22. Memorandum submitted by Islington
Law Centre |
1. Islington Law Centre has provided advice
and assistance to Islington residents for over three decades and
provides free advice on Immigration, Housing, Employment, Education
and Consumer law through its day time advice service. Our advice
funded by the Legal Services Commission, the London Borough of
Islington, and the Neighbourhood Renewal Fund, together with other
smaller sources of funding including donations. Islington Law
Centre is a member of the Law Centres Federation.
2. The Immigration Unit provides advice
in the form of casework, telephone advice, advice and support
for community organisations, and by providing a Foreign Nationals
Advice Surgery at HMP Holloway every fortnight. As a result we
have a range of clients with different legal enquiries surrounding
immigration issues. These submissions have drafted by members
of the Immigration Unit from their experiences of day to day practice
in immigration law. The Unit is made up of two solicitors, one
caseworker, and one trainee solicitor.
3. On the whole the Immigration Unit's experience
of working with the Immigration and Nationality Directorate and
UKvisas is not a positive one, characterised as it is by delay,
ineptitude and misapplication of the law. Most correspondence
goes unanswered, and documents are frequently lost. The Complaints
procedure is virtually useless, as it never appears to resolve
the individual complaints made, or improve the service.
AND ECO DECISION
4. We have concerns about the quality of
decision making in both applications to the Home Office and in
Entry Clearance applications. It appears that there is inadequate
consideration of evidence, and either misunderstanding of or too
rigid an application of existing policies. It is also problematic
that there is unclear or inconsistent statement of policy on the
IND website. We also have serious concerns about the extent to
which those making these decisions understand obligations under
the ECHR, and in particular the concepts surrounding the application
of Article 8, especially the concept of proportionality and the
application of the case of Huang. As an example we have recently
made an application for family members of a person granted Humanitarian
Protection to join her in the UK on the basis that HP has now
been brought into line with Refugee Status and holders may apply
for family reunion a stated on the IND website. This application
has been refused on the basis that our client was granted HP before
the 30/8/05 and cannot benefit from the policy. Consideration
of Article 8 issues was virtually non-existent. This matter must
now go through the appellate process causing further interference
with the family life of our client, and placing an undue burden
on the public purse.
5. Another issue of concern is the current
propensity that we have noticed in Home Office Presenting Officers
Units to apply for review of any and all appeals allowed by the
AIT regardless of the merit of the review. The issue is that of
those appeals of our clients allowed by the AIT this year, the
Home Office have lodged an application for Review and Reconsideration
(or leave to appeal to the IAT pre-April) in 80% of cases. In
all cases where permission was granted the Home Office Presenting
Officer who appeared at court for the Reconsideration hearing
withdrew the application or offered no legal argument. In the
remaining cases permission was not granted. This means that in
100% of cases the decision of the original judge was upheld.
6. Preparation of cases to be heard before
the AIT on a reconsideration hearing must be fully prepared by
us a representatives for the Appellant and the cost of this is
borne by the public purse. It is therefore of considerable concern
when unmeritorious applications are lodged, or when these matters
are clearly not adequately prepared or thought out by the Presenting
Officer who drafts the grounds, nor who appears at the hearing.
It is also alarming to see that the Home Office appear to be granted
permission to appeal on the basis of grounds which disclose no
error of law.
7. In addition to the financial implications,
and more importantly, the human impact of this upon our clients
is very serious. Two of our clients in whose appeal the Presenting
Officer did not pursue the appeal at court were minors at the
time of their asylum application, and a third suffers from schizophrenia.
It was devastating for them to have the appeals allowed, and then
have to cope with the fact that the decision was under challenge.
It was particularly difficult for them to understand when the
Home Office did not make any proper argument at court. In another
case, the appeal related to a family reunion appeal in which a
15 year old girl was applying to join her sister, who had cared
for her since she was a tiny baby. The interference with family
life was exacerbated when the appeal process was prolonged by
a speculative application for Review and Reconsideration which
disclosed no error of law.
8. At the discussion stage of the 2004 act Appellant's
representatives were been heavily criticised for perceived "abuse"
of the appellate system, and the punitive new funding regime imposed
by the 2004 Act was put in place to reduce this perceived burden
on the public purse caused by Appellant's representatives pursuing
appeals that had little chance of success. We maintain that Appellant's
representatives have not, to our knowledge, abused the system,
but those arguments need not be rehearsed here. We are concerned
to see that the new funding regime appears to have led to the
Home Office pursuing unmeritorious appeals with impunity.
SECTION 2 OF
9. Through our work at HMP Holloway prison
a number of issues have become apparent that cause us concern
about the enforcement of immigration offences relating to illegal
entry, and S2 Asylum and Immigration (Treatment of Claimants)
Act 2004 offences in particular. The following three issues all
require further investigation.
10. Interpreters who regularly work with
immigration matters in prisons have expressed their concern that
S2 is being implemented in a way that sexually discriminates against
women. These concerns are based solely on the personal experience
of interpreters of working more frequently with women who have
been charged with these offences. We are unable to comment from
direct experience as our prison work is predominantly in HMP Holloway
we only deal with female clients convicted of S2 offences. However
we feel this is an issue that should be investigated. We therefore
request statistical evidence of the gender breakdown of those
charged and convicted of S2 offences.
11. Whatever the government's intention
in introducing S2 offences, one effect of this has been an increase
in the number of asylum seekers being imprisoned on entry to the
UK. This has been observed in our work at HMP Holloway which has
taken place since 2002. We are concerned that victims of rape
and torture, and pregnant and mentally ill women are being imprisoned
on remand when they would be deemed unsuitable for immigration
detention. There are currently inadequate procedures in place
within the prison service for assisting foreign nationals who
have experienced rape and torture, as their needs differ from
the native prison population considerably. It does not appear
that prisons have been given adequate support to cope with this.
