Appendix
Memorandum dated 14 June 2007 from Liam Byrne
MP, Minister of State, Home Office
1. We recommend that in the development of asylum
policy the Government should proceed on the basis of evidence,
rather than assertion, which evidence should wherever possible
be published. (paragraph 5)
We accept that the development of asylum policy should
proceed on the basis of evidence. We believe that evaluating the
impact of changes is an important part of the policy development
process and we accept the benefit of publishing evidence where
possible. It is important to highlight that the responsibility
to protect the public and secure our borders requires in a number
of instances that policy solutions be developed quickly. We remain
firmly of the view that in these cases it continues to be essential
to proceed on the basis of evidence, but within the context of
tackling urgently any abuse of the immigration and asylum system.
Our border and immigration policies reflect the objectives
and commitments which were set out in the July 2006 IND Review
'Fair, effective, transparent and trusted - Rebuilding confidence
in our immigration system':
- Strengthen our borders; use
tougher checks abroad so that only those with permission can travel
to the UK; and ensure that we know who leaves so that we can take
action against those who break the rules.
- Fast track asylum decisions, remove those whose
claims fail and integrate those who need our protection.
- Ensure and enforce compliance with our immigration
laws, removing the most harmful people first and denying the privileges
of Britain to those here illegally.
- Boost Britain's economy by bringing the right
skills here from around the world, and ensuring that this country
is easy to visit legally.
(Border and Immigration Agency is the new name for
IND since 1 April reflecting the move to agency status)
2. People who are attempting to claim asylum and
support encounter significant practical difficulties because of
the limited accessibility of Asylum Screening Units. These difficulties
may discourage people from engaging in the asylum process and
cause severe hardship for claimants with no resources. We recommend
that the Government improves facilities for claiming asylum and
provides locations for claiming asylum and support throughout
the UK. (paragraph 81)
A person who wishes to claim asylum should do so
at the point of arrival in the UK where screening will usually
then be carried out. Those who have entered the UK before applying
for asylum will be screened at an Asylum Screening Unit. Asylum
Screening Units are located at Croydon and Liverpool. We are currently
considering whether improvements could be made to existing screening
arrangements.
3. We have heard countless examples of Home Office
inefficiencies in processing support claims, with severe consequences
for desperate, vulnerable people who have no other means to support
themselves. There is an urgent need to improve the operational
performance of the Home Office where decisions are being made
about support for asylum seekers. The institutional failure to
address operational inefficiencies and to protect asylum seekers
from destitution amounts in many cases to a failure to protect
them from inhuman and degrading treatment under Article 3 ECHR.
(paragraph 84)
The consideration of applications for support under
section 95 of the Immigration and Asylum Act 1999 is part of the
end to end management of new asylum applications. In all new cases,
applications are passed directly to the case owner in a regionally
managed asylum team who is responsible for their case. Upon receipt
of the application, if the applicant is not already in receipt
of section 98 support, case owners will be able to assess whether
the applicant appears to be destitute and in need of initial accommodation.
Case owners having close contact and control over their cases
will improve the efficiency with which applications for asylum
support are made and considered. Each applicant has contact details
of their case owner with whom they can get in touch during normal
working hours in addition to the regular reporting events. Case
owners are assisted in the processing of asylum support cases
by other members of their asylum team.
The Government accepts that in the past, and particularly
during 2005 and the first part of 2006, unacceptable delays occurred
in the provision of support under section 4 of the Immigration
and Asylum Act 1999. This was because the numbers of applications
for support increased significantly and rapidly, from a few hundred
to more than 14,000, and backlogs built up as the staff and systems
in place at that time struggled to keep pace.
A range of improvements has been put in place since
then. The number of staff considering initial applications in
the central section 4 team has more than doubled, and applications
are now recorded and processed on the ASYS system (the main IT
system for asylum support) rather than a stand alone database,
as was previously the case. Turnaround times for initial applications
are monitored regularly. A prioritisation system exists
which enables applications from those who are street homeless
or who have medical conditions to be considered first. In addition,
there are enquiry telephone lines, the numbers of which are known
to the voluntary sector, which enable representatives to check
on the progress of particular applications if necessary. Significant
improvements in turnaround times have been made. In January 2006
there was a backlog of more than 700 unactioned cases, with applications
dating back to October 2005. We have now reached the position
that around 40% of the most urgent cases are decided within 2
days, and a frictional backlog of about one to two weeks' work
exists for the less urgent cases
Since 1 May 2007, regional asylum teams have considered
all applications for section 4 support from applicants whose asylum
claims they handled. This has increased further the number of
staff trained to consider such applications, and should lead to
further improvements in turnaround times.
4. We welcome the development of the New Asylum
Model (NAM) which has the potential to improve the timeliness
of decision making and the quality of support to asylum seekers
and refused asylum seekers. However, we are concerned that the
Home Office has yet to ensure that NAM caseworkers receive adequate
training about asylum seekers' entitlement to support. We recommend
that the capacity of NAM is closely monitored whilst it is assuming
responsibility for support provision. We also recommend that the
Home Office reviews arrangements for the provision of advice and
information to asylum seekers and their representatives, both
during the applicant's asylum claim and during the transition
to mainstream support after asylum is granted. (paragraph 87)
During the 55 day Foundation Training Programme,
case owners are given an overview of asylum support, with a focus
on the details they need to know. Other members of the asylum
teams who assist case owners, receive more specific training,
as it is they who deal with asylum support, working through a
number of asylum support issues. There are also experienced case
owners in the asylum teams within the regions available to give
further guidance and support as required.
Training for members of the new asylum teams is subject
to continuous review and improvement.
In additional to training materials, members of asylum
teams have access to comprehensive written guidance on all aspects
of asylum support through an intranet which has a dedicated section
specifically for asylum support.
The intranet also offers a forum by which case owners
and those involved in the determination of support can offer feedback
where they feel there are shortcomings in the process or where
they or their managers feel training or development issues exist.
Teams are currently being recruited who will look
at the quality aspects of the asylum teams' work. These teams
will enable us to better monitor and feedback to asylum teams
the quality of the support work carried out.
Regarding advice and information for asylum seekers,
their case owner is now the single point of contact for applicants
throughout the asylum process. Within a few days of applying for
asylum the applicant will meet with their case owner. At this
first reporting event, the case owner explains to the applicant
how the asylum process works and answers any questions. They also
provide information about how to seek access to legal representatives.
The applicant is able to contact their case owner at any stage
during the asylum process. Accommodation providers and voluntary
sector organisations also deliver briefings to applicants about
the asylum process and applicants' rights and responsibilities
whilst they are in the UK.
The Border and Immigration Agency is currently working
with accommodation providers and voluntary sector organisations
to ensure that briefing materials are up-to-date. Asylum applicants
who are granted leave to remain are provided with a range of information
about the terms of their leave, their entitlements and how to
access relevant services. Entitlements depend on the type of leave
they have been granted - for example, those who are granted asylum
(refugee leave) or humanitarian protection are provided with an
Integration Loan Application Form relating to a scheme which from
12 June will consider applications for interest free loans to
be used on items and activities that facilitate integration.
5. The continued use of the section 55 provision
to deny support in subsistence-only cases leaves many asylums
seekers reliant on ad hoc charitable support and with no regular
means of providing for their basic daily necessities. We believe
that this treatment does not comply with the House of Lords Limbuela
judgement, and is in clear breach of Article 3 ECHR. We recommend
that section 55 be repealed. (paragraph 92)
Section 55 of the Nationality, Immigration and Asylum
Act 2002 prevents the provision of asylum support to asylum claimants
who did not make their asylum claim as soon as reasonably practicable
after their arrival in the United Kingdom. It was introduced as
part of a wider package of measures aimed at tackling abuse of
the asylum system and removing incentives to the making of non-genuine
claims for asylum. The sooner an asylum claim is made, the sooner
the processing of it can begin and the greater the chance of being
able to obtain factual information and travel documents which
will assist in the determination of the claim.
There have always been a number of safeguards built
into section 55 to protect the vulnerable. Most significantly,
it does not prevent the provision of support if it would be a
breach of human rights not to provide it. Moreover, it does not
prevent a person from receiving medical treatment in the United
Kingdom. The Government recognises the concerns about potentially
increased levels of destitution as a result of section 55. However,
support is not refused under section 55 to any person who does
not have alternative support available, including overnight shelter,
adequate food and basic amenities.
There are no plans at present for section 55 to be
repealed.
6. The section 9 pilot has caused considerable
hardship and does not appear to have encouraged more refused asylum
seeking families to leave the UK. We urge the Government to publish
the results of the pilot without further delay. We believe that
using both the threats and the actuality of destitution and family
separation is incompatible with the principles of common humanity
and with international human rights law and that it has no place
in a humane society. We recommend that section 9 be repealed at
the earliest opportunity. (paragraph 97).
The Government is committed to ensuring that unsuccessful
asylum seeking families do not remain in the UK indefinitely.
We consider that voluntary returns are by far the more dignified
way of making a return for the families concerned.
Under the section 9 staged pilot process, special
care was taken to inform and engage with families, to ensure that
they fully understood the requirement to cooperate with a voluntary
return, how to do this, and the implications of not doing so.
This engagement allowed individual families the opportunity to
identify to the Border and Immigration Agency any European Convention
on Human Rights (ECHR) issues where it would not be appropriate
for support to be discontinued.
Families were provided with details of voluntary
return packages at each stage of the process. Parents are free
to take appropriate steps to leave the country. Sections 17 or
20 of the Children Act 1989 provide a legal framework for a local
authority to support children if parents fail to take those steps,
and if it is necessary to avoid a breach of ECHR rights.
The results of the pilot suggest that section 9 was
not effective as a standalone measure. However, since the introduction
of section 9 there have been a number of significant developments
in relation to the management of asylum applications and assisted
voluntary returns - including the new process for asylum decision
making and the enhanced assisted voluntary returns scheme.
The Government accepts this is a tough policy and
acknowledges the concerns that have been raised. It must however
remain our priority to increase the voluntary returns of families
who no longer have a right to remain in the country. We do not
accept that it would be right for people refused asylum to be
supported indefinitely when they are choosing not to return to
a home country that has been found safe for them to live in.
The agenda for reform within the Border and Immigration
Agency delayed the evaluation of the pilot. The Immigration Minister,
in evidence taken for the enquiry, made a commitment to publish
the evaluation report over the next few months, once he had had
opportunity to test the conclusions.
Section 44 of the Immigration, Asylum & Nationality
Act 2006 provides for the repeal of section 9 by order. Section
44 has not been commenced and, prior to completion of the section
9 review, it would be premature to bring this section of the Act
into force.
7. The absence of provision for representation
before the Asylum Support Adjudicators may lead to a breach of
an asylum seeker's right to a fair hearing, particularly where
an appellant speaks no English, has recently arrived in the UK,
lives far from Croydon and/or has physical or mental health needs.
Where an appeal fails, and as a result of the unavailability of
legal representation an asylum seeker is left destitute, the result
may also be a violation of Article 3 ECHR. We recommend that the
Government should make legal aid funding available for representation
before the Asylum Support Adjudicators. Where needed, assistance
with accommodation as well as travel costs involved in attending
an appeal should also be provided. We heard evidence that suggested
in some cases this assistance was not being given. In our view
it is a priority that appellants receive accommodation and subsistence
for the hearing.
