House of Commons - Asylum - Home Affairs Committee

Asylum - Home Affairs Committee Contents

1 Past and current criticisms of the asylum system

Introduction

1. Asylum is protection given by a country to someone who is fleeing persecution in their own country. The UK is a signatory to the 1951 United Nations Convention relating to the Status of Refugees which sets out the basis on which someone is considered to be a refugee. The Convention states that a refugee is a person with a fear of persecution because of their race, religion, nationality, political opinion or membership of a particular social group. An individual seeking asylum must therefore show that they have a well-founded fear of persecution due to their race, religion, nationality, political opinion or membership of a particular social group, and that the authorities in their country are unable to provide protection or that the individual is, owing to that fear, unwilling to avail himself of the protection of that country. The definition is forward-looking, so even if a person has been persecuted in the past, they will not be able to successfully claim asylum unless they can demonstrate that they will be persecuted in the future. A person must also be outside their country of origin in order to be recognised as a refugee.

2. If an individual does not qualify for refugee status, they will also be considered for protection or permission to remain in the UK on two other grounds. Firstly, to qualify for humanitarian protection, a person must demonstrate that they would face a real risk of suffering serious harm on return to their country of origin. Serious harm means either the death penalty; torture or inhuman or degrading treatment or punishment; or a serious and individual threat to a person's life or safety in situations of armed conflict. Secondly, an individual can further apply to remain in the UK on the basis that a return home would breach their human rights. Human rights claims can form part of an asylum claim under the Convention but they can also be made separately. The convention contains a number of 'articles' of protected rights. Most human rights claims are based on Article 3 (prohibition on torture and inhuman or degrading treatment) or Article 8 (right to respect for family life and private life).

Time taken to receive a decision

3. The time taken to receive an initial decision to an asylum claim has been increasing in the recent past. As we have previously noted, just over half of asylum claims receive an initial decision within a year but during 2012there was a 63% rise in the of the number of new asylum applicants who have waited more than six months for an initial decision.

4. The human cost of delays in decision-making is significant. As the Migrant and Refugee Communities Forum told us,

We have seen professionals who have been de-skilled because they were not allowed to work for eight years. We have seen women stuck in abusive marriages, unable to leave their husbands because they were the principal applicants and the women would not have had status or support alone. We have seen victims of torture whose mental health has further deteriorated through years of uncertainty while waiting for the outcome of their claim. We have seen families torn apart and those left behind suffering yet more as they are unable to join their loved ones who have no family reunion rights for the years that they are stuck in the asylum application system.[3]

5. John Vine, HM Chief Inspector of Borders and Immigration, spoke of discovering nine cases which had taken 323 days to get an initial decision,[4] and referred to another where the applicant had been waiting fourteen years for a final decision.[5] Another witness told us about meeting someone who had waited sixteen years for a final decision.[6] Natasha Walter highlighted a particular case as an example of the difficulties which applicants face as a result of the length of time which they remain within the system, citing the example of the hardship faced by one woman who had waited for 11 years for a decision and was not entitled to any support for her children.[7]

6. The Scottish Refugee Council found that 49% of women had waited more than two years for their current status, compared to 22% of men. They cited several possible reasons for this difference, including poor quality decision-making, poor credibility assessments and lengthy appeals processes in women's cases.[8] One cause of such delays is possibly the fact that women tend to have more complex cases as they are more likely to be trying to escape family or community persecution as opposed to state persecution. We examine the issue of gender sensitivity in the asylum system in more detail below.

7. We consider it wholly unacceptable that anyone should have to wait longer than 6 months for an initial decision, let alone the delays of many years for those caught in the legacy backlog. Ministers must not allow people who claim to be fleeing persecution to be left in limbo for so long ever again.

Backlogs

8. Such a slow decision making process is partly caused by the necessary allocation of staff and resources to clearing the 'Legacy Backlog'. In July 2006, the then Home Secretary published a report on the Immigration and Nationality Directorate (IND). One of the key highlights was the large number of unresolved asylum cases, totalling around 500,000. These were to be dealt within five years or less, and became known as the legacy backlog.[9] The deadline for those cases to have been resolved was the summer of 2011 yet at the end of March 2013 there were still 32,600 asylum cases which had yet to be concluded.[10]Backlogs reduce faith in the capability of the system to effectively identify (and protect) those in need whilst providing a barrier to those who are not eligible under the 1951 Convention. Evidence of this lack of faith can be seen on both the part of the applicants and also the wider British public. John Vine noted that the system is further undermined by the fact that some of those with applications in backlogs within the asylum system who may not have originally been granted asylum on the basis of their claim will nevertheless be given leave to remain due to the time spent in the country because of "inefficiency and ineffectiveness."[11]

