The Committee consisted of the following Members:
Marek Kubala, Joanna Welham, Committee Clerks
† attended the Committee
Adrian Berry, Chair, Immigration Law Practitioners’ Association
Manjit Gill QC, Barrister, Head of the International Human Rights Law Group, No5 Chambers
Jerome Phelps, Director, Detention Action
Don Flynn, Director, Migrants’ Rights Network
Colin Yeo, Barrister, Garden Court Chambers
We will now consider a motion to amend the programme resolution agreed on 20 October. The motion is on the amendment paper and stands in the name of the Minister. Standing Orders provide that he may make such a motion and that if any member of the Committee signifies their objection to it, the proceedings on it will lapse. If there are no objections, I call the Minister to move the motion.
(1) in the second entry for Thursday 22 October, in the third column, at the end insert “; No Recourse to Public Funds Network”;
(2) in the third entry for that day, in the second column, for “3.30pm” substitute “3.15pm”
(3) in the fourth entry for that day, in the second column, for “4.30pm” substitute “4.00pm”.—(James Brokenshire.)
Examination of Witnesses
Q 191191 The Chair: Before I call the first Member to ask a question, I should remind all Members that questions should be limited to matters within the scope of the Bill. We must stick to the timings in the programme resolution the Committee has agreed. We have until 1 pm for this session. Could the witnesses please introduce themselves for the record?
Q 192 Keir Starmer (Holborn and St Pancras) (Lab): Thank you, panel, for coming to give evidence to us this morning. I want to ask about appeals, bail and enforcement action by immigration officers, and I will take them in that order. May I start with appeals, and ask for your views on the quality of the initial decision making by the Home Office—by UK Visas and Immigration—before we get to the question of appeals?
Manjit Gill: I can say something very briefly on the quality of initial decision making; others will probably want to comment. It is perhaps the most critical feature of the problem. The quality of initial decision-making is unspeakable. About the impact of the appeal provisions on children, I have particular concerns. I speak only in my individual capacity.
You may have come across decisions of the upper tribunal, and particularly of the president, Mr Justice McCloskey. In a case called “J.O.”—I can send you copies if need be—he severely criticised how the interests of children are dealt with in decision letters. They seem simply to pay lip service to the best interest duty. He basically tore the decision-making process to pieces in his decision. I do not know what steps are being taken in the Home Office to rectify that.
As regards other decision making outside children’s cases, the tendency is to put all the burden on the appellant. I can see that the appellant or the person concerned should bear the burden—initially, at any rate—of having to say something about why they should not be deported or removed pending appeal, but more must be done in terms of the actual inquiries made by the Home Office. I had better not say any more at this stage.
Adrian Berry: Yes. The annual figure for last year was that about 40% of appeals were allowed. It was slightly higher, I think, in the two previous years. That is indicative, perhaps, of the quality of decision making, but it does not necessarily capture the whole story in relation to the reasoning and how decisions are made. Decisions may survive judicial scrutiny but none the less be poorly reasoned and have an inappropriate or insufficient grasp of the detail of an individual’s circumstances. They are a genre of their own, in literary terms. You see a formulaic approach toward the appreciation of individual people’s lives that is dispiriting, when it comes to understanding what individual consideration is actually being given.
Colin Yeo: There is slight variation in the figures. Different types of case have different success rates. The overall figure is about 40%; it was a little higher in some previous years. However, for example, in the managed migration statistics, it is about 42% of appeals, and it is much lower in some other kinds of case, such as deportation cases. The success rate is much lower there. That compares to a success rate, I understand—I am not a tax specialist—in tax tribunals of about 25%.
Obviously, immigration cases involve profound questions about where somebody lives, or contact between parents and children or between spouses. It is very important that those decisions are right, and the fact that there is such a high success rate on appeal, which is, realistically, the best measure we have got of such things is a real concern.
Colin Yeo: I do not think anybody has the statistics for that. There could be reasons why people do not appeal. Sometimes they are simply not realistically able to pursue it, because they do not have legal aid—
Q 196 Craig Whittaker: I understand that, but what I am trying to establish is that if it is 40% of those who apply, but the appeal process involves only 5% of all applicants, it is actually a relatively small number. I was just trying to put it into some perspective.
Q 197 Keir Starmer: Let us move on to the question of appeal and the extension of the “remove first, appeal later” provisions, which is in the Immigration Bill. Will you give the Committee an indication of the practical differences between what is involved in appealing in country here and appealing once you have been removed, just in relation to the nuts and bolts of it? Some of us around the room are lawyers. Some of us have been involved in cases, but not everybody has, so will you give us a practical example of what actually happens if you are here, and what is envisaged, or what does happen, if you are removed, so that people get a sense of the difference between the two?
Manjit Gill: May I say something briefly on that? First, insofar as contact with your own lawyer is concerned, here, with or without the difficulties of funding—and there are enormous difficulties, as you have just heard—at least you can go and see your lawyer, and your lawyer can come and see you. You can get the witness statements sorted and give the instructions face to face. If you are having to give all those instructions from abroad, just imagine the practical difficulties and impediments to instructing your lawyer in the first place in order to prepare the case.
In children’s cases, how do you go about the process of getting an independent expert’s report? How is the child expert going to be able to assess the damage that will be caused by the separation—even a short-term separation—if the separation has already occurred? They are simply not going to be able to do it. Instead of having to prepare their reports from the point of view of prevention of harm to the child, they are going to have to do it from a removed location from the point of view of remedial action to remedy the harm that has already been done to the child by taking the father away and making him appeal from abroad.
Even if you manage all that and get to the appeal hearing itself, how are you going to give the oral evidence? A lot depends on how you come across to a court or
Moreover, the tribunal does not allow a system of video links unless they have approved the actual source. They do not allow you to walk into an internet café or to use Skype. British embassies and high commissions simply do not provide the service. The Home Office does not pay for that service, nor does the tribunal; you yourself are going to have to pay to put in place a system whereby you can give oral evidence. There are a lot more things that I could say, but I am trying to keep it brief.
