Immigration Bill

Written evidence from United Nations High Commissioner for Refugees (IB 51)

Summary

UNHCR welcomes the opportunity to make comments to the Public Committee on the Immigration Bill 2013 and would like to propose the following recommendations:

Limitations on Bail Applications (Clause 3 and Schedule 8)

Amendments in the Bill which seek to restrict bail applications should not be adopted and current bail arrangements and procedures should be retained.

Appeal Rights (Part 2 and Schedule 8)

Refugees should have an in-country right of appeal against a decision to withdraw refugee status made while they are outside the UK.

The term ‘revocation’ should refer to situations where a refugee’s conduct subsequent to recognition implicates him or her in a crime against peace, a war crime, a crime against humanity (Article 1F(a) of the 1951 Convention) or an act contrary to the purposes and principles of the United Nations (Article 1F(c) of the 1951 Convention).

The retention of appeal rights for family reunification entry clearance applications at a minimum for refugees and beneficiaries of subsidiary protection who cannot enjoy the right to family life in their country of origin and will not be served properly by administrative review procedures.

Article 8 Cases (Clause 14)

The existing approach to Article 8 cases under which the courts are able to assess the whether interference is justified, should be maintained.

When assessing how the right to family/private life of refugees, beneficiaries of international protection and stateless people is to be respected, no regard should be had to the immigration status of the person at the time the relationship was formed.

The government must ensure that the provisions of the Bill accurately reflect the UK’s obligations under the UN Convention on the Rights of the Child (UNCRC) to ensure the right of a child to have his or her best interests taken as a primary consideration as well as the Home Office’s duties under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard the welfare of children in the exercise of immigration control.

Access to Services (Part 3)

Any measures proposed in the Bill likely to restrict access to services for asylum-seekers, refugees, beneficiaries of subsidiary protection and stateless persons should not be adopted.

Introduction

UNHCR is entrusted by the United Nations General Assembly with the responsibility for providing international protection to refugees and other persons within its mandate, and for assisting governments in seeking permanent solutions to the problem of refugees. [1] As set forth in its Statute, UNHCR fulfils its international protection mandate by, inter alia, "[p]romoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto." [2]

UNHCR's supervisory responsibility under its Statute is reiterated in Article 35 of the 1951 Convention relating to the Status of Refugees ("the 1951 Convention") [3] according to which State parties undertake to "co-operate with the Office of the United Nations High Commissioner for Refugees […] in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the Convention". The same commitment is included in Article II of the 1967 Protocol relating to the Status of Refugees. [4]

The UN General Assembly has also entrusted UNHCR with a global mandate to provide protection to stateless persons worldwide and to engage in prevention and reduction of statelessness. UNHCR’s Executive Committee has further requested UNHCR to undertake "targeted activities to support the identification, prevention and reduction of statelessness and to further the protection of stateless persons". The Executive Committee also requests the Office "to provide technical advice to States Parties on the implementation of the 1954 Convention so as to ensure consistent implementation of its provisions". UNHCR thus has a direct interest in national legislation that regulates the protection of stateless persons, including implementation of the 1954 Convention relating to the Status of Stateless Persons.

UNHCR has previously provided its comments for the Second Reading of the Immigration Bill 2013 (‘Bill’) [5] and welcomes this opportunity to offer comments to the Public Bill Committee on the following provisions:

Limitations on Bail Applications (Clause 3 and Schedule 8)

UNHCR has noted the debate of the Committee regarding bail (5 and 6 November 2013) but remains concerned about the proposed 28-day limitation before a further bail application can be made. In particular, UNHCR notes that the UK needs to ensure that those who are facing imminent removal do not use bail applications as a means to frustrate removal. However, given the prevalent use of detention throughout the asylum process in the UK, UNHCR considers the ability to apply for bail an essential safeguard, both in ensuring the right to liberty of the individual but also as an alternative to detention and should therefore always be available.

UNHCR has noted and lends its full support to the detailed proposed amendments and submission by the Immigration Practitioners Association (ILPA) to Clause 3, which calls for maintaining the current bail system. [6] UNHCR also shares the concerns noted in the submission made to the Committee by Bail for Immigration Detainees (BID) which highlight that the Bill merely complicates the bail process and will not serve detainees well. In particular, UNHCR remains concerned that the criteria for establishing a change of circumstances, given that according to BID, 43 per cent of the detainees are not legally represented and do not speak a sufficient level of English. It is for these reasons that UNHCR draws the Committee’s attention to our Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention 2012, [7] which provide that:

For bail to be genuinely available to asylum-seekers, bail hearings would preferably be automatic. Alternatively, asylum-seekers must be informed of their availability and they need to be accessible and effective. Access to legal counsel is an important component in making bail accessible. The bond amount set must be reasonable given the particular situation of asylum-seekers, and should not be so high as to render bail systems merely theoretical.