There are some tribunals for which Community Legal
Service (CLS) funding for representation is routinely available,
for example those which discuss particularly complex legal points
or where an appellant suffers from mental incapacity and it would
therefore be difficult for a user to represent him or herself.
However, in most tribunal proceedings it should not
be necessary for a user to be represented. Tribunals are not courts
- the majority are inquisitorial in nature, questioning the user
to find out relevant information rather than relying on the user
to present an argument. Tribunal hearings in most cases are intended
to avoid being complex and legalistic. This means that tribunal
users should be able to present evidence by themselves. In the
case of appeals before the Asylum Support Tribunal (AST), we accept
that many appellants will have little or no knowledge of English.
Qualified interpreters are provided for appellants to ensure that
they can fully understand the questions put to them at the hearing,
and can provide the evidence necessary for an independent decision
to be reached on their appeal.
The Government does not believe it appropriate to
extend CLS funding for representation to asylum support appeals.
Providing public funding for representation at asylum support
appeals would be disproportionate to the complexity of the issues
and evidence under consideration. Furthermore, it would be significantly
out of step with existing, and developing, context for CLS immigration
funding.
It should be remembered, however, that funding for
general legal advice (falling short of advocacy) is available
to those who qualify financially, under the Legal Help scheme.
This would potentially include appellants before the AST. The
scheme allows legal aid solicitors to advise clients on tribunal
procedures and can include the provision of written or oral advice,
obtaining counsel's opinion if appropriate, and the preparation
of a case to present at a tribunal. In addition, the Lord Chancellor
has the power, on receipt of a recommendation from the Legal Services
Commission (LSC), to authorise "exceptional funding"
for representation under the Access to Justice Act 1999 s.6(8)(b)
in those few cases where representation may be essential for a
fair hearing, and where no other sources of help can be found.
Home Office policy is to provide travel costs for
those who need to attend a hearing before the Asylum Support Adjudicators
(now the Asylum Support Tribunal). If it is not possible for the
appellant to arrive in time for his/her appointment if s/he were
to set off at 6.30am, arrangements are made for the person to
travel to the location the day before the appointment and provided
with overnight accommodation in the local area. These provisions
are published in guidance to case workers contained in Asylum
Support Policy Bulletin 28.
8. We are concerned that the shortage of competent
immigration advice and representation may indirectly result in
destitution.
It is true that the number of contracts held in the
immigration category of law has decreased significantly, from
644 in 2003 to 367 in 2006. There are a number of reasons for
this including action taken by the LSC to exclude suppliers who
do not meet required standards of performance and reduced demand.
In line with the fall in the number of people applying for asylum
the LSC is committed to establishing a smaller, increasingly quality
assured, supplier base remaining sufficient to meet need.
The LSC monitors the supply of publicly funded immigration
and asylum services across the country to ensure that supply is
sufficient to meet demand based on the latest intake figures.
Contingency measures are introduced in any potential risk areas.
However, the LSC remains committed to ensure that only high quality
advice that is of benefit to the client is paid for from public
funds and any such contingency measures will not be allowed to
compromise quality requirements.
Where the LSC is aware that there are problems with
the supply of immigration advisers, measures are taken to address
them. The LSC can take the following general steps to ensure that
there is sufficient capacity to meet demand in each area:
- increase the allocation of
new matter starts to existing suppliers.
- award new contracts to other law firms or organisations
- award new contracts to existing suppliers who
wish to establish new offices in other locations;
- support existing suppliers who wish to expand
their offices or recruit additional caseworkers;
- support outreach services by existing suppliers
to meet demand in other locations.
Advice in relation to asylum support appeals is not
only provided by immigration advisers. Such advice can also be
given by providers who advise on welfare benefits matters.
9. We consider that in some cases the quality
and terms of accommodation provision under section 95 of the 1999
Act interferes with the rights of asylum seekers and their children
to respect for family and home life under Article 8 ECHR, and
the right to adequate housing under Article 11 ICESCR. (paragraph
104)
The Government has agreed standards and signed contracts
with all our section 95 accommodation providers which ensure that
there is no breach of Article 8 ECHR or Article 11 ICESCR. We
would investigate any case where an asylum seeker considered that
the quality and terms of their accommodation interfered with these
rights.
10. We consider the section 4 voucher scheme to
be inhumane and inefficient. It stigmatises refused asylum seekers
and does not adequately provide for basic living needs. There
is no evidence that the voucher system encourages refused asylum
seekers to leave the UK. We believe that the section 4 voucher
scheme discriminates on the grounds of nationality, and could
constitute a breach of Article 14 in conjunction with Articles
3 and 8 ECHR and of Articles 3 and 8 themselves. There are particular
responsibilities towards women, especially relating to pregnancy
and post natal treatment. In many cases these responsibilities
are not being met and there is an immediate need to provide financial
support for essential items not covered by the vouchers, including
clothing, baby items, telephone costs and travel. We recommend
that the Government extends section 95 support to section 4 applicants
and abandons the voucher system. (paragraph 110)
The Government view is that the provision of any
cash support to unsuccessful asylum seekers is not appropriate.
However, most families do get cash support until the children
turn 18 or the family leave the UK. A more limited support regime
endorses the message that the asylum seeker has exhausted his
or her appeal rights and should take steps to leave the UK once
the barrier to leaving has been resolved. The legislation does
not allow cash to be provided under section 4 and it is not the
Government's intention to change this.
Once appeal rights are exhausted, families remain
eligible for section 95 support provided they have a child under
the age of 18 in their household before the grace period ends.
Individuals, childless couples and those who have a child after
the grace period are eligible for section 4 support.
Support under section 4 is provided through board
and lodging, or in the form of self-catering accommodation with
vouchers, to the value of £35 per week, to purchase food
and essential toiletries. This is broadly in line with the level
of cash support provided to asylum seekers and ensures basic living
needs are met.
The vouchers issued to those in receipt of support
under section 4 are primarily luncheon vouchers, supermarket payment
cards or supermarket vouchers which are widely used by people
who are not unsuccessful asylum seekers. They can be used at supermarkets
and a variety of other outlets. Accommodation providers have negotiated
for local shops to take vouchers to ensure dietary needs are met.
Where practical difficulties arise with provision of support through
vouchers, the Border and Immigration Agency works with the providers
concerned to ensure solutions are found. The Agency is committed
to quickly resolving any problems that arise and has established
a mechanism for doing so within 24 hours.
Regulations under section 4(10) of the Immigration
and Asylum Act 1999 will provide improved support to the most
vulnerable - pregnant women, young babies and children - and those
who may require support for longer than six months. The regulations
will enable facilities to provide for travel to necessary medical
appointments and for communications. If the Secretary of State
is satisfied that a supported person has an exceptional need for
certain services or facilities he may provide for that need. We
plan to consult on a second draft of the regulations before the
summer recess.
The Government does not accept that the section 4
voucher scheme constitutes a breach of Articles 3 and 8. Nor does
it accept that the scheme could constitute a breach of Article
14 by way of discrimination on the grounds of nationality. Whilst
there is different treatment as between unsuccessful asylum seekers
on section 4 support and others, for example, British nationals,
persons with leave and asylum seekers, it is not accepted that
these comparators are in an analogous situation to those on section
4 support.
11. Inadequate housing could give rise to a breach
of a family's right to respect for family and home life under
Article 8 ECHR, especially where a child is living there. We welcome
the Home Office's assurance that it intends to standardise the
accommodation contracts to make all section 4 accommodation of
the same standard as section 95 accommodation by the end of 2007.
We recommend that the Home Office puts in place measures to ensure
that where accommodation is of an inadequate standard, urgent
repairs are carried out or alternative accommodation is provided.
(paragraph 112)
We are currently undertaking a programme to transfer
all people who are receiving section 4 support into accommodation
which is subject to the same target contracts which apply to section
95 accommodation. The target contracts have explicit provision
for maintaining appropriate accommodation standards including
requirements for urgent repairs and the use of alternative accommodation.
Commercial sanctions may be applied for poor performance by the
provider.
Under the target accommodation contracts the accommodation
provider is obliged to meet four distinct accommodation standards.
The property must be: safe; habitable; fit for purpose; and correctly
equipped.
The contract develops the definition of each accommodation
standard and sets out what would constitute an issue of non-compliance.
For example, a gas leak or flooding/free standing water within
a property would designate it as "unsafe".
Timescales are set out for the provider to address
issues of non-compliance according to their severity. For a property
designated as "unsafe" the accommodation provider has
a response time of 2 hours.
The accommodation provider's responses to such issues
are monitored and audited. Financial sanctions may be applied
in certain circumstances if the accommodation provider's response
has not complied fully with their contractual requirements. For
example, dispersals to a particular provider can be stopped until
we are satisfied that effective remedial action has been taken.
12. There is no clear guidance reflecting recent
court decisions regarding local authority responsibilities towards
asylum seekers with care needs. We are concerned that this may
result in discriminatory treatment for asylum seekers with care
needs in Scotland, in breach of Articles 8 and 14 ECHR. We recommend
that the Government issue new guidance setting out when local
authorities have a duty to provide community care help to asylum
seekers and refused asylum seekers and that it implements procedures
to ensure that local authorities comply with this duty. (paragraph
115)
A number of legal cases have clarified the law in
England and Wales in respect of adult asylum seekers with care
needs. The Home Office has no power to support those who have
been assessed as having a need for care and attention which has
not arisen solely as a result of destitution or the physical effects,
or anticipated physical effects, of being destitute.
Asylum Policy Bulletin 82 provides guidance for all
those involved in asylum support, including local authorities,
on the handling of applications from asylum seekers who may have
additional needs.
Additionally, advice has been issued to local authorities
on the operation of Schedule 3 to the Nationality, Immigration
and Asylum Act 2002 which affects entitlement to section 21 of
the National Assistance Act 1948 for those falling within the
specified classes.
There is also guidance issued by the Department of
Health on access to care services in England and Wales.
The legislative provisions in Scotland are different
from those in England and Wales. Glasgow City Council considers
that their powers under these provisions are more limited than
the powers available to local authorities in England and Wales.
In the absence of recent Scottish case law on this specific point,
Border and Immigration Agency staff in Scotland working with Glasgow
City Council to ensure that suitable support is available on a
case by case basis.
13. We consider that by refusing permission for
most asylum seekers to work and operating a system of support
which results in widespread destitution, the treatment of asylum
seekers in a number of cases reaches the Article 3 ECHR threshold
of inhuman and degrading treatment. This applies at all stages
of the asylum claim process: when an individual is attempting
to claim asylum during the period of consideration of their claim
and during the period after their claim is refused if they are
unable to return to their country of origin. Many witnesses have
told us that they are convinced that destitution is a deliberate
tool in the operation of immigration policy. We have been persuaded
by the evidence that the Government has indeed been practising
a deliberate policy of destitution of this highly vulnerable group.
We believe that the deliberate use of inhumane treatment is unacceptable.
