2. Letter to the Committee from Lord Filkin,
Parliamentary Under Secretary of State for the Home Office re
the Nationality, Immigration and Asylum Bill
I thought it might be helpful if I were to write
to you before Committee stage [in the Lords] begins to set out
our initial responses to the 14 major points listed in the conclusion
to the report (paragraph 112).
Issue (a)—the validity and effect of the
UK's reservations to the UN Convention on the Rights of the Child
(CRC) (paras 17 and 46-48)
The UK acceded to the UNCRC on the basis of reservations,
including the immigration and nationality reservation. This was
necessary to preserve the integrity of immigration laws and procedures
in the UK and because we did not want entry to be gained by those
simply wishing to make use of UNCRC Rights and with no other justification
to come to the UK. Therefore the UNCRC is not binding on the UK
in so far as a matter falls within the reservation, and there
is therefore no requirement to make the best interests of the
child a primary consideration or to adhere to any other principles
set out in it.
However, this does not prevent the UK from having
regard to the UNCRC in its care and treatment of children. Moreover,
the basic human rights of children are protected under the Human
Rights Act, which applies to all children in the UK without exception.
There are no grounds for saying that the reservation is unlawful,
as the UK may enter into treaties subject to reservations, as
it and other countries have done in many other cases.
The Government remains of the opinion that the Reservation
is justified in the interests of effective immigration control.
The UK is not complacent and does take its international obligations
seriously.
Issue (b)—the implications of depriving
someone of British Citizenship, apart from their immigration rights
(para 26)
We recognise that deprivation of citizenship is a
serious step which may have serious consequences. That is why
it will not be a routine act but confined to the most serious
of cases where either the citizenship was obtained by fraud, or
the individual has engaged in activities seriously prejudicial
to the vital interests of the UK or of a British overseas territory.
Deprivation on grounds of activity seriously prejudicial
to vital UK/BOT interests can take place only where to do so would
not render a person stateless (and can thus apply only where a
person has dual nationality).
There is a full right of appeal against any decision
to remove nationality (see section 40A of the BNA81 as inserted
by clause 4 of the Bill )where the legality of the Secretary of
State's decision and the question of whether he should have exercised
his discretion differently can be reviewed
Issue (c)—the subjectiveness of the conditions
for justifying a deprivation of British Citizenship (para 29-30)
(i) On the subjectivity point—
In respect of the ability to deprive on the basis
of conduct prejudicial to the vital interests of the UK, the Secretary
of State is in the best position to assess this. The Courts have
stated that in matters of national security the Secretary of State
is in the best position to judge what national security requires.
There is room for a good deal of argument on whether
something is prejudicial. It would be placing an impossible burden
on the Secretary of State if he were unable to deprive unless
absolutely certain, perhaps following a conviction in the criminal
courts, that an act justifying deprivation had been committed.
In some cases such certainty might be unattainable, eg where an
individual had fled the country after committing a terrorist act.
In respect of the ability to deprive somebody on
the basis of fraud, false information or concealment of a material
fact the Secretary of State must be satisfied that the registration
/ naturalisation has been obtained by fraud before he can deprive.
The fact that the Bill would facilitate deprivation of nationality
on the subjective view of the Secretary of State does not mean
that it would be exercised arbitrarily. The Bill requires the
Secretary of State to give written reasons for his decision and
the appeal provided would enable a person to raise, on appeal
any issue bearing on either the legality or the merits of the
decision. In practice a Secretary of State would have to have
very good reasons for his decision which would have to be given
at appeal in order for the decision to be sustained. It would
not be a case of the Secretary of State simply saying that he
"was satisfied" without explaining why.
(ii) On the appeal point and the adequacy of
the test of reasonableness.
The appeals provided for by the new section 40A of
the BNA 1981 and new section 2(2A) of the Special Immigration
Appeals Commission Act 1997 are full appeals where the appellate
body could review both the legality and the merits of the decision.
They would not as the JCHR seem to understand be limited to considering
whether the Secretary of State had acted wholly unreasonably.
Issue (d)—the arrangements for making residents
of asylum centres aware of their rights under national and international
law (para 43)
All asylum seekers will be placed initially in an
induction centre (or detained in a removal centre). In either
location the induction programme will include a comprehensive
briefing of the way the asylum system will work; and a description
of the rights and responsibilities of each asylum seeker.
Issue (e)—the arrangements for providing
effective access to timely legal advice of an appropriately high
quality to residents in asylum centres and in removal centres
and the need for the provision of effective legal advice and representation
to be carefully monitored (para 44 and 87)
The government does not accept that legal advice
is necessary in order to make a claim for asylum. Caseworkers
will make clear to the applicant that their claim must rest on
a well founded fear of persecution, and ask the applicant to explain
on what basis they are making that claim.
