
else answer the question?
Mr Kingsley-Nyinah: I have not
been privy to the evidence you have heard. However, I would be
very surprised if anyone was able to establish a connection between
the difficulties that are exercising the mind of this Committee,
on the one hand, and any flaws in the 1951 Convention. That Convention,
as you know, was promulgated in 1951. We are very aware and recognise
that radical reforms are required to the protection system on
which it is based, if that protection system is to retain its
vitality in the world that is qualitatively different from the
one in which the 1951 Convention was conceived. We recognise that,
but we do not accept that the changes need to be to the Convention
itself. It is this thinking that has led our High Commissioner,
Mr Lubbers, to propose that what is needed is a set of agreements
that respond to particular challenges, but which add on to the
obligations within the 1951 Convention. So that rather than taking
away the Convention you would add to it, hence the label for this
initiative, which is "Convention Plus". I have tried
to outline the three dimensions, the three prongs of UNHCR's views.
You can see that, for example, the aspect of UNHCR's proposals
that have to do with setting up processing centres within Europe
are very fertile for new agreements between European States and
the asylum seekers' home countries. Now, that sort of arrangement
can come in the "Convention Plus" initiative. Likewise,
what I have suggested is that there is a lot of work to be done
in the regions to address the reasons why people leave after they
have found protection and then come to the Western World. Again,
there are a number of changes that can be implemented under the
"Convention Plus" initiative. Now, we are under no illusions
that these kinds of processes do take some time, but we are also
quite clear that what is needed is not a quick fix. We need to
deal with the underlying international infrastructure, and that
requires new agreements that build on the foundation of the Convention
rather than take away from it.
Q368 Mr Watson: Okay. Can I just
press you on a particular aspect of asylum seeking? We have taken
evidence from people who have said that the vast majority of asylum
seekers who get to Britain get here with the aid of human traffickers.
Is that your view and, if it is, notwithstanding the big picture
solution, can you offer any practical solution as to how we might
challenge the human traffickers?
Mr Keencamp: All I know of is
that there is a stepped-up effort by Europol, in combination with
all the local police services, to get a lot more information to
be much tougher on traffickers. Stepped-up efforts make them feel
the heat; that is the short-term solution.
Q369 Mr Watson: Would you concur
with me that the majority of asylum seekers get in using human
traffickers, or do you not think there is any evidence to prove
that?
Mr Keencamp: There is a recent
report in the Netherlands which says that it must be more than
half, but nobody knows exactly how much. Certainly, it is a substantial
part, yes.
Mr Bentley: Very briefly, I think
the Europol estimate is that people-trafficking is the fastest
growing area or sector of organised crime internationally, which
should also tell us something. I would make two points about how
to combat it effectively in the short term. The first is the international
criminal economy—the fact that it operates through trans-national
networks, networks that span national boundaries—is a major
and half-hidden issue. Of course, it has become more visible because
of our increased consciousness of terrorism and most forms of
violence, but I am sure that there is quite a lot further to go
in the production of co-ordinated international policing and the
linkage of issues like people-trafficking with other aspects of
the international criminal economy. So better policing under these
new conditions is an area that should be vigorously explored.
The second thing is what we referred to earlier in the general
discussion, that one of the reasons we do not know is that there
are so many incentives on the people being trafficked not to reveal
themselves. The practical question in the short term is—before
you get to the kind of architectural changes that we have been
talking about—are there ways of reducing the fear of making
yourself visible and providing new incentives for people to provide
accurate information about who they are and where they have come
from.
Q370 Mr Watson: I have just one supplementary
on that. We also took evidence that someone said that it is cheaper
to get a forged identity document in France than the real identity
document. Do you think that some kind of ID system might reduce
human trafficking European-wide?
Mr Bentley: Yes. There is a simple
answer, but then there are a range of consequences of that decision
depending on how it is handled.
Q371 Mr Clappison: Can I ask Mr Kingsley-Nyinah
if he has got any views as to how the appeal system can be improved
in this country?
Mr Kingsley-Nyinah: I am not the
best person to ask because we are not experts on the national
asylum system. I would just use the opportunity to make a small
footnote, if you like, to my suggestions about how the national
asylum system can be improved and made more efficient. It is a
comment, if you like, from afar, if you would accept that.
Q372 Mr Clappison: Yes.
Mr Kingsley-Nyinah: Refugee status
was never meant to go to the person with the best lawyer. What
I mean to say is that the adversarial framework within which the
law operates in this country—which, of course, informs the
process of determining asylum claims, especially on appeals—does
not always serve the ends of those who need protection most. Again,
there is a lot to be said on my theme of reforms. There is a lot
to be said for introducing reforms that simplify the procedure
and which reduce the adversarial content of processing claims
because when you come to think of it, from a lawyer's point of
view, in determining asylum claims you do not have an adverse
interest, you have a need for protection which has to be recognised.