We have seen instances in all cases where the Government's treatment
of asylum seekers and refused asylum seekers falls below the requirements
of the common law of humanity and of international human rights
law. (paragraph 120)
14. The policy of enforced destitution must cease.
The system of asylum seeker support is a confusing mess. We have
seen no justification for providing varying standards of support
and recommend the introduction of a coherent, unified, simplified
and accessible system of support for asylum seekers, from arrival
until voluntary departure or compulsory removal from the UK. (paragraph
121)
15. We recommend that the Immigration Rules be
amended so that asylum seekers may apply for permission to work
when their asylum appeal is outstanding for 12 months or more
and the delay is due to factors outside their control. We recommend
that where there is evidence that an asylum seeker will not be
able to leave the UK for 12 months or more, he or she should be
granted limited leave for a 12 month period with permission to
work attached.
Response to recommendations 13, 14 and 15:
The Government strongly refutes the Committee's claim
of a deliberate policy of destitution towards asylum seekers.
The Government has consistently stated that genuine asylum seekers
are welcome and has put in place considered arrangements to provide
support to those in need.
In general, asylum seekers are not permitted to work
whilst their claim is being considered. The Government's policy
is to remove incentives for people to come to the UK to work illegally,
and to maintain the integrity of managed migration routes.
The Government is committed to ensuring that there
is a distinct separation between asylum processes and labour migration
processes. It is essential to maintain a robust asylum process
that works effectively and swiftly in the interests of refugees
and is not open to abuse by those who come here to work. Other
entry routes for people who want to work in the UK include the
Highly Skilled Migrant Programme, the Working Holidaymakers Scheme
and the Seasonal Agricultural Workers Scheme.
The EU Directive for Reception Standards for Asylum
Seekers led to the amendment of the Immigration Rules which came
into force on 4 February 2005. Since then, asylum seekers have
been able to take up employment if a decision at first instance
has not been taken on their claim within one year of the date
on which it was recorded and the reason for the delay cannot be
attributed to them. If an asylum seeker is granted permission
to take up employment under rule 360 of the Immigration Rules
then it shall only be until such time as his claim for asylum
is finally determined.
Following the recent regionalisation of asylum casework,
the majority of new asylum claims receive a decision within two
months. An increasingly smaller proportion of people, therefore,
are entitled to apply for the concession to work.
Asylum seekers are entitled to undertake voluntary
activity but this should not amount to either employment or job
substitution. Asylum seekers are not expected to be out of pocket
as a result of volunteering, and reimbursement may be made for
meal or travel costs but should not be made as a flat rate allowance.
Under section 8 of the Asylum and Immigration Act
1996, it is an offence for an employer to employ a person who
requires leave to enter or remain in the UK and does not have
it or has leave which is subject to a condition prohibiting employment.
Those who are recognised as a refugee and granted
asylum can work here legally. The Government welcomes the enormous
contribution that the skills and knowledge of genuine refugees
makes to our society and economy.
With regard to appeal processing timescales, it is
of course right that appellants should expect a speedy resolution
of their asylum appeal. The introduction of the single tier of
appeal under the Asylum and Immigration Tribunal (AIT) in April
2005 has significantly reduced the timescales for the determination
of asylum appeals.
We do accept that a small portion of appeals will
take over 12 months to reach a final conclusion after receipt
at the Tribunal. Adjournments are often sought by claimants and
legal points are usually raised by them. It would not be correct
to see claimants obtaining the right to work by raising enough
points to prolong the consideration of their cases over periods
of 12 months or more.
For some time the LSC, Home Office and service providers
have been concerned that the asylum determination process is weighted
against early resolution. There are a significant proportion of
asylum claims refused at initial stage, which are subsequently
overturned by an Immigration Judge. This can result in not only
increased and wasted expense but also distress and anguish for
genuine claimants.
LSC has, since November 2006, been piloting arrangements
that involve the front loading of legal advice and assistance
in asylum cases. Under the pilot scheme the asylum interview will
represent the last rather than the first opportunity for asylum
claimants to ensure clarity and agreement, where possible, on
the issues in dispute.
The legal representative and the Home Office case
owner will work together to ensure that in the vast majority of
cases all factual issues are put into account and that the full
case has been presented before the end of the interview. The
legal representative will participate fully in the interview.
If disputes continue to remain at the end of the interview then
a decision can still be made and, if refused, there may be an
appeal to the AIT in the normal way. The issues for consideration
before the Immigration Judge will be more clearly focused. The
pilot is due for evaluation shortly and consideration is being
given to extending it for a longer period.
16. We note that the Government has not produced
any evidence to demonstrate the extent of what it describes as
"health tourism" in the UK. (paragraph 129)
17. We have heard that the 2004 Charging Regulations
have caused confusion about entitlement, that interpretation of
them appears to be inconsistent and that in some cases people
who are entitled to free treatment have been charged in error.
The threat of incurring high charges has resulted in some people
with life-threatening illnesses or disturbing mental health conditions
being denied, or failing to seek, treatment. We have heard of
many extremely shocking examples. (paragraph 134)
18. The arrangements for levying charges on pregnant
and nursing mothers lead in many cases to the denial of antenatal
care to vulnerable women. This is inconsistent with the principles
of common humanity and with the UK's obligations under ECHR Articles
2, 3 and 8 ECHR. We recommend that the Government suspend all
charges for antenatal, maternity and peri-natal care. We recommend
that all maternity care should be free to those who have claimed
asylum, including those whose claim has failed, until voluntary
departure or removal from the UK. (paragraph 143)
19. We accept that there is no universal worldwide
access to free medical treatment, but recommend that on the basis
of common humanity, and in support of its wider international
goal of halting the spread of HIV/AIDS, the Government should
provide free HIV/AIDS treatment for refused asylum seekers for
as long as they remain in the UK. Absence of treatment for serious
infectious diseases raises wider public health risks. The Government
should not deport a person in circumstances where that person
is in the final stages of a terminal illness and would not have
access to medical care to prevent acute suffering while he is
dying. (paragraph 152)
20. We have seen evidence that the current arrangements
for access to GPs result in the denial of necessary primary healthcare
for many refused asylum seekers and their children. We believe
that in many cases this is in breach of the ECHR rights to be
free from inhuman or degrading treatment, to respect for private
life and to enjoy Convention rights without unjustified discrimination,
and also in some cases to the right of life. Moreover, consequent
increased reliance on A&E as a substitute is more expensive,
increases pressures and flies in the face of the general NHS policy
of moving care away from A&E and hospitals and into primary
care, closer to the patient. We recommend that primary healthcare
be provided free to those who have claimed asylum, including those
whose claim has been refused, pending their voluntary return or
removal. We recommend that the guidance to GPs on registering
new patients be clarified to remove the existing contradictions.
(paragraph 158)
Note: recommendation 21 (paragraph 159) is shown
separately below.
22. We note that no race equality impact assessment
was carried out before introducing the 2004 charging regulations
or with regard to the current discretionary arrangements for GP
registration. We agree with the JCWI and the CRE that the current
arrangements and proposals for charging refused asylum seekers
for healthcare give rise to a risk of race discrimination. (paragraph
163)
23. The Health Minister told us that no information
had been collected centrally about the costs and benefits of charging
refused asylum seekers for secondary healthcare. We are concerned
and very surprised that no steps are being taken to monitor the
cost or effect of the 2004 charging regulations in relation to
the provision of secondary healthcare. (paragraph 166)
24. Under the ECHR, discrimination in the enjoyment
of Convention rights on grounds of nationality requires particularly
weighty justification. The restrictions on access to free healthcare
for refused asylum seekers who are unable to leave the UK are
examples of nationality discrimination which require justification.
No evidence has been provided to us to justify the charging policy,
whether on the grounds of costs saving or of encouraging refused
asylum seekers to leave the UK. We recommend that free primary
and secondary healthcare be provided for all those who have made
a claim for asylum or under the ECHR whilst they are in the UK,
in order to comply with the laws of common humanity and the UK's
international human rights obligations, and to protect the health
of the nation. Whilst charges are still in place, we consider
that it is inappropriate for health providers to be responsible
both for (i) deciding who is or is not entitled to free care and
(ii) recovering costs from patients. We recommend that a separate
central agency be established to collect payments. (paragraph
170)
25. The timetable for reviewing the regulations
on charging for healthcare is unsatisfactory and has exacerbated
the confusion around entitlement. The consultation on primary
care was closed in 2004 but no analysis has been published. We
recommend that the Government collect evidence of the impact of
the 2004 Charging Regulations on patients, NHS costs and NHS staff,
and that it carry out a race equality impact assessment and a
public health impact assessment of these Regulations using data
obtained to inform future policy decisions. (paragraph 171)
Response to recommendations 16-20, 22-25
When Department of Health Minister, the Rt Hon Rosie
Winterton, gave evidence to the Committee on February 5th
she was not in a position to give a date by which a conclusion
could be reached on the various issues relating to access to healthcare
by overseas visitors.
Shortly afterwards, on March 7th, the
Home Office published Enforcing the rules: A strategy to ensure
and enforce compliance with our immigration laws, which commits
Department of Health and the Home Office jointly to undertake
a review of access to the NHS by foreign nationals. The review
is due to be completed by October. A programme of communication
and good practice to help the NHS to implement any new rules flowing
from this review will be completed by September 2008. Rosie Winterton
wrote to the committee on March 20th to draw their
attention to this but it appears that this was too late for them
to take account of in their report.
Subsequent work to determine the detailed scope of
the review has taken into account the comments and recommendations
of the JCHR, and the review will look at all the healthcare issues
raised by the committee's report. The aims of the review in relation
to primary medical services will be to establish clear rules which
are, wherever possible, consistent with the rules relating to
secondary care. Any new rules will take into account the key preventative
and public health role of NHS primary medical care as well as
international laws and humanitarian principles.
We acknowledge that the existing rules regarding
eligibility for primary medical services are unclear and leave
much to the individual discretion of GPs and practices. The response
to the 2004 consultation was divided and highlighted the links
between a range of complex and sensitive issues including asylum,
migration, citizenship, public health, ID cards and equality.
The review will take into account the responses to
the 2004 consultation and we are committed to ensuring that any
new rules are both fair to UK citizens and to foreign nationals,
offer value for money and can be implemented effectively in primary
care settings.
In relation to secondary care, the review will focus
on specific issues which have arisen since the NHS (Charges
to Overseas Visitors) Regulations 1989 were amended in 2004,
including the position of failed asylum seekers, asylum seeking
children, and the UK's obligations under international law. It
will also look at public health issues, humanitarian issues and
cost implications, as well as investigating ways in which the
NHS can better protect its resources for those entitled to use
them, and work more closely with the Border and Immigration Agency
to identify those who are not.
As Rosie Winterton said during her evidence to the
Committee, an equality impact assessment will also be carried
out as part of this review process, in relation to both primary
medical services and secondary care.
Additional response to recommendation 19
The Government's approach is in accordance with our
obligations under the European Convention on Human Rights (ECHR),
on which there is extensive case law both domestic and from the
European Court of Human Rights. It can be a breach of Article
3 of the ECHR to remove someone from the UK if to do so would
amount to inhuman or degrading treatment on account of the suffering
caused as a result of their medical condition, but the threshold
for inhuman and degrading treatment in such cases is very high.
Persons who are in the final stages of a terminal illness and
would not have access to medical care to prevent acute suffering
while they are dying, or who would face imminent death
without medical or other support if returned to their home country,
would however be likely to meet that threshold, in which case
they would be granted Discretionary Leave to remain in the UK.