Adrian Berry: In addition to what Manjit has said, the difficulties include compiling exhibits, for example, behind a witness statement. If you are looking at getting reports, such as medical reports of actual treatment, or gathering documentary evidence of a life that has been led and you want to go over those documents with the individual in question, having those documents on the table in front of you, face-to-face in a live encounter, is very different.
Preparing an appeal is a rolling process. You are drafting statements and possibly re-drafting them, and looking at the statements of people writing in support and considering them against the documentary evidence that you are assembling—in a family life case, for example—and to do all that remotely is formidably difficult. In some instances, even in legal cases in the commercial court, the High Court in London has had to take evidence in Zambia, for example, for a complex commercial case, because it is difficult to do it over the internet or remotely. That sort of highlights the issue for us. If you are trying to run a case remotely about someone’s life, with a whole batch of documentary evidence that requires consideration in addition to assembling expert reports, there is a degradation of the quality of the job that you are able to do that cannot be compensated for.
Q 199 Keir Starmer: Following on from that, obviously some changes were made a year or so ago. Can the panel give us their view on the impact of the changes to “remove first, appeal later”? I think that there is an outstanding Court of Appeal case that it might be useful to know a little about.
Manjit Gill: At the moment, because there have been so few appeals, it is difficult to tell. Mr Brokenshire gave a written answer on 14 October in which he said, and he will know this far better than I do:
“From July 2014 to August 2015, more than 1,700 foreign national offenders have been removed under the deport first, appeal later powers, with many more going through the system. Of these, 426 have made an appeal against their deportation and 13 (0.7%) have been successful.”
You can see that having to go abroad and appeal from abroad inevitably results in impediments, which reduce the number of people who appeal at all and have an impact on the appeal rates of success. There may be other reasons, of course, and I fully understand that.
To answer your question, it is very difficult to tell what will happen. One thing that can be predicted with absolute certainty is that there will be even more burdens on the tribunals and even more delays in the system. At the moment, not only is the initial decision making by the Home Office bad but the tribunal system is under severe pressure. Courtrooms are being closed and not used. The number of hearings that are being run is being reduced. There have been massive delays even for in-country appeals. For out-of-country appeals, the delays are even longer. Just consider what the harm is going to be to separated families.
Moreover, this poses massive problems for the tribunals themselves. It is all very well to say that the problems caused by the new system will have to be remedied by the tribunals, but I do not know what the Minister of Justice thinks about that. Who is actually going to provide the extra money that will be needed to remedy the problems? Would it not be much simpler to speed up the appeal process in this country and let people appeal from here? If their appeals are so hopeless, they can be removed very quickly.
Colin Yeo: I acted in a relatively early case, and what happened is perhaps instructive. It was a gentleman who had committed a criminal offence, and he had received a sentence in excess of 12 months, so he fell under automatic deportation. He had been in this country since the age of six, however, and he was in his 30s. He was removed before he was able to appeal in the fairly early days of these new powers. He also had children in this country, and he had contact with those children before he was detained—before he went into prison. He also had some other children with whom he had managed to secure contact through the courts, and whom he had lost contact with because his ex-partner was unco-operative. He was simply unable to pursue an appeal. He was removed to a country far away, where he had not been since early childhood, and we simply lost contact with him.
That was a result as far as the Home Office is concerned, I am sure, because he has not pursued an appeal, there is no expense there and it is another foreign criminal removed. There were some children who were profoundly affected by that, however, as was he. He had been in this country for in excess of 20 years, and he simply had no opportunity to argue his case in front of an independent judge. That is, I think, a profoundly concerning outcome. In real terms, people are just not able to pursue an independent remedy. When you have got such poor-quality decision making in the first instance, that is a real concern.
The Chair: May I just make it clear—I am sure that we have not strayed on this—that we should not be talking about any active appeals? I do not think that we were; I think they were historic appeals. We just need to bear that in mind.
Q 200 Simon Hoare (North Dorset) (Con): On that point, Mr Yeo, I may have misheard you, and if I have, my apologies. The case that you just cited involved a gentleman whom I think you described as a foreign criminal. He had been through the prison system here and he had been deported. Is it, therefore, your assertion that Government should potentially put at risk people on our high streets in all our constituencies, towns and
Q 201 Simon Hoare: Sorry, I was not asking about the validity of his case; I was merely drawing attention to his status. Okay, his slate was wiped clean, but he had been a criminal, he had been found guilty and he had been jailed. Correct?
Colin Yeo: He had been, yes, but I cannot conduct that balancing exercise for myself about his danger to the public and so on; he never had an opportunity to put his case to an independent judge to prove that either way.
Q 203 The Minister for Immigration (James Brokenshire): Sir Keir highlighted the Court of Appeal case; I think I am right in saying that. Mr Gill, I believe that you were acting in respect of that case. Am I right in saying that some of the concerns that you have expressed to this Committee were considered as part of that hearing?
Manjit Gill: Some of the concerns were raised, but the way sin which the Court of Appeal dealt with things is this, and I certainly do not support any solution that puts people of this country at risk; nobody is suggesting that. If there was significant evidence of immediate risk to people, then it was accepted in the Court of Appeal—by me—that there might be some limited category of cases in which there would need to be an appeal from abroad, but that is a limited category.
Some of the concerns about the difficulties of the appeal process were raised, to get back to your point, but the way in which the Court of Appeal dealt with them—I do not particularly want to talk about individual cases, but since you asked—was to say, “Well, there may be those sorts of difficulties, but it will be up to the system to sort them out?” Now, what does that mean? Is the Home Office going to provide the money? Is the Minister of Justice going to provide the money? Who is going to sort it out?
Q 204 James Brokenshire: The reason I asked that question, Mr Gill, was that obviously a judgment was handed down in the Court of Appeal last week; I have certainly seen a note of that case. Does that judgment represent the current law in respect of the assessment of the principles of the Immigration Act 2014?
