Immigration Bill

Written evidence submitted by the Dover Detainee Visitor Group’s Legal Advice Project (IB 41)

Introduction

Executive Summary

1. This Memorandum provides an analysis of the potential damage that the Immigration Bill in its current form poses to migrants, and to the wider community. This Memorandum represents the views and experience of our Legal Advice Project. As such there is an emphasis on issues such as removal, bail and appeal rights. The detrimental effects of changes to access to services and marriage have not been covered.

2. We believe that these provisions reflect a policy of creating a hostile environment for migrants and as such demonstrate a lack of regard for the rights of individuals against the power of the state. This bill makes it easier to remove people who are in the process of regularising their stay in the UK, it reduces opportunities for independent review of immigration detention, and significantly increases the chances of wrongful removal. The proposals will result in a significant increase in the number of Judicial Reviews and as such will be inefficient and costly. There is an imbalance of power between individuals and their ability to access justice and the wide reaching powers of the state. Any mistakes will have far reaching consequences for the individuals concerned. Yet the proposals give additional powers to a department that has a track record of mistakes and a disregard for the impact of its policies on the lives of individuals and their families.

The Dover Detainee Visitor Group (DDVG)

3. DDVG was created in response to the opening of the Dover Immigration Removal Centre (DIRC) where over 300 men were held with little contact with the outside world. A group of volunteers set up DDVG in 2002, supported by Kent Refugee Action Network (KRAN), the Association of Visitors to Immigration Detainees (AVID), and Refugee Action.

4. DDVG has been operating as an independent registered charity since November 2004 - it is managed by a constitution and complies with all the policies and procedures that a charity must have. DDVG has evolved over time and according to our clients’ needs. We now operate several different projects covering legal advice, work with ex-detainees, awareness-raising, as well as the Visiting Project initially envisaged.

The Legal Advice Project

5. Our Legal Advice Project was established having identified a need for good quality advice and representation for immigration detainees outside of the system of exclusive contracts currently in place. It is a small project with one part time adviser. Over the last year the project has engaged in over 60 advice sessions. Deportation proceedings and bail have been the most significant issues raised. The project has worked to assist 36 detainees or ex detainees. 12 clients have been taken on for legal assistance or full representation. Clients taken on have not qualified for legal funding.

Response to specific provisions

Removal (part 1 clause 1 and schedule 8)

6. Part 1 provides for the removal of persons unlawfully in the UK allowing their removal under the authority of the Secretary of State or an Immigration Officer if they require leave to enter or remain but do not have it. This means that anyone currently who does not have leave to enter/remain but is in the process of obtaining it is liable to removal.

7. Subsection (2) states that where a person is liable to be or has been removed from the United Kingdom under subsection (1), a member of the person’s family may also be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer. We are concerned about the implications for family members whose circumstances should be considered individually considering all aspects of their case.

8. Subsection (6) raises issues about the interpretation of who can be considered a ‘family member’. We submit that family members should be given notice of removal so that they have the opportunity to challenge removal based upon their individual circumstances. The ability to challenge decisions by the state, decisions that will have a significant impact on one’s life, is central to any conception that one should have access to justice at the point at which they need it.

Enforcement (clause 2 and schedule 1)

9. We firmly believe that the former UK Border Agency should not be granted a general power to use reasonable force. The power must be justified specifically for each of its functions.

Bail (clause 2 and schedule 8)

10. According to these provisions a person must not be released on bail without the consent of the Secretary of State if- (a) directions for the removal of the person from the United Kingdom are for the time being in force, and (b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail. This allows for the possibility of repeatedly setting removal directions, whether removal can be implemented or not, enabling an individual to be detained indefinitely. When removal directions are in place and have been repeatedly set, and it has not been possible to return an individual, there must be a process for independent review.

11. The provisions go on to state that "where the First- tier Tribunal has decided not to release a person on bail under paragraph 22, the Tribunal is required to dismiss without a hearing any further application by the person for release on bail (whether under paragraph 22 or otherwise) that is made during the period of 28 days starting with the date of the Tribunal’s decision, unless the person demonstrates to the Tribunal that there has been a material change in circumstances." We anticipate that bail hearings will be substituted by debates about whether there have been material changes of circumstances.

Biometrics (clauses 4 – 10 and schedule 8)

12. We submit that the removal of a ten year limit for the retention of information under Schedule 8 opens the door for the indefinite retention of information. We are particularly concerned about the use of biometric information with regards to accessing services and the dire consequences for our clients when mistakes are made. These powers are insufficiently justified and contain insufficient safeguards.

Appeals (part 2 and schedule 8)

13. The provisions will remove the right of appeal on any grounds other than asylum and human rights. They deny independent review to anyone who makes an immigration application and reduce the appellate process to human rights and Judicial Reviews. Combined with cuts in legal aid those who make applications on the grounds of family life are likely to do so unaided.

14. Adminstrative Review will be substituted for appeals. However, if a decision is wrong then it should be looked at again by someone capable of identifying the mistake. The high percentage of appeals that are successful demonstrate that independent oversight is needed. The Appeals Impact Assessment itself refers to there being no right of appeal for overstayers in Article 8 ECHR cases. This information is incorrect as they have a right of appeal on Article 8 grounds - this highlights the need for independent oversight. It is crucial that individual’s have a sense of protection against oppression and injustice and are confident in their dealings with the administration.