Now, that would lead me on to the role that legal representatives
perform in the system. Again, I believe there is room to look
at that as well because it is not a question of defending your
client—as one would do in a criminal proceeding, defending
your client at all costs—it is a question of preserving
the principle of asylum and allowing the truth to come out so
that the correct decision can be made. I believe in this regard
there is a lot the UK system could adopt from the inquisitorial
administrative kind of legal proceedings that exist on the continent.
Q373 Mr Clappison: Yes, that is interesting.
Have any other witnesses got anything to add to that, or any comments
they wish to make generally about appeals?
Mr Keencamp: Maybe soon in the
Netherlands there will be a first evaluation forthcoming about
the experiences which we have of the new appeal procedure and,
of course, that could be submitted to the Committee.
Chairman: Thank you.
Q374 Mr Clappison: Mr Keencamp, can
you keep us up-to-date on that? You mentioned some of the changes
the Government has made recently in the 2002 Act, and I think
you are adverting to the issue of non-suspensive appeals. When
the Committee considered non-suspensive appeals, they concluded
that in most, if not all of the countries so far designated, it
is reasonable for there to be a presumption against a well-founded
fear of persecution. Do you have any grounds for disagreeing with
that statement?
Ms Shaw: I do not think that every
country is safe for every person. I think there are minorities
within some of the countries that are now on that list where there
is obvious evidence of persecution.
Q375 Mr Clappison: Could you give
us a quick example of them?
Ms Shaw: I mentioned before that
I happened to be looking at statistics in preparation for coming
here today and looked at, for example, decisions on applications
from the Czech Republic for last year, and certainly there were
individuals who were given refugee status, and there were quite
a number of individuals who were given exceptional leave to remain.
Now, it does not break down into minorities, who those people
were, but it is probably pretty safe to say that they were Roma,
and a significant number of people also won their appeal. I looked
at various of the countries that are on that white list and the
same applies to other countries as well. I just think that it
removes a very essential safeguard.
Q376 Mr Clappison: You are saying
that because some people have not been successful in their asylum
applications in those countries that would indicate they cannot
be guaranteed them, is that so?
Ms Shaw: Exactly.
Q377 Mr Clappison: Yes. Can I just
take your point on the Roma. It is a slightly different point,
but I did get to visit Slovakia two months ago. There are undoubtedly
matters which need to be addressed as far as they are concerned,
and to do so is the heart of this, but you would have to take,
would you not, a fairly wide definition of persecution to see
that as being persecuted?
Ms Shaw: I am not saying that
every single Roma in Slovakia or the Czech Republic is persecuted,
but I do think that is why each application has to be looked at
on its merits, and that a very meaningful safeguard has now been
removed from those 17 nationalities that are now on the white
list and the list will probably expand.
Mr Clappison: Can I move on to ask about
the system of detention and ask if any of the witnesses have any
observations as to how well the current system of detention is
working as it is currently appraised?
Q378 Chairman: I am not sure that
any of our witnesses have direct experience on it here, do they?
Ms Shaw: I have got an overview.
Q379 Mr Clappison: Would you please
share it with us?
Ms Shaw: At the end of last year
there were just under 800 asylum seekers in detention and, as
I am sure you are aware, the detention of asylum seekers should
be avoided and should only occur in exceptional circumstances.
One of the problems that we have at Amnesty with asylum seekers
who have been detained in this country is that although you get
a breakdown of how many people are detained on any one day, where
they are detained, what their gender is and the length of detention,
what you do not know by looking at those figures is at what stage
of the asylum process they are being detained. The last known
research that was done on this several years ago was that more
than 50% of the people who were being held in detention at any
given time, were held from the minute they said: "I want
to apply for asylum." In other words, before the merits of
their case were tested, leading us to believe that this was quite
an arbitrary kind of decision as to who was being detained and
who was not. One of the only positive aspects that came out of
the last major piece of legislation in 1999 was to introduce automatic
bail hearings for those people who are detained. This was not
exactly the sort of judicial oversight that we were recommending,
but it went some way to meet some of the concerns. Unfortunately,
that was never implemented and was actually repealed under the
Nationality, Immigration and Asylum Act 2002, which means that
there is no effective judicial oversight of those people who are
being detained. We have asked many times for the Home Office to
give a breakdown of exactly which stage people are being detained
at, so that we can have an idea of whether it is just prior to
removal, or whether it is for the duration of their asylum application.
| 