Manjit Gill: To the extent that the Court considered them. When one looks at the judgment, one sees that all the Court was saying is—first, it is very important to recognise this—that the test is not one of a real risk of serious, irreversible harm; definitely not the test. In fact, your own counsel conceded that at the hearing, but had not done so at any instance prior to that. The test remains one that asks, “Will there be a breach of human rights?”
Secondly, the Court said that the guidance that had been given to the Home Office staff was absolutely hopeless. That was sort of conceded by Lord Keen saying, on your behalf, that we will have to clarify the guidance. The Court said, “Well, it goes a good deal further than that”, and it was much more scathing in the hearing room itself. In other words, the Court was attacking the practice that is being operated at first-instance level within the Home Office. We await the guidance, so we do not know what guidance will emerge.
As to the practicalities of the appeal process and the difficulties of appealing from abroad, which I think is what you are asking me about, the Court said that in principle you could have an appeal from abroad. I have paraphrased those words; you will have to look at the judgment for more detail. But that does not mean that in practice the process necessarily works. On the practical problems, they said, “Well, there are practical problems, but that is something that will have to be dealt with.” That gets us back to those practical problems: who is going to sort out the delays in the system, who is going to ensure that the preparation is capable of being done, who is going to provide the funding for that and if a person has to be brought back for a hearing, which they contemplated but Home Office staff have not, who is going to pay for that? None of those problems is dealt with in the judgment because that is throwing them back on you.
Q 205 James Brokenshire: If I can take you back to my original question on the legal principles of the operation of the Immigration Act that you were challenging just then, the Court upheld the soundness of the principles in the context of human rights legislation.
Manjit Gill: I accepted, as did my co-counsel, Mr Richard Drabble QC, that you do not need an in-country right of appeal in every case. The Court of Appeal has noted that. There is no dispute about that, and I will tell you why it is accepted. The Strasbourg Court says that it is not imperative that in every case you need an in-country human rights appeal. You will certainly need it in article 2 and article 3 cases, which the Home Office accepts. There is no dispute about that; the issue is about article 8 cases. When the European Court uses the phrase “not imperative”, what it means is that you may well need it in a lot of cases but in some cases you may not.
That gets us back to which types of cases there are in which you can avoid giving people an in-country human rights appeal, and the question that was asked there. Supposing you have someone who is going to be a real danger to people on the streets—not just a low risk of reoffending but an Abu Qatada or someone who is going to immediately threaten to go around committing atrocities and so on. We cannot have that sort of person in the country pending appeal. I entirely accept that. Such a person should have to go abroad to appeal.
We are not talking about such a person. We are talking about people such as the person Mr Yeo mentioned. To give a practical example, we mean someone who has been here since the age of six or seven, breaks up with his girlfriend, goes back to the flat and breaks the door down, frightens the girl but does not harm her, takes his belongings and goes. Quite properly, he gets locked up for a couple of years. That is a foreign criminal under the legislation. Should such a person, who may have been here for 25 years, and who may have a child from that relationship, then be forced to appeal from abroad? That is not an Abu Qatada-type character.
What is now being proposed is that the out-of-country appeal rights, which in principle can be had in a limited category of cases, should not be limited to that category but should be applied for everybody. That is contrary to a principle.
Q 206 Craig Whittaker: Just to clarify something you said, Mr Gill: this character broke down the door, scared his girlfriend a little bit but did not harm her, and got two years for that. Is that what you are saying?
Q 207 Craig Whittaker: That does not sound practical to me. That is why I am asking the question. Which court in this country would give someone two years in prison for breaking down a door and scaring his girlfriend?
Q 209 Craig Whittaker: Well, it is a poor example in my opinion, Mr Gill, because actually that is not a relevant case. We are here to take evidence from you. Making stories up along the way is not evidence.
The Chair: Order. I know that this goes right to the heart of the issue, but we have four other panel members and we have been speaking for quite a long time on this particular point. Going back to you, Mr Starmer, do you want to move on a bit?
Q 210 Keir Starmer: I have one final question, about support appeals, but I take the point, Mr Bone; if the panel members cannot deal with the question we can move on even more quickly. Asylum support provisions are being changed—specifically, the support provided after the exhaustion of the asylum process. Will panel members give an assessment of the quality of the decisions on support at the moment? Some briefings have suggested that the success rate of appeals against decisions on support was as high as 60%. Can any of the panel members deal with that? That is obviously a very high success rate; by success rate, I mean that the decision is either overturned, withdrawn or has to be retaken—in other words, the original decision is disturbed. Is that a figure that anyone can give any evidence about?
Adrian Berry: I cannot give evidence about the precise figure, but I have appeared at the Asylum Support Tribunal and conducted appeals against refusals of support. The existence of that remedy of a right of appeal is a vital safeguard. When asylum support is refused you are potentially dealing with someone literally being destitute, which is contrary to article 3 of the European convention on human rights in the sense of having a want of food, shelter and essential living needs. A vital safeguard is provided by having a merits appeal, where you can give evidence about your circumstances. Equally, the Home Office has the opportunity to present its case for why support should be refused within the statutory framework that allows you to moderate the provision of asylum support.
That is a vital safeguard. Anything that removes that right of appeal is removing not simply the idea of a right of appeal—it is a good idea to have independent judicial scrutiny of Executive decision making. It also leaves people hungry and without a roof over their head. So it is a fine example of a coincidence of social provision and proper scrutiny of Executive decision making.
Q 211 Keir Starmer: It is one thing to remove a right of appeal where there is a very low rate of success, but another to remove it where there is very high rate of success. Does the 60% rate I quoted, which has been given in papers before us, surprise you?
Adrian Berry: No, not at all. In my experience, it is usual to win them, if I may put it like that. I do not have precise statistics, but in the cases that I have been involved in before the Asylum Support Tribunal, if you have a point about the need for support, you have a point.
