Home Affairs CommitteeWritten evidence submitted by the Law Society of England and Wales (ASY 99)

Introduction

1. The Law Society of England and Wales (‘the Society’) is the independent professional body, established for solicitors in 1825, that works globally to support and represent its 166,000 members, promoting the highest professional standards and the rule of law. Our evidence has been formulated by the Society’s Immigration Law Committee, comprising of expert practitioners with significant experience of all aspects of asylum related legal work.

2. The recent announcement on the future of the UK Border Agency provides a valuable opportunity for Government to consider a new approach to asylum generally and to avert purely cosmetic changes to existing structures and processes. The Society hopes that the Committee’s final recommendations will convey to Government the need for significant review of refugee status determination procedures in the UK , ranging from reception arrangements to the quality of decision making and the adequacy of the current approach to returns.

3. Asylum is an area of practice that is heavily characterised by ‘challenge’, whether it be appeals against indefensibly poor quality first decisions or judicial reviews questioning the legality of often knee-jerk legislation and policy. Whether this level of challenge can be sustained in the face of debilitating cuts in funding for asylum work (of which the recently proposed limits on fees for appeal and judicial review work are just one example) is now highly questionable, leaving some of the most vulnerable in our society with little prospect of access to a reasonable standard of justice or the ability to scrutinise the legitimacy of executive decisions.

4. In recent years the Society has strengthened its links with the former UK Border Agency to provide constructive advice to improve the asylum process and avert the need for our members to engage in unnecessary and costly challenges. Notably, the Society has worked with the UK Border Agency’s Asylum Improvement Project and the Asylum Screening Unit (ASU) in Croydon to inform Agency staff of the many problems encountered at all stages of the process by asylum seekers and those who represent their interests.

5. In some instances this has resulted in progress (for instance, the end of child detention except in limited circumstances, and the improvement of the physical environment at the ASU), but this has gone little way to addressing deep systemic flaws that hamper fairness and efficiency, and lead to delay, hardship and an unnecessary drain on heavily strained public finances.

6. This view has been endorsed by authoritative reports by the Independent Commission on Asylum and the Centre for Social Justice249. In our and their view what is necessary is a new blueprint for the asylum process which ensures fairness, accountability and the humane treatment of asylum seekers—attributes which are in no way inconsistent with robust public policy, indeed they would lead to safer decision-making and fewer challenges. There are countries with similar demography and financial resources to the UK who appear to be able to develop asylum determination processes which go further in achieving the aims of the UN Convention whilst limiting the opportunities for abuse. The Society believes that the creation of a separate and distinct asylum determination body separate from the ‘enforcement’ responsibilities of the UK Border Agency’s successor would be a step in the right direction.

The effectiveness of the UKBA screening process, including the method of determining eligibility for the ‘Detained Fast Track’ procedure

7. The Society considers the Detained Fast Track Procedure (DFT) to be fundamentally flawed, such that it places applicants at an unacceptable risk of unfairness in the processing of their claims. The extent of our concerns leave only one possible conclusion about the future of the DFT: that it be abolished.

8. In March 2000, when the DFT was introduced, Parliament was informed by the then Minister for Immigration that:

‘….[asylum] applicants will be detained where it appears that their asylum applications can be decided quickly, including those which may be certified as manifestly unfounded….Detention will initially be for a period of about seven days to enable applicants to be interviewed and an initial decision to be made. Legal advice will be available onsite’250

9. Notably, in the case of Saadi251, the UK Government made clear that nationality was an important factor in deciding whether a claim was suitable for the DFT and that there was a list of nationalities approved for detention at the Oakington Detention Centre. However, even within that list of nationalities some claims were not suitable for a decision within the DFT process because the applicant was a torture survivor or an unaccompanied child. The importance of the screening procedure was emphasised at this time to ensure that unsuitable or complicated cases were not routed into the DFT process.

10. On 23 May 2005, The Immigration and Nationality Directorate (as it was then known) wrote to the Refugee Legal Centre notifying it of various changes to the DFT process and attached a ‘Detained Fast Track Process Suitability List’ which stated:

Any claim, whatever the nationality or country of origin of the Claimant may be fast tracked where it appears after screening to be one that may be decided quickly i.e within the indicative process timescale…’

11. The consequence of this is that , unlike the process described in Saadi and the Refugee Legal Centre cases252 (i.e selection for fast-tracking on the basis of nationality), the general presumption now is that are ones on which a quick decision can be made in the majority of asylum applications.