The House of Lords case of N clearly establishes
that states are under no obligation to allow those otherwise liable
to removal to remain in their territories for the purpose of receiving
medical treatment. It would be unfair to those suffering from
other serious conditions to offer a special concession to those
with a particular condition such as HIV/AIDS.
21. We note the BMA research on the vulnerability
and ill-health of refugee children. We recommend that the Department
of Health establish guidelines on health services for unaccompanied
asylum seeking children and for children in families of asylum
seekers, including refused asylum seekers, so as to comply with
its obligations under the CRC. (paragraph 159)
The National Service Framework for Children, Young
People and Maternity Services sets out clear standards for children's
health and social care services, and for promoting the health
and well being of children and young people. Children who are
claiming asylum in their own right or as part of a family group
are entitled to access NHS services without charge, with individual
treatment like all NHS care subject to clinical judgement and
waiting lists. This is in line with the UN Convention on the Rights
of the Child. Some healthcare for failed asylum seeking children
may be subject to a charge. However this policy is being looked
at as part of the Review of access to the NHS by foreign nationals.
Children claiming asylum as part of a family group
who are in need of accommodation and subsistence support, can
access DH funded health assessments while in initial accommodation
provided by the Home Office. Generally, where a young person is
an asylum seeker then a health assessment, whether in initial
accommodation or on registering with a GP practice, should take
into account their specific circumstances such as whether they
have been immunised in their home country. The Department of Health
Framework for the Assessment of Children in need and
their families is also useful for assessing the needs of asylum
seeking children and delivering a multi agency approach in response.
When unaccompanied asylum seeking children become
looked after then local authority children's services are responsible
for providing them with the same services as any other young person
in care. This policy is the responsibility of DfES. All children
in care must have a care plan based on an assessment of their
needs setting out the arrangements that the local authority will
make to ensure that the full range of their needs, which must
include health needs, are met. This plan is referred to as a "pathway
plan" when young people are aged 16+. When young people first
enter local authority care then as part of the assessment process
they must be offered the opportunity of accessing a health assessment
undertaken by a suitably qualified medical practitioner. The findings
from this assessment must then form the basis for the health module
of a young person's care/pathway plan.
26. As we have made clear in our previous Reports,
we consider the Government's concerns in relation to the Convention
on the Rights of the Child to be unfounded. Of the 192 signatories
to the CRC, only three have entered declarations relating to the
treatment of non-nationals and only the UK has entered a general
reservation to the application of Convention to children who are
subject to immigration control. We do not accept that the CRC
undermines effective immigration controls. Our principal concern
is that the practical impact of the reservation goes far beyond
the determination of immigration status, and leaves children seeking
asylum with a lower level of protection in relation to a range
of rights which are unrelated to their immigration status. The
evidence we have received testifies to the unequal protection
of the rights of asylum seeking children under domestic law and
practice. (paragraph 180)
We believe that effective immigration control could
be compromised were we to withdraw or narrow the extent of the
general Reservation with regard to matters of immigration or nationality.
The partial reservations entered by other states demonstrate
that the United Kingdom is not alone in this belief. But we must
consider the need for a Reservation within the context of the
law and practice of the United Kingdom rather than how other states
believe it affects them. Removal of the Reservation would allow
others an additional opportunity to intervene in immigration processes.
These all too often are an attempt to frustrate effective immigration
control and in a way that evidence suggests is not supported by
the courts. We do not believe that the effect of the Reservation
extends beyond matters of immigration and nationality by reason
of the domestic legislation which applies equally to all children
within the United Kingdom's boundaries no matter their immigration
status or citizenship.
27. We reiterate our previous recommendation that
the Government's reservation to the CRC should be withdrawn. It
is not needed to protect the public interest and undermines the
international reputation of the country. Even if, as the Minister
states (which we do not accept), the removal of the Reservation
would be nothing more than a "gesture", we consider
that this is important in expressing the value given to protecting
the rights of separated asylum seeking children. (paragraph 181)
We believe that maintaining an effective immigration
control is in the public interest and removing the Reservation
would prejudice this. Furthermore, we believe that the domestic
legislation which has been put in place to protect children, sends
out a very strong message that the United Kingdom takes these
matters seriously and is sincere in its efforts to ensure the
welfare of all children within our jurisdiction. The Government
is clear that the responsibility for achieving this is best delivered
through local authorities using existing legislation.
28. We also recommend that the Government consider
how section 11 of the Children Act could be extended to include
authorities providing support for asylum seekers, the Immigration
Service and the IRCs (Paragraph 182)
The Government's position was outlined by the Immigration
Minister in the House of Commons on 9th May 2007 [Hansard
col. 235].
The Government's commitment to ensure that the welfare
of migrant children is appropriately taken into account is shown
by the development of the Border and Immigration Agency's 'Child
Safeguarding Strategy'. This will provide a framework which helps
ensure coherence and consistency in the Agency's safeguarding
arrangements. The statutory Chief Inspector of Immigration will
be asked to look closely at the implementation of the strategy.
We are reviewing the argument that the Border and
Immigration Agency's responsibilities towards children should
be placed on a statutory footing. We are not, however, convinced
that section 11 of the Children Act 2004 provides the appropriate
means of achieving this. One reason is that although the section
11 duty is qualified, the general nature of the duty and its breadth
make it very likely that it would provide further grounds on which
the challenges to frustrate immigration control decisions would
be based. Another reason is that the section 11 duty applies only
to England whereas the Border and Immigration Agency performs
its functions throughout the United Kingdom.
The Home Office, in consultation with the Department
for Education and Skills, is considering whether there is a practical
alternative to adoption of the section 11 duty.
29. We are concerned about the detrimental consequences
of providing inadequate and inappropriate support and accommodation
to separated asylum seeking children. These children, who come
to the UK, often traumatised, from some of the most troubled regions
of the world, are particularly vulnerable. All local authorities
should follow the guidance set out in LAC13 (2003) and provide
separated children with support under section 20 of the Children
Act. Children should not be "de-accommodated" before
they turn 18. (paragraph 190)
The support arrangements for unaccompanied asylum
seeking children are the responsibility of local authorities.
It is important, however, that the existing statutory guidance
from central government is applied consistently. The need for
consistency in service provision is one of the themes of the Government's
consultation paper on proposed changes to the immigration and
support system for this group of young people: "Planning
Better Outcomes and Support for Unaccompanied Asylum Seeking Children".
We believe our key proposals around the need to place the young
people only with selected local authorities that have the specialist
infrastructure to deal with their particular needs will go a long
way towards raising standards of support and care.
30. We recognise that the difficulties local authorities
face in providing an appropriate package of accommodation and
support to separated asylum seeking children are compounded by
the lack of additional resources available to social service departments,
and by a broader political and policy context which pushes the
needs of separated children down the already long list of priorities
facing local authorities in providing children's services. Local
authorities must be provided with sufficient funds to deliver
an appropriate package of support and care, including leaving
care costs. (paragraph 191)
We do not accept that the needs of these young people
are compromised by a general lack of resources or a political
and policy context that affords them little priority. The Border
and Immigration Agency currently spends about £140 million
each year on reimbursing local authorities for the costs of supporting
nearly 6,000 unaccompanied asylum seekers aged under 18. It is
the case that some local authorities, especially those in London
and the South-East of England, face budgetary pressures caused
by the concentration of disproportionately high numbers in their
areas. There is also a more general concern about funding leaving
care assistance when the young people turn 18. We are committed
to addressing these issues and our consultation paper proposes
a range of solutions. The consultation period ended on 31 May
and we are examining the responses before publishing our plan
for the way forward.
31. We are concerned that there is currently no
statutory oversight for ensuring that separated children are able
to access the services and support to which they are entitled,
and for ensuring that the wide range of bodies in contact with
a child act in his or her best interests. This is despite the
requirement or Article 19 of the EU Reception Directive, that
separated children should be provided with a guardian. We recommend
that a formal system of guardianship should be established for
separated children subject to immigration control, including separated
asylum seeking children. The guardian would have a statutory role
and would be appointed by a statutory body to safeguard the best
interests of the child and provide a link between all those providing
services and support. The guardian should be expected to intervene
if public bodies act in contravention of their legal duties towards
a child. (paragaph 193)
We do not accept that all separated children need
a "legal guardian" or that the terms of the EU Reception
Directive requires us to provide one . Any child who is unaccompanied
and in need of support would be referred to a local authority
to be assessed under the Children Acts 1989 and 2004
Unaccompanied Asylum Seeking Children are supported
by local authorities in the same way as children who are British
citizens. Their needs are assessed and they are provided support
accordingly. We are satisfied that local authorities provide the
support that UASC need and that the support provided is underpinned
by the appropriate legislation.
In addition to the support provided by local authorities,
UASC are referred to the Children's Panel of the Refugee Council
by the Border and Immigration Agency. The Panel provides independent
guidance and support to the young person helping them to navigate
the asylum system.
32. We recommend that the Government's proposals
to reform the arrangements for supporting unaccompanied asylum
seeking children should be carefully scrutinised against the benchmark
of the UN Convention on the Rights of the Child to ensure that
this group are not excluded from the care, consideration and protection
to which all children and young people are entitled. (paragraph
196)
The UN Convention on the Rights of the Child was
carefully considered while we were drawing up our plans for reform.
We believe our proposals are fully consistent with the Convention.
33. We are concerned by the lack of recognition
given by the Government to the risks of having children whose
age is disputed in the adult system. We are not convinced that
the Home Office is ensuring that the "benefit of the doubt"
is given to separated asylum seeking children or that local authorities
receive appropriate training and support to enable them to undertake
an integrated assessment process. We are also concerned that age
disputed children continue to be detained as adults despite Government
policy which says that this should not happen; and legal actions,
in which the Home Office has conceded that this approach is not
appropriate. (paragraph 203)
The Government takes extremely seriously the issue
of age assessment and fully recognises the risks attached to a
wrong assessment. However, the determination of age is a complex
and often inexact science, where various types of physical, social
and cultural factors all play their part, although none provide
a wholly exact or reliable indication of age, especially for older
children.
The Border and Immigration Agency needs to be clear
about the age of an asylum applicant in order to apply the correct
asylum policies and processes and the type of support that an
applicant is entitled to. Unfortunately some applicants are aware
that there are more generous policies and process for children,
which they seek to benefit from.
The Border and Immigration Agency recognises as a
minor a person under the age of 18 or who, in the absence of documentary
evidence establishing age, appears to be under that age.
Where an applicant claims to be a minor but his/her
appearance strongly suggests that he/she is over 18, the applicant
is treated as an adult until such a time as credible documentary
or other persuasive evidence is produced which demonstrates the
age claimed.
In borderline cases, the benefit of the doubt will
be given, and the applicant treated as a minor.
The Border and Immigration Agency works very closely
with local authorities on age disputed cases. A Merton compliant
age assessment carried out by a local authority that establishes
the applicant as under 18 years of age at the time of their asylum
application will be accepted as evidence of their age unless
BIA:
- has documentary evidence which
has not been taken into account that the applicant is an adult;
or
- has reasons to doubt that the age assessment
refers to the applicant in question; or
- is not satisfied that a full assessment has been
carried out.
The very limited circumstances under which children
can be detained under immigration powers is set out in response
to Recommendations 42 and 43.
