Home Affairs Committee

1. Executive Summary

The Church of England has been closely engaged with the issues of asylum both at local and national levels, and has appreciated the readiness of the Home Office and UKBA to enter into dialogue. It has focussed on just and compassionate treatment of asylum seekers, the prevention of destitution, and proper legal advice to asylum seekers.

The screening system has been found in some cases perfunctory and inadequate to identify the factors affecting a decision by UKBA, including evidence of torture. We wish to see a stronger emphasis on the prompt and just resolution of all cases, and it is not clear in practice that the Detained Fast Track always supports this. We also have concerns about the impact of indefinite detention, and the prolonging of detention where asylum seekers are suspected of non-compliance.

The treatment of women and of children in the asylum system needs attention, as do the specific risks and issues associated with potential of actual persecution on the basis of religious faith. We also believe that support for those who are seeking asylum or who cannot be removed should not fall below 70% of the income support level, and that rates of support should increase with inflation.

Notwithstanding long-term improvements in legal advice in detention centres since their early days, we remain concerned that there should be consistent provision of early and good quality legal advice to asylum seekers, which is vital for the just and effective operation of the system,

2. Background

The Church of England has been actively engaged in the issues raised by the UK asylum system for many years, with major debates in its General Synod in 1997, 2004 and 2009. The church has appreciated the willingness of the Home Office and of the UK Border Agency to enter into discussion and reconsider policy and practice, not least through the Church of England’s involvement in the ‘Still Human Still Here’ coalition. Many faith-based projects are well established, especially in larger cities, to provide humanitarian support and advice to those who have entered the country and sought asylum. Local churches have faced new challenges with increasing numbers of asylum seekers facing greater financial and personal insecurity. Many churches have responded generously and collaboratively, often in new coalitions across towns, boroughs or cities. Congregations have offered hospitality and found their perceptions and world view radically altered—whether through giving space to congregations from different linguistic or denominational groups, or welcoming Christians, or members of other faith communities, to worship and prayer. Experience of individual cases has often led to clergy and congregations becoming involved in appeals and the legalities surrounding removals.

The Rt Revd John Packer, Bishop of Ripon and Leeds, has been especially involved in this area, and was a member of the panel which carried out the recent Parliamentary enquiry into asylum support for children and young people213. At the time of the Church of England joining the SHSH coalition, Dr Packer said ‘Refused asylum seekers are forced into abject poverty without permission to work or access to health care and education while they wait either to leave the UK or be granted leave to remain here.”

The following motion was passed by the Synod in 2009 (by 242 votes to 1):

‘That this Synod, continuing to affirm scriptural teaching about care for vulnerable people, welcome for strangers and foreigners, and the Church’s calling to reach out to marginalized and persecuted people, call upon Her Majesty’s Government:

(a) to ensure that the treatment of asylum seekers is just and compassionate, and to that end to:

(i) confer a right to work on all asylum seekers,

(ii) declare an amnesty for so called ‘legacy cases’ that predate the Government’s New Asylum Model, and

(iii) bring to an end the practice of detaining children and families in Immigration Removal Centres;

(b) to find a practical and humane remedy to the intolerable situation of destitute ‘refused’ asylum seekers who are unable to return to their country of origin because of personal safety, health or family reasons; and

(c) to investigate and report publicly on the quality of the legal services provided to asylum seekers.’

The volume of asylum applications, while much lower than at the peak in 2000–2002, was 27,400 in 2012: a 6% increase on 2011, due mainly to increased numbers of applicants of Pakistani of Syrian nationality.214 We welcome the present enquiry, not least because in our experience much that was contained in the Home Affairs Committee report of 2004 on asylum applications still holds true, not least on the ‘grounds for concern about the poor quality of much initial decision-making on asylum claims’

We consider the topics set out in the enquiry’s terms of reference in order.

3. Screening and the detained fast track

The effectiveness of the UK Border Agency screening process, including the method of determining eligibility for the ‘Detained Fast Track’ procedure.

The ICIBI report of February 2012 on the Detained Fast Track process found that the quality of decisions in the DFT system was generally good, but was not content with screening interviews:

We believe there is currently too great a risk of the survivors of torture or trafficking being placed in the DFT due to the way screening is carried out. The Agency needs to do more to elicit relevant information in a sensitive way to safeguard these individuals and to reduce the inefficiency of incorrect allocation.215

This was due to insufficient privacy—interviews carried out in an open-plan area with frequent interruptions—and the fact that the content of these initial screening interviews was often not sufficiently detailed to inform a reliable judgment about whether the criteria for DFT applied in the individual case.