9. In his 2012 report on the UKBA's handling of legacy asylum and migration cases, John Vine found that from April 2011, the UKBA had made 8,000 checks against the Police National Computer and the Warnings Index, which had resulted in roughly 2,000 "hits". However, because results were returned only in hard copy , they were not accessible to case owners working on electronic systems. This resulted in the files remaining within the "controlled archive" of cases where the UKBA was unable to trace the applicant. The British Red Cross highlighted cases where applicants had been regularly signing in with immigration services, as required by the UKBA, only to discover that their cases were in the controlled archive.[12]

10. In 2009, as part of an investigation in to the asylum process, John Vine uncovered a further backlog of 30,000 asylum cases which had been submitted after the introduction of the New Asylum Model in 2007.[13] Alison Harvey, of the Immigration Law Practitioners Association, suggested that the poor quality of decision-making had caused the backlogs:

There is no reason that I can see why there should be any backlogs when the numbers of persons claiming asylum have fallen so dramatically. There is not a big intake of cases. There is no reason why they cannot be decided. I think we will continue to have backlogs as long as we do not have sustainable decisions. That is not going to help. We are not going to turn the cases around.[14]

Maurice Wren of the Refugee Council believed that the system itself was responsible for the build up of cases. He raised concerns about the Asylum Operating Model which was introduced in April 2013 which he described as a "backlog-generator".[15] We further discuss the concerns about the Asylum Operating Model raised with us below.

11. The task of staff examining claims for asylum is to judge fairly, not to make it as difficult as possible for asylum claims to be made. While staff should be rigorous in considering the merits of a case, and reject those which are not meritorious, it is not their role to aim to reject cases, and the culture of disbelief that has raised has no place in fair judgements.

'Culture of disbelief'

12. Another cause of distrust in the effectiveness in the system is what has been termed the 'culture of disbelief', which describes the tendency of those evaluating applications to start from the assumption that the applicant is not telling the truth. The term, first used to describe the asylum system in 2008, has recurred repeatedly throughout our inquiry. It was referred to in almost a quarter of written evidence submissions to this inquiry.[16] One of our witnesses told us that he had left his screening interview feeling intimidated, rejected and as though he had been branded a liar from the outset.[17]He explained the impact that this had on applicants was that they didn't trust the system to make the right decision as they were disbelieved from the outset. He acknowledged the importance of examining each claim but suggested that that was not currently happening... they do not want you even to answer the questions. When they ask you a question, they are trying to get your no to be a yes and your yes to be a no.[18]

13. A number of our witnesses likened such an attitude to the historical attitudes ascribed to the police when dealing with victims of sexual assault.[19]In many cases, the applicant's 'lack of credibility' will be cited as a reason for refusal, with no more specific grounds being offered for rejecting their story. One organisation highlighted the impact which this could have on applicants.

Frequently the basis for the refusal is that the asylum seeker is not believed. Cogent reasons for this disbelief are often not offered. This is not to say that all asylum seekers tell the truth, but rather that decision-makers are still prone to disbelief without foundation, and to treating the asylum interview and decision-making process as adversarial rather than as an exercise of an international protection obligation. Since the asylum seeker's story invariably involves distressing events, and sometimes deeply traumatic ones, the effect of being disbelieved can be devastating.[20]

We further discuss the issue of credibility below.

Quality of decision making and lack of auditing

14. Two further criticisms raised by those who submitted evidence to this inquiry were around the quality of decision making and the lack of auditing of decisions. This is perhaps unsurprising, considering that 30% of appeals against initial decisions were allowed in 2012.[21] As we have already noted, the rate of allowed appeals is higher for women than men, and it is also higher amongst applicants from certain nationalities. In 2012, 52% of appeals were allowed for Syrians, 41% for Sri Lankans, 34% for Iranians,[22] 45% for those form from Eritrea and 43% for those from Sudan.[23]

15. UNHCR has identified a number of specific failings in the quality of the UK's asylum decision-making

failure by caseworkers to understand the basics of human rights law;
a lack of understanding by caseworkers of the role of applicants' credibility;
frequent use of speculative arguments to undermine credibility;
failure to apply the correct methodology to credibility assessment; and
lack of consideration of relevant evidence and the placing of unreasonable burdens on applicants to provide supporting evidence.[24]

It is notable that three of these five reasons relate directly to decision-makers' assessment of applicants' credibility.

