1. Memorandum submitted by Amnesty
International UK
Amnesty International welcomes the opportunity
to provide evidence to the Home Affairs Committee Inquiry into
Immigration Control. This submission focuses on detention policy
and conditions and the quality of initial decisions in asylum
claims.
Two reports published by Amnesty International
are enclosed: [not printed] "UNITED KINGDOM: Seeking
asylum is not a crime: detention of people who have sought asylum"
and "Get it Right: How Home Office decision-making fails
refugees".
DETENTION POLICY
AND CONDITIONS
1. An increasing number of people who have
claimed asylum at some stage in the UK are being detained solely
under Immigration Act powers, including families with children.
The number of available detention places has tripled[1]
since this Government came to power in 1997 and the vast majority
of those detained under Immigration Act powers are people who
have claimed asylum. [2]
2. In June 2005 Amnesty International report
published a report entitled UK: Seeking Asylum Is Not A Crime:
Detention of people who have sought asylum. The report examined
the increased use of detention both at the beginning and at the
end of the asylum process. The report considered whether the UK
met its obligations with respect to the right to liberty and the
right of people to be treated with dignity and humanity under
international refugee and human rights law and standards.
3. While the UK authorities have often claimed
that detention is pivotal to their strategy to remove asylum-seekers
whose claims have been dismissed, they have also stated that:
". . . detention would only be used as a last resort".[3]
Amnesty International found that many people who have sought asylum
at some stage are detained at different points of the asylum process
and were detained even though the prospect of effecting their
forcible removal within a reasonable time may be slim.
4. Amnesty International found that many
people who had sought asylum were detained in grim, prison-like
establishments, in remote locations far away from their families.
There were cases of individuals who languished in detention and
one of those interviewed had been detained for two years. Many
complained about being moved around the detention estate, from
one Immigration Removal Centre to another, sometimes in the middle
of the night. The organisation found the detention of families,
including mothers with very young children, survivors of torture
and other vulnerable individuals particularly unacceptable.
5. Amnesty International examined the cases
of asylum-seekers who were detained for the duration of the asylum
process whose claims were considered under accelerated asylum-determination
procedures predicated on detention. At Harmondsworth Immigration
Removal Centre (IRC), the Home Office aims to make an initial
decision within three days. [4]Once
the application is decided and most likely refused, the applicants
continue to be detained during the appeal process pending their
forcible removal from the UK.
6. Among asylum-seekers detained at Oakington
Reception Centre—where claims are fast-tracked—are
those whose claims are refused and certified as "clearly
unfounded". Under the "non suspensive appeals"
(NSA) procedures such applicants can be removed with no right
of appeal from within the UK against the refusal of asylum. The
NSA procedure is premised on a list of so-called "safe countries"
compiled and updated by the UK authorities. The vast majority
of such claims are refused. In some cases, those who were processed
through fast-track procedures are subsequently detained for long
periods on time.
7. In February 2005 the UK authorities announced
that a projected target of up to 30% of new asylum applicants
would be put through a "fast-track detained process"
by the end of the year. [5]Amnesty
International is concerned about the quality of decisions and
procedural safeguards within these "detained accelerated
procedures". Speeding up the decision-making process is beneficial
only if it is not at the expense of fairness and quality. In addition,
the organisation considers that the expeditious processing of
asylum claims should not be premised on detention.
8. As part of its research, Amnesty International
set out to establish how many people who have sought asylum at
some point are detained in the UK under Immigration Act powers.
For the first time, in May 2005, the UK authorities produced statistics
on the number of asylum-seekers whose claims are fast-tracked
and who are detained at Harmondsworth IRC for the duration of
the asylum process. Statistics are also available quarterly on
asylum-seekers whose claims are processed at Oakington Reception
Centre. However, in the course of a year no comprehensive statistics
are produced on the number of those who have sought asylum who
are held in detention, or the length of time for which they are
detained. The official quarterly statistics give a "snapshot"
of persons recorded as being in detention in the UK solely under
Immigration Act powers on a particular day, with the percentage
of those who have sought asylum at any stage, by places of detention,
gender and the length of time spent in detention on that particular
day.
9. Therefore, Amnesty International is concerned
that the picture of how many people who have sought asylum and
are detained, and the length of detention remain unclear. Despite
requests, the UK authorities have failed to make an accurate picture
of this phenomenon publicly available. The Home Affairs Committee
in its report on Asylum Removals in April 2003 recommended that
the UK authorities should provide quarterly figures on total numbers
detained during the period with lengths of detention.
