Joint Committee On Human Rights Twenty-First Report

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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