16. UNHCR has also noted a tendency on the part of decision-makers to apply an inappropriately high burden of proof, meaning that sometimes minor discrepancies resulted in every aspect of an applicant's claim being disbelieved or rejected.[25] This is despite the fact that in 2000, the Court of Appeal ruled that decision-makers should adopt a particular 'approach' to pieces of evidence, which they must take into account. The case owner is required to make a judgement on:

evidence about which they are certain;
evidence they think is probably true;
evidence to which they are willing to attach some credence, even if they could not go so far as to say it is "probably true"; and
evidence to which they are not willing to attach any credence at all.

The Court noted that decision-makers should accept evidence in the first three categories, that is, that unless the evidence presented by the applicant is demonstrably false, it ought to be accepted.[26] Asylum Aid told us that their research into the issue of the high allowed appeal rate found a mismatch between the standard of proof used by appeal judges, which reflected official guidance, and the higher standard used by case-owners. They suggested that both the criminal standard of "reasonable doubt" and the civil standard of balance of probabilities were both higher than the test set out by the Court of Appeal. They also suggested that this discrepancy was likely to be more marked in cases involving female applicants because of the type of persecution they are likely to have experienced.[27]

17. We are also concerned about decisions to grant asylum to people who later emerge to be involved with terrorist activity. Those who apply for asylum in the UK should be checked against national and international law enforcement agency and security service databases to ensure that we are not harbouring those who intend us harm. We will revisit the issue of those who use the UK asylum system to escape terror charges in their home countries when we hold an inquiry in to counter-terrorism this autumn.

18. The substandard quality of decision making is being compounded by the inability of case workers to learn from their mistakes. John Vine told us that his recommendation, in 2009, that the UKBA should analyse the reasons why it was losing appeals in order to improve the standard of decision-making, but that the recommendation had not been fully implemented.[28]

19. The lack of auditing is especially worrying as a number of witnesses made the point that there was suitable guidance on many of the areas which will be mentioned within this report - country of origin information, gender sensitivity, credibility - and yet that guidance was not being followed by case workers.[29] Sarah Rapson, interim Director General of UK Visas and Immigration at the Home Office, told us that where administrative errors or incorrect decisions are identified then "steps are taken" to ensure that case owners and their managers are aware.[30] However, a lack of formal auditing process means that when a refusal is overturned at appeal as a result of the caseworker contravening that guidance, there is no way of being able to monitor poor performance by case workers which could then be dealt with by further training or, in cases of persistent poor performance, performance management, including potentially dismissal.

20. The Committee are concerned that the length of time take to receive an initial decision may severely impact on the health and wellbeing of asylum applicants. Not all successful appeals are the result of poor decision making or administrative failure, but decision-makers should be encouraged to view every successful appeal as a learning opportunity. When an appeal is upheld, the decision-maker should, as a matter of course, have this drawn to their attention and be given an opportunity to discuss the reasons for the appellate decision with a more experienced peer or senior colleague. This process should be integrated into the Home Office's staff development and appraisal system. Where particular decision-makers consistently experience an appeal rate which is significantly higher than average, this should be drawn to the attention of their line management.

Everyday difficulties when dealing with the UKBA

21. Witnesses have raised numerous concerns about UKBA practices which make life unnecessarily difficult for both applicants and those involved in supporting them through the asylum process.

ASYLUM SCREENING

22. At present, all of those who wish to submit an application for asylum must travel to Croydon, to the Asylum Screening Unit, no matter where their point of entry to the UK was. Those who are considered to be particularly vulnerable can be screened in regional offices, but requests for this to happen are not always agreed to. Debora Singer of Asylum Aid described a case where a pregnant asylum seeker based in Scotland was required to travel 440 miles overnight to Croydon for a morning appointment, despite the protestations of the Scottish Refugee Council. She went into labour on the steps of the asylum screening unit.[31]