An age disputed applicant will only be subject to
detention or detained fast-track processes if the Border and Immigration
Agency is satisfied that:
i) there is credible and clear documentary evidence
they are 18 or over; or
ii) a full Merton-compliant social services age
assessment is available stating that they are 18 or over; or
iii) their physical appearance/demeanour very
strongly indicates that they are significantly over 18
and no other credible evidence exists to the contrary.
In recognition of the difficulties around assessing
age the Border and Immigration Agency has recently introduced
a new process for processing asylum claims from those whose age
is in dispute. A dedicated segment has been designed within the
end to end asylum process specifically for these cases.
34. We recommend that where an asylum seeker's
age is disputed even where the benefit of the doubt has been given,
he or she should be provided with accommodation by the appropriate
social service department in order for an integrated age assessment
to be undertaken, considering all relevant factors. X-rays and
other medical assessment methods should not be relied upon, given
the margin of error. The process for dealing with age disputes
should be reviewed, particularly in light of the evidence and
recommendations arising from the research currently being undertaken
by ILPA and due to be published shortly, with a view to ensuring
that no age disputed asylum seeker is detained or removed unless
and until an integrated age assessment has been undertaken (paragraph
204).
Admission to children's services is a matter for
local authorities, but we would naturally encourage a local authority
to provide accommodation if they have a doubt about a young asylum
seeker's age and a final decision cannot be made immediately.
We do not accept the comments on x-rays. It is true that x-rays
are incapable of assessing age with absolute precision, but neither
are any other assessment techniques. The margin of error associated
with x-rays appears to be considerably smaller than other techniques.
This is, however, an issue on which we are consulting. As part
of that consultation process we are also considering the ILPA
findings. Some of their recommendations, including the suggestion
that regional age assessment centres are established and staffed
by people with a particular expertise in this area, have some
similarities with our own proposals. We are in agreement will
IPLA that age assessment processes do need to be improved
35. We recommend that all IRC staff, including
those of private contractors, are given training in refugee and
human rights (paragraph 216).
Staff training takes into account the diverse nature
of the removal centre population and this requires the provision
of background information about the many different cultures staff
are likely to come into contact with. Those tasked with running
our centres are required to deliver human rights and diversity
training to all their staff.
Staff employed in the admissions process are trained
to recognise behaviour and signs that indicate anxiety, distress
or risk of self-harm and systems are in place to ensure that information
about such individuals is recorded and relayed to the health care
team and others responsible for the care of the detainee. Immigration
removal centres must implement training and refresher training
programmes which include, but are not limited to:
- communication and interpersonal
skills, including with children where necessary
- values and principles underpinning the treatment
of detainees
- race awareness training
- suicide awareness
- child care, protection and supervision.
36. We are concerned that the decision to detain
an asylum seeker at the beginning of the process simply in order
to consider his or her application may be arbitrary because it
is based on assumptions about the safety or otherwise of the country
from which the asylum seeker has come. It is self-evident that
some asylum seekers - most obviously torture victims and those
who have been sexually abused - are unlikely to reveal the full
extent of experiences to the authorities in such a short-time
period, and that this problem will be exacerbated where they are
not able to access legal advice and representation, and the support
of organisations able to help them come to terms with their experiences.
(paragraph 226)
The detained fast track process is not arbitrary.
Any asylum claim, whatever the nationality of the claimant, may
be fast-tracked where it appears after screening to be one that
may be decided quickly. In assessing suitability for the fast
track process, a number of groups are considered unsuitable for
example: pregnant females of 24 weeks and above and those with
a medical condition which requires 24 hour nursing or medical
intervention; or where there is independent evidence that the
claimant has been tortured or the claimant is an unaccompanied
asylum seeking child. The Court of Appeal in the UK has said that
it did not consider the system itself is inherently unfair and
so long as it operates flexibility it can operate without an unacceptable
risk of unfairness.
37. We are also concerned that although fast track
detention for anything more than a short, tightly controlled period
of time is unlawful, some asylum seekers find themselves detained
at the beginning of the process for periods in excess of this.
The act of claiming asylum is not a criminal offence and should
not be treated as such. If asylum seekers are detained at the
beginning of the asylum process, then the period of detention
should be limited to a maximum of seven days (paragraph 227)
Immigration detention is a legitimate element of
maintaining an effective immigration control.
Individuals are not detained simply for having claimed
asylum. Detention is normally used: initially, whilst a person's
identity and basis of claim is established; where there are reasonable
grounds for believing that a person will fail to comply with the
conditions of temporary admission or release; as part of a fast-track
asylum process; or to effect removal.
In R (Saadi) v Secretary of State for the Home Department
[2002] 1 WLR 3131 the House of Lords considered the lawfulness
of detaining asylum claimants pursuant to the fast-track process
at Oakington, for the sole purpose of deciding their claims quickly.
Their Lordships concluded that detention for the purpose of claims
being decided quickly was lawful both within the Immigration Act
1971 and under Article 5 of the European Convention on Human Rights.
Although the matter is currently before the Grand Chamber of
the European Court of Human Rights, whose final judgement is now
awaited, the finding of the House of Lords was upheld by the European
Court of Human Rights in July 2006.
A time limit of 7 days in detention is not practicable.
If the claim is one that may be certified as clearly unfounded,
then an initial decision will invariably be made and served within
14 days of the date of entry to the process. If the claim is certified
there is no in-country right of appeal and it will often be appropriate
to maintain detention to enforce removal from the UK. If the claimant
enters a fast track process with an in-country right of appeal
then it is possible to move more quickly at the initial decision
stage and the claim will normally be decided and served within
7 days. However, it will normally be appropriate to maintain detention
throughout the fast-track appeals process and beyond but every
case is judged on its merits and detention reviews are regularly
completed. In addition, the detainee may apply for bail and an
Immigration Judge may decide that the case should be taken out
of the fast track process and this will normally trigger the release
of the detainee from detention.
38. We recommend that asylum seekers who are detained
as part of the fast track and super fast track processes should
be provided with free, on-site legal advice - for example on the
model previously provided by the Refugee Legal Centre and the
Immigration Advisory Service at Oakington - to ensure that victims
of torture and other forms of abuse are identified and taken out
of the process; and that claims for asylum are properly considered.
To ensure that clients in the process have early
access to quality legal advice and representation, the LSC runs
duty representative schemes at Harmondsworth, Oakington and Yarl's
Wood removal centres. Fast track advice is provided through 'Exclusive
Contract Schedules'. Services are awarded in this way to those
organisations that can demonstrate they are able to offer the
best service to clients through skilled and experienced staff,
effective supervision arrangements and a good track record of
audit with the LSC. Only suppliers who have an LSC contract and
who have gone through an additional tendering process are able
to provide publicly funded advice under the scheme.
The LSC is currently piloting the provision of regular
on-site advice surgeries to individuals who are detained to ensure
that those who have not received legal advice, or who no longer
have a legal adviser and who require advice, will be able to access
advice. Initial findings have been that the service was successful
in providing detainees with access to prompt, quality legal advice.
We recognise that it is important that prompt legal
advice is available to assist appellants with their case and the
LSC has sponsored the Immigration Law Practitioners Association
(ILPA) to develop a best practice guide for fast track cases.
Suppliers are given devolved powers to grant Controlled
Legal Representation (CLR) in fast track cases. A tender process
will take place later this year in relation to the provision of
advice services for those who are detained in Immigration Removal
Centres.
The Committee additionally raises concerns about
the use of the merits test in fast track cases and cites a number
of witnesses who call for it to be removed from the process. The
merits test for representation at the Tribunal has been in existence
since representation at appeal and bail hearings was brought into
the scope of legal aid in January 2000. For funding to be granted
the prospects of success have to be moderate or better which is
defined as clearly over 50%. However, in asylum cases, if the
prospects of success and merits of the case are borderline or
unclear, then funding can still be granted if the case has wider
public interest or is of overwhelming importance to the applicant.
Where a case has a poor prospect of success, the fact that making
or pursuing an application or representations will in itself prolong
a client's right to remain in the UK will not be treated as a
sufficient benefit to continue with public funding.
It is inevitable that in any system of merits testing
there will be applicants with poor cases who do not receive publicly
funded representation. The LSC's guidance to suppliers on the
Fast Track scheme states that where the client's substantive appeal
lacks merit and would not warrant the grant of funding for the
appeal, the case may still merit the grant of funding for a bail
application.
The government believes that removing the test would
contradict its aim of ensuring that public funding is targeted
on cases with merit and that weak cases are not supported. We
need to make best use of limited resources by ensuring that only
cases with merit are funded and that those genuine applicants
are adequately supported through the process.
39. We are deeply concerned by the evidence we
have heard about the current gap between policy and practice in
relation to the detention of vulnerable adults. The Home Office
acknowledged that victims of torture, pregnant women and those
with serious physical and mental health conditions should not
be detained and yet it continues to happen in practice. This is
clearly a violation of the UK's human rights obligations towards
those individuals. We welcome the acknowledgement by the Home
Office that this is an issue which needs to be addressed and the
news that some steps are being put in place to improve current
practice (paragraph 236)
The Border and Immigration Agency's policy is that
detention may not be appropriate in certain circumstances but
detention is not ruled out per se. For example, pregnant women
should not normally be detained although the exception to this
general rule is where removal is imminent and medical advice does
not suggest confinement before then. Pregnant women of 24 weeks
and over must not be detained as part of the Detained Fast
Track process.
Where independent evidence is produced that supports
a claim to have been tortured detention would not normally be
appropriate. The Detention Centre Rules 2001 (Rule 35) require
the medical practitioner to report to the removal centre manager
the case of any detained person who he is concerned may have been
the victim of torture. The Border and Immigration Agency has been
examining how this procedure has been working in practice and
has developed a process which ensures that all allegations of
torture made by detainees and which are forwarded to the appropriate
case owner are properly logged. Case owners are required to consider
and acknowledge receipt.
The Detained Fast Track (DFT) Asylum Processes Suitability
List identifies a number of groups of vulnerable adults who are
not considered suitable for the DFT process. The policy is rigorously
applied by a specialist unit that makes the initial decision as
to whether to route the claimant into the DFT process. Where fresh
evidence comes to light after a claimant has entered the DFT process,
then suitability will be reviewed and if the claimant is identified
as unsuitable for the DFT process they will be released from it.
A decision to release a person from the DFT process will normally
but not always trigger a release from detention as each case needs
to be judged on its merits taking account of all the circumstances
of the case.
40. We recommend that the Home Office continues
to take appropriate steps to ensure that its own policy guidance
is followed and that it consults on a regular basis with BID and
the Association of Visitors to Detainees (AVID), to ensure that
its own procedures are being followed. Evidence that vulnerable
adults continue to be detained should be treated seriously and
acted upon (paragraph 237)
Border and Immigration Agency Detention Services
holds quarterly meetings of the Detention Users Group, which includes
representatives from BID and AVID amongst other interested groups.
All those represented are aware that they are welcome to raise
issues of concern at these meetings and are free to make contact
(outside of the meetings) with the Director of Detention Services
should an issue arise that needs urgent consideration, and regularly
avail themselves of this opportunity. Although BIA Detention Services
is not directly responsible for actual decisions to detain in
individual cases, steps are taken to raise issues with caseholders
where it appears that there may be some substance to a particular
concern, or where there is a need to offer some assurance or clarification.
As already indicated, however, detention of vulnerable adults
is not ruled out per se although those reaching decisions on whether
or not to detain are required to take such factors into account.
