Home Affairs CommitteeWritten evidence submitted by the Immigration Law Practitioners’ Association (ASY 39)

1. The Immigration Law Practitioners’ Association is a member of the Refugee Children’s Consortium and for specific evidence on children we refer you to the consortium’s submission as well as to our evidence submitted to the Joint Committee on Human Rights for its current enquiry into refugee and migrant children.

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

2. ILPA has repeatedly expressed concern to the Agency and to the European Commission about screening103. We are concerned about the process and effectiveness of screening; we are concerned about the way in which people are treated at screening, which all too often is without dignity, respect or kindness. See Appendix one for our letters to the UK Border Agency of 13 June 2011, 12 August 2011 and 22 September 2011. See also the case studies at Appendix two. Concerns have been reiterated by ILPA and others at meetings such as the UK Border Agency’s National Asylum Stakeholder Forum. At the UK Border Agency National Asylum Stakeholder Forum on 8 October 2012, it was stated that the average time children spent at the Asylum Screening Unit was four hours 49 minutes. This was said to represent a reduction in waiting times.

3. ILPA and the AIRE centre’s complaint of 13 January 2013 (see Appendix three) was communicated to the UK Government under the “EU Pilot.”104

4. The new ‘asylum operating model’, to be implemented from April 2013, 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).

5. 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. This is not simply a question of the skill or training of the staff at screening. Highly trained and skilled legal representatives, of whom many persons seeking asylum may be less suspicious than they are of officials, are aware that their skills are no substitute for a relationship of trust, built up over time. Training can help staff to react to such signs as they do pick up and a change of culture might increase the chances that they would notice signs of distress, but training will not by itself produce disclosure.

6. On 6 February 2013 ILPA wrote to the newly appointed Head of Asylum, Mr Graham Ralph, to reiterate these concerns. We highlighted a case that had occurred that day. See Appendix four. We forwarded the letter to the European Commission. On 22 March 2013, acknowledging receipt of that letter, the Head of Directorate B in the European Commission, Mr Mathias Oel, wrote to ILPA:

“I would like to emphasise that the Commission is taking your complaint very seriously. It is treated jointly with other issues which raise particularly complex legal questions, which have led to some delay in its treatment. Following an exchange with the UK authorities, we are currently assessing the possibility of taking further steps. We will make sure to inform you as soon as a decision has been reached.”

7. The “asylum operating model” appears designed to channel cases into the Detained Fast-Track105. ILPA emphasises that the current Detained Fast-Track is very different from that found to be lawful by the European Court of Human Rights’ in Saadi v UK.106 Persons remain in detention for very much longer both before the asylum determination process begins and after it has finished, while the substantive parts of the process in which the claim is considered are very much accelerated. It is members’ experience that those detained at screening may wait for days and weeks before the very fast Detained-Fast Track process starts, often without being allocated a legal representative until just before the process has started.

8. ILPA’s March 2008 and March 2009 (the latter jointly with the Anti-Trafficking Legal Project) submissions to the Home Affairs’ Committee enquiry into human trafficking set out some of our concerns about screening and the Detained Fast-Track. Those concerns persist. We also append at Appendix five our March 2012 letter to the Independent Chief Inspector of the UK Border Agency about the Detained Fast-Track.

9. It is ILPA’s contention that the Detained Fast-Track is unjust and inefficient because it is not capable of producing sustainable fair decisions on claims. It is unjust because there is a risk of a person being returned to face persecution.

10. Where a person whose claim for asylum has been finally refused remains in the UK for many years, new risks to them as a result of changes in their country of origin or in their personal circumstances may result in their making a fresh claim for asylum. That is understandable. Where a person has a fresh claim for asylum within days of finally being refused because they have obtained evidence that they were trying to secure as their case was being rushed through the system, that is avoidable.

11. And cases are rushed through the Detained Fast-Track. The person sees a legal representative one day and has an interview the next. Following an interview there may be only half a day to provide further evidence, including expert evidence. The initial decision comes in a matter of days.

12. This is not a timescale likely to produce disclosure by applicants, especially given that levels of distrust are likely to be increased by being thrust into detention. They are unlikely easily to trust their representatives, who are allocated by the detaining authority, the UK Border Agency. They are unlikely to trust the medical staff in the detention centre.

