Immigration Bill

Written evidence from Asylum Aid (IB 50)

About Asylum Aid

 

Asylum Aid is an independent, national charity working to secure protection for people seeking refuge in the UK from persecution and human rights abuses abroad. We provide free legal advice and representation to the most vulnerable and excluded asylum seekers, and lobby and campaign for an asylum system based on inviolable human rights principles. The Women’s Project at Asylum Aid strives to obtain protection, respect and security for women seeking asylum in the UK by providing specialist advice and research and campaigning on the rights of women seeking asylum. Asylum Aid was highly commended in the Charity Awards 2010.

The context of the proposed Immigration Bill

1. The entirety of the Immigration Bill must be placed in the context of Legal Aid cuts. The government is tightening restrictions for asylum seekers, refugees and other migrants while removing access to justice from those who most need it. We are especially concerned about the Bill’s proposals to limit appeal rights, and the proposals on the restricted applications of Article 8. These are the most outrageous segments of the bill, and those which will most damagingly affect the basic rights of migrants.

2. The impact of the latest proposed cuts to Legal Aid [1] will dramatically reduce access to justice for asylum seekers, refugees and their families, and will destroy expertise in key areas of refugee and migration law built-up over decades. To take just one example, if experts on women and refugee law had not worked for several years to overturn the position on Fornah taken by the Home Secretary, Immigration Appeal Tribunal (as it was at the time) and the Court of Appeal, [2] the Home Office would still be able to return women and girls to undergo female genital mutilation (FGM) overseas with impunity. Legal expertise has in this way protected thousands of people who would otherwise have been returned to persecution and serious harm overseas. [3]

3. Legal Aid cuts will also serve to insulate the government from legal challenges against their decisions, at precisely the moment when the woeful quality of its decision-making is back under scrutiny. The Immigration Bill, with its intent to limit appeal rights as we elucidate on in the next segment, makes the position of migrants even more precarious. One in three of all asylum refusals are reversed on appeal, for example, a proportion which would be a national scandal anywhere else in the justice system. [4] The Home Office is trying to mask its problems from public view, rather than confronting and solving them. As Asylum Aid pointed out in oral evidence to the Joint Committee on Human Rights in October 2013:

At the same time that the Government are failing us on some of these quite basic things - Asylum Aid spends an awful lot of its time chasing up on the basics, and not getting into the nitty-gritty but trying to get the Home Office to do its own job properly - the chance to challenge the Government when somebody really needs you to do it is being stripped away. That seems like entirely the wrong set of priorities. [5]

4. Many provisions in the Immigration Bill will, therefore, be immune to challenge through the courts. The Immigration Bill will hit the essential rights of some of the most vulnerable in society; but without access to Legal Aid, those reliant on this provision will not be in any position to fight for these rights – rights which go back as far as the 1949 Legal Aid and Advice Act.

5. All references to the Immigration Bill below relate to the Bill as published at http://services.parliament.uk/bills/2013-14/immigration.html

Enforcement

6. Under clause 2 of the Bill, immigration officers’ power to use "reasonable force" in the exercise of their duties will be enforceable under all Immigration Acts, not just the 1971 or 1999 Act. ‘Reasonable force’ is defined in the 2008 Criminal Justice and Immigration Act as "reasonable in the circumstances" as the person acting genuinely believed them to be.

7. The extension of the use of this power is of great concern given that the long, well-documented history of immigration officials and contractors using overwhelming force and inappropriate practices to intimidate, harass and harm asylum seekers and other migrants. The government is well aware of the allegations of excessive force made against the officials whose attempt to remove Jimmy Mubenga from the UK ended in Mr Mubenga’s death; [6] of the catalogue of abuses recorded by the charity Medical Justice in its research report Outsourcing Abuse (2009); [7] of the mistreatment of children and families in detention recorded by Medical Justice in its research report State-Sponsored Cruelty (2010); [8] and most recently in allegations of sexual misconduct towards female detainees made against guards at Yarl’s Wood Detention Centre, which concluded in the guards losing their jobs. [9]

8. There is a clear pattern of serious abuse of power by immigration officials, with little evidence that complaints against officials are taken seriously. The Home Office’s first priority should be taking action to prevent such terrible actions continuing. It certainly shouldn’t countenance extending the use of those powers to other areas of immigration enforcement.

9. Immigration officials must treat all the people with whom it comes into contact with dignity. This is especially important where many of these people, from those who have fled violence overseas to trafficking victims to survivors of domestic violence, may be suffering from trauma as a result of their experiences. Someone in this situation is especially ill-equipped to protect themselves from the long-standing abuse of power among immigration officials.