‘…unless there is evidence to suggest otherwise (or the case is one already recognised as not generally being suitable for DFT/DNSA in the Detained Fast Track Suitability Exclusion Criteria), there is a general presumption that the majority of asylum applications are ones on which a quick decision may be made.’ (paragraph 2.2 of the Detained Fast Track Guidance).

12. As a matter of principle and logic it cannot be right that the majority of cases fall within an accelerated procedure.

13. The pro-forma for screening cases for the Detained Fast Track is the standard pro-forma used for all asylum claims: there are no questions specific to the appropriateness of a claim being routed into the DFT. (see the highly critical report of the UK Border Agency’s Chief Inspector253). Following this report, section 3.1.1 of the Detained Fast Track Guidance254 now states that at the screening interview an applicant must be asked if they have documents, statements or other evidence relevant to their claim which they wish to submit, and that ‘follow-up questions must be asked and documented’ where relevant to suitability, but no new screening form has to date been produced and the requirement to ask these questions is not reflected in the form used by interviewers.

14. The requirement to produce evidence to show that an individual is not suitable for the fast-track, in a system in which the timescales are so short, makes it all but impossible to dislodge this presumption.

DFT Screening Process

15. The decision to detain an applicant on the basis that their claim is suitable for determination within the DFT process is made at the screening stage. Crucially, in the vast majority of cases, little work, if any, can be undertaken at this stage by immigration practitioners by way of fact-gathering about the applicant. Therefore, there is insufficient material available to the UK Border Agency on which to make a fact –sensitive decision. The reality is that decisions to detain applicants for their cases to be processed within the accelerated process are more often based on UK Border Agency operational considerations, particularly the availability of bed space and whether the applicant has a valid travel document, or is from a country where it would be relatively easy to obtain travel documentation.

Delays within the DFT process

16. While the timetable is rarely extended to allow people more time to submit representations, there are often delays between detention on the basis that the claim is suitable for the DFT process, and the appointment of a legal representative (see the report of the Independent Chief Inspector of the UK Border Agency referred to above and the report by Detention Action—‘Fast Track to Despair’255). The timing of the appointment of a legal representative is within the sole control of the UK Border Agency. Until a legal representative is appointed, the fast-track process is effectively put on hold and no action can be taken on the asylum application. The consequence is that individuals are being held in detention for long periods of time on the basis that their claims are suitable for the Detained Fast Track process without any action being taken on the fast-track processing of their claims, and without any regard to the fairness of the process.

Post-decision Fast-Tracking

17. Once the decision on an asylum claim is served, a decision which is in approximately 98% of cases a refusal (see report of Sir John Vine at 6.4–6.5), the Secretary of State’s published policy is that detention can only be justified in accordance with the general detention criteria ie not on the basis that the application for asylum (which has now been decided) can be decided quickly. However, it appears that many UK Border Agency officials are confused about this policy and interpret it wrongly. Perversely, the result is that many claimants whose asylum applications have been decided under fast-track procedures continue to be detained after that decision has been served Reasons for detention forms (IS91~R) relating to the decision to detain after the claim has been refused routinely cite the risk of absconding as an additional reason for continued detention even though those detained have the right of appeal. It should be noted that the Secretary of State’s policy states that a right of appeal is a factor counting against detention (see Chapter 55 EIG).

18. The consequence of continued detention is that any appeal lodged against the Secretary of State’s refusal of the asylum application automatically enters the fast-track appeals process (see Rule 5 of the Fast Track Procedure Rules256). That process is so fast (six working days) that the gathering and submission of evidence in response to the refusal letter is almost impossible, particularly given that the appellant is in detention and, in a large proportion of cases, unrepresented (see Detention Action’s report—‘Fast Track to Despair’).