13. In any event, medical screening on entry into detention is all too often, based on instructions members receive from their clients, a cursory affair. Detainees often arrive late at night. All too often professional interpreters are not used and detainees report not being aware of having been asked about, for example, torture or ill-treatment. Even where a medical report made under Rule 35 of the Detention Centre Rules gives rise to concerns about ill-treatment, all too often the contents of such a report are dismissed by the UK Border Agency. Reasons for such dismissal include that the report merely repeats a story told by the detainee, with no evidence to corroborate it and that the doctor did not diagnose torture as the cause of any injuries seen.

14. It is not a timescale likely to produce any evidence. Those in the Detained Fast-Track are detained; they are not well placed to gather evidence in support of their cases. For a legal representative, it is difficult to research a case, let alone secure original documents or expert evidence within days. In any event, it was the practice of the Legal Services Commission and we have no reason to believe that it will not equally be the practice of its successor, the Legal Aid Agency, not to authorise payment for expert evidence until a claim has been refused by the Secretary of State.

15. In theory a person only remains in detention following refusal, for the period of any appeal and afterwards, if they meet the general criteria for detention. In practice, it is not usual to see a person who has been refused within the detained track released prior to any appeal. The case is then normally dealt with under the accelerated procedure for which provision is made in the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (SI 2005/560) as amended. There are only two days in which to lodge an appeal against refusal, in which timescale the reasons for rejection of the application must be examined and evidence produced to refute them. ILPA is delighted that the Tribunal Procedure Committee in its Consultation on the proposed Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2013 and amendments to the Tribunal Procedure (Upper Tribunal) Rules 2008107 has proposed getting rid of these separate fast track procedure rules and has proposed longer timescales in which to lodge an appeal. ILPA considers that these would not only be fairer, they would be more efficient and would reduce the likelihood of ‘protective’ grounds of appeal being lodged because there was no time to establish whether these grounds needed to be included or not.

16. The evidence appellants provide in the form of a statement or corroborating documents and witnesses is likely to be imperfect. A legal representative has little time to carry out research, let alone instruct and obtain expert medical and country evidence. An immigration judge determines the case on the evidence presented to him/her.

17. Very many persons in the Detained Fast-Track do not have a legal representative at the appeal stage108. This will often be because lack of evidence means that they have been held to fail the merits test for legal aid. Uncertainty ought to weigh in the client’s favour. But in practice, whether a person is judged to pass or fail the merits test too often seems to depend upon who is representing them. Work paid for by legal aid in detention centres is run on a system of exclusive contracts with just two or three providers. This means that if a person is judged not to meet the merits test by one provider in a centre, s/he can turn only to the other provider in that centre for a second opinion, rather than, for example, an expert in cases from his/her country of origin, or with the particular features of his/her case. Meanwhile the latest consultation on legal aid109 proposes removing eligibility for legal aid in cases where prospects of success are only “borderline110:

389. This proposal [to abolish the ‘borderline’ category would apply equally to asylum cases assessed as having ‘borderline’ prospects of success. The Government recognises its responsibilities under Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status. This requires the Government to provide legal assistance for those refused asylum. However article 15(3)(d) of the Directive makes clear that this obligation only extends to those appeals which are ‘likely to succeed’.

18. The UK Border Agency Asylum Process Instruction111 states at 2.2:

Without prejudice to outcome, unless there is evidence to suggest otherwise (or the case is one already recognised as not generally being … there is a general presumption that the majority of asylum applications are ones on which a quick decision may be made.

19. However, there has long been confusion among officials as to whether the Detained-Fast Track is for cases that can be decided rapidly, as is the position taken in the UK Border Agency’s Enforcement Guidance and Instructions and related official policies, or for weak cases that have no merit (ie cases that can be refused rapidly). In its 2008 report Fast Track to Despair, Detention Action highlighted a refusal rate of 99% in the Detained Fast Track compared with 70% when figures from the Detained-Fast Track were combined with those from other cases. Given the lack of information at the time of routing a case into the Detained Fast-Track and the approach that most cases are suitable for the detained fast track, it appears that a pretty random sample of cases enter the Detained Fast Track. This reflects the experience of ILPA members. That those cases do so much worse than other cases we conclude to be a result of the process itself.