23. There were also complaints about the length of time it took to get interviews at the Asylum Screening Unit. The Immigration Law Practitioners' Association (ILPA) had received reports of legal representatives being unable to contact the Asylum Screening Unit—one had organised a volunteer rota spanning a fortnight so that they could continually attempt to phone the Unit to arrange appointments but were still unable to get through. Another had made more than 200 phone calls in a month but had been unable to book any appointments.[32]A further criticism of the Asylum Screening Unit in Croydon is that, unlike the regional offices, the unit does not offer childcare, meaning that children are present when parents are making their claim to the screening officer. This can inhibit disclosure as many parents will not discuss acts of sexual violence or torture in front of their children. Despite the fact that childcare is offered at the regional offices, the letters inviting applicants for interview still state that childcare is not available and that they should not bring their children with them. This has been repeatedly raised with the Home Office over the past two years but the standard invitation letter has not been amended.[33]

24. We recommend that the Home Office amend its guidance to ensure that any applicant who is disabled or is pregnant be offered a screening appointment at a regional centre. In cases where the applicant is the primary carer of a child under the age of 16 child care should be made available to those who need it for their interviews, and this should be made clear in the invitation letters. Where documents can be sent by mail or online this option should always be highlighted to save time and cost for Home Office staff and applicants.

INTERPRETERS

25. We have been informed that there are often occasions when there are issues with interpreters both during substantive interviews and then again when the case goes to Court. A common problem is the use of interpreters who do not speak the applicant's regional dialect. For example, according to the Liverpool Asylum and Refugee Association, 85 languages are spoken in Ethiopia but the UKBA offers interpretation only in Amharic, the official Government language.[34]

26. The impact of mis-translation is that any discrepancies between previous and future accounts could be used to cast doubt on the applicant's credibility. Having an interpreter who cannot speak the applicant's dialect in court will stop the case from being heard. One of our witnesses gave us this example of mis-management in the case of an appeal by an Afghani boy whose age UKBA disputed.

The first time the Home Office had not read up about the case so it was adjourned. The second and third time an Iranian interpreter was provided, who could not interpret the boy's village language. The fourth time a Dari interpreter was sent to interpret for the boy, it was confirmed by an appropriate adult who understood the boy's dialect that he did understand what was being said, and who then won his case.

The impact in this case is the cost incurred of the court holding four sittings when the case required one sitting and (as they had been wrongly allocated) the fees for the three interpreters that could not do the job. All of this would have paid for from public money. This was despite the fact that it had been made clear, by those supporting the asylum seeker, to UKBA exactly what dialect and language was needed to interpret for their client.[35] The waste of public money in this case is concerning. Unfortunately, several other witnesses have described similar experiences meaning that this is not an isolated incident.[36]

27. Whereas the provision of the right kind of interpretation can be expensive, it can also be cost-effective, particularly if it saves money being spent on unnecessary appeals. To that extent this should not be an area where the Home Office should be seeking to cut corners.

SUBMITTING FURTHER CLAIMS

28. Since October 2009 it has been necessary to make further representations in person at the Liverpool Further Submissions Unit. Given that on the majority of the occasions it is simply a case of submitting documents rather than any sort of substantive contact taking place,[37] many people have complained that it is overly onerous to expect failed asylum seekers who, in many cases, have no recourse to public funds to travel to Liverpool when previously applicants and their representatives were allowed to send submissions via post.[38] Indeed, the High Court has questioned the legality of refusing to accept submissions of applicants who are destitute and therefore cannot travel to Liverpool.[39]

29. We recommend that where applicants are allowed to make further representations the option of doing so by post should be re-instated.

FAMILY REUNION

30. The British Red Cross have raised concerns about the complexity of the Refugee Family Reunion process. The application form for a family reunion visa is supposed to be filled out by the applicant (rather than the sponsor) although this does not necessarily happen as the application has to be filled out online and the refugee who is already based in the UK is more likely to have internet access. The form itself is described by The British Red Cross as confusing and complex and they state that guidance on filling in the form is difficult to find and that many sponsors require professional support to complete the application. The withdrawal of legal aid for family reunion cases has been criticised by both the British Red Cross and the UNHCR. The British Red Cross also pointed out that the application form makes frequent references to maintenance and accommodation testing, although these criteria are not relevant to the Family Reunion process. Such references cause unnecessary confusion and could result in sponsors believing that their family are not eligible to apply.[40]

GENERAL INEFFECTIVENESS

31. There are also issues with communication across departments in the Home Office. As mentioned previously, the British Red Cross described cases of applicants who regularly 'signed in' with authorities and yet found that their cases were in the controlled archive as they were apparently unable to be traced. Refugee Action raised the issue of refused applicants who were engaging with the Voluntary Assisted Return and Reintegration Programme and yet were forcibly removed.[41] Enforced removals often costs several thousand pounds per person, so it makes no financial sense to remove someone who is about to return home voluntarily. Refugee Action ascribes this to "competing target priorities and internal communication break-downs within the Home Office".[42]

