24. Memorandum submitted by JUSTICE
1. JUSTICE is an independent all party law
reform and human rights organisation whose purpose is to advance
justice, human rights and the rule of law through law reform and
policy work, publications and training. It is the British section
of the International Commission of Jurists.
2. We welcome the Committee's inquiry into
immigration control as timely, given that the Immigration, Asylum
and Nationality Bill currently before Parliament is the fourth
such Bill in the last six years. We note that legal certainty
is a basic principle of the rule of law. Accordingly, we are concerned
at the lack of stable rules in such an important area, one affecting
both the fundamental rights of migrants and the economic interests
of the country as a whole.
3. Although we consider that the right to
enter and leave a country is a fundamental freedom, [96]we
do not seek to address broader issues of immigration policy. Rather,
this submission focuses on the aspects of immigration control
that engage human rights and the administration of justice, specifically:
— the quality of initial decision-making
by the Home Office;
— appeals against immigration decisions,
including judicial review;
— detention policy concerning persons
subject to immigration control; and
— non-discrimination on grounds of
race, ethnicity or nationality.
QUALITY OF
INITIAL DECISION-MAKING
4. We note that initial decision-making
by the Home Office in respect of immigration matters has been
the subject of repeated criticism by numerous bodies, including
the House of Commons Constitutional Affairs Committee in their
2003 report on asylum and immigration appeals:
There are significant flaws in Home Office practice
at the stage of initial decision making. This causes us great
concern . . . in relation to any additional restrictions placed
upon the supervisory jurisdiction of the courts. [97]
and the Refugee Council:
. . . we continue to have a decision making process
which lacks credibility—where decisions are either increasingly
made by category, based on country of origin, or scarcely make
any mention of the individual involved. This in turn places an
undue burden on the appellate authority as acting all too often
as a place of first effective decision. [98]
As this committee itself noted in its 2003 report:
the real flaws in the system appear to be at
the stage of initial decision-making, not that of appeal. [99]
In the same report, the Committee recommended
that "the implementation of the new asylum appeals system
should be contingent on a significant improvement in initial decision
making having been demonstrated".[100]
However, we have not seen evidence that any such improvement was
ever demonstrated or even made before the new appeal structure
was introduced.[101]
Despite previous criticisms, it appears that delays and errors
continue to occur at a significant rate. Recently released statistics
show that 18% of the 6,305 appeals considered by the Asylum and
Immigration Appeals Tribunal in the third quarter of 2005 were
allowed: [102]
this figure rises to 49% for Eritrea, 42% for
Russia and 39% for Somalia as examples of the highest levels of
successful appeal—virtually identical to the previous quarter,
showing the endemic faults in the quality of initial decision
making are particularly strongly shown for these countries. [103]
5. The Independent Race Monitor has also
indicated her concern about "case-hardened" immigration
officials dealing with immigration and asylum claims, [104]including
circumstances where significant factual details given by the claimant
are not believed simply on the assumption of credibility without
any other indicated facts.
6. Poor initial decision-making in immigration
is problematic, both in terms of the disruption and delay caused
to migrants and visitors and in terms of the costs of poor public
administration generally. Migrants, visitors, and members of the
public all have a legitimate expectation that the Immigration
and Nationality Directorate will discharge its statutory functions
fairly and effectively. Moreover, we note that the economic interests
of the UK are often pleaded as grounds for imposing various restrictions
upon immigration. Since the delays caused by poor initial decision-making
have an inevitable cost implication for government, we therefore
question whether it is in the economic interests of this country
to continue to tolerate poor Home Office decision-making in the
field of immigration.
APPEALS AND
JUDICIAL REVIEW
7. While poor initial decision-making is
problematic in its own right, we have been deeply concerned at
successive governmental attempts to reduce the availability of
appeals and judicial reviews in respect of immigration decisions.
For as long as there have been laws relating the immigration and
asylum, the higher courts have been involved in their application.
However the role of the courts have continually been restricted
in relation to appeals through primary legislation, see eg:
— The Immigration and Asylum Act 1999
introduced expedited "fast-track" procedures removing
the right of access to the then-IAT;
— The Nationality Immigration and Asylum
Act 2002 introduced more limited statutory review to replace judicial
review in immigration as well as "non-suspensive" appeal
procedures that interfered with the right of access to the courts;
— The Asylum and Immigration (Treatment
of Claimants etc) Act 2004 notoriously sought to oust the jurisdiction
of the higher courts to review decisions of the AIT. Even as finally
enacted, it restricted appeal rights and extended the non-suspensive
system of appeals; and
— The Immigration, Asylum and Nationality
Bill currently before Parliament seeks to remove appeal rights
for students and family members contained in the Nationality,
Immigration and Asylum Act 2002. [105]
In the case of the most recent restrictions
proposed, It is difficult to see what has changed in the past
30 months since the 2002 Act that could justify the removal of
basic rights of appeal from such a broad category of persons.