Colin Yeo: Before we move on from this topic, we have just been giving evidence, in effect, about changes that have already occurred under the 2014 Act. What is proposed in the Bill is an extension of those changes to all categories of immigration appeal. We are very concerned about that as well; it is one thing to talk about foreign criminals, risk cases and so on, as we have briefly, but it is another thing to apply that to migrants who are lawfully present in the UK. They might receive an incorrect decision from the Home Office, and we know that there is a reasonable number of those, with the appeals success rate at 40% or more. They will be forced to leave the UK for the duration of the appeal process, potentially leaving their children and spouse behind, losing their job and losing their home, only to win their appeal—if they can, despite having one hand tied behind their back in an adversarial process because they are abroad—and then be brought back. That seems to be an absurd thing to do to people who are lawfully present.
Some of the press releases from the Minister, for example, have talked about doing that to people who are unlawfully present. That is one thing, but the powers being taken in the Bill would apply that to all migrants.
Q 213 Anne McLaughlin (Glasgow North East) (SNP): A number of you have mentioned the quality of the initial decision making; I think Mr Gill referred to it as being unspeakable. It would be useful for us to know—it would certainly be useful for the Minister to know—what it is that you think is making the quality of the decision making so poor. What sort of mistakes are being made? What do you think needs to happen to improve the quality of the decision making?
Colin Yeo: I have been an immigration lawyer for 15 years. When I started, people could use an immigration lawyer if they wanted. It was like using an accountant to do your tax return. It was an optional extra. These days, immigration law has become so insanely complex. The rules are an alphabet soup of non-sequential provisions where it is almost impossible to track what the requirements are. They are separated into different dependencies, which do not seem to match up properly. The rules are incredibly complex. Basically everybody needs an immigration lawyer these days, and the 2014 Act and now the Bill are expanding the number of people who require an immigration lawyer. It now includes landlords, employers, and migrants and their families. Although on one level I speak slightly flippantly because it is great for business for an immigration lawyer, it a crazy way to run a modern country in a global economy.
Colin Yeo: It is a combination of things. The Home Office officials are subject to rules that change almost weekly or monthly and are very complicated to understand. They are not helped by the applicants themselves, who have real difficulties trying to unravel the meaning of the rules, and the application forms and so on, which are incredibly complicated now.
Don Flynn: To add to what Colin said, it is commonly reported among the organisations supporting asylum seekers and refugees that they do encounter an entrenched culture of disbelief. The presumption very firmly in place within decision-making culture is that this is a bogus application. A steep slope is then presented to the individual asylum seeker to overcome that. In addition, most of us who have been around get hints that templates are being applied to the decision-making process. Rather than rigorous consideration of the individual cases, you get the sense that an Eritrean case or a Somali case is being fed through a particular filter. Occasionally, that shows itself by a decision that is so wildly inappropriate, without any reference to particular facts that have been
Jerome Phelps: In 2014, 30,364 migrants entered immigration detention and 29,674 left detention. The Government publish statistics on outcomes for those who leave detention—53% were removed or deported from the UK last year, 7% were released on bail and 1% were granted leave to remain although, of course, others may have subsequently been granted leave to remain after release. These figures are interesting in the light of the Bill in that they show that bail is used fairly selectively by the tribunal. The Home Office releases 38% of detainees so it is not that large numbers of detainees are being released by the tribunal.
Q 216 Sarah Champion: Mr Phelps, could I stay with you? If the rest of the panel want to chip in, they may. There have been suggestions that provisions in the Bill would fuel more unlawful detention litigation. What is your view?
Jerome Phelps: Absolutely. Bail provides a crucial safeguard and one that is working reasonably well in the current system. As I say, it is not generating excessive numbers of releases. It is a vital safeguard, first, because the UK has the most unconstrained powers of detention in Europe. We have no time limit on detention, unlike the rest of Europe, and we have no automatic judicial oversight of detention. The ability of the courts to scrutinise decisions by the Home Office to deprive someone of their liberty is entirely dependent on that person’s ability to apply for bail. That ability is dependent on having an address. It is important to note that that is not out of any concern by the tribunal to reduce homelessness; the primary reason why people in detention have to provide an address to apply for bail are solid immigration control priorities of the Home Office, in that if somebody cannot provide an address, it is very difficult for them to reassure the courts or the Home Office that they will keep in touch and be detainable and removable if it becomes possible.
Although the explanatory notes are not particularly clear here, it appears as though the ability of a destitute detainee to access an address will be subject to a non-appealable, discretionary decision of the Home Office, which would effectively enable the Home Office—the detaining authority—to prevent significant numbers of migrants in detention from accessing the tribunal to apply for bail.
That will have two potential consequences. First, it will significantly increase the levels of frustration, alienation and probably non-compliance within the detention estate
Adrian Berry: Yes. At the moment, the issue with the innovation in bail provisions proposed in the Bill is that there are difficulties with allowing, for example, the Home Office to vary a condition set by the tribunal. That is more than a cosmetic change. You have independent judicial provision for granting bail and for setting the terms after a hearing. A judge takes a view of what conditions should be imposed. The Home Office can then vary them at their own suit, possibly having lost the argument before an independent judge. You end up with a situation where conditions may be difficult to respect in practical terms, and that will have an impact.
The issue with the provisions in the Bill regarding bail goes beyond that, because it also deals with this idea of branding people as on bail when they have simply come to this country seeking admission. Hitherto, such people have been on temporary admission, which is a different sort of status. There is also an issue about the creation of a culture of presumption of detention and the presumption that you are on bail when, in fact, you have simply come to the country and sought admission, and you are lawfully here without any risk of absconding.