20. Written confirmation of an appointment with the Medical Foundation for the Care of Victims of Torture or the Helen Bamber Foundation is likely to enable a legal representative to secure their client’s case being taken out of the Detained Fast-Track. Securing such an appointment within the Detained Fast-Track timescales puts pressure on the legal representative, on those institutions and, of course, on the client. Appointments from other doctors will not be sufficient, only their reports will be, and the chances of securing a report within these timescales are almost non-existent.

21. Some of the most detailed reports about the process are by the UNHCR as part of its Quality Initiative Project. The June 2008 report112 catalogues problems with the quality of decision-making in these cases. UNHCR expressed concerns about the cases routed into the Detained Fast-Track, and that they were remaining there instead of being identified as unsuitable and lifted out. They highlighted an incorrect approach to credibility, rejection of medical evidence, using standard wording and using it inappropriately and the use of speculative arguments to dismiss cases based on a limited understanding of refugee law. Subsequent reports have echoed these findings 113.

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

22. It is unclear how often country of origin information is consulted by UK Border Agency case owners. Instead it appears to be the case that Operational Guidance Notes and standard paragraphs are used, although these may be at odds with the Country of Origin information.

23. Recent examples of a failure to make proper use of country of origin information centre on Sri Lanka. ILPA has been in correspondence with the UK Border Agency for many years about the inadequacy of its country information about Sri Lanka114. On 23 October 2012 a charter flight left the UK carrying persons back to Sri Lanka. As usual, ILPA was copied in to a letter to the Administrative Court a few days before the flight, alerting the court that it would take place. Then, just after 11am on the day of the flight, we received another letter from Treasury Solicitors. This drew attention to errors in the country bulletin on Sri Lanka which had been relied upon in the previous letter. These errors suggest recklessness as to the accuracy of the facts that mislead the court. A number of injunctions were granted and thus some people were taken off the flight. ILPA wrote to Mr Justice Ouseley to ask that the court look into the unreliability of the information submitted to it. The Committee for the Prevention of Torture subsequently confirmed that representatives of the Committee, who were visiting the UK at the time, were on the flight. The letters are appended hereto at Appendix six.

24. Her Majesty’s Inspectorate of Prisons personnel accompanied a charter flight to Sri Lanka on 6–7 December 2012, described below. A further charter flight to Sri Lanka was set to have taken place on 28 February 2013. The flight was scheduled during a period when a country guidance case was pending before the Upper Tribunal115. The Administrative Court of its own motion scheduled a hearing to deal with the question of whether it was appropriate to remove persons to Sri Lanka when a country guidance case was pending that would determine whether returnees were at risk of torture in Sri Lanka. The information that the UK Border Agency put into its letter to the Court advising the Court of the flight so that the court would be on notice should it receive applications for emergency injunctions (which was, as is standard practice, copied to ILPA), was at odds with the Home Office pleadings in the country guidance case. This, having been alerted by ILPA, the lawyers for the applicant pointed out in a letter to the Court. The court granted a stay in all the cases before it, on the basis of which others were able to achieve a stay. The letters are appended hereto as Appendix seven.

25. The UK Border Agency subsequently issued a new version of the country policy bulletin responding to some, but not all, of the concerns expressed by Freedom From Torture about the misrepresentation of its evidence. This was posted on the UK Border Agency website in March 2013116, described as a reissue of version 2 of the bulletin, rather than as a third bulletin. It cannot be reached through the Agency’s Sri Lanka: Country of Origin information homepage117. Instead it appears on a page headed Country Specific Asylum Bulletins. On that page it continues to be described as the October 2012 bulletin. It will only be found on a determined search for evidence by those prepared to check information that appears no longer to be relevant. The Committee may wish to urge the Agency to explain why it has not made information that corrects earlier misrepresentations more prominent.