12. A further issue of concern relates to
the defence provision in S2. Many of our clients convicted of
S2 offences have in fact had a defence to the charge. However,
these have not been explored by the police or Immigration Service
or raised at trial. It appears very few people are relying on
the defence at trial either due to ignorance or poor legal advice
or because pleading Not Guilty results in the accused spending
longer on remand than she would have if she pleaded guilty and
served a sentence. We feel that this disproportionately affects
those who have been raped or tortured in detention in their countries
of origin, as they are least able to cope with detention, and
most likely to want to be released at all costs. Thus it appears
the law is penalising genuine refugees, rather than those who
have deliberately destroyed documents as was the stated intention.
13. Through our work with asylum applicants
who are imprisoned in HMP Holloway under the provisions of s 2
AI(TOC)2004 we have noted a worrying tendency amongst Immigration
Officers at Stanstead Airport to issue SEFs to applicants without
clearly endorsing on the form the date by which the SEF must be
returned. This is extremely prejudicial to these applicants as
many of them do not read or speak English and cannot read the
other directions on the form as these are in English. Since they
are remanded in custody, they frequently do not have the opportunity
to seek legal advice or show the form to a community member who
can advise them what to do with the form, or advise them that
the form would usually have to be returned to the Immigration
and Nationality Directorate within 14 days of receipt in the absence
of a deadline endorsed on the papers. Prison staff are not qualified
to advise applicants on the forms, and in any event frequently
cannot communicate with the applicants due to lack of a common
language. Applicants are often represented at court by video link
and therefore cannot even ask their criminal solicitors what the
form means. By the time Applicants manage to obtain immigration
advice through our advice surgery at HMP Holloway the deadline
for completing and returning the SEF has usually elapsed, meaning
that applicants risk having their asylum applications refused
for non-compliance with the deadline.
14. The majority of applicants that we see
through our advice surgery have entered the UK through Stanstead
Airport and we have noted repeated failure to endorse a date on
the SEF. We are unable to comment on whether other ports of entry
operate in the same manner.
15. The AIT has taken to routinely writing
to the ECO in Entry Clearance cases, on receipt of the appeal
notice. It requests that the ECO provide the explanatory statement
within five months. On questioning, a member of staff at the AIT
said they thought they were given five months because "that's
what they wanted". Given that the appellant has to put forward
full grounds of appeal within a month of receiving the decision,
it is surprising, and unfair, for the ECO to be routinely given
five months to provide details of a decision which has already
been taken. It is not clear who this benefits. It makes further
work for reps who have to write to the AIT/ECO request that documents
are forwarded far more quickly. In one case, at Addis, the decision
relies on the results of a DNA test and nothing more. It is not
clear why they should need five months to provide details of the
decision and does not accord with the stated aim that the AIT
speed up the appeals process.
16. Particular cases which are examples
of where the AIT has given the ECO five months to produce the
explanatory statement are in Addis Ababa, Ethiopia and in Yemen.
In a recent appeal against entry clearance from Bogota, Colombia,
the ECO sent all the documents up to the AIT within about one
month of the appeal notice being lodged. There is no reason why
all posts should not be able to operate in this way.
17. We were very concerned about a particular
case where Entry Clearance Officers at the British High Commission
in Zambia repeatedly requested the same information from a client's
spouse over a period of almost two years.
18. The Applicant made the application for
settlement in the United Kingdom with her son as her dependant
in May 2004. The Applicant's husband was in the United Kingdom
and was the Sponsor in the application. The Applicant was asked
to attend the High Commission on at least nine occasions and on
each occasion she was asked to return and give more evidence despite
the fact that the application for a visa had already been granted.
19. The numerous attendances at the High
Commission caused financial loss to the Applicant and the Sponsor.
The Applicant had to arrange for relatives to visit her from abroad
in order to provide further documentary evidence. Additional funds
had to be placed in her Bank Account and money was lost through
having to cancel flights to the United Kingdom.
20. The Applicant has now arrived in the
United Kingdom safely but only after letters of complaint and
numerous telephone calls to the High Commissioner at the British
Post abroad and the involvement of our Local Member of Parliament.
21. We continue to be deeply concerned about
the standard of interviewing of asylum applicants. In many cases
obvious points are not followed up or questioning is unsympathetic
to say the least. In one case, which we have taken over from another
firm, an interview of a woman who claimed she was raped by militia
in Somalia lasted just 20 minutes. The only question asked about
the rape was why she hadn't disclosed this earlier in the interview,
when she had been asked a very general question about her reasons
for leaving and had replied "beatings, killing, looting".
She was effectively penalised for not saying "rape"
at the very beginning of the interview. The IO was female but
the interpreter and her legal representative were male. She explained
to me that she was so shocked by the events surrounding the rape
that she did not speak for three weeks. It is hardly surprising,
that, in this context, she should not mention it at about question
4 of the interview. The interview ended very shortly after that
and she was refused on credibility grounds (not exclusively to
do with the allegation of rape).
22. We have received many complaints from
clients who have applied for Indefinite Leave to Remain (ILR)
that on completion of the application their passports have been
returned by the IND without an endorsement showing that the applicant
has ILR. Many of those granted ILR under the Concession for Asylum
Seeking Families have experienced this despite the fact that their
passports were in the possession of the IND when leave was granted.
The perception amongst clients is that this is a deliberate tactic
by the Home Office to increase income as applicants the have to
apply on form NTL and pay £160 to have their ILR endorsed
on their passport.
2 December 2005