This rebranding is of a piece with the power grab, if you like, on the part of the Home Office against independent judicial scrutiny. What is really required is independent judicial oversight of bail at regular periods, so that you do not get into a situation where you have unlawful detention—in other words, where the detention is without legal foundation because it is unreasonable in most cases or it is contrary to the Home Office’s own policy. Without independent regular judicial oversight, you are going to have more unlawful detention cases and more compensation being paid out. As people have said, nobody wants that. It is not a good situation.
Colin Yeo: The Bill will have the effect of reducing scrutiny rather than increasing it. It turns independent hearings into, virtually, a charade. There is no point in having a hearing in front of an independent judge about whether you should be released and what the conditions should be, and arguing them out in court, when the Secretary of State has a power under the Bill to impose whatever conditions they want immediately afterwards. That reduces scrutiny heavily, and turns the whole thing into a charade, rather than increasing scrutiny, as we would like.
Jerome Phelps: Yes, we understand that there is an internal review taking place, and the Stephen Shaw review into welfare and detention is reporting around now. In that context, we welcome the decision to announce the closure of Dover immigration removal centre as suggesting a very positive intention to use detention more smartly. I hope that that reflects the overall direction of travel and that the Bill does nothing to get in the way of that.
May I ask each of you to take up your fantasy job? Close your eyes and pretend you are the Home Secretary. It might be your nightmare job—I do not know—but let us suppose it is your fantasy job. We have heard a lot about something to do with principle, something to do with process and something to do with practicality. Imagine you had a clean sheet of paper. Would it be easier for the Government, effectively, to declare an amnesty for everybody who is here now and to start from scratch? Or could they go still further and have no controls at all—effectively, Schengen, but wider—with people just coming to the country as and when, and no longer coming when the jobs run out? That would seem a lot easier.
Don Flynn: The Migrants Rights Network come at this from the point of view that immigration is part of the world in the 21st century. However it is managed and governed by national authorities—we certainly concede that it needs to be managed and governed by them—it has to be conceded that migrants should have rights and are not simply subject to an authority that can push them from pillar to post, taking executive decisions about providing them with reasonable options about how they advance their life chances, without giving them an opportunity to state their own case. We think it is quite possible to lay down a set of principles to govern that. We know what rights migrants need in order to prosper, to feel a degree of security and to tackle the complex issues of integration and providing for the needs of their families. These have been set out in United Nations and International Labour Organisation conventions. A good starting point for us in terms of addressing immigration policy is to see how we can transpose those into national law and make them effective. That is the discussion we would like to see with Governments: how do we design an immigration system which acknowledges the inevitability, and even the necessity, of migration, and how do we do deals with migrants that are fair and allow them to prosper?
Adrian Berry: My personal view is that of the organisation: there needs to be a fair, just and equitable system of immigration control, and there are a number of ways of achieving that. It is important not to create a situation where there is not a proper opportunity for
Colin Yeo: That is quite a major amendment being proposed to the Bill that the Committee is considering. I am a lawyer, not a politician. I cannot say that I have particularly well-formed views about those issues, but what I do see, as a lawyer dealing with the migrants and their families who are affected by the laws passed by Parliament, is that those laws have human consequences. We meet broken families: children who have lost their parents, parents who have lost their children, spouses who have been separated. They are people whose lives have been ruined or significantly impaired by bad Home Office decisions, and by rules that are excessively complicated and that separate people rather than bringing them together.
Jerome Phelps: It would certainly be a nightmare scenario from my point of view; I do not envy the Minister his job for a moment. I think that I, as Immigration Minister, would face the inevitable dilemma of weighing the very strong public support for effective immigration control against the need to respect the rights of migrants, and to get some element of trust in the system among migrants. That is often a very difficult balance to strike.
On detention, actually, those two needs are often mutually supportive. I think that there are benefits to both migrants and to effective immigration control in having safeguards on the use of detention—having a time limit on detention conveys to migrants that it is a reasonable and proportionate power—and in developing alternatives to detention that resolve cases without the expense of detention wherever possible, so that it can be used genuinely as a last resort in exceptional circumstances where voluntary return and far cheaper and more humane alternatives are not possible.
Manjit Gill: I am not qualified to comment on many things, and I often say so candidly. As far as the practicalities and policies are concerned, all that I would ask, if I
Q 222 Simon Hoare: Just to come back to Mr Gill, prior to my election in my present constituency, I fought Cardiff South and Penarth, which is my home city. Cardiff has always been a calm city, with lots of nationalities and no racial tension at all, but it was very evident in the 2010 campaign, when I stood there, that a number of the elders of very stable communities—Somali, Sikh, Hindu and so on—were saying, “The Government have to get a handle on this.” This is on your cohesion point. There was growing anxiety among people who had been here for a very long time, who had been accepted and who had an absolute right to be here. They were starting to feel uneasy that, because the problem had got slightly out of control, everybody was being put in the same bracket. Those struck me as interesting comments, coming from a community from which one might not have expected them. It certainly was not leading in any way to a more cohesive and calm society.
Manjit Gill: The questions of cohesion and support for communities are complex, as you imply. I recognise that, and I recognise that controls will probably need to be imposed. Those are questions for others. All I am saying is that in the imposition of those controls, you have to respect the individuals who are going to be affected and the human rights of those individuals, and do it in accordance with certain principles of law and policies that you have signed up to. That is all, and you can still build a cohesive society.
Q 223 Gavin Newlands (Paisley and Renfrewshire North) (SNP): I have two questions, the first of which is on the Bill’s evidence base. I sent the Minister a number of questions, one of which Mr Gill referenced earlier, on the evidence base that the Minister was unable to answer. For example, one was about evidence relating to the size of businesses employing illegal migrants, as the Bill focuses largely on small and medium-sized enterprises. How strong does the panel feel that the evidence base is in the Bill?