26. As to Operational Guidance Notes, the UK Border Agency’s predecessors consistently opposed these being reviewed by the Advisory Panel on Country Information on the basis that they were not country of origin information but rather policy documents and that the country of origin information in those documents was selected to support policy and did not purport to be a balanced factual assessment. It was only when the work of the Panel passed to the office of the independent Chief Inspector that Operational Guidance Notes came under scrutiny118. The Chief Inspector devoted Chapter 8 of his report on the use of country of origin information in decision-making 119 to the Operational Guidance Notes, saying

8.2 There is a concern that the inclusion of country information in OGNs means Case Owners will use information selectively in individual decisions based on an overall policy position and will also use the OGN as the primary source of country information rather than referring to the COIS report or other available sources. Many Case Owners acknowledged in our focus groups that they were often the first port of call, if not the only one. Any shortcomings in OGNs would therefore translate into shortcomings in decision making.

8.3 Our interviews with staff and managers revealed they were unclear about the purpose of OGNs and the value of having both these and COIS reports.

27. Of the Operational Guidance Note on Afghanistan the report said:

8.6 Some interpretations of the case law included in the OGN were confused and at odds with the COI that was cited.

8.7 COI was not properly referenced in the OGN, citing only the general area in the COIS report where the conclusions could be found. However the references could not be located and examination of the COI in the COIS report indicated far greater weight of evidence against the conclusions drawn in the OGN than for it. Guidance in the OGNs was confusing and contradictory and would not serve to assist a Case Owner in conducting an interview or making a decision. The guidance did not seem to relate directly to any known COI.

28. ILPA has long expressed concerns about Operational Guidance Notes. One of the most longstanding questions in current asylum policy is the question of return to Zimbabwe. In 2008 and 2009 ILPA corresponded with the then Home Secretary, Jacqui Smith MP about Zimbabwe. That is some time ago but it remains an important illustration of the problems that Operational Guidance Notes create and there are many parallels between it and the current situation concerning Sri Lanka. The question of return to Zimbabwe remains live and is coloured and affected by what has happened to date in the country guidance litigation.

29. In a letter of 3 February 2009 the then Home Secretary told ILPA she accepted the latest country guidance, the case of RN (Returnees) Zimbabwe CG [2008] UKAIT 83. However, ILPA received an undated letter addressed to stakeholders from the then Chief Executive of UK Border Agency, Lin Homer, circulated by email on 24 March 2009. It was accompanied by a new Operational Guidance Note and gave notice of advice to officials no longer to comply with the new Country Guidance. The justification offered was that “the RN determination took place against the backdrop of widespread and indiscriminate political violence that attended the Zimbabwean presidential elections last summer” which has not been repeated since then. Yet the Tribunal in RN concluded in November 2008 that “there can be no doubt at all” as to the risk category identified. Its consideration of the issues included an additional hearing on 30th October 2008 to enable the Secretary of State to present her argument that the general risk was restricted to summer 2008. That argument was rejected and the Secretary of State did not appeal. No change of circumstance since November 2008 was identified which could have provided a legal basis for failing to comply with RN. The Home Office further represented to the Court of Appeal in January, February and March 2009 that it accepted the Country Guidance. It persuaded the Court of Appeal to reject a challenge, the then lead case of HS120, to the previous 2007 Country Guidance in March 2009 without consideration of the merits based on a commitment given to the Court that the Home Office would reconsider cases in light of RN. That was less than a fortnight before the letter from Ms Homer. The correspondence appears at Appendix eight.

• — 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

30. Problems with the assessment of credibility for specific groups arise, in ILPA’s experience, from problems with the assessment of credibility in general. The dynamic at work, for example in the cases of survivors of torture and certain nationalities, is that because membership of the group may result in extra protection, recognition as a member of the group is more closely policed and claims to be belong to the group treated as lies. Children are particularly affected: their age is doubted, then that they are held to be lying about their age is treated as impugning their credibility more broadly121. Another example is of those claiming to be refugees on the basis of their sexual orientation. As the case law, has become more favourable to this group, so their credibility has increasingly been doubted122.

31. We are particularly concerned at the rise of pseudo-scientific methods of trying to determine credibility, for example the use of language analysis in an attempt to determine nationality, the attempts to introduce x-rays to establish age123 and DNA analysis to determine nationality124. Language analysis and DNA tests cannot tell you a person’s nationality. The possibility of their allowing interferences to be drawn as where a person is from is considerably weakened where that person has moved about and mixed with different groups in their life, as is the case with many refugees, many of whom will have spent time in camps. Language analysis is opinion evidence. As such it is inadmissible in a higher court of law unless it falls within an exception to the ban on opinion evidence, such as expert evidence. But members’ experience of cases in which language analysis is deployed, backed up by scientific papers, suggests that there is an insufficient scientific basis for language analysis in refugee cases to be regarded as expert evidence.

