73. Memorandum from the Refugee Council
The Refugee Council is the largest organisation
in the United Kingdom working with asylum seekers and refugees.
We not only give help and support to asylum seekers and refugees,
we also work with them to ensure their needs and concerns are
addressed by decision-makers. We therefore welcome the opportunity
to contribute to the Joint Committee on Human Rights' (JCHR) consideration
on the proposals for a new structure for the single equalities
body and arrangements for the promotion and protection of human
As you will be aware we have previously already
submitted evidence in response to JCHR's previous calls for evidence
and also participated in the work of the British Institute of
Human Rights (BIHR) published in December 2002.
In making our response, we have endeavoured
to answer the questions set out in your call for evidence of 19
1. The convention rights that are applicable
to the problems faced by our client group are
Article 3 Prohibition of torture
Article 5 Right to liberty and security
Article 6 Right to a fair trial
Article 8 Right to respect for private
and family life
Article 9 Freedom of thought, conscience
Article 10 Freedom of expression
and Article 14 Prohibition of discrimination.
2. We are concerned about a range of issues.
The recently introduced Nationality Immigration and Asylum (NIA)
Act 2002 will give rise to a number of possible breaches of the
Human Rights Act in relation to asylum seekers. Indeed in your
17th and 23rd Report of Session 2001-02 you detail concerns and
highlight where these breaches could arise. In summary these are
There is a risk that leaving a person
destitute would inevitably threaten a violation of rights under
Articles 3 and/or 8 of the ECHR.
There is a risk that the power to
support children without related adults might lead to the separation
of members of a family, giving rise to a risk of a violation of
There are weaknesses of safeguards
for human rights in clause 54, in view of:
the burden being placed on the claimant
to satisfy the Secretary of State that a claimant has claimed
asylum as soon as reasonably practicable;
the lack of objectivity in the requirement
that a person must claim asylum as soon as reasonably practicable
in order to be entitled to support;
the lack of any appeal to an adjudicator
against a decision denying support; and
the absence of any power to provide
support pending an application for judicial review of the decision
to deny support.
There are doubts as to the effect
of clause 56, authorising the making of regulations to allow support
to be withheld if the Secretary of State is not satisfied that
the claimant has given a full and accurate account of various
matters and is co-operating with the Secretary of State's further
There are weaknesses in safeguards
for human rights in clause 56 and a risk of a violation of Article
6(1) of the ECHR through a potential threat to the privilege against
The full reports can be found at:
We are already beginning to see the effects
of the implementation of the NIA Act particularly S55 and S57
which became operational on 8 January 2003. This leaves some asylum
seekers without any means of support whatsoever. As stated, we
believe this to be a breach of Article 3 and will lead to widespread
destitution and it is likely that this will soon be challenged
through legal proceedings.
3. The measures related to the support of
asylum seekers are, according to the National Asylum Support Service
(NASS), likely to affect up to 100 people a day. In relation to
detention there are currently 2,000 detention spaces and we estimate
that at any one time there are likely to be 1,400 asylum seekers
4. We feel that these failures of service
provision are not failures of good practice but are breaches of
the Human Rights Act.
5. The issues of concern that we have do
not presently fall within the remit of any of the Commissions.
The Commission for Racial Equality's authority is derived from
the Race Relations legislation and not the Human Rights legislation.
Therefore, whilst they are able to take up any race issues in
relation to certain asylum seekers and refugees, they do not have
the remit to take up the human rights issues. Likewise, the Equalities
Opportunities Commission and the Disability Rights Commission,
whilst able to take up discrimination aspects of individual cases,
will not be addressing the human rights issues involved.
6. As asylum seekers and refugees are not
a racial group they will not fall into the remit of the proposed
single equalities commission after implementation of the EU Directive
on grounds of sexual orientation, religion and age. It is difficult
to envisage how the issues that are of concern to us could fall
into the remit even following the EU Directive.
7. On the basis of Articles 8 and 14 of
the ECHR, the Child Poverty Action Group successfully challenged
the Home Office and the Department of Health's refusal to grant
milk tokens to asylum seeking women who had recently given birth.
(Regina v Secretary of State for Health and Secretary of State
for the Home Department Ex Parte T and S).
Article 5 (1) (F) was the basis of the Refugee
Legal Centre's challenge of the Home Office's detention in Oakington
of four Iraqi Kurds (Regina v Secretary of State for the Home
Department Ex Parte Saadi (FC) and others (FC).
Legal challenges are currently being mounted
by Refugee Legal Centre, Liberty and individual solicitors against
the Home Office on the basis that S55 and S57 of the NIA Act breach
Articles 3, 6 and 8 of the ECHR.
8. As we believe many of our concerns arise
from legislation as opposed to bad practice, it is inevitable
that recourse lies in legal proceedings. It is our view therefore
that essential remedial action would involve legislative amendment
and policy changes.
9. As we outlined in our earlier response
we firmly believe that there is a need for a body, independent
of government that has the powers to promote and protect human
rights. This response is attached at Annex A.
10. It is clear from the BIHR research that
there is a great lack of awareness of individual rights under
the Human Rights Act and there is an urgent need for much greater
promotion which an independent body could do.