41. We are concerned that the current process
of detention does not consider the welfare of the child, meaning
that children and their needs are invisible throughout the process
- at the point a decision to detain is made; at the point of arrest
and detention; whilst in detention; and during the removal process.
We are particularly concerned that the detention of children can
- and sometimes does - continue for lengthy periods with no automatic
review of the decision. Where the case is reviewed (for example
by an immigration judge or by the Minister after 28 days), assessments
of the welfare of the child who is detained are not taken into
account. It is difficult to understand what the purpose of welfare
assessments are if they are not taken into account by Immigration
Service staff and immigration judges. (Paragraph 258)
A review of Family Removals Processes was announced
by the former Immigration Minister Tony McNulty in January 2006
in order to identify any potential improvements in this sensitive
area of work. The review is now complete and awaiting publication.
This review was undertaken alongside wider work to develop a child
safeguarding strategy for the Border & Immigration Agency
and centres on processes before, during and after family detention
visits.
Families with children are normally detained for
very short periods and usually at the point of removal. The decision
to detain a family is taken on a case by case basis, taking into
account all relevant factors including:
- The likelihood and proximity
of removal
- Evidence of previous absconding/failure to comply
with conditions of temporary release, bail or the requirements
of immigration control
- Determined attempts to breach immigration laws
- Ties with the UK including the existence of close
relatives or someone providing support; a settled address or employment
- Any incentive to keep in touch such as an outstanding
appeal, application for judicial review or representations.
There is a presumption in favour of temporary admission
or temporary release unless there are strong grounds for believing
that the family will not comply with associated conditions. All
reasonable alternatives to detention must be considered before
detention is authorised. The option of detaining the head of household
only and issuing self check-in removal directions for the rest
of the family is also available. Factors to be considered when
deciding whether to detain the family as a whole or just the head
of household include whether a parent is the natural parent of
the children, the length of the relationship between the parents
and with the family and whether there is a history of one parent
spending a lengthy period apart from the family. Having undertaken
this assessment it may of course be concluded that detention is
still the only viable option.
A formal review of the need for continued detention
is conducted on each case where a child is detained at the
7 day, 10 day, 14 day and each subsequent 7 day stages. Cases
are referred to Ministers as they approach 28 days in detention
to ensure authorisation is given before the 29th day. Cases
are regularly monitored in between the formal reviews to ensure
that any change in circumstance is actively considered and, where
appropriate, to arrange release.
The officials responsible for the decision to detain
are kept up to date about issues affecting children detained with
their families. Those reviewing detention and those responsible
for arranging removal of the family do receive copies of assessments
and social worker's recommendations. In this way the earliest
possible decision can be made to release any child whose needs
cannot be met in the centre. In the relatively rare event that
detention is protracted, the outcome of a thorough process of
assessment and consideration is reflected in the advice which
the Immigration Minister receives on which he decides whether
detention should continue. That advice includes any recommendations
made by the social worker.
In view of the personal information they contain,
it is not appropriate for the Border and Immigration Agency to
provide copies of the assessments to Immigration Judges dealing
with bail applications. A copy of the assessment is provided to
the parents - and explained to them - and it would be open to
them to disclose the information should they wish to do so.
Both parties are able to submit any relevant evidence
in support of their arguments for consideration by the Immigration
Judge. Welfare reports, for example, would be submitted by the
appellant party. Immigration Judges would make a decision based
on the evidence before them in that particular application or
appeal. If evidence is not provided by a party to the application
or appeal then it could not be taken into consideration by the
Immigration Judge. Immigration Judges determine cases based on
findings of fact and the evidence before them. It is neither for
the Tribunal, nor Immigrations Judges themselves, to solicit evidence
for an appeal hearing or bail application.
42. The detention of children for the purpose
of immigration control is incompatible with children's right to
liberty and is in breach of UK's international human right's obligations.
Any decision to detain a child, at whatever stage of the asylum
process must be compliant with international standards and subject
to judicial oversight. We believe that the detention of asylum
seeking children constitutes a breach of the UK's human rights
obligations. Asylum seeking children should not be detained. This
includes detention as part of fast track or accelerated procedures
for asylum determination. Alternatives should be developed for
ensuring compliance with immigration controls where this is considered
necessary. (Paragraph 259)
Children are detained under Immigration Act powers
in two limited circumstances: as part of a family group whose
detention is considered necessary (usually at or shortly before
the point of removal from the UK); and, very exceptionally, when
unaccompanied, whilst alternative arrangements are made, and normally
then just overnight. With regard to the former, we consider it
generally better for children to remain with their parents/guardians;
and, in the second, such decisions are taken purely in the interests
of the safety of the child.
Immigration Act powers of detention are administrative
and there is no direct judicial involvement in individual decision
to authorise or maintain detention. Article 5(1)(f) of the ECHR
does not require such involvement and so existing detention procedures
are ECHR compliant. Access to the processes of judicial review
and habeas corpus satisfies the Article 5(4) requirement that
detained persons should be able to bring proceedings before a
court to challenge the lawfulness of their detention.
As part of the continuing review of arrangements
for families with children, BIA has been considering the use of
supported accommodation as an alternative to detention for families
with children. This might be used in cases where there is a requirement
to effect removal. The provision may also be applicable to families
who have been detained and for whom detention is no longer appropriate.
To inform our proposals, we are currently evaluating the available
international evidence of accommodation and support schemes which
have provided successfully for asylum seeking families.
We are considering the viability of options available
within the UK. The purpose of these would be to enable the resolution
of residual barriers to removal without the need to hold families
in detention. To this end, we are working with relevant NGOs who
have experience and capacity to inform alternative proposals.
The Detained Fast Track (DFT) process is focused
on single adult males and single adult females with no adult or
child dependents. Unaccompanied asylum seeking children are not
considered suitable for the DFT process. Annex B of the DFT Asylum
Processes Suitability list sets out the strict criteria that must
be satisfied before a disputed minor is taken into the DFT process.
43. For the fast track process, the Home Office
has recognised the risks of wrongly detaining age-disputed children
as adults and has revised its policy to clarify that age-disputed
children must not be detained as adults in the fast track. There
remains a risk that age-disputed children are still detained as
adults in other circumstances, such as prior to removal. We recommend
that the Home Office policy is further revised, so as to ensure
that under no circumstances are age disputed children detained
as adults. (paragraph 260).
The Border and Immigration Agency takes extremely
seriously the decision to detain any applicant, whether in the
Detained Fast Track or otherwise. As the result of a judicial
challenge in 2005 the criteria for detaining a person whose age
has been disputed was strengthened so that only those whose appearance
and/or demeanour very strongly indicates that they are significantly
over 18 and no other credible evidence (such as Merton compliant
age assessment or a passport) exists to the contrary could be
detained. The policy revision applied to all detention decisions,
whether in the context of the detained fast-track process or otherwise.
However, individuals who are being treated as adults in line with
this policy will have the same liability to be detained as any
other adult, whether in the detained fast-track process or for
other purposes, such as detention pending removal.
There are occasions when people over the age of 18
claim to be minors in order to prevent their detention or effect
their release once detained. In all such cases people claiming
to be under the age of 18 must be referred to the Refugee Council's
Children's Panel as well as being informed that they can approach
a local authority for an age assessment.
44. In the absence of an end of the detention
of children, minimum safeguards must be put in place to ensure
that the human rights of children and their families are protected
as far as possible. Automatic bail hearings should be provided
for families with children after a seven day period of detention.
The assessment of a social worker must be taken into account at
this stage and any subsequent reviews of the decision to detain.
(paragraph 261)
We are satisfied that our detention policies and
procedures are fully compliant with the ECHR. Families with children
are normally detained for very short periods and usually at the
point of removal. The response to recommendation 41 summarises
arrangements for the regular review of detention decisions which
in appropriate circumstances may lead to the detainee being released.
In view of the personal information they contain,
it is not appropriate for the Border and Immigration Agency to
provide copies of social assessments to Immigration Judges dealing
with bail applications. A copy of the assessment is provided to
the parents - and explained to them - and it would be open to
them to disclose the information should they wish to do so.
We do recognise that it is important to individuals
that bail applications are dealt with quickly and agree with the
principle that detention should be for as short a period as is
necessary. The AIT aims to list bail applications for hearing
within three days of receipt. To minimise any risk of undue delay
the AIT is engaged in a detainee programme which includes a pilot
to hear bail applications by video link. The Border and Immigration
Agency (BIA) and AIT are working closely with stakeholders to
ensure prompt access to a bail hearing for those in immigration
detention where transport to an AIT centre would delay the case.
As stated above, it is not for the Tribunal to solicit
evidence in any appeal or application. It is individuals who choose
to exercise rights of appeal and to provide evidence in support
of their appeal or application for consideration by an Immigration
Judge.
Affording automatic bail rights to certain categories
of detainee would be both be unfair to others in detention and
would significantly impact on the capacity of the Tribunal to
hear other bail applications and appeals promptly.
We are satisfied that the current bail provisions
provide adequate opportunity for all in detention to lodge applications
for bail to the AIT. There is no limit on the number of applications
a detainee may make and nothing to prevent an applicant, on being
refused bail, from making a fresh application.
45. We are concerned that in the drive to increase
the number of asylum seekers who are removed at the end of the
asylum process and to achieve the 'Tipping the Balance' target
which the Government has set itself, insufficient care is being
paid before an asylum seeker is detained, as to whether or not
he or she can actually be removed. (Paragraph 268)
The Border and Immigration Agency actively encourages
failed asylum seekers to leave the country voluntarily. BIA part
funds a voluntary return programme which is run by the International
Organization for Migration. However if individuals fail to leave
voluntarily, detention may be necessary prior to removal.
Where arrest and detention is deemed to be necessary
the Border and Immigration Agency adopts an intelligence led approach,
part of which involves conducting a range of thorough pre enforcement
checks to ensure that individuals are removable. Every care is
taken to ensure that we only detain those who are readily removable.
The finite capacity of the immigration detention
estate provides an additional reason to focus on those people
who only need to be detained for a short period.
46. We believe that the current policies for the
detention of asylum seekers potentially lead to human rights breaches
under the ECHR, in particular the right to liberty under Article
5. Asylum seekers should only be detained at the end of the process
if their application has been fully and properly considered and
where there are travel and other documents in place to ensure
that the removal happens swiftly and detention does not become
prolonged.
The right to liberty under Article 5 of the ECHR
is a qualified right. Individuals may be detained under Immigration
Act powers of detention: pending enquiries as to identity or basis
of claim, to prevent absconding, to effect removal and where the
asylum claim is one that can be considered quickly under the fast
track process. We are satisfied that our policies and procedures
for detention under the fast track processes, and those relating
to detention more generally, comply fully with the ECHR. Detention
lasts for no longer than is reasonable and will not be unduly
prolonged. It must be remembered that individuals may prolong
their own detention by failing to cooperate.
As mentioned in the response to recommendation 39,
entry to the Detained Fast Track is controlled by a specialist
unit working to specific suitability criteria.
47. We do not believe that it is right that the
decision to detain an asylum seeker - which goes to the heart
of that person's liberty - should be entirely administrative.