32. There is no scientific or other solution that will cut a swath through the difficult task of determining credibility in asylum cases. As set out in UNHCR’s UN High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees125, this involves a scrupulous application of the burden and standard of proof and an exercise of judgement. The thread that guides the decision-maker through the labyrinth is the proper application of the law.

• — The effectiveness of the 5 year review system introduced in 2005

33. In 2005 it was determined that rather than being given indefinite leave to remain when recognised as refugees, those so recognised should instead be given five years limited leave to remain with the possibility of applying for indefinite leave at the end of the five years. At that stage the case would be subject to an “active review” to determine whether the person qualified for international protection.

34. The overwhelming majority of applications for indefinite leave to remain at the five-year stage are approved. Many people will still stand in need of international protection after five years. Those who do not, having been in the UK lawfully for at least five years and often very much longer, while their claim for asylum was determined, will have a strong case for settlement on human rights’ grounds. ILPA emphasises that once a person has been recognised as a refugee then the onus is on the Home Office to demonstrate that one of the cessation criteria in the Refugee Convention is met.

35. The giving of five years’ limited leave thus appears to create extra work for the Government to little purpose. It adds to the prospect of delays and backlogs in other cases because work must systematically be directed to reviewing all these cases, and in deciding these cases themselves.

36. The effects for refugees and persons with humanitarian protection can be grave. A grant of limited leave can produce a sense of insecurity, a fear that at the end of five years one will be forced to return. It is difficult to provide reassurance, especially to a person who was refused at first instance and only succeeded on appeal. A lengthy wait for resolution of an application for indefinite leave exacerbates these fears and can lead to all the practical problems associated with an uncertain status such as difficulties in obtaining or continuing in work, because current and future status appears or is uncertain.

37. The practice militates against fulfilment of the UK Border Agency’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have due regard to the need to safeguard and promote the welfare of the child. A child born to a person British or settled is born a British citizen. A child born to a parent with limited leave is not. Some children born to refugees may be stateless. More will acquire the nationality of one or both parents, but in circumstances where the parent is estranged from his/her country of nationality and fears to approach the national authorities for a passport for a child.

38. While refugees are given limited leave they are also at risk of being affected by differences between the rights and entitlements of settled persons and those with limited leave and changes to those differences. That can increase feelings of insecurity.

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

39. As set out in the January 2013 report of the Parliamentary Enquiry into Asylum Support for Children and Young People126, the findings of which have implications beyond this group, the system is not sufficient or effective. See, for example, the consideration of evidence linking increased infant mortality rates and deaths in pregnancy with inadequate provision of no-cash support. The current support system leaves those who try to survive within it vulnerable to physical and mental ill-health and those who attempt to supplement its meagre provision vulnerable to exploitation and abuse.

40. The level of support is inadequate to meet basic needs in the short to medium term. Problems are exacerbated when a person attempts to live on the support given in the medium to long term.

41. Support is a broader concept than that of food and shelter. For example, it is a matter of profound concern that not every separated child in the United Kingdom benefits from having anyone who has parental responsibility for him/her. In the case of children who are in care under section 31 of the Children Act 1989, a local authority automatically acquires such responsibility but the vast majority of separated children are not cared for under these provisions. Instead they are accommodated and provided with services under section 20 of the Children Act 1989 and as such do not enter the formal care proceedings process. A child is, as a matter of UK law, lacking in full capacity. If there is no one with parental responsibility for him/her then there are things for which consent cannot be given, things that cannot be done. This is not in line with Article 20 of the Convention on the Rights of the Child and the child is disadvantaged.

42. We highlight the February 2011 Education (Student Fees, Awards and Support) (Amendment) Regulations 2011 (SI 2011/87) which mean that those with Discretionary Leave to Remain in the UK, must now pay international student fees and will not be able to access student loans for a higher education course in England even if their long term future lies in the UK. It was established at the National Asylum Stakeholders Forum Children’s subgroup of 8 October 2012 that the Department for Education and the Home Office had not been in consultation about this matter.