Concerns regarding the Detained Fast Track Process

19. In addition to the report by Sir John Vine, a range of organisations have produced reports that the Detained Fast Track process in Harmondsworth and Yarl’s Wood Detention Centres operates unfairly and unjustly257

20. The UNHCR, in its Quality Initiative Project and Quality Integration Project reports, subjected the DFT process to detailed scrutiny and reached highly critical conclusions in its report of June 2008258, including:

  • Decisions often failed to focus on the individual merits of the claim;
  • There was an incorrect approach to credibility assessment;
  • A high prevalence of speculative arguments;
  • A lack of focus on material elements of the claim;
  • There was evidence that an excessively high burden of proof was being placed on applicants;
  • Some case owners demonstrated a limited understanding of refugee law concepts;
  • There was limited understanding of the purpose of medical evidence in decision making, evidenced by frequent use of standard working to the effect that medical evidence would not assist the applicant in substantiating a claim of ill-treatment;
  • Some case owners did not appear to possess the necessary skills and expertise to ensure that the full range of gender related claims are recognised in asylum decisions;
  • The screening of asylum applicants and the removal of unsuitable cases from the DFT were often not operating effectively to identify complex claims and vulnerable applicants, so that inappropriate cases were being routed to and remaining within the DFT; and
  • The number of refusals of refugee status produced within the DFT indicated that there was a danger of decision makers becoming ‘case hardened’

21. This 2008 report was followed by a further report in August 2010. At paragraph 2 of the 2010 report it is noted that although there had been some improvement, the great majority of the concerns expressed in the 2008 report remained prevalent.

22. The statistics set out in Detention Action’s report ‘Fast Track to Despair’ show a significant disparity between the recognition rates for refugee status within the DFT compared to that in the non-detained system. Around 99% of applications are refused by the UKBA in Harmondsworth compared with 70% refusal rate at the same stage of overall claims decided in both fast-track and a non-detention setting (which means that the refusal figure for non-fast-track cases must be even lower). Around 92% of appeals in the DFT in Harmondsworth are dismissed, compared with around 72% of all appeals determined in both fast-track and a non-detention setting. Given the concerns expressed by UNHCR, one explanation for this disparity may be that case owners working in the DFT/DNSA processes approach the applications differently to their colleagues dealing with claims in the non-detained setting. The impression given by the UNHCR report is that DFT/NSA case owners are generally of the view that the overwhelming majority of the applicants in the DFT/DNSA process have poor credibility so that discretion should be exercised to support negative decisions. The low rate of success at the appeal stage is likely to be due to lack of time to properly prepare for the appeal hearing, lack of time to obtain all the relevant evidence, and, in a significant number of cases, lack of legal representation. This means that appellants have considerable difficulty rebutting negative credibility assessments and positive assessments of country conditions made by the SSHD in the decision-letter.

23. The difficulties in adequately preparing for an appeal under these severe time constraints are exacerbated by the unsatisfactory arrangements for taking instructions from the detained clients at the hearing itself. There is no privacy in taking instructions, which must be done through a glass partition in a room in which other representatives and clients are present. In addition clients are brought to court only about 45 minutes before the hearing, meaning there is not enough time to complete the conference before the hearing begins.

Conclusions on the DFT

  • The conditions in detention cannot be described as comparable to those that pertained in the Saadi litigation in Oakington Detention Centre.
  • The change, notified in May 2005, that any claim can be suitable for the Detained Fast Track means that the screening process cannot operate to effectively identify claims which are and which are not suitable for the Detained Fast Track process.
  • The experience of practitioners is that the UK Border Agency does not exercise flexibility in terms of taking claims out of the Detained Fast Track process prior to a decision being made.
  • UK Border Agency officials are confused about the policy to detain after the initial decision has been made on the asylum claim and/or interpret it wrongly with the consequence that most asylum seekers continue to be detained after a decision has been taken on their claim and their appeals are therefore determined within the accelerated process.
  • The very fast timescales within which appeals are determined within this process means that gathering and submission of evidence in response to the refusal letter is very difficult given that the appellant is in detention and, in a large proportion of cases, unrepresented.
  • Many organisations including UNHCR have expressed serious concern about the unjust and unfair nature of this process.
  • The conclusion must be that the Detained Fast Track process is so fundamentally flawed that it places applicants at an unacceptable risk of unfairness in the processing of their claims.

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

24. Proper use and analysis of a wide range of country information is crucial to sound determination of refugee status. There continue to be significant problems in the manner in which the UK Border Agency uses country specific information and manages access to sources by case workers. These problems are quite capable of resolution with effective training and accreditation for caseworkers, improved information management, reduced timeliness targets and increased flexibility for decision making.