We recommend that there should be an automatic, prompt, independent
judicial review of the decision to detain in all cases after seven
days. (Paragraph 274)
Detention for immigration purposes under Article
5(1)(f) of the ECHR does not require judicial involvement. Immigration
detainees already have legal avenues which satisfy the Article
5(4) requirement that detained persons should be able to bring
proceedings before a court to challenge the lawfulness of their
detention.
Detention pending removal (whether by way of deportation
or otherwise) under the 1971 Act is an exception to the right
to liberty under Article 5 of the European Convention on Human
Rights. If removal is impossible, detention may be unlawful but
the possibility of removal and, hence the legality of detention,
is not a matter for the AIT. Proceedings by which the lawfulness
of the detention is challenged are normally by way of Habeas Corpus
or application for leave to apply for Judicial Review to the Administrative
Court but it is for an individual to decide to exercise the appeal
rights available to him or her.
Therefore, a bail hearing is not an opportunity to
challenge the lawfulness of the detention itself. The bail jurisdiction
allows Immigration Judges to allow the release, in suitable cases,
of those who are lawfully detained. If a bail application is refused
by the AIT, an applicant has a right to make a fresh application.
48. We are concerned that there is currently no
maximum time limit for which asylum seekers can be detained and
that this can - and does- lead to protracted periods of detention
whilst various steps are taken to secure removal. In the absence
of a systematic process for reviewing the decision to detain there
is a significant risk that a period of detention which IND initially
intended to last for a few days can turn into weeks, months, and
even years. This has a negative impact on asylum seekers and their
families (paragraph 275).
It is not the case that there is no 'systematic'
process for reviewing the decision to detain. Immigration detention
is not time limited but it is a well-established principle that
it must not last for longer than is reasonable in all the circumstances
of the case. Detention is subject to regular review and, under
the terms of Rule 9 of the Detention Centre Rules 2001 (No. 238),
every detained person must be provided with written reasons for
his/her detention at the time of the initial detention, and thereafter
monthly.
A balance needs to be struck between the possible
length of detention and the need to maintain effective immigration
control. The period for which it is reasonable to maintain detention
varies from case to case but, if at any point it becomes apparent
that removal cannot be effected within that reasonable period,
the detainee must be released. However, the courts have recognised
that a person's lawful detention may be prolonged by their own
actions, e.g. in failing to cooperate with re-documentation.
49. We recommend that where detention is considered
unavoidable to facilitate the removal of asylum seekers who are
at the end of the process, subject to judicial oversight the maximum
period of detention should be 28 days. In our view this is sufficient
time in which to make arrangements for return, especially if appropriate
steps are taken prior to detention to secure travel documents.
For families with children, the maximum length of detention should
be 7 days (paragraph 276).
We do not accept that a statutory or other fixed
time limit on detention would be appropriate or workable. Such
a limit would inevitably be arbitrary and would take no account
of the individual circumstances of cases. In addition, a fixed
upper limit would simply encourage individuals to delay and frustrate
immigration and asylum processes, including removal, in order
to reach a point where they would be released from detention.
That would not assist in maintaining an effective immigration
control or robust asylum system.
50. Free onsite legal advice should be provided
to all detained asylum seekers to ensure that they are able to
access a bail hearing and that all the information needed to secure
a fair and just outcome is available to the immigration judge.
We recommend that family cases should be prioritised, with social
work reports and medical reports made available as a matter of
course to judges for bail hearings.
All detainees arriving at an immigration removal
centre must be advised of their right to legal representation
and how they can obtain such representation, within 24 hours of
their arrival at the centre. A copy of the Bail for Immigration
Detainees (BID) notebook must also be available in the centre
library for detainees' use. The Legal Services Commission have
been conducting a pilot exercise to provide legal advice surgeries
in immigration removal centres. Initial indications are that this
exercise has been a success and consideration is currently being
given to its roll-out across the detention estate.
Onsite legal advice is available through regular
advice surgeries, open to all individuals who are detained in
Immigration Removal Centres in England and Wales. The purpose
of the surgeries is to ensure that those in detention and who
have not yet received legal advice or who no longer have a legal
adviser and who require advice will be able to access advice through
this scheme.
Legal aid funding is available for advice and representation
in relation to bail applications. Such funding is subject to both
a means and merits assessment to ensure fair and just access to
justice is given in line within the requirements of international
law. Fast Track contract provisions remind advisers that they
are required to consider making a bail application on behalf of
a client. We are satisfied that the current bail provisions provide
adequate opportunity for all in detention to lodge applications
for bail to the AIT.
The AIT prioritises the listing of bail applications
from those in detention, aiming to list them for hearing three
days from receipt. Given these short timescales it would be impractical
to attempt to prioritise further bails applications for family
cases.
Immigration Judges determine cases based on findings
of fact and the evidence before them. It is neither for the Tribunal,
nor Immigration Judges themselves, to solicit evidence for an
appeal hearing or bail application. Both parties are able to submit
any relevant evidence in support of their arguments for consideration
by the Immigration Judge.
51. We are not satisfied that the quality of healthcare
currently provided to asylum seekers in detention is fully compliant
with international human rights obligations, in particular the
rights to freedom from human and degrading treatment and to the
enjoyment of the highest attainable standard of physical and mental
health. We are particularly concerned about gaps in care for people
with HIV and with mental health problems. It is not clear that
procedures for identifying and supporting torture victims works
in practice. We recommend that the Department of Health establish
a policy for supervising the health services that are available
in detention centres, and that the standard of the services should
be monitored. Female GPs and other medical practitioners should
be available in detention centres where women are held (paragraph
305).
The Border and Immigration Agency takes seriously
its duty of care to those who are detained in immigration removal
centres. All detainees must have available to them the same range
and quality of services as the general public receives from the
National Health Service. This includes provision of primary care
services to detainees with mental health needs and, where required,
access to secondary care services. Individuals who have a diagnosis
of HIV and who have begun a course of treatment should be able
to continue this treatment whilst detained: individuals who have
not begun treatment but who do have a prior diagnosis would normally
be referred for confirmatory testing and follow-up action by the
local specialist provider. The Border and Immigration Agency has
developed operating standards for removal centres and amongst
these is one relating to healthcare. Details of this standard
and all other standards are available on the Border and Immigration
Agency website.
Rule 33 (10) of the Detention Centre Rules 2001 (No.
238) provides that all detained persons must be entitled, if they
wish, to be examined only by a person of the same gender and all
detainees are required to be made aware of this option. The Rule
is also underpinned in the operating standard on healthcare. There
is no question of a detainee being required to be examined by
a person of the opposite gender where they have an objection to
this.
The Detention Centre Rules 2001 (Rule 35) require
the medical practitioner to report to the removal centre manager
the case of any detained person who he is concerned may have been
the victim of torture and the procedures for dealing with such
reports have been improved recently.
The Department of Health has been working closely
with the Border and Immigration Agency to look at ways of making
improvements to the standards and monitoring of healthcare services
in immigration removal centres. In relation to monitoring, the
Department of Health and the Border and Immigration Agency have
instigated registration of contractors who provide health services
in the centres with the Healthcare Commission. The Healthcare
Commission has responsibility for assessing and scrutinising health
services provided by the public and private sectors and registrations
are currently being processed.
With regard to wider improvements to the quality
of care provided in immigration removal centres, the Department
of Health and the Border and Immigration Agency have set up a
formal joint Clinical Governance Group to oversee issues in relation
to healthcare. They are shortly to jointly commission a piece
of exploratory work to look at possible options for bringing health
services in immigration removal centres in line with the wider
NHS, which would include a feasibility study on transferring services
across to the NHS (as has recently been completed with public
sector prisons). This work should report early in 2008 and will
form the basis of joint work between the Department of Health
and the Border and Immigration Agency over the next couple of
years.
52. We are concerned about the lack of information
provided to detained asylum seekers about the reasons for their
detention and the progress of their case. This exacerbates the
stress and anxiety which is inevitably associated with being detained
and with uncertainty about what the future holds. Some of the
evidence we have received suggests that this problem is likely
to get worse with the removal of case workers from IRCs and their
replacement with administrative staff. All asylum seekers should
be provided with written information about the reasons for their
detention. Movements around the detention estate should be minimised
(paragraph 310).
Every detainee is served at the point of their initial
detention with a notice (IS91R) informing them of the reasons
for their detention and bail rights, and this must be explained
to the individual, using an interpreter if necessary. This is
reinforced by Rule 9 of the Detention Centre Rules 2001 (No. 238),
which requires that every detained person be provided with written
reasons for his/her detention at the time of the initial detention,
and thereafter monthly.
Warranted immigration staff based at removal centres
were never employed to be caseworkers and the liaison function
they performed is ably carried out by the immigration manager
and his/her team of administrative staff in each centre. All detainee
requests are dealt with and liaison with the ports and local enforcement
offices is undertaken promptly.
Detainees are also able to contact their representatives
and, where they do not have the means to do so, costs will be
met on their behalf.
Every effort is made to keep detainee movement around
the detention estate to a minimum. However, it is sometimes unavoidable
for operational reasons.
53. This policy gives the impression of requiring
people to attend interviews under false pretences and can create
a perverse incentive not to comply with reporting requirements
for fear of immediate detention. (Paragraph 318)
There is no question of a person being asked to report
under false pretences. Reporting at Reporting Centres is arranged
as part of a regime of regular contact and is set according to
our published guidance to ensure a person remains in contact with
the Border and Immigration Agency. Reporting conditions are imposed
where an individual is liable to detention but the Agency has
decided after a risk assessment that detention is not appropriate
at that stage. Reporting is one of a package of measures with
the important aim of maintaining contact between a person subject
to immigration control and the Agency. The decision to detain
an individual who is liable to be detained is taken following
an assessment of the risk of absconding in the individual case.
The risk of absconding will be re-assessed where new information
comes to light or there is a change of circumstances. Detention
sometimes occurs at reporting events if the individual has been
served with an adverse decision or appeal determination and therefore
has less incentive for keeping in touch with the Agency. There
will be a minimum of 72 hours between service of removal directions
and the actual removal. During this time the detained person has
access to legal advice and can arrange to have belongings delivered/collected.
54. We welcome the Home Office's announcement
that IND is intending to review the way in which family removals
are conducted but are disappointed that over a year later the
review is still in progress and no changes have yet been proposed
or made. We find the attitude of the Home Office towards families
facing removal troubling. The Government seems at a loss to understand
why families at the end of the asylum process do not simply take
the money made available to them to return 'voluntarily' to their
country of origin. And yet it seems clear that for the families
concerned - many of whom have been effectively made destitute
and face losing their children into the care system - the fears
of return are very real. There is also evidence that many families
are not aware that their case has come to an end until they are
arrested early in the morning at their home address, and that
in some cases families are detained before their case has come
to an end, for example, if a fresh claim has been submitted or
there is an outstanding appeal hearing. (Paragraph 328)
Border and Immigration Agency policy on pastoral
visits is set out in response to Recommendation 56.
All enforcement visits constitute immigration work
of the most sensitive kind with those involving families the most
emotive. All operational visits to detain and remove individuals/families
who no longer have the right to remain in the UK are done so in
line with operational policy and guidance. The Border and Immigration
Agency is aware of the possible traumatising effect of early morning
visits when they seek to remove the families of failed asylum
seekers. Every effort is made to conduct an immigration enforcement
visit with the least disruption to the children and at the best
time of day to pick up a family as an entire unit, e.g. before
any children depart for school or parents depart for work. Families
with children are normally detained for very short periods and
usually at the point of removal. The decision to detain a family
is taken on a case by case basis, taking into account all relevant
factors including the submission of further representations.