However, the government is committed to providing
access to quality legal advice at all stages of the asylum claim
and accepts that in certain circumstances access to legal advice
is likely to be beneficial in order to make faster progress on
a claim.
The Government has made clear that asylum seekers
in accommodation centres will have access to legal advice. The
Legal Services Commission will decide and fund the arrangements
at each centre. Legal advisers may or may not be based on site
depending on the particular circumstances at each centre. Where
they are not based permanently on site, facilities will be provided
for visiting advisers.
But can give an assurance that whatever method is
chosen will need to work in practice. It serves our interests
to ensure that legal advice is available to those in accommodation
centres as soon as possible in order to progress the consideration
of the asylum claim quickly.
Issue (f)—the reluctance of the government
to undertake to take positive steps to secure the rights of children
in accommodation centres under CRC including the right to be free
of discrimination, the right to have their best interest treated
as a primary consideration in decisions and actions affecting
them, the right to education on a non-discriminatory basis, and
the right to participate in cultural life (para 46-62)
We are satisfied that notwithstanding the Reservation
there are sufficient checks and balances to ensure that children
are fully protected.
The Government believes that placing families with
children in accommodation centres is in best interest of the child
because: if the family is successful in its application it is
likely to happen faster and the family would then be able at an
earlier stage to integrate into British society. If the family
is not successful and is due to be removed it would be very much
against the child's best interest for it to have been "integrated"
only then to be taken away and removed.
Children will not be separated from parents other
than in exceptional cases. But we must for example make provision
for circumstances in which a parent consistently breaches rules
in a severe way (eg by committing serious arson attacks at the
accommodation centre, or violent assaults on staff or other asylum
seekers there). In such circumstances it would be right to deny
further support to the adult and in some cases that could require
the children to be taken into care. But that would be a last resort.
There is no reason to suppose that a place in an
accommodation centre will breach the rights of the child. On the
contrary, it will fully meet their needs at that stage.
Education in an accommodation centre is not discriminatory.
It will offer the full national curriculum but in a focused way
to deal with children many of whom cannot speak English (as such
it may well be a better placement to enable specific needs to
be addressed, than for the children to be placed in a class of
a local school where its particular needs are less likely to be
picked up or addressed).
The permissive power does not affect the fact that
the government has given an undertaking to provide education in
the centre (and the child has an absolute right to receive education
which must be provided one way or another).
Children will be able to take a full part in the
activities provided at the accommodation centres, including the
facilities for religious observance.
Issue (g)—the right of destitute asylum
seekers or their dependents who have been required to leave accommodation
centres without fault on their part to a standard of accommodation
and other support which is adequate for their needs (paras 66
and 74)
Decisions will be proportionate and reasonable. In
nearly all cases, action will be taken only against the person
who breaches conditions of residence—and we intend that
in most circumstances there will be warnings before the option
of total withdrawal of support has to be considered. However we
would want to reserve the right to move straight to withdrawal
of support in serious cases.
No-one will be required to leave an accommodation
centre because of the actions of others unless they are part of
a family group. Even then consideration would be given to keeping
dependents in the accommodation centre even if one member of the
family had to be excluded. We do not have to treat a family as
a group when considering withdrawal of support.
Where a family is required to leave consideration
will be given to providing the "innocent" members of
the family with alternative support (possibly via NASS).
In extreme circumstances where the behaviour of adults
was so serious that they has made themselves intentionally homeless
by constant, wilful and serious failure to abide by the conditions
of residence, it might be necessary for the children to be taken
into care. Clause 41 (which inserts a new section 122 into the
1999 Act) provides that in the event that asylum support is withdrawn
from a family with children, there is a final safety net for the
children of support from a local authority under relevant child
welfare provisions.
Issue (h)—there are doubts on whether NASS
can be relied upon to provide adequate support to asylum seekers
in the community (para 68)
Providing cash support
We have made no secret of the fact that in its early
stages the service provided by NASS was not acceptable.
To address these inefficiencies NASS spent time last
year reviewing and redefining its processes.
Provision of accommodation
The contracts entered into by the National Asylum
Support Service for its accommodation contain a provision specifying
that the premises "must be fit for human habitation as
defined in the Housing Act 1985 or above the tolerable standard
as defined in the Housing (Scotland) Act 1987 and meet all Regulatory
Requirements". This is a deliberately all embracing provision
intended to ensure, so far as possible, that accommodation used
by asylum seekers supported by NASS is fit for habitation and
meets any other relevant statutory requirements.
Further requirements in contracts include provision
of adequate and safe lighting; safe and adequate supply of electricity,
water and other utilities; functional and safe electrical and
gas appliances (meeting regulatory requirements); adequate ventilation;
full and safe heating systems.