Don Flynn: Perhaps I could help with that one. I think the answer is that the evidence base is not strong. Certainly in areas such as the position of migrants in the workforce, for example, it seems to be predicated on a whole series of assertions about migrants contributing to exploitation, unfair business practices and things of that nature. There has been a fair bit of research, and a new book has been published just in the last week or so looking at the relationship between forced labour and a whole range of issues. The position seems to be that as far as the UK is concerned, there is not a particularly
The problem with this is that there is a point at which the illegal worker—the undocumented worker—actually tips over from being the criminal, as it is being phrased in the Bill, to being the victim of crime, the person whose situation is being taken advantage of. That requires a very different response from the one that seems to be being imposed—the requirement for strong policing and draconian threats of expropriation of earnings and whatever assets have been acquired. As I say, there are huge amounts of evidence at the moment—there is an industry as far as academia is concerned—looking at the situation of migrants in the labour force. It is very hard to see whether that sustains the sort of claims that underpin at least a couple of key sections in the Bill.
Adrian Berry: If we look at the landlord and tenant regime and the right to rent that was introduced for a civil penalty regime under the Immigration Act 2014, there has only been a very modest pilot of that programme in the west midlands. It has not been expanded nationally and here we are, post-general election, with an augmentation of that regime to impose criminal sanctions on landlords and to provide for summary eviction of people who lack a right to rent without protection of the court. We struggle to see what evidence base there is for strengthening a regime that has barely been born. Perhaps business was left undone in the last Act because of an inability to secure political consent, but the innovations in this Bill that look at that particular regime cannot really have a base in evidence, because we do not know how the existing regime is going to work—it is just being brought in at the moment.
Jerome Phelps: On detention, there is certainly a real lack of evidence base. Reducing access to section 4—to a bail address—would clearly save a certain amount of money from the asylum support budget. What does not seem to have been considered is the extra spending on detention costs or long-term detention; the extra spending on unlawful detention compensation pay-outs, which goes to the High Court; and, potentially, the long-term extra spending of the Home Office on trying to track down people who have absconded because they have nowhere to live and they can no longer be traced.
Colin Yeo: If legislation is about solving problems, if we look at the appeals provisions and the immigration bail provisions, it is hard to see anything other than that the problems being addressed are the Home Office’s losing too many appeals and the Home Office’s losing too many bail applications, or not getting the conditions it wants. Those are not the right problems to be addressing, in my view, and it is not the right way to address them. We should be looking at the quality of decision making instead.
Colin Yeo: Very concerned. The best evidence base on this is the work of the chief inspector of borders and immigration, formerly John Vine and now David Bolt. In the reports that the chief inspector has put together, he has been very critical of the exercise of enforcement powers by immigration officers. In a couple of reports from March 2014, for example, he found that immigration officers were granted the power to enter business premises without a warrant in two thirds of cases, without justification; he also found unlawful use of power, ineffective management oversight, major variations in local practice and inadequate staff training across all grades—really serious concerns are being raised. Reports on removals and emergency travel documents are, again, very critical of Home Office management of the process and training. The idea that more powers should be given to people who are already exercising them in a very questionable way is somewhat dubious, in my view.
Q 225 Craig Whittaker: I want to clarify a couple of things that were said a little earlier. Mr Flynn and Mr Berry, you were talking about migrants in general, and I presume you were not talking about the vast majority of migrants who come to this country in a legal position. I just want to clarify that you were talking about potentially illegal immigrants, rather than the vast majority of immigrants, who are legal.
Don Flynn: I was talking about the general effect of migrants in the labour force, which is often cited as having a role in making conditions worse for UK workers. That has been particularly accentuated by what are called illegal migrant workers—there is an added emphasis there that it is causing wages to be forced down and exploitation to flourish.
Q 226 Craig Whittaker: So we are talking about illegal immigrants, then. I am a little bit confused about what you were talking about. I do not think that anybody questions for one minute that migrants play an incredible role in our country. Just for clarity, I wanted to make sure we knew whether you were talking about illegal immigrants—or potentially illegal immigrants.
Don Flynn: I thought I was addressing the position of people who seem to be vulnerable as far as the Bill is concerned, who will find themselves subject to additional powers of scrutiny and who are at risk of enforcement action being taken against them.
Don Flynn: Yes. I would make the point that any of us who have day-to-day practical experience of this—I am continually coming into contact with people whose designation as illegal immigrants has come about not because of any action on their part, but because of a third party who has been involved in their case, typically a sponsoring employer who has not complied with some aspect of their responsibility to the Home Office.
Q 228 Craig Whittaker: The point I was trying to make is that it is still a very small part of the overall migration to this country, but that is not my real question. For my real question, I just want to take you back—
Jerome Phelps: The most apposite evidence would be the series of finding by the UK courts of breaches of article 3 in relation to highly vulnerable mentally ill migrants in detention, who should not be detained anywhere except for under exceptional circumstances. Article 3, on inhuman and degrading treatment, is a very high threshold. Until recently there had never been a case of this, but in the past four years there have been six cases of desperately vulnerable people who have had complete psychiatric collapse in detention, to the article 3 breach level.
Q 229 Craig Whittaker: I do not want to undermine or belittle the six cases by any stretch of the imagination, but from the thousands who have been through the system in the past four years, which is what you mentioned, it is an incredibly small part. It would therefore be very difficult to say that the system is broken. Is that right?
Jerome Phelps: I do not think any of us have suggested that everyone in detention is abused. It is a small part but we have functioning safeguards, such as the bail system. What is concerning about the Bill is that it is removing some of those safeguards.
Q 230 Paul Blomfield (Sheffield Central) (Lab): Could I follow up on Mr Newlands’ question about enforcement powers to which Mr Yeo gave a fairly powerful response? The provisions of the Bill give immigration officers what might be described as police-like powers. Could you reflect on the different way in which immigration officers are subject to challenge, scrutiny and oversight in the exercise of their powers in contrast with the police and the exercise of theirs currently?