UNHCR recommends:

The proposed amendments in the Bill which seek to restrict bail applications should not be adopted and that the current bail arrangements and procedures should be retained.

Appeal Rights (Part 2 and Schedule 8)

As stated in the comments to the Second Reading of the Bill, UNHCR remains concerned that persons with international protection status in relation to whom a decision to withdraw refugee status or subsidiary protection is made while they are outside the UK will be deprived of an in-country right of appeal. In UNHCR’s view, measures depriving an individual of refugee status should be applied restrictively and that affected person should be able to challenge any such decision from within the UK as the country which granted them international protection, with procedural safeguards, including access to legal representation, an interview and an appeal hearing. UNHCR has previously expressed its concerns to the UK Government on how the deprivation of an in-country right of appeal can adversely affect refugees and deprives them of procedural safeguards and an effective remedy.

UNHCR also wishes to clarify its understanding of the term revocation, which differs from what is being proposed in the Bill. Revocation is only triggered where a refugee’s conduct subsequent to recognition implicates him or her in a crime against peace, a war crime, a crime against humanity (Article 1F(a) of the 1951 Convention) or an act contrary to the purposes and principles of the United Nations (Article 1F(c) of the 1951 Convention). [8] The approach taken by the Home Office, however, applies revocation of refugee status in a broader set of circumstances such as cessation, cancellation and the application of Article 33(2) of the 1951 Convention. UNHCR considers this as a misapplication of the term revocation by the Home Office. As this has potentially serious consequences for individuals affected, it is all the more important that access to an effective remedy via an in country appeal be protected.

The Bill also seeks to remove rights of appeal on any grounds other than asylum and human rights and to replace this with administrative review. UNHCR would strongly recommend that this proposal not be applied to appeals pertaining to family reunification entry clearance applications, which have themselves already been taken out of the ambit of legal aid provision. The presence of family members can reinforce the social support system for refugees and beneficiaries of subsidiary protection by assisting them to settle, enable them to get on with their lives and integrate better into United Kingdom society and culture. [9] It should be remembered that such persons cannot enjoy the right to family life elsewhere. UNHCR would also like to emphasize that the social and cultural dimension of local integration requires refugees and beneficiaries of subsidiary protection to make conscientious efforts to adapt to the local environment and respect and understand new cultures and lifestyles, taking into consideration the values of the local population, and requires the host community to accept refugees and beneficiaries of subsidiary protection into its sociocultural fabric. In this respect, UNHCR considers that refugees and beneficiaries of subsidiary protection with strong family links in the UK can reinforce their integration into life in the UK. It is in this context that UNHCR remains concerned that the withdrawal of legal aid for family reunion cases could restrict access to family unity, as without legal aid, refugees and beneficiaries of subsidiary protection in the UK may not be able to afford legal representation. Legal aid and access to appeal procedures free of charge are important ways of ensuring that refugees and beneficiaries of subsidiary protection can enjoy their right to family life as they may otherwise be unable to act as litigants in person due to restrictions of language and literacy, as well as an inability to navigate the complex procedures, rules and regulations, including having to pay for an administrative review.

Article 8 Cases (Clause 14)

UNHCR considers that the proposed ‘public interest considerations’ in respect of Article 8 of the European Convention on Human Rights (ECHR), which affirms the right of everyone to family life, will negatively impact on families of refugees, beneficiaries of subsidiary protection and stateless people in the event that the principal applicant or someone recognised as a dependant loses their status and faces removal from the UK. UNHCR urges that the existing approach to Article 8 under which the courts are able to assess whether interference is justified, should be maintained. In UNHCR’s view, the changes proposed in the Bill introduce criteria which are not necessary and potentially detrimental to a fair and independent judicial assessment of whether the State’s interference with Article 8 rights is justified.

