Home Affairs Committee
I make this submission as an ordinary citizen out of my involvement with the Bristol Defend Asylum Seekers Campaign since it began in 2000, and especially out of working closely with individuals on their asylum cases which are foundering or rejected, to enable them if possible to challenge the Home Office’s decision by evidence and make a fresh claim with a good solicitor.
The Terms of reference of the Inquiry I shall submit evidence on and make suggestions for improvements to are:
- — The effectiveness of the screening process.
- — The use of COI and OGN.
- — The prevalence of destitution amongst asylum applicants and refused asylum seekers.
- — The prevalence of refused asylum seekers who are tortured upon return to their country of origin.
However the chief subject is the poor quality of decision making and what might improve it.
The Quality of Decision-making
1. I welcome the Inquiry’s intention to “suggest improvements … in order to ensure that the right decision is made first time, in a suitable time-frame and with as little bureaucracy as possible.” But I want to raise the question of poor quality decision-making not only at the outset but throughout the asylum process.
2. I shall base my observations in the main on one case which illustrates how even people with a demonstrably well grounded fear of persecution on return (many witnesses and much corroborating evidence to answer the Home Office’s stated doubts) can routinely in the asylum process be forcibly removed.
The Initial Interview
3. A general point: the claimant is ignorant of what the UKBA needs to learn from them at this time. If omissions are added later, as the claimant realises more clearly what is required, they are treated with suspicion. The claimant may be warned of this, but simply does not know what is required at this point. Besides, the claimant may well be feeling disorientated and be dealing with many distresses at this point. A trial-run with providing claimants with legal support before and at the initial interview showed that a more consensual discussion took place, and as a result the UKBA case-worker had a rounder picture and could make their decision on better grounds, reducing the need for an appeal. However, I have just learned of The Early Legal Advice Project (ELAP) established by the UK Border Agency in partnership with the Legal Services Commission for people claiming asylum in the UK, and urge you to look at it as a root and branch improvement in the decision making process.
4. Traumatic and shame-making experiences, and material not usually discussed openly even with close family often only comes to light much later and is then often faced by a decision by case-worker or tribunal not to believe—and the fateful label of “lack of credibility”. For instance an unaccompanied minor from Congo DRC, still a child but interviewed as an adult and unusually having a solicitor beside him, is noted by that solicitor as having whispered to him several times, “Please don’t let him ask me about my mum and dad.” It was a very long time before the degrading murder in front of him of both parents came to light, after many sessions with a therapeutic counsellor, who luckily realised that she should pass on this information to his solicitor.
5. Interpreters are obliged only to give a literal translation of the words the claimant actually says. But if they could act as cultural interpreters, at some point during the interview, rather than mere literal translators Border Agency and Tribunal decision-making could be on a sounder basis. For instance a Burundi woman was held to be non-credible because she could not come up with her address. But as there is no postal delivery system in Burundi she naturally did not have one. An interpreter could point this out.
6. People giving accounts of traumatic experience at different later points in time may “contradict” themselves and/or re-order chronology or elide two events into one. This human trait does not mean that the essential trauma did not occur. Jane Herlihy has written up two research projects on this subject.
The asylum seekers she studied had leave to remain, so the inconsistencies were not produced from the desire to embellish their stories to make their case stronger. This is what is said of many still in the process, however.
7. The Bristol University mature student Lu Perrett, who you invited to give evidence to you at the Home Affairs Committee, also spoke to us in Bristol about her experiences working as a case-owner at Cardiff UKBA. As far as I remember she had seven asylum claims to arrive at an initial decision on over the summer. Doing the job and following the given constraints of the Refugee Convention carefully and honestly she granted asylum to a proportion of the seven, I think four, and wrote courteously and considerately to those she refused, for example informing an Iranian mother with dependent children who had left her husband who was violent, that the rules meant that she could reapply if she had tried re-location within Iran and it had failed(!). Her mentor, who she liked, had granted asylum to that number only over a much longer time. All of us who regularly see the UKBA decisions are familiar with the cultural ignorance, compulsive dismissing of stories as suspicious and too easy labelling of claimants as unreliable and without credibility, which has serious implications for the final outcome of their claim. There seem two possible solutions for the Committee to explore—root and branch ongoing training and educating to establish an UKBA ethos which sees the duty to give protection as at least equal to the duty to identify those who have no claim; and investigating whether asylum should be taken out of the Border Agency as it is in Canada.
There is a third way, which is currently being trialled in the West and East Midlands by the Border Agency and the LSC, which seems a hugely refreshing possibility of finding a sustainable and fairer process, the Early Legal Advice project (ELAP).
A case illustrating poor decision-making throughout and potentially removing two people to face high risk of persecution
Not Printed.
Executive Summary
I welcome the Inquiry’s intention to “suggest improvements … in order to ensure that the right decision is made first time, in a suitable time-frame and with as little bureaucracy as possible.” But I want to raise the question of poor quality decision-making not only at the outset but throughout the asylum process. To do this I shall base my observations in the main on one case which illustrates how even people with a demonstrably well grounded fear of persecution on return (many witnesses and much corroborating evidence to answer the Home Office’s stated doubts) can routinely in the asylum process be forcibly removed.
Before the account of this ongoing case there is a brief opening discussion of the initial interview and suggestions for improvement, in particular the role of interpreters, and suggesting three possible ways forward to explore:
(1) root and branch ongoing training and educating to establish an UKBA ethos which sees the duty to give protection as at least equal to the duty to identify those who have no claim; (2) investigating whether Asylum should be taken out of the Border Agency as it is in Canada; and (3) a third way, such as that which is currently being trialled in the West and East Midlands by the Border Agency and the LSC, which seems a hugely refreshing possibility of finding a sustainable and fairer process, the Early Legal Advice project (ELAP).
There follows a personal critical commentary upon an immigration appeal judge’s decision making process, before a detailed account of Amnesty’s report upon the same case, which illustrates poor decision making throughout. The case surely falls bang into that undertaking we are a signatory to and which the Border Agency should be anxiously committed to protecting, the Refugee Convention. Yet this case is still unresolved and two elderly people could still be forcibly removed to their place of origin despite authoritative evidence that this would put them at real personal risk
There must be no need for Amnesty to be called in for the process to be just.
Susan Gairdner
April 2013