Whereas the original criterion for allocation to DFT was that the claim should be ‘manifestly unfounded’, the present criterion is that the case should appear susceptible of rapid resolution, and so relies more on the personal judgment of the member of staff carrying out the screening interview. The outcome, in practice, is that DFT becomes a method of speeding up as many removals as possible in order to meet targets; many of those placed on DFT feel that they have insufficient time to access proper legal advice, and the number of DFT removals that are scheduled but cancelled owing to last-minute injunctions may be a sign of undue haste in some cases. It is right that clearly unfounded claims should be dealt with without delay, but we would prefer an emphasis on the prompt and just resolution of all cases. The appeal process does not lie within the direct scope of this enquiry, but a particular problem which we are finding now is that appeal hearings are often held far away from families and supporters, who have the expense of travelling hundreds oaf miles when it seems that there are facilities which could be used much closer to hand.

Detention

It is impossible to consider the DFT without including the fact of detention. Detention where there is prima facie evidence of torture or trafficking is a concern specifically raised by the ICIBI report. We welcome the fuller guidance on use of Detention Centre Rule 35 (relating to fitness to detain on medical grounds, including evidence of torture), issued by UKBA in January 2013 following Detention Services Order 17/2012. In December 2012 the report of a joint inspection of immigration detention casework was published.216 It found that in most cases, the decision to detain was defensible and properly evidenced. But the evidence adduced in the report, including a number of case studies, raised acute issues about the practice of indefinite administrative detention.

Additionally, there are many in detention whom UKBA believes to be frustrating their own removal by non-cooperation with factual enquiries (eg about identity and nationality) needed to ensure the issue of travel documents. In these cases it is open to UKBA to prosecute under Section 35 of the 2004 Asylum and Immigration Act (Treatment of Claimants), which gives the Secretary of State for the Home Department the power to prosecute those who, without reasonable excuse, fail to comply with the re-documentation process. The offence, which came into effect in September 2004, is punishable by up to two years in prison and/or a fine. Only 14 cases were brought under this Section in the two years 2009–2011; far more common, and less just, is the mere prolongation of detention for many months on the basis of an untested suspicion of non-compliance.

4. UKBA guidance documents

The use of Country of Origin Information and Operational Guidance Notes in determining the outcome of asylum applications.

We welcome the improvement in the Country of Origin Information (COI) reports following the work of the Independent Advisory Group on Country Information, established by ICIBI in 2009 in succession to the Advisory Panel on Country information. There has also been useful liaison between UKBA and NGOs on the content of Operational Guidance Notes (OGN).

5. People with specific vulnerabilities

The assessment of the credibility of women, the mentally ill, victims of torture and specific nationalities within the decision-making process and whether this is reflected in appeal outcomes.

Women

A 2011 report on women in the asylum system showed that in its sample decisions to refuse asylum to 42% of women, against 28% of all asylum cases, were overturned on appeal217. Caseworkers were often not taking into account the specific risks to women, nor their prima facie right to consideration as a Particular Social Group under the terms of the Refugee Convention. . Caseworkers were not always following OGN—for example, in refusing the claim of a woman who claimed risk of persecution as a lesbian in Uganda, no reference was made to the COI details of persecution of gay people in Uganda.

The recent report by Maternity Action and the Refugee Council illustrates the way in which more care is needed for vulnerable pregnant women seeking asylum, particularly in maintained access to and continuity of good perinatal care.218

Faith issues

We have a particular concern for those who claim asylum partly or wholly through risks associated with their faith, including those who have converted to Christianity and who fear persecution if returned to their country of origin. Many from Iran, for instance, became Christians there and had to flee; others fled that country and became Christian after finding a welcome in British churches; while there is still evidence that the threat of persecution of Christians under Pakistan’s blasphemy laws is not taken sufficiently seriously. Speaking for those from the Church of England who had been involved in discussions with UKBA, the Very Revd Nick Coulton said:

Of course, there are risks that conversion is seen as a soft-touch way of gaining asylum, and the Churches must be wary of being taken for a ride. The tribunals have gone much too far, however, in their systemic disbelief that conversions may be genuine. Our discussions have now mostly eliminated the ridiculous questions that used to be employed to establish duplicity (“How many books in the Bible are there? How do you prepare a turkey for Christmas? What do the numbers 666 mean? Give the names of the thieves crucified alongside Jesus,” etc.); but still the scales are heavily tilted, as they are against all who seek asylum.

Children

It is important that the Enquiry consider children among the vulnerable groups under this heading—since establishing the credibility of a child’s account of their personal history is an especially sensitive matter with more than 3000 unaccompanied children arriving each year. The recent Children’s Society report on this issue is germane219—its findings summarised by the chief executive of the Children’s Society thus:

The amount of confusion and anxiety expressed by the children we spoke to in the asylum process is very concerning. Although the UKBA has made some progress, there needs to be a fundamental shift in attitude concerning how they work with children fleeing danger who need our help. Instead of getting the care and support they need, these children are considered with suspicion. In some cases they feel like they are being tricked.