Additionally there are provisions in the contracts
to require repairs to premises, fixtures and fittings to be carried
out within appropriate timescales and people living in the accommodation
must have access to a repairs and maintenance service including
an emergency repairs services where a threat to health or safety
is apparent.
Issue (i)—the lack of clarity in the definition
powers for the Secretary of State to make regulations allowing
assumptions to be made about a person's means when deciding whether
he is destitute (para 76)
The regulations will be applied reasonably. The Asylum
Support Regulations 2000 allows for a person's means to be taken
into account if it is reasonably available to them. A person can
appeal to an Asylum Support Adjudicator if a decision is taken
to withdraw or refuse support.
The new regulations will be laid before parliament
and it will be open to members of either House to ask for a debate.
Issue (j)—the reluctance of the government
to recognise the absolute nature of the obligation to avoid treating
people in ways that would amount to degrading treatment contrary
to ECHR Article 3 (para 78)
The Government accepts that Article 3 is absolute
and unqualified.
But we should be able to stop providing support from
those who abuse our systems. The Asylum Support Regulations 2000
provide for support to be suspended or discontinued if there is
a breach of the conditions under which support is provided. When
support is suspended or withdrawn in the UK decisions are taken
on a case by case basis and the person can appeal to an Asylum
Support Adjudicator.
Withdrawal of support in these circumstances may
engage ECHR Article 3 in some severe circumstances but we do not
consider that destitution alone reaches the threshold required
to be reached before Article 3 is engaged.
In the event that an applicant considers that their
rights under ECHR have been breached they can ask for NASS support
to be reinstated.
It is not automatic that a breach of residence conditions
would also lead to a failure of the asylum claim. Behaviour in
the accommodation centre can be taken into account in the asylum
claim itself only if it is relevant. For example a person who
caused minor damage would probably not have support totally withdrawn,
and certainly would not be refused asylum on that basis. But if
it were found that the person was working during the day and that
the employment arrangement had been set up prior to their arrival
in the UK that could be a relevant factor in deciding their asylum
claim.
Issue (k)—lack of flexibility on limiting
the level of non-accommodation support to 70 per cent (para 80)
It is misleading to compare the cash support provided
by NASS to income support rates. The full NASS support package
includes fully furnished accommodation with utility bills and
council tax being paid for centrally. In addition asylum seekers
and their dependants are eligible to receive free prescriptions,
dental and optical care. Taken together the level of support is
roughly equivalent to the income support payments of asylum seekers
in receipt of income support (ie 90 per cent level for adults)
for port applicants prior to April 2000.
The level of support paid for children here as part
of an asylum seeking family is identical to that provided for
children in families on income support (albeit that no equivalent
of the family supplement is payable).
Where asylum seekers do not take NASS accommodation
it is assumed that they will be provided with similar benefits
in kind by those family and friends who are providing the accommodation.
But if this is not possible it is open to the asylum seeker to
apply for the full support package, including accommodation.
Issue (l)—Clause 52(7) does not provide
that the power to detain can 'only' be exercised where the Secretary
of State has reasonable grounds (para 84)
It is certainly not our policy intention that the
Secretary of State can detain without reasonable grounds.
We believe that the clause as drafted has the effect
that detention without reasonable grounds would be unlawful.
Issue (m)—the interests of the child should
be a 'highly' important factor in making the decision to detain
families (para 88)
The interests of the child are clearly an important
factor in the decision to detain a family. However, where it is
considered appropriate to detain a family, we consider that the
interests of the children of such a family are best served by
detaining the family together rather than separating parents from
children—this balances the interests of the child with the
need to preserve family unity and, to the extent possible within
the detention context, allow the family to continue to enjoy family
life.
Issue (n)—when the Secretary of State makes
a certificate depriving a person of a right of appeal it should
not be possible to remove them before they have had an opportunity
to seek the assistance of a court in enforcing Convention rights
(para 98, 99, 101, 104 & 108)
A person may be deprived of a direct appeal to an
adjudicator on human rights grounds before removal by a one-stop
certificate (clause 84) or a clearly-unfounded certificate (clause
82 and 101) or by a third-country certificate (clause 81). They
may apply for judicial review of the certificate.
The current policy in relation to judicial review
applications is subject of a concordat with the High Court. Any
person who is detained or has directions set for an imminent removal
and who indicates a wish to apply for judicial review is given
three working days to lodge an application with the High Court.
They must obtain a reference number as proof of this. If the reference
is obtained, then removal is deferred pending the outcome of the
application. We—and the High Court—consider that this
provides adequate opportunity to seek the court's assistance.
2 July 2002
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