43. We are concerned that the proposals in the latest consultation on legal aid127 will deny legal assistance to those with asylum support claims, especially claims for section 4 support for those whose applications for asylum have been rejected. The consultation paper says:

3.58 If an asylum seeker had their claim for asylum rejected and their appeal rights had been exhausted, they would cease to qualify for legal aid under the asylum seekers exception, and funding would cease. Only where they had made a ‘fresh claim’ for asylum would they once again benefit from the exception for asylum seekers.

44. As per the examples in Appendix nine (below) many persons will be unable successfully to make that fresh claim without legal assistance and may meanwhile be in very desperate circumstances indeed.

The prevalence of destitution amongst asylum applicants and refused asylum seekers

45. We highlight a class not mentioned in the question, persons in need of international protection who are living underground, hand to mouth. If you anticipate that you will receive a rapid, wrongful refusal of your claim for international protection, however strong that claim is and whether your anticipation is correct or not, you may prefer not to bring yourself to the attention of the authorities by claiming asylum but instead to attempt a hidden existence, thus securing, if not protection, at least that you will not be returned to persecution, for a while. Such persons are very likely to be destitute and they are at grave risk of exploitation. Legal representatives see such people at a later stage, when they finally seek advice, or when they come to the attention of the authorities, for example in a workplace raid. .

46. have succeeded, but who have not been able to make the transition to mainstream support. The case of child EG, who starved to death in this interregnum, is one example128. ILPA and some others have repeatedly expressed concern at the National Asylum Stakeholder Forum at the failure to address this problem and have been trying to instil a sense of urgency about so doing since at least 8 November 2012. We thought that we had finally succeeded, only to be told at the meeting in March 2013 that an end of February deadline for concrete action, imposed by a senior manager at the previous meeting on 12 January, had been unrealistic. It was suggested that the Agency had no power to do as ILPA suggested and provide support until a person succeeded in gaining access to mainstream benefits. Recent decisions of the Asylum Support Tribunal suggest that that is simply incorrect as a matter of law. These are discussed in an excellent briefing from the Asylum Support Appeals Project, appended hereto as Appendix 10 and which ILPA sent to the responsible person in the UK Border Agency129.

47. Section 4 support is wholly inadequate and a person cannot live with dignity on it. The principle of a card used to obtain support reflects an ideological commitment to no cash that defies all reason. A person who is considered able to leave will not qualify for section 4 support. In particular we highlight that a person is not eligible for asylum support when they have exhausted all appeal rights but are bringing a judicial review. Where a person does not qualify for asylum support, a local authority may be called upon to pick up the bill as set out in the case of R (Clue) v Birmingham City Council [2011] 1 WLR 99.

48. It is extremely difficult for a legal representative to ensure that a client focuses on his/her asylum case where that client is hungry and without food and shelter. It is extremely difficult for a client to trust the UK Border Agency or officials with whom they come into contact when the UK has left them without the basic necessities of life. At Appendix nine (below) we include a selection of those cases we made available to the Ministry of Justice on asylum support in February 2011 which set out some of the difficulties with asylum support. We highlight the following features of these cases:

• — That it is not until threatened with judicial review or until judicial review proceedings have commenced that the UK Border Agency has acted, often to make any decision at all.
• — That particular difficulties arise from requiring persons who are destitute and have no means of support to travel all the way to Liverpool to lodge further submissions in person without any funding being available to defray the costs of the journey. This is pointless. Most of the time the person simply hands in the submissions; there is no interview or action of any kind.
• — Whether the UKBA or third sector organisations should be able to highlight concerns regarding legal practitioners to the Solicitors Regulatory Authority

49. There is nothing to prevent the UK Border Agency or an organisation highlighting a concern to the Solicitors’ Regulation Authority. As its website130 says

• — We can receive reports from anyone who has concerns about a law firm or an individual that we regulate. This can include:
• — members of the public, or people representing them such as relatives or Members of Parliament;
• — lawyers and employees of law firms, or
• — other regulators and professional bodies.

50. As is explained there, the person providing intelligence will not be advised of any action taken on the complaint, unless they are required to provide a witness statement, etc.

