25. Memorandum submitted by Law Centre
NI
INTRODUCTION
Law Centre NI is a voluntary organisation which
provides specialist legal services to advice organisations for
disadvantaged individuals. Five specialist lawyers carry out our
immigration and asylum work and we represent in a substantial
number of all immigration appeals in Northern Ireland. We are
the main advisors on immigration law in Northern Ireland. We operate
an advice line five days a week and answer queries in relation
to all aspects of immigration law. We also facilitate the Immigration
Practitioners' Group which consists of lawyers and voluntary sector
organisations. It meets regularly to discuss all aspects of immigration
law and practice in Northern Ireland. Our written submissions
have been informed by our knowledge and experience. We also endorse
the written submissions of ILPA, of which we are a member.
SUMMARY
1. There have been numerous significant
and substantial attempts by various governments to improve immigration
control in the UK. These changes have been both to substantive
areas of law and to procedures and practice adopted by the Immigration
Service. In particular, in 1998 the present government in response
to the previous failings of the system published a white paper,
which sought to achieve "a firmer, faster and fairer"
system of immigration control. In our view, notwithstanding subsequent
substantial changes both procedurally and to the legal framework,
the system of immigration control is still cumbersome, arbitrary
and ineffective. In general, changes to practice and procedure
in immigration law have overlooked the concerns and needs of Northern
Ireland. We outline below our main areas of concern, but in summary:
— there is no public enquiry office
in Northern Ireland (see paragraphs 3, 14 & 20 below);
— poor quality of decisions especially
involving applications made by Irish nationals or their family
under EEA law (see paragraphs 9, 12 below);
— enforced removals from Northern Ireland
(see paragraph 15 below);
— detention of migrants in Northern
Ireland (see paragraph 21 below); and
— conduct of the Immigration Service
in Northern Ireland is not covered by equality legislation (see
paragraph 22 below).
INSTITUTIONAL STRUCTURES
AND CO
-ORDINATION
2. Significant resources have been spent
on trying to improve the organisation of the UK Immigration Service
(UKIS), including a number of structural changes within the organisation
itself. Unfortunately these additional resources and changes have
made little impact on the ground for practitioners or migrants.
The exception is Work Permit's (UK), which is now reasonably accessible
and informative.
3. In Northern Ireland we are particularly
affected by the lack of a Public Enquiry Office, which was closed
in 2001. The Immigration Service's only presence now in Northern
Ireland is at the International Airport with a limited responsibility,
namely just on entry into the UK. The lack of a Public Enquiry
Office impacts in a number of ways. For example, asylum seekers
have to claim asylum through a third party and there is a lack
of clarity as to which section of UKIS has responsibility for
casework in Northern Ireland. Generally it is Immigration Service
office in Liverpool and officers from that section come to Northern
Ireland on an irregular basis to conduct interviews and enforce
removal. However, on occasions staff at Manchester, Croydon or
Belfast have managed files without any apparent rationale and
more than one section of UKIS and the Home Office have become
involved. This can create significant practical problems, especially
at times of emergency, for example, when copies of important documentation
such as a notice of removal direction, cannot be provided as the
file is in transit and not accessible. Another problem is ascertaining
who has ultimate responsibility for a particular case. Recently,
we negotiated the return of one of our clients to Northern Ireland
with Liverpool UKIS, only for those arrangements to be cancelled
without notice by the Third Country Unit within the Home Office,
as this Unit had in fact responsibility for the case. This led
our client to be separated from her family for a number of days.
4. These difficulties are compounded by
the fact that the only source of information is the Public Telephone
Enquiry Bureau. When you eventually get through, although you
are usually able to clarify at what stage a particular case is
at, numerous clients have been wrongly and ill-advised about how
to regularise their immigration status. This has caused significant
problems at a later stage. One of our clients was incorrectly
advised to make an application for indefinite leave to remain.
The application was refused, when in our view if he had been advised
to make an application for a further extension this would have
been granted.
5. There are also particular problems with
the European Casework Unit. We advise and assist substantial number
of cases involving applications under EEA law. This arises from
the particular circumstances in Northern Ireland in relation to
dual British and Irish nationality. There can be significant delays
in processing these applications, notwithstanding that there is
a requirement under European Law for these applications to be
dealt with promptly and effectively and certainly within six months.
Further. it is also virtually impossible to liaise with the Unit
because there are no contact details (compare with our positive
experiences with Work Permit's (UK)).
6. There still appears to be a lack of co-ordination
between the various sections of the UKIS and the Home Office.