15. When a decision is ‘not in accordance with the law’ it should be possible to challenge those decisions before an independent body. Under this bill challenges will be reconfigured as human rights challenges or Judicial Review. When human rights challenges are made there will be no consideration under the Immigration Rules – it will be a matter of proportionality and balancing the interests of the individual against the state. It is suggested that there will be a rise in the number of Judicial Reviews – these will be more expensive than appeals and damages can be claimed.

16. The high proportion of appeals that succeed do not delay removal but instead stop unlawful removal in cases that frequently have a profound impact on a person’s life. The assertion of multiple appeal rights is incorrect – it is only in exceptional cases where multiple appeals are made. In any case the Secretary of State has a power to certify cases. The right of appeal is generally a speedy remedy. However, with regard to the Administrative Review of entry clearance cases, for example, there have been massive delays.

17. Where an appeal on asylum or human rights grounds remain it is proposed that any new matter to be raised before the Tribunal must first require the consent of the Secretary of State. However, having objected to the Tribunal considering the new matter there is no obligation for the Secretary of State to deal with it either. We envisage that individuals will be left in limbo without a decision being made on the new matter. This will have a further detrimental effect in terms of accessing services.

18. There is a new power under clause 12 to certify appeals from foreign criminals so that they can be removed while their claim is still pending in the event that this would not cause ‘serious or irreversible harm.’ We believe that this will increase the number of Judicial Reviews. In addition, there is an assumption that only cases involving torture would involve serious or irreversible harm whereas there may be cases involving children, the elderly, ill or dying. There is also the question of the interests of each individual in family cases.

19. The provisions are prescriptive about appeals that could have been brought in the UK being brought from outside the UK. One can envisage cases where an individual was wrongfully removed from the UK being unable to appeal

20. Section 94 (8) of the Nationality, Immigration and Asylum Act 2002 should be repealed. This section allows for the certification of claims based on whether a country is considered to be safe. In NS v UK (C-411/10) the European Court of Justice of the European Union criticised provisions that deemed a country safe for all.

Article 8 (clause 14)

21. Clause 14 (Article 8 of the ECHR: public interest considerations) provides for matters that must be considered by the courts in Article 8 cases. ECHR is a living instrument and enjoins on decision makers a fact sensitive analysis of each case. The principles are those articulated by the European Court of Human Rights. There is already an avenue for the Secretary of State to challenge this approach and that is to make the case before the courts.

22. Under clause 14 it is proposed that "persons who seek to enter or remain in the United Kingdom are financially independent, because such persons- (a) are not a burden on taxpayers, and (b) are better able to integrate into society." We believe that financial independence is not the best measure of whether an individual will be a burden on the public purse or whether they will integrate into society. The situation where an individual is providing care for a British citizen is a prime example of this.

23. We believe that these provisions, with their adherence to tests such as whether "it would not be reasonable" to expect a child to leave the UK, and whether it would be "unduly harsh", are contrary to obligations under Section 55 of the Borders, Citizenship and Immigration Act 2009. The 2009 Act requires a test of "the best interests of the child." Limiting the categories of children whose interests are to be considered to only British children and those who have lived in the UK for more than seven years is equally contrary to these obligations. There is not provision for children who are settled in the UK and have been here for less than seven years.

24. We should resist putting into statute an interpretation, fixed for all time, of an international instrument. The individuals seeking to challenge these definitions will largely be unrepresented and without legal aid.

Oversight (Regulation of Immigration Advisers) (Part5 and schedule6 and 8)

25. We have no objections in this regard except to say that as a charity we would want to know that the exemption from paying a fee would not be withdrawn as proposed by the Regulatory Triage Assessment. In terms of satisfying the Commissioner that we are fit and proper to provide Immigration Advice we would want any assessment of the time and resources involved to be realistic. We also suggest that it would be of benefit if the OISC were able to obtain and store files. We have experienced a number of cases where organisations are no longer operating and obtaining clients’ files has been an issue. This has an effect on our ability to advise and act for our clients.

Fees (clauses 59-60 and schedule 8)

26. We submit that in the past there has not been sufficient account taken of people’s ability to pay. In terms of proposals on the limits for fees the language on this is very unclear. However, there seems to be a move away from the idea of simply recovering costs. We suggest that there should be a definite limit on when a fee can be charged at anything higher than the recovery of costs.

27. Clause 59 (9b) provides for the Home Office to reduce, waive or refund a fee. We understand that in the current situation it is very difficult to get the Home Office to waive a fee even in extreme circumstances such as cases involving domestic violence. We suggest that the possibility of a waiver of a fee should be set out on the face of the Act.

Concluding points

28. We would like consideration of these proposals to take account of the above points. The general reduction in judicial oversight put forward by this Bill, set against the backdrop of a ‘hostile environment’, a department with a track record of mistakes and inefficiency and an increasing imbalance of power between individuals and the state erodes the ability of our clients to access justice.

November 2013

Prepared 20th November 2013