32. There are also indications that the departments cannot effectively communicate with applicants either. We received the following case study from Southampton and Winchester Visitors Group (SWVG):

On three occasions David received the letters inviting him to his first interview after the date that the actual interview was supposed to have taken place. On each occasion, it took frantic, extremely lengthy calls by SWVG to exonerate him from the charge that he had knowingly failed to appear. When he did finally attend, the case worker didn't appear and the appointment had to be re-arranged.[43]

John Vine has previously cited the low priority given to customer service as an issue within the asylum system, commenting that he found it "astonishing that there is such a little focus on the customer for such a large Government Department."[44]

33. We therefore welcome the commitment made by Sarah Rapson to improving the customer service ethos of the UK Visas and Immigration section of the Home Office and endorse her view that "it must be right that the same way that we would treat customers who apply through us through different routes should be applied to asylum seekers. Possibly more so, because they are some of the most vulnerable people that we deal with, who probably do not complain."[45]

34. Lack of customer focus has been one of the main problems that has bedevilled the asylum system under the UK Border Agency. We welcome the interim Director General of UK Visas and Immigration's commitment to a more customer-focused approach to asylum applications, and her acknowledgement that this approach is all the more important because of asylum seekers' vulnerability. We recommend that the Home Office carry out regular customer satisfaction surveys among asylum applicants and the groups who support them in order to monitor progress in this area.

Concerns about the Asylum Operating Model

35. In April 2013, the Government introduced the Asylum Operating Model. Applications are triaged at the screening interview stage and allocated to "decision pathways", based on how long the case is likely to take to resolve and how likely the application appears to be granted or refused. Detained fast-track cases and cases where a person will be sent back to a European country through which they passed en route to the UK are expedited. Other cases are allocated to the green, amber or red pathways, where green cases are those that are most likely to be resolved quickly and red cases are the most difficult to resolve. We were told by the Immigration Law Practioners Association that a significant criterion is whether or not the application has a 47% chance of being granted.[46]There is no longer a single case owner who handles the application at all stages. The Immigration Law Practitioners Association (ILPA) have said that the new model

appears to build on the worst faults of the current system in that it attempts to judge and categorise cases before they have been investigated, at the screening stage. Little is known about a person at screening: their name (which may be in dispute), their nationality (which may be in dispute), their gender, their age (which may be in dispute) and how they arrived in the UK (which may be in dispute). There are limited opportunities for disclosure at screening. The screening interview is not designed, and nor should it be, to investigate the substance of a claim. A person may be distressed and fearful, tired and confused. A relationship of trust and confidence is likely to need to be built before a person will describe torture, rape or other abuse or humiliation; it is unlikely to emerge at this very initial stage.[47]

Asylum Aid, the Refugee Women's Strategy Group, the Scottish Refugee Policy Forum and the UNHCR have all also highlighted concerns about the Asylum Operating Model including the reliance of the process upon information obtained during the screening process, the increase in targets for staff and the reduction in the level of seniority of the case owner.

36. It is too early to assess the impact of the new Asylum Operating Model which was introduced in April 2013 but it is clearly a cause of concern among those who work with asylum seekers. The risk is that the model becomes too dependent on decisions made at a very early stage in the process which might, as further information becomes available turn out to have been based on mistaken assumptions. It is highly doubtful, in our view, that an initial screening interview will always provide enough reliable evidence to establish the chances of an application being granted. This could lead to the generation of further backlogs if cases are allocated to the wrong decision pathway and it is important to ensure that, where the initial decision as to the appropriate pathway proves to be wrong, the case can be moved to the correct one. We recommend that the Home Office issue clear guidance to case-handlers as to when cases should be transferred between pathways.

3 Ev 79 Back

4 Q8 Back

5 Q17 Back

6 Q48 Back

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8 Ev 313, Summary Back

9 The Independent Chief Inspector of Borders and Immigration, An inspection of the UK Border Agency's handling of legacy asylum and migration cases, November 2012, p16 Back

10 Home Affairs Committee, The work of the UK Border Agency (Jan-March 2013), HC 616, Letter from Sarah Rapson and Dave Wood to the Chair, 10 July 2013 Back

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12 Ev 127, para 3.8 Back

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14 Q253 Back