By way of illustration following the successful appeal by an applicant
he has now been waiting over a year to obtain his passport. We
have sent numerous letters to the Home Office in Croydon and UKIS
in Liverpool and Manchester. We have received only one helpful
response, when we were advised that his passport was on his port
file. However, his passport has still not been returned and we
have not been able to locate his port file.
7. Entry clearance posts
Although e-mail has eased communication with
entry clearance officers, many of our clients have raised numerous
concerns about the quality of service they have received, especially
those posts where applications have to be lodged through an agency.
8. Enforcement Unit
Co-ordination appears to be a particular problem
with the Enforcement Unit. the Unit frequently is not aware of
the up to date position or circumstances of a particular individual.
For example, one family were picked up on an early morning swoop
at their home notwithstanding the fact that the father had an
outstanding appeal to the Court of Appeal.
QUALITY OF
INITIAL DECISIONS
9. Entry clearance decisions
We have seen a recent statement by the Immigration
Minister outlining the steps seeking to try and improve the quality
of decisions. However, these minor changes are not going to substantially
or significantly improve the quality of decisions by entry clearance
officers. There is a particular problem in relation to applications
made under European law by Irish citizens, who wish their non-EEA
family members to join them in the UK. We are aware of this being
a serious problem as the majority of residents in Northern Ireland
hold both British and Irish nationality and therefore can rely
on European law when supporting applications submitted by their
non-EEA family members to join them in the UK. In particular:
— many applicants have been advised
not to pursue an application under European law and have been
persuaded to their detriment to apply under UK immigration law
instead. This is a particular problem with entry clearance officers
in the Philippines and Turkey;
— when refusing these applications
entry clearance officers have wrongly applied requirements under
UK Immigration rules (for example the need to maintain and accommodate
a family member); and
— recently an application was refused,
albeit not formally, because the Irish national also held British
nationality.
10. Such decisions and advice are plainly
erroneous and unlawful, but inevitably lead to further separation
of family members.
11. Moreover, entry clearance officers when
making decisions regularly fail to consider evidence submitted
in support of applications or misinterpret that evidence. In addition,
applications by spouses to join their partner or husband settled
in the UK are still being refused on "primary purpose"
grounds implicitly if not explicitly.
12. After entry decisions
Again there is significant problem with quality
of decisions in respect of applications based on European law.
Decisions generally consist of one paragraph, of which only one
sentence is materially relevant, namely "the Secretary of
State considers that you have failed to provide evidence that
you are a qualified person". This ground is applied notwithstanding
that such evidence had in fact been submitted. In these cases
immediately prior to an appeal hearing the Presenting Officer
will either withdraw the decision or concede the appeal. This
inevitably is a waste of time and resources in preparing for an
appeal and is extremely frustrating for all concerned, particularly
the appellant and their family.
13. Poor decisions also still regularly
occur in relation to asylum applications, variation appeals or
applications for indefinite leave to remain.
POLICY ISSUES
14. Lack of Public Enquiry Office in Northern
Ireland
The lack of a Public Enquiry Office in Northern
Ireland significantly disadvantages migrants here. It has resulted
in a lack of communication between the regional office responsible
for Northern Ireland, local immigration advisers and other appropriate
stakeholders. The lack of clear lines of communication undermines
effective implementation of policy on a national and local level
and has led to the concerns and needs of Northern Ireland being
overlooked in relation to the rest of the UK. We understand that
government departments in Northern Ireland would welcome a Public
Enquiry Office presence in Belfast.
15. Removal policies in Northern Ireland
There is an increasingly aggressive approach
by UKIS to the removal of individuals from Northern Ireland. We
have represented three separate clients who have been the subject
of raids on their home by immigration officers with officers of
the PSNI:
— all clients had legal representatives
acting on their behalf, were complying with conditions of temporary
admission and their applications were pending at various levels.
In these circumstances the obtaining of the warrants raises a
possible abuse of the law;
— the initial two raids, both which
involved young children, entailed approximately seven individuals
entering the house, intending to take the families to Dungavel.
It was traumatic for all concerned. In one case the mother attempted
suicide;
— removal policies in relation to families
and vulnerable individuals are wholly inadequate and, Home Office
practice is not being properly followed.
16. Points based scheme
Attached is our response to the recent consultation
document [not printed]. We highlighted in particular:
— the extremely poor quality of decision
making leaving us appalled at the proposed withdrawal of appeal
rights for the vast majority of migrants;
— our objection to the proposal to
impose bonds and sponsorships on employers and educational institutions;
— the short sighted decision to propose
the abolition of low skilled schemes on grounds that A8 nationals
currently fill these vacancies. The Sector Based Scheme still
plays an important role to a large number of industries in Northern
Ireland; and
— that a Skills Advisory Body should
be convened on a regional basis.