25. Legal representatives consistently cite the following headline concerns in this area of decision making which directly affect the quality of decisions and the ultimate protection of those seeking asylum:

  • Failure of UKBA COIS to keep up-to-date and thorough country information.
  • Use of COI in decision letters which are either irrelevant to the instant claim or fail to acknowledge the specific context of the claim
  • Manipulation of COI targeted only at undermining the credibility of applicants
  • Highly selective use of information/speculative argument and standard paragraphs
  • Failure to properly address COI provided by applicants and their representatives in decisions
  • Failure to access COI from a range of sources with an unhealthy reliance upon a small number of established sources e.g US State Department or UK Border Agency’s in-house COIS

26. In late 2011, the Chief Inspector of the UK Border Agency reported on the ‘Use of Country of Origin Information in Deciding Asylum Cases’ by way of a thematic inspection259. The Society cannot usefully add to the Chief Inspector’s thorough analysis and objective findings on the current state of COI use in decision making but highlight his view that failure to properly investigate available sources of country information and to use these appropriately has the very real potential to lead to injustice and danger for applicants. Poor quality use and interpretation of COI contributes to what the UK Border Agency’s successor should regard as the unacceptably high rate of successful appeals in asylum cases.

27. The Society is unaware of any steps taken by the UK Border Agency to address the 12 recommendations made by the Chief Inspector in his report. There has been little, if any improvement in this aspect of decision making.

The assessment of 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

28. The quality of credibility assessment at the level of first decisions remains of serious concern as its bold use in terminating claims without proper regard to the entirety of the claim. This applies to all applications and not just those from the particularly vulnerable groups or specific nationalities identified in this inquiry reference term. This conclusion cannot be better evidenced than by what is contained in Amnesty International’s recent and focused study entitled ‘A ? of Credibility’260. This document makes for very disturbing reading indeed giving recent specific examples of decision letters.

29. The Society also commends to the Committee the recent and highly authoritative guidance issued by the IARLJ in association with the European CREDO project261. This comprehensive guidance emphasises the complex and robust nature of sound credibility assessment, and the need for a clearly defined assessment process. It rightly emphasises the unique nature of asylum determination in contrast to ‘privilege’ based immigration control and the potentially dire consequences of poor credibility assessment—further persecution leading to serious harm, injury and/or death. This guidance is should be essential training material for any Home Office asylum caseworker or later decision maker in the asylum process and should be a template for the methodology necessary for a proper assessment of credibility in asylum cases.

30. In 2002 UNHCR London Branch Office commenced the Quality Initiative Project (QIP)262 in partnership with the then Immigration and Nationality Directorate. A crucial area of the project’s focus was the widely acknowledged poor quality of first decisions made by Home Office caseworkers in asylum cases. UNHCR’s yearly reports which culminated in its sixth report of 2008 outlined a number of specific concerns about the quality of decision making in the IND/UK Border Agency:

  • Failure by caseworkers to understand the basics of human rights law
  • A lack of understanding by caseworkers of the role of credibility
  • Frequent use of speculative arguments to undermine credibility
  • Failure to apply the correct methodology to credibility assessment
  • Lack of consideration of relevant evidence and the placing of unreasonable burdens on applicants to provide supporting evidence

31. In our members’ experience these problems continue to persist despite UNHCR led efforts to tailor recruitment, training and accreditation for caseworkers. More worryingly, commentators now talk openly of a ‘culture of disbelief’ that permeates first instance asylum decision making and which undermines any efforts to resolve the problems outlined above.

32. A manifestation of this culture of disbelief is a reliance on increasingly crude, unreliable and intrusive tools for assessing credibility. These methods include DNA and language analysis for determining nationality and the ill-fated suggestion that those who continue to maintain that they are minors be asked to consent to dental x-rays to assist in age assessment. Thankfully, in the case of dental x-rays in age dispute cases the Chief Medical Officer, Sir Liam Donaldson outlined his view to the UK Border Agency that the medical profession could not rely on the veracity of consent provided by young asylum seekers and urged a more holistic approach to this issue.

