Select Committee on Home Affairs Written Evidence

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.


  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.


  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

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2006
Prepared 17 July 2006