51. ILPA is agreement with this approach. The Solicitors Regulation Authority should receive and weigh intelligence from the UK Border Agency and organisations that have concerns about a legal representative. It will be necessary to the weigh the information, some may be based on a misunderstanding of what the solicitor did, or should have done, and there is a risk that, for example, the UK Border Agency takes exception to a solicitor’s entirely proper actions in the interests of his/her client. But the intelligence is as important part of identifying poor representatives.

52. These comments are not confined to the Solicitors Regulation Authority; they apply also to the Bar Council, the Institute of Legal Executives and the Office of the Immigration Services Commissioner.

53. With immigration matters (which include matters such as applications for refugee family reunion or applications by persons to remain on human rights grounds) no longer qualifying for legal aid significant numbers of persons who have little or no money will be looking for free legal advice that they are unable to find, or seeking to negotiate terms with someone who will expect to be paid in the end. Many of these persons will be isolated and alone, with little understanding of UK systems and procedures and no one to ask. Backlogs and confusion in the UK Border Agency can make it difficult even for a person who has some grasp of what should happen to ascertain whether their legal representative is doing a good job or not. This leaves people extremely vulnerable to exploitation by unscrupulous so called advisors and representatives, some of whom who may be giving immigration advice unlawfully without being regulated at all. The need for all regulators to ensure that advice and representation is of the highest standard has never been more pressing.

54. We are also concerned that the legal aid tender for contracts from 2013 did not include criteria that differentiated between applicant organisations on the grounds of quality. The result is that excellent representatives, to whom may people would wish to go have a very limited number of case (“matter”) starts, for example just 100 per firm in London and Manchester, the same number as firms who do not provide such a high quality of service.

• — Whether the media is balanced in their reporting of asylum issues

55. The approach of the Home Office and UK Border Agency determines much of the media reporting. We deplore the making of major announcements on immigration not to parliament but to weekend television programmes or early morning radio. This is all the more surprising giving that we are repeatedly told that proposals cannot be discussed or described in formal or bilateral meetings with officials, even when we understand perfectly well that they are just proposals because they have not been signed off by Ministers or announced. For our part, we have repeatedly asked the UK Border Agency that as “corporate partners” we get news releases at the same time as journalists even if we cannot see them before. This has not happened. We have to rely on journalists for them. The result is that the Government’s line may go unchallenged, or cannot be challenged from the best informed perspective.

56. Whether those in need of international protection get as much coverage as those who are not is a question we are not in a position to answer. What we can identify is that reporting of asylum is not always accurate and that the stories covered in the media are not always news. The former is not necessarily a surprise; the law, policy and procedures are complicated and Government statements can create as much confusion as they dispel. The latter is more disappointing. One possible cause is most stories stemming from UK Border Agency news releases rather than independent reporting. If one examines the UK Border Agency website news pages it will be seen that among the unrelenting diet of articles about immigration offenders there is scarce anything about international protection131.

57. As to accuracy, levels of support for indigent persons seeking asylum is an area where it appears to us that there is considerable inaccuracy in reporting, leaving many members of the public believing that those in receipt of asylum support get very much more than is the case.

58. There is also much confusion about whether a person seeking asylum is lawfully in the UK. A person who claims asylum at port of entry and is given temporary admission is not an illegal entrant.

59. Inaccurate reporting of “tough” talk on the part of Ministers and officials may leave persons seeking asylum and those may be considering seeking asylum confused as to their rights and entitlements. In the case of those who have yet to claim asylum, this may result in their not coming forward and making themselves known. In the case of those who have claimed asylum it may result in their not seeking assistance for themselves or their children, or medical care or not participating in volunteering and other useful activities that are open to them.

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

60. If a person is wrongly refused asylum then, by definition, they will face persecution on return. This may take the form of torture, of killing, of inhuman or degrading treatment or punishment, etc. It is difficult to extrapolate from this to estimate prevalence. States are unlikely to publicise their unlawful actions and persons may disappear or die under torture.

61. The UK Government has access to the range of human rights reports and to expert evidence. As per the Sri Lanka example cited above, it does not always make best use of the evidence it has. The UK Government rarely instructs experts in asylum cases, instead waiting for applicants to proffer expert evidence and then taking issue with this evidence.