33. Although not specifically addressed in this Inquiry, the Society wishes to highlight the treatment of LGBT asylum seekers as a case in point about the extraordinary obstacles to establishing credibility that now exist in this jurisdiction. In 2010 in the case of HJ(Iran) and HT(Cameroon263) the Supreme Court set out a clear test for decision makers in determining status for LGBT asylum seekers, the first limb of which requires them to find whether the individual is gay or may be perceived to be gay. Prior to the judgement in HJ (Iran) and HT(Cameroon) the vast majority of refusals in this area concentrated upon ‘voluntary discretion’ as an option for claimants to avoid persecution and therefore forego Convention or humanitarian protection. This has in practice led to a disturbing shift in focus by UK Border Agency caseworkers on disproving or undermining claims to personal identification as lesbian or gay. In turn, this has led to claimants going to extreme lengths to try and meet the new demands of credibility assessment in this area, including the submission of photographic and video evidence of highly personal sexual activity to caseworkers, presenting officers and the judiciary. Such desperate measures by claimants arguably contravene Article 3 & 8 ECHR rights and reflect the arbitrary attitude to credibility that is experienced by this and other groups seeking protection. The Society is aware that detailed evidence on this specific issue has been placed before the Committee by S Chelvan ( Barrister, No 5 Chambers). The Society endorses this evidence in totality.

The effectiveness of the 5 year review system introduced in 2005

34. The Society questions the need for a 5-year review system once a claimant has been found to be in need of international protection. As far as the Society is aware the great majority of individuals subject to the review are approved for indefinite leave to remain and therefore, the 5-year delay in this grant only serves to increase feelings of insecurity and ‘difference’ and to delay full integration. The resources devoted to this policy should be put to better use.

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

35. The expectation that an individual asylum seeker or those with dependents should be able to support themselves on the equivalent of approximately 70% of the income support payment made to British residents is wholly unrealistic and inhumane. This also applies to the current levels of Section 4 support available to failed asylum seekers who agree to engage with voluntary return schemes.

36. The Society endorses the views expressed by Refugee Action who have the experience and information to comment authoritatively on this area. In particular, the Society wishes to highlight their view that Section 4 support is wholly counter-productive in that it fails to enable individuals to look after their daily needs yet expects them to be able to make crucial decisions in respect of return, which may entail life or death. It is no surprise therefore that the level of take-up for voluntary return programmes remains so low. The UK experience should be contrasted with the experiences of countries such as Sweden and Canada where voluntary returns account for upwards of 80% of returns. It is clear that forced destitution by way of inadequate support contributes heavily to instances of illegal working and other clandestine activity, making locating and returning individuals time consuming and expensive.

The prevalence of destitution amongst asylum applicants and refused asylum seekers

37. Distrust and a lack of confidence in the quality of asylum determination promotes destitution which continues to be a serious problem. Clearly, the number of Section 4 payments made does not come anywhere near the number of failed asylum seekers who exist in the UK without support and who rely on the 3rd sector or illegal work for their most basic needs. The Society also believe that the real potential for destitution exists at all stages of the process and not just once a claim has been refused. The path to destitution is also accelerated by inexcusable administrative delays in payment of what are barely subsistence living costs.

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

38. Organisations and individuals other than clients are already able to inform the SRA of any concerns relating to solicitors carrying out immigration work. More detailed information on the complaints process is on the SRA website:

http://sra.org.uk/consumers/problems/report-solicitor.page

39. Immigration practitioners who are not solicitors are accredited and regulated by the Office of the Immigration Services Commissioner (OISC) who also have a complaints process which UKBA or third sector organisations can access:

http://oisc.homeoffice.gov.uk/complaints_about_immigration_advice/

Law Society of England and Wales

April 2013

250 Hansard Col.263W

251 [2002] UKHL 41 and Saadi v UK (application No. 13229/03)

252 R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481

257 Bail for Immigration Detainees (BID): ‘Working against the clock: Inadequacy and injustice in the fast track system’ (March 2006); BID: ‘Refusal factory: Women’s experiences of the DFT asylum process at Yarl’s Wood Immigration Removal Centre’ (September 2007); Human Rights Watch (HRW): ‘Fast-Tracked Unfairness: Detention and Denial of Women Asylum Seekers in the UK’ (February 2010); and Detention Action: ‘Fast Track to Despair’ (May 2011)

261 International Association of Refugee Law Judges: Assessment of Refugee and Subsidiary Protection claims under the EU Qualification Directive http://www.iarlj.org/general/images/stories/Credo/Credo_Paper_March2013-rev1.pdf

263 [2010] UKSC 31, [2011] 1 AC 596

Prepared 11th October 2013