11. At this stage our principal concern
is that a Human Rights body is actually established rather than
on the structure such a body should take.
There are arguments to be made both for and
against the single equalities body also encompassing human rights.
It is possible that having one body could strengthen some of the
issues. However it is possible that this would give it such a
wide remit that the human rights agenda could be lost or greatly
On balance we feel a separate body would ensure
greater clarity in concentrating on the human rights agenda.
Refugee Council Response to a Human Rights
Commission for the United Kingdom
1. The Refugee Council welcomes this opportunity
to contribute to the Joint Committee on Human Rights' consideration
of the desirability for a Human Rights Commission to be established
in the United Kingdom.
2. The Refugee Council is the largest organisation
in the United Kingdom working with refugees and asylum seekers.
We not only give help and support to asylum seekers and refugees,
we also work with them to ensure their needs and concerns are
addressed by decision-makers.
3. The right to asylumthe right to
be free from persecutionis a basic human right. This year,
the Refugee Council celebrates the 50th anniversary of the 1951
UN Convention relating to the Status of Refugees which, over the
years, has helped to protect millions of ordinary people.
4. The Refugee Council, other refugee organisations
and human rights groups, backed by a number of reports, have expressed
concern that the human rights of asylum seekers and refugees are
not being respected properly in the United Kingdom. The Joint
Committee may be aware that criticisms about the voucher system
and the lack of access to legal advice for asylum seekers, for
example, have been made by the UN Committee on the Elimination
of All Forms of Racial Discrimination, Amnesty International and
the United Nations High Commissioner for Refugees ("Reception
Standards For Asylum Seekers In the European Union", UNHCR,
Geneva, July 2000).
5. It is not possible for established bodies,
such as the Commission for Racial Equality, to address all the
issues facing asylum seekers and refugees because of statutory
or other limitations.
6. It is our view, therefore, that a Human
Rights Commission, working closely with other bodies with special
responsibilities for particular rights, would be a significant
step towards fostering a human rights culture in the United Kingdom
and, in defending the human rights of asylum seekers and refugees,
would help protect the right to asylum from being undermined.
7. A Human Rights Commission could also
fulfill an important role in monitoring and investigating the
extent to which the human rights of asylum seekers and refugees
are protected and advise government and Parliament of necessary
reforms in law (existing and proposed), policy or procedures.
It should also be able to take test cases and make interventions
in cases where it is in the public interest that the law or actions
be challenged or clarified.
8. For example, despite widespread criticism
of the practice, the Home Office is currently rejecting a significant
proportion of asylum applications on the grounds that the applicant
did not complete (in full and in English) and return (within a
rigid 10 day deadline) a form outlining his or her asylum application
prior to interview. These asylum applications, even if they are
from countries which the Home Office accepts pose significant
risks, such as Iraq and Afghanistan, are rejected without having
their merits considered. Many applicants issued with such refusals
appeal to the Immigration Appellate Authority at great expense
and at further delay. A Human Rights Commission could investigate
whether such a practice had the effect of abridging the human
rights of asylum seekers and inform Parliament and the public
of its findings and recommendations.
9. The Human Rights Commission may also
wish to investigate the detention of asylum seekers. Asylum seekers
are currently unable to challenge the lawfulness of their detention
before a court and the many of those detained are in prisons,
sometimes amongst convicted prisoners.
10. The Refugee Council believes creation
of a Human Rights Commission would be particularly beneficial
to efforts to promote public awareness and understanding of human
rights issues, including our responsibility to protect the human
rights of others. On this last point in particular, the Refugee
Council is aware there exists hostility in the media and in many
members of the public towards asylum seekers and refugees. Despite
the fact that asylum has been high on the political agenda, much
of this intolerance is based on ignorance of even the most basic
11. For example, a Mori poll in the Reader's
Digest magazine (November 2000) found that although a majority
of respondents believed that refugees come to the UK because they
regard it as a "soft touch", many based their views
on incorrect assumptions on how much support asylum seekers receive.
Respondents, on average, believed that asylum seekers receive
£113 a week to meet their essential living needs. The real
figure is £36.54 a week for a single adult.
12. The Joint Committee may also wish to
examine recent reports by the UN Committee on the Elimination
of All Forms of Racial Discrimination and the Council of Europe's
European Commission against Racism and Intolerance. Both bodies
criticised politicians for failing to educate public opinion on
13. It is likely that the people most in
need of a body like the Human Rights Commission to help safeguard
their human rights will also be those, such as asylum seekers,
least able to access it due to a range of information and resource
barriers. It is therefore essential that the Human Rights Commission
be mandated to pay particular attention to the needs of such groups.
14. It is necessary for the success of the
Human Rights Commission that it is resourced fully to carry out
its functions. We would expect it to be empowered to conduct investigations;
to require people to provide information; to require people to
cease conduct which the Commission considers to be unlawful; to
conduct legal proceedings; to assist other parties in legal proceedings;
to issue Codes of Practice; to conduct research; to engage in
a range of activities designed to heighten awareness within their
remits and other such activities deemed necessary.
15. For the reasons outlined above, the
Refugee Council welcomes the Joint Committee's consideration of
this important question and believes there is an overwhelming
argument for the establishment of a Human Rights Commission.
17 January 2003