UNHCR is particularly concerned with the proposal that in assessing whether an interference with an Article 8 right is justified, little weight be given to private life or a relationship with a qualifying partner that is established at a time when the person is in the United Kingdom unlawfully (117B(4)) and to private life when an immigration status is precarious (117B(5)). Given that refugees and stateless people may be forced to enter the United Kingdom without leave and can face difficulties regulating their immigration status, the proposed changes could risk significantly undermining their Article 8 rights.

With specific respect to children, UNHCR is concerned that the proposals in the Bill do not accurately reflect the UK’s obligations under Article 3(1) of the UN Convention on the Rights of the Child (UNCRC) [10] to ensure the best interest of the child is a primary consideration in all actions concerning him or her, as well as the domestic law duty under section 55 of the Borders, Citizenship and Immigration Act (BCI Act) 2009. In this regard UNHCR shares the concerns already raised by the Refugee Children’s Consortium (RCC) [11] that, contrary to Article 2 of the UNCRC, the proposals are discriminatory and fail to safeguard the welfare of children in the exercise of immigration control; if implemented in their current form the provisions of this clause are likely to have significantly detrimental consequences for asylum-seeking and refugee children (whether unaccompanied, separated or with their families). Indeed, in 2012, UNHCR undertook an audit of the application of the best interests principle and the Section 55 duty in the context of asylum claims from families with children. The findings of this audit, the results of which are to be published imminently, point to the detrimental impact of the provisions of Paragraph EX1 of Appendix FM of the Immigration Rules (HC 194) on the interpretation of Article 3(1) UNCRC, the provisions of which are now being proposed to be made into law under Clause 14.

Access to Services (Part 3)

UNHCR has followed with particular interest the Committee debate on access to services and wishes to lend its voice and reiterate its concerns that the proposed legislation could negatively affect the reception and integration of persons of concern to UNHCR. Proposals within the Immigration Bill would require landlords, banks and GPs’ surgeries to verify the immigration status of foreigners. The provisions of the Bill appear likely to result in asylum-seekers, refugees and beneficiaries of subsidiary protection being stigmatized in the public mind and in their being denied access to housing or bank accounts. UNHCR is concerned that if introduced, such measures could contribute towards a climate of misunderstanding and ethnic profiling that could undermine the longer-term prospects for integration of such persons and prove detrimental to social cohesion. Additionally, UNHCR is concerned that the types of documentation carried by asylum-seekers, refugees, beneficiaries of subsidiary protection and stateless people can be varied and complex and landlords and other service providers are likely to misinterpret the legality of their status. It will also impose an additional administrative burden on them. These challenges may have unintended consequences such as the denial of housing and other services to asylum-seekers, refugees, beneficiaries of subsidiary protection that result in their marginalisation and inhibit their integration in the United Kingdom.

November 2013


[1] See Statute of the Office of the United Nations High Commissioner for Refugees, UN General Assembly Resolution 428(V), Annex, UN Doc. A/1775, para. 1, available at www.unhcr.org / ref w or l d / doc i d / 3ae6b3 6 28. h t m l ( " St a t u t e") .

[2] Ibid., para. 8(a).

[3] UNTS No. 2545, Vol. 189, p. 137.

[4] UNTS No. 8791, Vol. 606, p. 267.

[5] See Immigration Bill 2013 www.publications.parliament.uk/pa/bills/cbill/2013-2014/0110/14110.pdf

[6] See ILPA, Immigration Bill Proposed Amendments for House of Commons Committee Stage, available at: www.ilpa.org.uk/data/resources/21223/13.11.05-HC-Comm-ILPA-proposed-amendments-Part-1.pdf.

[7] UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012, available at: www.refworld.org/docid/503489533b8.html.

[7]

[8] See UNHCR, Note on the Cancellation of Refugee Status, 22 November 2004, available at: www.refworld.org/docid/41a5dfd94.html, notably para. 43.

[9] See generally, UNHCR, A New Beginning: Refugee Integration in Europe, September 2013, available at: www.refworld.org/docid/522980604.html, pp. 70-71. 

[10] See also the UN Committee on the Rights of the Child (CRC), General comment No. 14 (2013) on the right of the child to have his or her best interests taken a s a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, available at: www.refworld.org/docid/51a84b5e4.html.

[11] The Refugee Children's Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee children are promoted, respected and met in accordance with the relevant domestic, regional and international standards. The RCC is currently chaired by Coram Children’s Legal Centre and The Children's Society, see www.refugeechildrensconsortium.org.uk/.

[11]

Prepared 20th November 2013