6. The effectiveness of the 5 year review system introduced in 2005.

We have no specific evidence on the impact of this measure.

7. Asylum support

Whether the system of support to asylum applicants (including section 4 support) is sufficient and effective and possible improvements.

Support for families

The parliamentary inquiry of February 2013 concluded that the current levels of support provided to families are “too low to meet children’s essential living needs”. It recommended that the Government should abolish Section 4 support, which is provided to people who have a child after their asylum claim has been refused, and who cannot leave the UK. Instead of cash, they receive £35.39 per person per week—lower than the support provided to those still seeking asylum—on the Azure Card, which can be used only at certain shops to purchase essential items. Almost 800 children are estimated to be living on this support. Rates of support should never fall below 70% of income support, the panel argued. Some of the Section 4 housing is still of an unsatisfactory standard.

On the basis of the direct experience of many parishes and projects of destitution among those who have sought asylum, we support the key recommendations of this inquiry: most especially, that rates of support should, as previously, be maintained at no less than 70% of the income support level, and that those currently assigned to Section 4 support should instead be included within the Section 95 system, which is still far from generous but allows a little more dignity, choice and flexibility, especially necessary for families with children.

Work

This inquiry also recommended that permission to work should be granted to asylum-seeking parents if their claim had not been concluded in six months. Problems of destitution would be alleviated in a small number of cases if, in line with the General Synod’s motion of 2009, permission to work was given to asylum seekers who have been waiting for more than six months for their cases to be concluded or if they have been refused asylum but temporarily cannot be returned to their country of origin through no fault of their own.

8. The prevalence of destitution amongst asylum applicants and refused asylum seekers.

The recent Children’s Society report, while not able to provide a systematic prevalence study, demonstrates than in the major population areas of England, there is a substantial number of children living in conditions of destitution.220. The experience of a number of faith-based projects is that there is a constant flow of those who have sought asylum who genuinely need support, but figures are not available.

9. Legal Advice

Whether the UKBA or third sector organisations should be able to highlight concerns regarding legal practitioners to the Law Society.

A member of the MPA Council who is on the independent monitoring board of an IRC has seen significant improvement in the quality of legal services over the last 20 years, since a degree of regulation was introduced. Careful consideration should now be given to the findings of the Asylum Aid ‘Right First Time’ project, carried out in close cooperation with UKBA in London, which pointed the way towards the benefits of earlier, better and more structured communication between legal advisers and caseworkers, even before the initial asylum interview. The demise of both the Immigration Advisory Service and Refugee and Migrant Justice have been significant losses in recent years.

Third sector organisations currently have to obtain the consent of the individual before making a complaint. It appears that asylum seekers, especially those who are detained, often complain informally about the quality of service from legal practitioners, but are rarely willing to make a formal complaint. The level of discontent with legal practitioners seems not to have decreased since new contracts were let in many IRCs; some large firms are providing a service in several IRCs, and a number of detainees have said that they hear nothing further after the initial interview at a legal advice surgery.

It would be helpful for UKBA and third sector organisations alike to be able to raise concerns about legal representatives, based on clear evidence, whether to the Law Society, the Legal Ombudsman or the Solicitors’ Regulation Authority.

10. Whether the media is balanced in their reporting of asylum issues.

There is a lack of systematic research on this topic. Five years ago it was easy to find prejudicial and generalising references to ‘bogus asylum seekers’, although the Guidance Note on Refugees and Asylum issued by the Press Complaints Commission in October 2003 appears to have had a salutary effect at the time, and is worth revisiting.

11. Torture on return

The prevalence of refused asylum seekers who are tortured upon return to their country of origin and how the UK Government can monitor this.

On 6 February 2013, UKBA informed Freedom from Torture that 15 Sri Lankans had been granted refugee status between May 2009 (when the civil war ended) and September 2012, after having been previously removed to Sri Lanka. Freedom from Torture in 2012 published a study of 24 Sri Lankans who returned voluntarily to Sri Lanka, were judged by FfT to have been tortured, and made their way back to the UK. Human Rights Watch in February 2013 published a study 75 cases of rape and sexual assault in Sri Lanka, two of which followed a failure to secure asylum in Britain.

In order to move to a surer evidence base, an inspection regime based on intergovernmental agreement would be required. There is some precedent for this in the work of British independent inspectorates.

Mission and Public Affairs Council of the Church of England

April 2013

©Parliamentary copyright

Prepared 11th October 2013