Adrian Berry: My role in looking at enforcement is largely concerned with policy innovation rather than practice, because a lot of these things are not litigated in court. Immigration officers’ powers have grown piecemeal over the years through a series of legislative innovations, to the point where they now look like a parallel police force in respect of migration issues. In that context, there is not the same culture of scrutiny and oversight that one sees under the Police and Criminal Evidence Act 1984, and with the Independent Police Complaints Commission and various other bodies. It is a developing situation.
Our concerns—whatever one thinks of the situation of the use of police powers by the police—is that this is a piecemeal accrual of powers without, if you like, a moment where it is recognised that you are dealing with a secondary form of police force. You need to develop not just the legislative framework, but the culture of scrutiny and good behaviour within an institution if you are going to have a police force. This sort of innovation—for example, the ability to enter private homes and search without warrant—can affect all of
Q 231 Paul Blomfield: I wonder if anybody on the panel could develop that point about proper scrutiny. I am conscious, even within the regulatory framework that the police exercise, that careless use of police powers often has a much more significant impact in terms of community relations and tensions. I do not understand what checks and balances are in place for immigration officers. Which ones do you think ought to be in place?
Don Flynn: Presumably, one of the most important is the right of appeal if the seizure of property or evidence leads to an adverse decision—the possibility of challenging that decision through the appeal process. The sort of experience that we have had is with evidence of a breach of an immigration condition. Sometimes it is clearcut, but very often it is not. Very often the authorities think that it has emerged only after they have read a lot of private letters and diary entries. They might conclude that correspondence with somebody who, for example, acted as a sponsor at an early stage but subsequently turned acrimonious—arguments broke out—was evidence that fraud was used to support the application for a visa in the first instance. In the absence of an effective check on that—the ability to review it and to appeal a matter in circumstances where executive powers for administrative removal are much stronger—virtually any personal items or correspondences are regarded as evidence that will lead to a person being removed.
Colin Yeo: Again, I am thinking in terms of what problem the Bill is trying to address. In terms of enforcement, I am not sure what the ill or the problem is that needs addressing. No doubt, immigration officers would like more powers, but I am not aware of any evidence to show that they do not have enough powers as things stand. If we look, for example, at the ultimate end of enforcement, it is removals, basically. I have the statistics in front of me from the latest quarterly release. Enforcement by means of removal is falling year on year. That is not because officers did not have the powers at the start of that period. The powers are the same—in fact, they have increased under the 2014 Act. That is not the problem. The problem is making good use of existing powers and doing so in a lawful way.
Colin Yeo: A bad decision in an immigration appeal context will be, for example, when evidence that was put to an entry clearance officer abroad or to an official here in the UK simply is not looked at. For example, if that evidence had been properly considered, it would have led to a different outcome. There are more serious cases such as sham marriages, which are very much a topic of discussion at the moment. All practising
Colin Yeo: Clearer immigration law would be a big step in the right direction. Over the past four or five years, increasingly complex rules have been introduced with longer and longer applications forms, which are harder to understand for the applicant and for the poor Home Office official who is responsible for making these decisions. That is one problem. The evidential requirements are now incredibly complicated and are not obvious on the face of the application—you are required to submit documents in a certain format and so on. Frankly, there is also a culture of looking for reasons for refusal in some cases. Cases come across my desk in which I look at the papers that were submitted and then look at the decision, and it is very hard to understand how that decision can have been reached on the papers that were available to the official responsible. I guess they have limited time, or they are not applying their own training or policies properly, or something like that.
Don Flynn: Very quickly, on that point, I think that the right of appeal is the best mechanism we have for ensuring the quality of decision making. At the moment, there are still good grounds for concern about the quality of decisions, but at least it gives us an opportunity to put the decision maker’s reasoning and logic in front of a tribunal and examine it. It seems clear to me that in the absence of a right of appeal, there is simply no other mechanism that can be substituted; at least, if there is, the Home Office has not come up with it. Nothing will automatically improve the very worrying amount of poor decisions being made at the moment if decision makers are not required to justify them before a proper adjudicator.
Manjit Gill: The question that has raised itself more than once—how to sort out decision making and make the quality better—is difficult. One problem is that decision makers on the front line within the Home Office—I suspect; this is my guess—are told to use certain set phrases to pursue certain policy objectives. What tends to be lost in that process is a basic common sense and a basic use of discretion to take a phrase and apply it sensibly.
I will give you one very practical example. I had a case in which a lady who was here lawfully was driving a car for the first time after having passed her test. Unfortunately, she chose an automatic rather than a
Her husband phoned the Home Office, desperate to speak to the caseworker, who was very supportive and indicated that he had been told that this had to be refused. He had had a meeting with his superiors, who knew that they were going to lose on appeal when the case went to the tribunal. He said, “Don’t quote me, but that’s what is going to happen.” It duly went to appeal, and it was allowed, as it inevitably had to be. Why did they make such a decision in the first place? Because they are being pushed by other imperatives. The discretion is taken away from them. The chap who was dealing with it, the caseworker, probably wanted to say, “This is obviously ridiculous. Nobody is going to throw this person out.”
Q 234 Kelly Tolhurst: Can I make a comment? Thank you for that. I would say one thing. Every day, people in this country break the law, intentionally or unintentionally, and cause death, and it wrecks their lives—British citizens, who have a legal right to be here. I was not really comfortable with the way you tried to make a death caused by road accident a lower-level activity, because—
Manjit Gill: I’m sorry, that is not what I was saying. Death by dangerous driving is serious. I am not seeking to diminish the offence; please do not misunderstand me. What I am seeking to point to is the fact that sometimes these offences occur, for which someone is rightly sentenced, but that does not mean necessarily that they are to be thrown out of the country. People know that that is the position but they tend to be forced into a certain decision making.
The Chair: Thank you, Mr Hoare. Gosh, I am surrounded by a lot of lawyers, which is not good for an accountant. There are two Members who have been patiently waiting. With the permission of the Committee, I will call them and see what time we have over for the rest. Mims Davies.