8. More generally, we have seen no sound
justification advanced as to why—as a matter of basic principle—persons
subject to immigration control should somehow be less entitled
to the fair administration of justice than UK nationals. The right
of access to the courts is a fundamental principle of the common
law and the logical corollary of the duty upon judges contained
in their judicial oath, to "do right by all manner of people".[106]
It is exemplified in Magna Carta's famous pronouncement: "To
no one will we deny or delay right or justice".[107]
The courts have long held that access to their jurisdiction is
a basic right. [108]This
right is repeated, moreover, in numerous human rights instruments,
most recently Article 47 of the EU Charter of Fundamental Rights.
Persons subject to immigration control lack numerous rights enjoyed
by UK nationals. The basic entitlement of access to a court should
not be among them.
DETENTION POLICY
9. We are concerned at the continuing use
and expansion of detention, especially for children, as part of
the asylum and immigration process. It is essential that any system
of detention must comply with the UK's obligations under the Human
Rights Act 1998 and international law. [109]Detention
must not be arbitrary and must also be used proportionately. The
Office of the United Nations High Commissioner for Refugees (UNHCR)
has stated that detention is inherently undesirable and must only
be used if absolutely pnecessary. [110]Children
and other vulnerable adults should never be detained. [111]The
legitimacy of the detention of those subject to immigration control
has to be seen against the backdrop of an acknowledged international
law right to seek asylum.
RACE EQUALITY
ISSUES
10. The Race Relations (Amendment) Act 2000
extended the scope of the Race Relations Act 1976 to the functions
of public authorities. However, section 19d of the amended Act
exempts immigration offices from the requirement not to discriminate
if they are acting under an authorisation by a Minister either
in relation to a specific case, or generally, or by way of primary
or secondary legislation.
11. In response to the strong public opposition
to section 19D, the government created a new post of Independent
Race Monitor (section 19E) to monitor the likely effect of ministerial
authorisations on immigration functions and the operation of the
exceptions made under ministerial authorisations. The Race Monitor
is require to report annually to the Home Secretary who must then
lay a copy of the Annual Report before both Houses of Parliament.
The Race Monitor has so far provided four reports. [112]Each
report has made similar comments and recommendations, leading
to the conclusion that the response to the work of the Monitor
has not yet been sufficient. She expressed concern that the use
of information based on past adverse decisions or abuse of the
system can be self-fulfilling and that some immigration officers
accepted that knowing that a person was from a high risk nationality
could adversely affect that decision. [113]
12. JUSTICE has criticised the operation
and use of section 19D on several occasions, including in our
contribution to the NGO Shadow Report to the UN Committee for
the Elimination of all forms of Racial Discrimination (CERD) [114]and
in our report to the Joint Committee on Human Rights. [115]In
its Concluding Observations on the UK, CERD commented:
The Committee is concerned about the application
of section 19 D of the Race Relations Amendment Act of 2000, which
makes it lawful for immigration officers to "discriminate"
on the basis of nationality or ethnic origin provided that it
is authorised by a minister. This would be incompatible with the
very principle of non-discrimination.
The Committee recommends that the State party
consider re-formulating or repealing section 19 D of the Race
Relations Amendment Act in order to ensure full compliance. [116]
13. The Joint Committee on Human Rights
considered the UK's implementation of the International Convention
on the Elimination of all forms of Racial Discrimination in light
of the Concluding Observations of CERD and their recommendations
reinforced those of the UN Committee:
In our view there is a real concern that the
use of section 19D will erode the equal treatment of certain national
and ethnic groups both in the immigration service and more widely.
We consider that authorisations under section 19D are likely to
breach the UK's obligations under CERD. We therefore recommend
that the Government should consider the repeal of the section,
in accordance with the UN Committee's recommendation. [117]
14. It must be presumed that all of the
provisions of the Race Relations Act are within the scope of the
current Discrimination Law Review. We hope that the unambiguous
recommendations of a UN Committee and the Joint Committee on Human
Rights will not be overlooked by this Review.