Bail hearings

10. Under Clause 3 of the Bill, the government proposes to remove the right to a bail hearing from an individual in detention if a bail application has been dismissed within the previous 28 days. A bail hearing will only be heard within this timeframe if the applicant can demonstrate a "material change" to their circumstances.

11. As our colleagues at the Immigration Law Practitioners’ Association put it, "disputes about whether a change is material are thus substituted for bail hearings". [10] Crucially, these disputes will be decided not by a judge but by a civil servant working on behalf of the Home Secretary. In addition to this, no definition of "material change" appears in the Bill or its notes, which means that both applicants and civil servants are likely to struggle to understand the sort of changes which might generate the right to argue a case in front of a judge.

12. More than a decade of administrative failings at the Home Office and former UK Border Agency are well documented. When the Home Secretary abolished the UK Border Agency in March 2013, she announced that "the performance of what remains of UKBA is still not good enough. … UKBA has been a troubled organisation for so many years". [11] Yet this proposal will effectively place key bail decisions in the hands of government officials who have consistently been damned for their poor performance. It is entirely wrong that officials should have the power to determine whether or not a case is even heard before an independent judge.

13. The Home Office’s own policy states that detention should only ever be used in preparation for an individual leaving the country, and that the power to detain should not be exercised when removal is not likely to be carried out. [12] Detention decisions should be made, therefore, on a presumption of liberty rather than a presumption to detain. However, recent parliamentary questions have revealed that in 2013 several dozen people were being been held in immigration detention who had been there for more than a year and a half, with one person held for over three years. [13] Officials regularly flout the government’s own policies regarding immigration detention, and restricted bail rights would make it easier for this to continue away from the glare of independent judicial scrutiny.

Restricted Rights of appeal

14. Clauses 11-13 of the Bill make provision to reduce the grounds under which one can appeal a decision by the Secretary of State to the First Tier Tribunal. Appeals under the Bill are restricted to those challenging decisions on protection claims, human rights claims and revocation of protection cases. All the other decisions, currently protected by section 82 of the 2002 Act namely decisions relating to i) refusal of leave to enter the United Kingdom; ii) refusal of entry clearance; iii) refusal of a certificate of entitlement under section 10 of the 2002 Act; iv) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain; v) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain; vi) revocation under section 76 of the 2002 Act of indefinite leave to enter or remain in the United Kingdom; and vii) issuing of removal directions are excluded in the Bill.

15. However, although the Bill appears to protect the rights of former foreign national offenders to lodge an appeal against a decision refusing a human rights claim, Clause 12 (3) empowers the Secretary of State to certify the claim and remove the Appellant to his country of origin pending the outcome of their appeal. This is an absurd and unlawful position, given that the sole purpose of the appeal is to investigate and determine whether the person’s human rights would be violated on removal. The Bill does not propose what measures might be taken if, notwithstanding the certificate, the Appellant is indeed subjected to a violation of their human rights whilst in their country of origin, and what steps will be taken by the Secretary of State if the Appellant ultimately wins their appeal.

16. The right to appeal a negative decision made on human rights grounds is recognised through Article 6 of the Human Rights Act, and ensures a fair hearing for anyone whose removal from the UK might breach their essential rights or those of their family. These cases must be safeguarded in the UK for all individuals, regardless of their background or previous convictions.

17. The majority of the unappealable decisions under the Bill pertain to fee-paid applications or ‘immigration cases’, fees which are increasing annually. The Bill introduces provisions which remove access to appeal hearings for these decisions, but do nothing to force improvements in the quality of initial Home Office decisions. In figures provided earlier this year by the Immigration Minister, which show the success rate of in-country appeals by nationals from the five countries which bring the most immigration appeals, Home Office decisions were overturned at a rate of 38%. [14] We would draw your attention again to paragraph 3: the Bill would help insulate the government against challenge even as the quality of its initial decisions remains very poor.

18. While these figures do not relate to appeals on human rights grounds, they demonstrate the risk that such poor initial immigration decisions may create a perverse incentive for frustrated applicants to make a human rights appeal as this is the only route where they may get a hearing of their case, creating further backlogs in an already strained system. The best interests of applicants and government alike are served by better initial decisions and a fair appeal hearing for all, or at least maintain the position as it currently stands.

Biometrics

19. Clauses 4-10 of the Bill allow for the greater collection, retention and use of biometric data from people applying to remain in the UK under the immigration rules.