62. Her Majesty’s Inspectorate of Prisons personnel accompanied a charter flight to Sri Lanka on 6–7 December 2012132. The inspectors reported that that, despite representations from the UK Border Agency, “For reasons that were not made clear, the Sri Lankan authorities would not allow inspectors to see the handover process on arrival in Colombo.” They also recorded:

“5.6 Staff were unsure what to do if they had concerns about the behaviour of receiving officials.

They were unaware of any mechanism to report unacceptable behaviour by receiving countries should they witness it on arrival.

63. The Committee could usefully pursue the recommendations made in the report.

64. The evidence in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC) was that:

“Returnees are observed “airside” at Harare Airport by a Migrations Delivery Officer (MDO), who makes contact with the leader of the escort group once the returnees have disembarked but who then withdraws whilst the returnees go through immigration control. Usually, the MDO is able to observe the returnee through the open door of the immigration interview room. Once “landside” the MDO observes the progress of the returnees from interview room to immigration desk and then on to baggage reclaim. The MDO then observes the returnee leave the airport terminal building. The whole process takes about 40 to 60 minutes.”

65. The Court in CM highlighted that the Home Office evidence ended where the returnee left the airport terminal133. There is always very real concern that attempts at monitoring might increase risk, both to those returned and those trying to support them. We have seen attempts at monitoring flounder because individuals have not kept in touch, which may be to avoid drawing attention to themselves.

66. We highlight into particular our concerns about the effects of the clause Restriction on right of appeal from within the United Kingdom of the Crime and Courts Bill on refugees. This is designed to reverse the effect of the judgment of the Court of Appeal in Secretary of State for the Home Department v MK (Tunisia) [2011] EWCA Civ 333.134 MK is a refugee from Tunisia, who had been living in Manchester for several years with his wife and daughters. He was extradited to Italy in 2008, further to a European arrest warrant. While out of the UK, his leave was cancelled. He was acquitted of all charges in Italy save one, possession of a false document. Nonetheless, the Secretary of State sought to block his return to the UK. The Court of Appeal held that an appeal could be exercised in-country if the person returns to the UK within the short time-limit (10 days) for lodging an appeal in-country and opportunity should have been given to MK to do so. Meanwhile MK was facing onward refoulement from Italy to Tunisia, something the UK courts, in allowing his extradition to Italy had identified would not happen, which was significant in their decision to permit extradition in the first place as they had determined that if returned to Tunisia, MK would face torture. The Crime and Courts Bill will reverse the effect of the Court of Appeal’s decision leaving refugees stranded outside the UK vulnerable to return to the country in which they were persecuted.135

67. We welcome the Home Affairs Select Committee’s decision to monitor the number of individuals granted asylum after having previously had an application refused with a particular focus on individuals who have been returned to Sri Lanka136. We urge the Committee, where such cases occur, to look at the person’s account of what happened to the person on return and what the UK Border Agency, or any successor, made of this.

Appendices137

Appendices two and nine appear below. The rest are attached as separate documents.

Appendix 1 ILPA letters to the UK Border Agency of 13 June 2011 (Doc 1), 12 August 2011 (Doc 2) and 22 September 2011 (Doc 3) re screening

Appendix 2 Screening Cases (see below)

Appendix 3 ILPA & AIRE centre complaint to European Commission re screening, 13 January 2012 (Doc 1) and Commission letter of 28 August 2012 (Doc 2).

Appendix 4 ILPA to UK Border Agency Head of Asylum, Mr Graham Ralph, re the Asylum Operating Model (also forwarded to the European Commission

Appendix 5 ILPA to the Independent Chief Inspector of the UK Border Agency about the Detained Fast-Track, March 2012.

Appendix 6 letters pertaining to October 2010 charter flights to Sri Lanka

Appendix 7 Letters pertaining to the charter flight to Sri Lanka scheduled for 28 February 2013

Appendix 8 Correspondence pertaining to operational guidance on Zimbabwe

Appendix 9 Asylum support cases (see below—includes examples of attending to provide further submissions in person)

Appendix 10 Asylum support Appeals Project Bulletin re termination of support, 7 March 2013

Adrian Berry
Chair
Immigration Law Practitioners’ Association

April 2013

©Parliamentary copyright

Prepared 11th October 2013