10. As a result of its research, Amnesty
International suspects that at least 27,000 and 25,000 people
who had sought asylum at some stage were detained in 2003 and
2004 respectively for some period of time. This represents a very
significant use of detention and immediately raises the question
of whether such prolific use of detention is in compliance with
international human rights law.
11. The UK authorities have argued that
detention is necessary to prevent people from absconding at the
end of the asylum process. But the organisation is concerned that
the authorities are using the risk of absconding as justification
for detention without a detailed and meaningful assessment of
the risk posed by each individual, if any. For example, prior
to being detained, those were interviewed by Amnesty International
during the course of its research had, when instructed to do so
by the UK authorities, complied with reporting requirements. Therefore,
they presented no risk of absconding. The Home Affairs Committee
expressed concern about the lack of official data on the risk
of absconding. In their report on Asylum Removals the Committee
said that this risk has not been quantified.
12. At the time of being taken into detention
people were not told how long they would be detained. Those interviewed
by Amnesty International complained about not knowing what was
happening with their asylum claim whilst they were held in detention
and that it was difficult to pursue their claim. They told the
organisation that while in detention they felt abandoned and demoralised.
A number complained of being subjected to verbal abuse. Some of
those interviewed seemed to experience great difficulty in relaying
their stories even months after their release from detention and
a number of those interviewed were still suffering from severe
depression.
13. Whether at the beginning or the end
of the asylum-determination process, the individuals concerned
may be taken into detention on the basis that a bed is available
within the detention estate, rather than on considerations of
necessity, proportionality and appropriateness to detain them.
[6]
14. Under Immigration Act powers, the UK
authorities are empowered to authorise the detention of people
who at some stage have sought asylum in the country. [7]No
prior judicial authorisation of detention is required and there
is no prompt and automatic judicial oversight of the decision
to detain nor are there automatic judicial reviews of the continuance
of detention. In addition, there are no maximum time limits of
the length of detention. In light of all of this, Amnesty International
is seriously concerned that detention of people who have at some
stage sought asylum can continue indefinitely without any automatic
judicial intervention.
15. Within the UK legislative framework,
one of the few avenues open to those detained, who have sought
asylum, is to attempt to secure their release by initiating a
bail application. Provisions had been made under the Immigration
and Asylum Act 1999 for two automatic bail hearings, but these
were never implemented and were, in fact, repealed under the Nationality,
Immigration and Asylum Act 2002. The other avenues open to those
in detention would be to challenge the lawfulness of their detention
through habeas corpus or to seek a judicial review of the decision
to detain them. However, as the organisation found, neither remedy
was particularly effective which is evidenced by the fact that
they are rarely used.
16. Amnesty International is further concerned
that the difficulties that those who have sought asylum face in
accessing justice while in detention have been compounded by the
recent restrictions to publicly funded immigration and asylum
work. In April 2004, the UK authorities introduced new funding
arrangements for legal work on asylum and immigration cases in
England and Wales, with the aim of cutting the overall amount
of public funding for this area of work. These arrangements have
resulted in the withdrawal of established solicitors from this
area of work leaving a dearth of expertise. At all stages of the
asylum process many are left with little or no access to effective
legal advice and representation. This problem is particularly
acute for those in detention who are at the end of the asylum
process.
17. In light of its research Amnesty International
found that the detention of people who have sought asylum has
a terrible human cost, inflicting untold misery on the individuals
concerned and their families. The organisation considers that
detention is not being carried out according to international
standards, is arbitrary and serves little if no purpose at all
in the majority of cases where measures short of detention would
suffice.
QUALITY OF
INITIAL DECISIONS
IN ASYLUM
CLAIMS
18. Amnesty International has had a long-standing
concern with the quality of the initial decision-making on asylum
claims by the Immigration and Nationality Directorate of the Home
Office. The organisation has recommended that initial decision-making
on asylum claims should be "front-loaded" with resources
focused on good quality defensible decisions early in the decision
making process. "Front-loading" enhances efficiency
by ensuring that the initial Home Office decision is based on
a full understanding of the applicant's case and is therefore
reliable. An essential component of such an approach is that asylum
seekers should have access to early provision of good quality
legal advice.
19. Amnesty International and many other
commentators believe that the one of the main problem with the
asylum system is the poor quality of decision-making. The report
Get it Right: How Home Office decision-making fails refugees,
published in February 2004, identified the organisation's concern
that the quality of initial decision-making on asylum claims was
inadequate and highlighted three areas where standards of initial
decision-making persistently fell short of those expected in a
just and efficient asylum-determination system:
— Accurate information relating to
the human rights situation in countries of origin.