APPEALS AND
JUDICIAL REVIEW
17. Our success rate on non-asylum appeals
is very high and demonstrates why it is fundamental that any managed
migration system has an independent review element.
18. Entry clearance appeals
There are significant delays in relation to
entry clearance appeals. We have been advised that this is primarily
because of the entry clearance post's failure to forward papers
to the Appellate Authority. When the papers are finally produced,
frequently they are incomplete.
REPORTING, INVESTIGATING
AND PUNISHING
IMMIGRATION OFFENDERS
19. Operational concerns are being prioritised
over the legal and human rights of alleged immigration offenders.
This has resulted in a number of unlawful attempted removals to
Dungavel (see above).
20. Migrants in Northern Ireland have to
report to the PSNI because there is no Public Enquiry Office in
Northern Ireland (c.f. rest of the UK). This is particularly problematic
in relation to those migrants released on bail but required by
statute to report to a CIO—it is not practically feasible.
DETENTION POLICY
AND CONDITIONS
21. Northern Ireland is the only place in
the UK where immigration detainees are held in the Prison Estate
as a matter of course. Conditions in prison are not suitable for
those charged with no crime and who may have suffered in their
home country. Increasingly detainees remain in PSNI custody suites
for days before being moved to a prison or transferred to Britain.
We have campaigned for years against this practice, attached are
two publications "Sanctuary in a Cell—the Detention
of Asylum Seekers in Northern Ireland" [not printed].
It contained 33 recommendations and three years later only one
had been met in full. The positive developments across the rest
of the UK have not impacted on the issue of detention here.
RACE EQUALITY
ISSUES
22. The Immigration Service is neither covered
by the equality duty in section 75 of the 1998 Act or the Race
Relations Amendment Act 2000. The later applies to the Immigration
Service elsewhere in the UK. On grounds of equity alone this anomaly
should be remedied as a matter of priority.
23. There are also two main areas of Immigration
Control which we believe raise race equality issues:
— decisions made by entry clearance
officers regularly raise race discrimination issues, particularly
inappropriate references to the general circumstances in a country;
and
— decisions made at Belfast International
and City Airports to refuse entry. Anecdotal evidence suggests
that individuals of African origin are far more likely to be target
for in-depth questioning about their immigration status and reasons
for travelling to Northern Ireland.
IMMIGRATION STATISTICS
24. The lack of published regional statistics
in relation to asylum and immigration in Northern Ireland is a
real concern, notwithstanding lobbying by immigration practitioners
here for a number of years. In particular, proper regional statistics
in relation to asylum seekers based in Northern Ireland have never
been provided. The Home Office state this is because it is not
practical to provide such statistics. Statistics in relation to
those asylum seekers in NASS accommodation in Northern Ireland
is available, but to obtain a complete picture practitioners and
refugee support groups are left to make rough estimates based
on their combined experiences. Regular accurate statistics would
allow practitioners and support groups, as well as the relevant
statutory organisations to better assess the various needs in
Northern Ireland, both in terms of numbers and nationalities.
This also applies to statistics in relation to detention, removals,
work permit applications, A8 registration applications, student
applications and other non-asylum applications broken down into
appropriate categories. There appears to be no reason why the
Home Office could not collate such information.
25. Co-ordination with European immigration
policies
At a policy level, co-ordination with our European
partners generally appears to be merely an attempt to deter asylum
seekers and migrants from entering Europe and also at establishing
minimum standards of procedure to the lowest common denominator.
26. At a practical level in Northern Ireland
co-ordination between the UKIS and the Irish Immigration authorities
can be effective, but is just as likely to be cumbersome and bureaucratic.
For example, cases involving the criteria for establishing responsibility
for an asylum claim can sometimes take months and the individual
is usually detained during this process. Delays also occur in
cases where an individual legally in one territory, inadvertently
crosses the border, possibly unaware of the different jurisdictions,
but wishes to return. However, a bureaucratic process has to be
followed. Another problematic area is the operation of the Common
Travel Area and how that impacts on foreign nationals entering
one country, crossing the land border to the other.
27. As the only part of the UK with a land
border with another EU country, migrants and practitioners in
Northern Ireland would benefit from regular constructive communication
between the authorities on both sides of the border. For example
a cross border group on immigration with statutory, voluntary
sector and practitioner members would be very useful.
Buster Cox
Immigration Legal Adviser
2 December 2005
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