Select Committee on Home Affairs Written Evidence

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.


  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.


  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.


  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.


  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, 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, 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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