— Objective consideration of issues
relating to the individual credibility of asylum applicants.
— Appropriate consideration of allegations
of torture and medical evidence.
20. Since the publication of the "Get
it Right" report, Amnesty International has noted no perceptible
change in the quality of initial decision-making by the Home Office.
It is of great concern to Amnesty International that the Home
Office persists in using out of date, inaccurate and/or selective
country of origin information, relying upon its own Country of
Origin Information Service and Operational Guidance Notes rather
than adopting a "multi-sourcing" fact-finding approach.
21. Caseworkers' use of unreasoned, overly
subjective assertions about the credibility of individual asylum
applicants continues to result in unfair decisions—particularly
with regard to applicants from a country in crisis such as Sudan
and a country in transition such as Somalia. At the time of writing,
no advances have been made with regard to consideration of torture
allegations and/or medical evidence, which fails some of the most
vulnerable applicants in the asylum process. Similar concerns
with the poor quality of initial decision-makings have also been
expressed by the Home Affairs and the Constitutional Affairs Committees,
the Lords EU Committee and in June 2004 by the National Audit
Office.
22. Asylum statistics produced by the Home
Office show that from January to September 2005 an average of
17% of rejected initial asylum decisions were overturned on appeal.
However, the most recent statistics from July-September 2005 show
that when broken down by nationality, in 49% of Eritrean applications;
42% of Russian applications; 39% of Somali applications and 26%
of Sudanese and Zimbabwean applications the initial decision to
refuse asylum was wrong and was overturned on appeal.
23. In 2004 the United Nations High Commissioner
for Refugees (UNHCR) began its Quality Initiative project to assist
the Home Office to achieve an improvement in the overall quality
of first instance decision-making through auditing existing practice
and providing recommendations.
24. In its most recent key observations
and recommendations of its Quality Initiative project, UNHCR reports
instances of poor decision-making and "some evidence of a
lack of understanding of key decision making concepts". Instances
have also been observed where the relevant law is misapplied or
misunderstood and where country of origin information is not properly
sourced.
25. Amnesty International believes that
all applications for asylum in the UK should be dealt with by
a qualified, specially trained body of professionals. The overall
calibre and training of caseworkers who take initial decisions
on asylum applications needs to be reviewed. All caseworkers dealing
with asylum applications should receive long-term continuing training,
including external training, in refugee and human rights law and
country of origin information. They should have specialist knowledge
of international standards relating to the protection of refugees
and the political and human rights situation in the applicant's
country of origin.
26. Amnesty International believes that
getting more decisions right in the first instance would lead
to fewer appeals, thereby cutting the cost to the taxpayer. Fair
initial decisions will raise public confidence in the asylum system
and reduce the anxiety of asylum applicants.
Jan Shaw
Refugee Programme Director
1 December 2005
1 In March 2005 the capacity in removal centre was
2,672 (excluding short term holding facilities) according to the
Director of Detention and Accommodation Centre Services at the
Immigration and Nationality Directorate. Back
2
The latest snapshot showed that on 24 September 2005 1,695 persons
who had sought asylum at some stage were being detained solely
under Immigration Act powers (this excludes persons detained in
police cells and persons detained under dual immigration and other
powers). Back
3
See, Operational Enforcement Manual, Immigration and Nationality
Directorate, Home Office. It "contains guidance and information
for Immigration Service officers dealing with enforcement (after-entry)
immigration matters". Back
4
Almost all of the facilities used to hold people who have sought
asylum in the UK have been named Immigration Removal Centres.
Notwithstanding this euphemism, it should be made clear from the
outset that they are detention establishments in anything but
name. Back
5
"Controlling our borders: Making migration work for Britain-Five
year strategy for asylum and immigration", published
on 7 February 2005. Back
6
In its December 1998 report, the Working Group on Arbitrary Detention
expressed concern that: "[t)he release of certain persons
on account of non-availability of space and the detention of certain
other persons whose cases for release are much stronger but who
are detained because space is available makes detention dependent
on the availability of space, rather than the quality of the applicant's
case", Report of the Working Group on Arbitrary Detention,
Addendum-Report on the visit of the Working Group to the United
Kingdom on the issue of immigrants and asylum seekers, E/CN.4/1999/63/Add.3,
18 December 1998. Back
7
The powers of the executive are provided under the Immigration
Act 1971 and under successive immigration laws passed in the last
12 years. Back
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