20. We support our colleagues at Liberty, who have recorded in detail their concerns at the collection of so much data by the Home Office. [15] This will deepen an atmosphere in which immigrants, including asylum seekers and refugees, are treated with needless suspicion and distrust. This may in turn strengthen the prevailing ‘culture of disbelief’ at the Home Office, which is already one root cause of its poor record on asylum decision-making. [16]

21. Legal experts have grown increasingly alarmed at reports that the Home Office has shared confidential information about asylum applicants with embassy officials based in the UK, in an attempt to facilitate removal. [17] This is a serious breach of confidentiality against individuals who have come to the UK in fear of persecution precisely from government officials. There is no reference in the Bill excluding this possibility, and the retention of yet more data on people can only increase the risk of such breaches in the future.

Article 8 

22. Clause 14 of the Bill attempts to restrict rights under Article 8 of the European Court of Human Rights (ECHR). Such restrictions will have lasting, damaging implications for the basic rights of families living in the UK, including children. It would also create an unnecessary, burdensome set of guidelines for judges who are already required to consider the public interest in any decision under Article 8.

New guidelines are unnecessary

23. The starting position in Article 8 cases ought to be that which is set out in the European Convention on Human Rights, that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

24. The new guidelines will seek to reverse the order of this right, such that it is the ‘right of public interest’ that should be protected first against the right of the individual to respect of his private and family life. The Convention clearly states the premise that the individual has the right first, and that this right should not be interfered with unless in accordance with the law. The provisions in the Bill were not the intention of the Convention.

25. In addition, according to the Immigration Minister, the Bill will require "a court when considering Article 8 in an immigration case to have regard, in particular, to the public interest". The Bill will provide judges with additional considerations when assessing ‘the public interest’. [18]

26. Article 8 is a qualified right. As such, judges are already required to weigh an individual’s right to respect for private and family life against the public interest.

27. The government previously clarified its definition of ‘the public interest’ as recently as July 2012, through changes to the Immigration Rules. [19] The numbers below suggest that even before 2012, though, judges regularly weighed the government’s wish to deport favourably against the Article 8 rights of the applicant (see para 33).

28. Given that this requirement already exists, and that judges adhere to it, it is unclear what practical benefit there would be in imposing further considerations so soon after the Immigration Rules have been changed.

Impact on the rights of children

29. The UK is a signatory of the UN Convention on the Rights of the Child (CRC).

30. In its consideration of the CRC and the best interests of the child, the Supreme Court in the case of ZH Tanzania (2011) held that the best interests of the child must be paramount in any Article 8 decision, regardless of the Home Secretary’s views about the parent(s):

We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that. [20]

The Bill’s provisions on removal and deportation risks contravening the Convention. For example:

· The Bill will compromise the way the rights of the child are interpreted for some children. The Bill’s definition of a "qualifying child" is limited to British children or children with seven year residency in the UK, which will exclude a large number of the most vulnerable children in the country.

· The court’s interpretation of the ‘best interests of the child’ will be weakened, so that consideration will now be given to whether it "would not be reasonable to expect the child to leave the United Kingdom" (for all Article 8 claims) and whether the effect on a child of a parent’s deportation would be "unduly harsh" (for Article 8 claims brought by former foreign national prisoners)

31. It is fundamental to the rights of any child that they are protected wherever possible from the damage of administrative action against a parent, something over which no child has any control. Corum Children’s Legal Centre, the oldest children’s charity in the UK, recently re-iterated the importance that

When making any decision with affects a child, including the removal of a parent, the Home Office must first take steps to obtain all relevant information about the best interests of the child, and then consider the impact of any potential decision on the welfare of the child. It should in its decision set out how it has taken the best interests of the child into account. [21]

32. The decision of the last government to place reservations against the rights of foreign children under the CRC is widely viewed as a dangerous attempt to undermine the most basic rights of children. The reservation was later lifted, but this Immigration Bill will place these rights in peril yet again.

A disproportionate response to a relatively small number of cases

33. Although some successful appeals against deportation on Article 8 grounds can receive a great deal of publicity – even where that publicity is based on falsity – the number of such decisions is relatively small:

· In 2010, between 2% and 8% of successful appeals against deportation were made on Article 8 grounds. [22]

· In 2011, less than 10% of all appeals against deportation were successful on Article 8 grounds. [23]

34. Government legislation is most effective where there is a clear issue which needs to be addressed and managed. It is difficult to see how the proposed changes to Article 8 would meet this definition.

November 2013