Eric Metcalfe
Director of Human Rights Policy
Rachel Brailsford
Research Assistant
1 December 2005
96 96 See, for example, Article 13(1) of the
Universal Declaration of Human Rights 1948, "Everyone has
the right to freedom of movement and residence within the borders
of each state", Article 13(2) UDHR "Everyone has the
right to leave any country, including his own, and to return to
his country"; Article 2(1) Protocol No.4 to the Convention
for the Protection of Human Rights and Fundamental Freedoms, "Everyone
lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his
residence, Article 2(2) Protocol No.4 "Everybody shall be
free to leave any country, including his own"; Article 45
of the EU Charter of Fundamental Rights, "Every citizen of
the Union has the right to move and reside freely within the territory
of the Member States". Back
97
97 Constitutional Affairs Committee, Asylum and Immigration Appeals,
Second Report of Session 2003-04, February 2004, HC 211-1, para
15. Back
98
98 Written evidence from the Refugee Council, para 2.4, ibid. Back
99
99 Home Affairs Committee, Asylum and Immigration (Treatment
of Claimants, etc) Bill, First Report of Session 2003-04,
December 2003, HC 109, para 43. Back
100
100 Ibid, p 22. Back
101
101 6 Section 26 of the Asylum and immigration (Treatment of Claimants,
etc) Act 2004 commenced on 4 April 2005. Back
102
102 Asylum statistics: third quarter 2005, www.ind.homeoffice.gov.uk. Back
103
103 Refugee Council press release, 28 November 2005. Back
104
104 For example, see Annual Report April 2002-March 2003 at para
30 and Annual Report April 2003 - March 2004, at paras 36 and
85-86. Back
105
105 Clauses 4 and 5 of the Immigration, Asylum and Nationality
Bill restrict the appeal rights of students and family members
granted under Part 5 of the Nationality, Immigration and Asylum
Act 2002. Back
106
106 See eg R v Ministry of Defence ex p Smith [1996]
QB 517 at 556D-E per Sir Thomas Bingham MR: "The courts must
not shrink from their fundamental duty `to do right by all manner
of people'". Back
107
107 Magna Carta 1215, clause 40. Back
108
108 See eg Raymond v Honey [1983] 1 AC 1, Lord Wilberforce
at 13 described the right of access to the courts as a "constitutional
right". As noted in R v The Lord Chancellor, ex p Witham
(High Court, 7 March 1997) per Laws J: "I cannot think
that the right of access to justice is in some way a lesser right
than that of free expression; the circumstances in which free
speech might justifiably be curtailed in my view run wider than
any in which the citizen might properly be prevented by the State
from seeking redress from the Queen's courts. Indeed, the right
to a fair trial, which of necessity imports the right of access
to the court, is as near to an absolute right as any which I can
envisage". Laws referred to the proposition that: "the
executive cannot in law abrogate the right of access to justice,
unless it is specifically so permitted by Parliament; and this
is the meaning of the constitutional right". Back
109
109 Most notably, under Article 5 of the European Convention on
Human Rights, the right to liberty and security. A person can
be deprived of his liberty following "the lawful arrest or
detention. . .to prevent his effecting an unauthorised entry into
the country or of a person against whom action is being taken
with a view to deportation or extradition". Article 5(4)
provides a right to proceedings to challenge the lawfulness of
detention. Back
110
110 UNHCR ExComm Conclusion No 44. Back
111
111 See for example, UNHCR comments on the 2005 Immigration
and Asylum Bill, www.unhcr.org.uk. Back
112
112 Interim Report, December 2002; Annual Report 2002-03; Annual
Report 2003-04; Annual Report 2004-05. Back
113
113 Annual Report 2004-05, Independent Race Monitor, July 2005,
at para 13. Back
114
114 Joint submission by NGOs to the UN Committee for the Elimination
of all forms of Racial Discrimination (CERD) with regard to the
Government's Sixteenth Periodic Review, August 2003. Back
115
115 JUSTICE submission to the Joint Committee on Human Rights
on the United Kingdom's 17th Report to the UN Committee on the
Elimination of all forms of Racial Discrimination, November 2004. Back
116
116 Concluding Observations of the Committee on the Elimination
of Racial Discrimination: United Kingdom of Great Britain and
Northern Ireland 10/12/2003 CERD/C/63/CO/11 at para 16. Back
117
117 The Convention on the Elimination of Racial Discrimination,
14th Report of Session 2004-05, para 83. Back
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