Individuals who are liable to detention are informed
of this fact at each stage of the process (including on the notice
which sets out reporting conditions at the beginning of the process).
Where their claim is not successful or an appeal is dismissed,
they are informed that they are expected to leave the country
and provided with information about the assistance packages available.
People, including families, who elect not to depart voluntarily
forgo the opportunity to choose the timing of their departure
and will be subject to enforced removal.
It is the UK Government's preference that those with
no right to remain in the UK return home of their own accord.
To that end we support schemes (which ensure dignity and sustainability)
to assist applicants who are willing to leave voluntarily. Enforced
removal is only considered for those who fail to avail themselves
of the opportunities.
Assisted Voluntary Return schemes are operated by
the International Organization for Migration (IOM) which is a
completely independent international organisation. The IOM can
get applicants home within days if necessary. However successful
applicants are given up to 3 months in which to get their affairs
in order to return home. As long as their intention to leave home
voluntarily is genuine, they need not fear the risk of enforcement
action for those 3 months.
Throughout an applicant's case he/she is notified
in writing of progress and informed that all immigration decisions
can be appealed to an independent judiciary. Moreover, policy
dictates that persons subject to enforced removals have sufficient
time between the notification of removal directions and the date/time
of removal to seek legal advice and/or apply for Judicial Review.
In all but the most exceptional circumstances a minimum
of 72 hours (including at least 2 working days) must be allowed
between notification of removal directions to the person being
removed, and the removal itself. The last 24 hours of this period
must include a working day.
Removal directions are also notified to legal representatives
where there are details of any representative actively involved
in the case post-appeal, or where a person asks that a specified
representative be sent copies of papers served with removal directions.
Removal directions will be accompanied by a short
factual summary of the case which includes notification that the
case is one to which paragraph 18 of the Practice Direction supplementing
part 54 of the Civil Procedure Rules applies, informs the subject
of the address to which any claim for JR must be copied, advises
the subject to seek legal advice, and includes contact details
in the event of an injunction.
Persons detained for removal must be given prompt
access to telephone facilities to enable instruction and on-going
contact with representatives.
It is open to an individual to make representations
at any stage of the process, including after they have been detained
for removal. The Agency considers all such representations in
order to determine whether they amount to a fresh claim and if
detained whether detention should be maintained.
55. We are concerned about the failure of the
Home Office to develop alternatives to detention beyond the relatively
limited use of voluntary check-in arrangements which are unlikely
to be successful without a properly functioning casework model
which can support asylum seekers throughout the process and make
them aware of the different options available to them at different
stages. (Paragraph 329)
Although detention is an important element of maintaining
an effective immigration control it is not the only method used
for maintaining contact with persons who are subject to immigration
control.
The Border and Immigration Agency currently operates
a network of 12 dedicated reporting centres that have been established
so that we are able to keep in contact with asylum seekers. Applicants
who are identified as living within reasonable travelling distance
of a reporting centre, currently set at 25 miles, are made subject
to regular reporting conditions. Outside the 25 miles, reporting
is to a local police station.
Under the new asylum system, a case owner maintains
contact with asylum claimants from the point of application to
the conclusion of their case (grant followed by integration or
voluntary departure/removal). Case owners will ensure that claimants
are made aware of the various voluntary return schemes.
All new asylum applicants now have an individualised
contact management plan which may include electronic tagging and
voice recognition in addition to more traditional reporting and
outreach visits by their case owner. Section 36 of the Immigration
and Asylum (treatment of claimants etc) Act 2004 allows for
the electronic monitoring of those liable to be detained under
the Immigration Acts.
If a person fails to comply with a tagging regime
(including refusing to have a tag fitted or tampering with the
tag itself once fitted) they are liable to re-detention and prosecution.
Our precise response to non-compliance is decided on a case by
case basis, depending on the individual circumstances, and may
include other action such as increased physical reporting.
We are currently exploring how some families might
be housed in hostel type accommodation as a step towards departure.
56. The detention of asylum seekers - particularly
asylum seeking families - should be undertaken with dignity and
humanity. A pastoral visit should be undertaken in all cases to
ensure that the family's circumstances are fully known to the
officers who will be undertaking the removal itself. People should
have time to collect their belongings, and to sit exams, and journeys
should be as comfortable as possible. (Paragraph 330)
It is Border and Immigration Agency policy that pastoral
visits should be conducted in all family cases. This would usually
be undertaken 24-48 hours prior to the detention visit. A pastoral
visit ensures that as much information is known about the family
prior to arrest, detention and removal as possible. It also ensures
that any medical or special needs issues can be considered before
the detention visit takes place.
Where children are identified at the premises that
do not appear to form part of the family unit, social services
are contacted if necessary in order to investigate the relationship
further.
If it is considered that a pastoral visit is not
to be undertaken then a written report or file minute must be
submitted to an Inspector for their approval. This should only
be in cases where there is good reason to suspect that the family
may abscond following a pastoral visit.
Adequate time should be allowed for persons to collect
personal belongings on being detained or for removal, but removal
will not be unduly delayed. Persons to be removed should also
be informed in advance, using the appropriate forms, of the airline's
baggage allowance limits.
While the right to education does not entitle a family
to remain here once their asylum claim has been finally refused,
the consideration of the appropriate time to effect removal in
relation to key educational stages is an important area of concern.
Circumstances will differ and children will be at
various stages in preparing for examinations when arrangements
are made for a family's removal; some may be on the verge of sitting
examinations while for others this may be several months away.
The Border and Immigration Agency may not have been made aware
that a child is undertaking examinations until such time as the
Agency conducts a pastoral visit to assess the family's circumstances
prior to any removal. Indeed, this may not come to light until
the family is picked up pending removal. We are improving our
contact management procedures to allow for a greater opportunity
for these issues to come to light. Under new asylum processes,
each new asylum application is handled by one case owner throughout
the process until conclusion in the form of a grant of leave or
voluntary departure/removal. Through regular contact, case owners
will build up good knowledge of a family's circumstances.
There remains a need to consider this proportionately,
bearing in mind continued housing and support costs and maintaining
a credible and effective immigration control. It would not be
appropriate to delay removal, particularly for a number of months,
solely on the basis that a child is preparing to take examinations.
Each case must be considered individually and bearing in mind
other factors which might direct that enforced removal, even leading
up to exams, may continue to be appropriate.
Deferral of removal in order for examinations to
be taken may be done where the family gives an undertaking that
following this they will depart the UK voluntarily.
57. We understand that removal is a difficult,
sometimes very difficult, process, particularly where asylum seekers
do not, for a wide variety of reasons, wish to return to their
country of origin. We remain concerned by the many reports of
excessive use of force and, in many cases, the lack of access
to possessions. (paragraph 336)
Immigration Officers may only conduct arrests if
they are certified as arrest officers. Such certification is only
given once they have successfully completed training which is,
in general terms, of a similar standard to that of the police
and which is delivered in partnership with the National Policing
Improvement Agency (formerly Centrex). Officers are taught to
use the conflict management model and one of the central tenets
of the training is that they must only use force where it is necessary,
appropriate and justified and that the use of force must be proportionate
to the threat faced. Communication is always promoted as a key
means of de-escalating potentially threatening situations. In
addition, officers are repeatedly made aware of their duty of
care towards those with whom they come into contact, including
those against whom they may have deemed it necessary to use force.
Officers are trained in a variety of approved control and restraint
techniques including - but not restricted to - the use of handcuffs
and Asps (extendable batons)
58. HMIP has recommended that proper procedures
should be established to prepare detainees, particularly asylum
seekers, for removal. Such procedures are necessary to ensure
that removals can be conducted properly and with dignity. (Paragraph
337)
A welfare role has been created across the detention
estate to deal with, among other things, the preparation of detainees
for removal or transfer. Welfare officers or teams at individual
removal centres liaise with other centres across the estate to
identify "best practice". This work may involve, for
example, ensuring that property is returned to the detainee before
removal.
59. We are concerned that the drive to meet performance
targets may be leading to unnecessary or poorly planned removals.
(Paragraph 338)
We only remove those people who have no legal basis
upon which to remain in the UK and proactively promote voluntary
departure as the preferred method of return. Where enforcement
action is necessary all operations are carefully planned, involving
a wide range of checks and the completion of a comprehensive risk
assessment.
60. We are concerned about the negative impact
of hostile reporting and in particular the effects that it can
have on individual asylum seekers and the potential it has to
influence the decision making of officials and Government policy.
We are also concerned about the possibility of a link between
hostile reporting by the media and physical attacks on asylum
seekers. (paragraph 349)
61. We recommend that the Press Complaints Commission
should reconsider its position with a view to providing practical
guidance on how the profession of journalism should comply with
its duties and responsibilities in reporting matters of legitimate
public interest and concern. We emphasise that such guidance must
not unduly restrict freedom of speech or freedom of the press
any more than similar guidance does in the USA. (paragraph 366)
Note: recommendation 62 (paragraph 367) is shown
separately below
63. We were pleased to learn about the positive
impact of projects which aim to encourage more considered reporting
of asylum seeker issues, and provide a voice for asylum seekers.
We are encouraged to hear that newspaper editors would be prepared
to publish more such stories, and suggest their willingness to
do so should be supported by those working with asylum seekers,
submitting positive stories for reporting by them. We support
the recent recommendation from the Information Centre about Asylum
and Refugees that the Home Office should encourage newspapers
to act more responsibly, and we recommend that the Home Office
lend its support to the networks and award schemes working in
this area. (paragraph 371)
Response to recommendations 60, 61 and 63
The Information Centre about Asylum and Refugees
in the UK (ICAR) published a report in March 2007 on monitoring
of UK newspaper reporting of asylum seekers and refugees today
which was commissioned and funded by the Home Office. This report
was developed to promote a more fair and balanced reporting of
asylum issues. It makes recommendations to the Press Complaints
Commission, newspaper editors and the Home Office on how to improve
the reporting of asylum and refugee issues in the media.
The report makes seven recommendations to the Home
Office. The improvements and restructuring of the Home Office
means the Home Office has acted independently on many of the recommendations
in the report, before it was published. The Press Office is appropriately
staffed and resourced. The central Home Office Reform programme
and the move towards an Overarching Communication Strategy across
the Home Office ensure the Home Office engage not only with the
media, but also with the public, staff and stakeholders in dialogue
and discussion to a far greater extent.
The Consultation document, 'A New Model for National
Refugee Integration Services in England', with its central focus
on the welfare and integration of the refugee, demonstrates that
the Home Office wants input from all sectors of society. The aim
of the new approach to refugee integration is to provide the greatest
opportunity for each refugee to contribute to the wider UK society.
The Home Office is proud to have funded the report
and welcomes its findings and recommendations.
62. We recommend that Ministers recognise their
responsibility to use measured language so as not to give ammunition
to those who seek to build up resentment against asylum seekers,
nor to give the media the excuse to write inflammatory or misleading
articles. (paragraph 367)
The Committee can be assured that ministers take
very seriously their responsibilities to use measured and appropriate
language. This does not derogate from Government's responsibility
to address issues which might be considered difficult, sensitive
or contentious.
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