Q 236 Mims Davies: We now have a system of complex rules and, it appears, really complex cases. That seems to be the root of criticism today that we are dealing with very complex rules that do not seem to fit the very complex cases. There is a certain irony in that. The detention system that we have was created very much
Colin Yeo: The current bail provisions in the 1971 Act are quite complicated. In a way, it could be said that schedule 5 of the Bill does simplify them. But it also introduces a radical change, which is simply to render redundant a bail hearing in front of an independent immigration judge. Schedule 5 gives the power to the Home Office to re-detain and to set whatever conditions the Home Office wants after one of those hearings. You wonder what the point of having a hearing is. If it is such a charade, the Home Office can do what it wants after anyway.
Q 237 Mims Davies: Is it not fair of me to sit here thinking that we have really got a culture that has grown up over the past few years of complex cases requiring complex rules? I suppose we are trying to work out whether we have a fair system, or whether we have a lot of people involved in complex cases, allowing abuse of the rules, without the Government giving a chance for people to have clarity on the rules. Do you see where I am coming from? It appears we have complex cases and potential abuse of the rules. Therefore, most people on the outside whom I speak to want to have a clear immigration policy. Those people coming in would expect the same.
Colin Yeo: A lot of cases are not necessarily complex but they are made complex by the rules. For example, for a spouse coming into the country, the previous rules required that you had to show adequate maintenance. That was a very straightforward rule in some ways and it was up to you how you evidenced that, and judges would judge it.
A new rule was introduced in 2012 requiring a certain level of income to be established. Along with that level of income of £18, 600 in most cases, more if you have non-British national children, is a plethora of incredibly complicated rules about exactly what documents are required to prove that. Especially if you are self-employed, it is very difficult to get the right documents together. If you have an internet bank account it is virtually impossible to get the letter from the bank that is required by the Home Office to certify those online bank statements. The rules make what could be quite straightforward, simple cases into very complicated ones, and unnecessarily so in my opinion.
Q 238 Mims Davies: That is very helpful. Quickly to Mr Flynn, you said that there is an element of templating that is coming here. Do you not believe that that is probably in some ways helpful, given what Mr Yeo has just said?
Don Flynn: I am certainly in favour of simplicity. When I first started giving immigration advice back in the 1970s, the immigration rules were a slim little pamphlet and the best legal text book was written by Handsworth law centre and was about 30 or 40 pages long. If you mastered those principles you were the best immigration lawyer in the country. The vast majority of issues were sorted out very quickly. What we have seen since then is a proliferation. Immigration rules are volumes now. They change every few months, and legal advice on how to interpret them is an industry on its own.
My point is that we manage immigration no better today, with all this complexity of rules, than we did in the 1970s, when there seemed to be more certainty and simplicity. I advocate getting as close as we can to the situation that existed in the 1970s, and we are not doing that in this Bill.
Don Flynn: I do not actually believe that. I think that aspects of people’s lives are more complicated, such as the business of earning a living nowadays. In the 1970s, people got a job and stayed in it for 30-odd years until they retired; now they move around. You get portfolio workers, and there is an amount of evidence needed to ensure that you are on the right side of the law rather than the wrong side. You are dependent on far more people to support the evidence that you want to put in front of us.
That is certainly there, but the same fundamental principles govern people’s lives. People want to fit in. They want to get on. They need their lives to have predictable aspects that they can steer toward, and we have got further and further away from that. The business of being an immigrant nowadays is often like being a lost soul, wandering around trying to get orientated and find out exactly what your rights are, and getting into a bigger mess because it is impossible to get that information.
Q 240 Byron Davies (Gower) (Con): I would like to ask the panel a more general question concerning a group of people who have not been mentioned yet: the great British public. Over a period of several years of knocking on doors speaking to many thousands of people, the issue of immigration has not failed to raise its head, hence the Bill before us. This issue comes up all the time. What assessment would you as a panel make of people abusing the immigration system?
Don Flynn: It certainly takes place; I am certain that that is the case. There is an industry out there. People know that there are flaws in the system, and there is an opportunity to make money exploiting all that. As far as individual migrants are concerned, as I implied in my earlier answer, I find most people are very honest. Most people want to work. They want a life, and they want to do all the normal things, but they find themselves in situations that they simply do not understand. They become—
Adrian Berry: There are clearly instances of abuse of immigration control. One driver is often the fact that, if you are a forced migrant because you are displaced from your home country by reason of persecution, there is no visa regime to enable you to flee persecution, and carriers’ liability penalties are imposed. Syrians, for example, cannot get a humanitarian visa to come to the UK to claim asylum, nor can an airline carry them, because it will be fined. So, unsurprisingly, to flee civil war in Syria, they are seeking the assistance of smugglers, which engages immigration control. That is a classic example of how a statutory regime interacts with forced displacement to produce what might be construed as abuse of immigration control by uncharitable persons.
Colin Yeo: For example, it is one thing to deprive foreign criminals of an in-country right of appeal and to make them leave first; it is another to do that to people who are settled here and who have a good case under the immigration rules, and to force them to live apart outside the country while they attempt to pursue that appeal. Although I understand that the hope is that the Bill will address problems and abuse, unfortunately, it will also affect lawful and legitimate migrants, who often have British families. They will be approaching their MPs in future with these kinds of problem if the Bill becomes law.
Jerome Phelps: The most obvious example that we see in detention is people who are desperate to stay in Britain and who claim asylum because they do not feel that they have any other options. What is concerning about the Bill is that it appears to create another perverse incentive to do so. Asylum support bail addresses under schedule 6 will be available only to people who have claimed asylum. That is a potentially unintended consequence that should be taken seriously.
Manjit Gill: Of course there are abuses of different sorts at different levels—one must recognise that—but the response is important. The response must be proportionate, measured and tailored to the particular situation. That is the key issue.
The Chair: I am afraid that that brings us to the end of the time allocated for the Committee to ask questions. I thank all the witnesses. Clearly, we could have gone on for much longer, but I appreciate all your comments.