Joint Committee On Human Rights Tenth Report

Conclusions and recommendations

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)

Access to financial support and accommodation

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)

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)

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)

5.  The continued use of the section 55 provision to deny support in subsistence-only cases leaves many asylum 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 judgment, and is in clear breach of Article 3 ECHR. We recommend that section 55 be repealed. (Paragraph 92)

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)

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. (Paragraph 99)

8.  We are concerned that the shortage of competent immigration advice and representation may indirectly result in destitution. (Paragraph 101)

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)

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)

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)

12.   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. There is no clear guidance reflecting recent court decisions regarding local authority responsibilities towards asylum seekers with care needs. 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)

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. (Paragraph 122)

Provision of healthcare

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 to life. Moreover, consequent increased reliance on A&E services as a substitute is more expensive, increases A&E 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)

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)

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 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)

Treatment of children

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 the 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)

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)

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)

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)

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)

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 of 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 (Paragraph 193)

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)

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)

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)

Detention and removal

35.  We recommend that all IRC staff, including those of private contractors, are given training in refugee and human rights. (Paragraph 216)

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)

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 asylum 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)

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. (Paragraph 228)

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 acknowledges 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 into place to improve current practice. (Paragraph 236)

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)

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)

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)

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)

44.  In the absence of an end to 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 in any subsequent reviews of the decision to detain. (Paragraph 261)

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)

46.  We believe that 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. (Paragraph 269)

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)

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)

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)

50.  Free on-site 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. (Paragraph 291)

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 inhuman 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 work 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 services should be monitored. Female GPs and other medical practitioners should be available in detention centres where women are held. (Paragraph 305)

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)

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)

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)

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)

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)

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 access to possessions. (Paragraph 336)

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)

59.   We are concerned that the drive to meet performance targets may be leading to unnecessary or poorly planned removals. (Paragraph 338)

Treatment by the media

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 therefore recommend that the PCC 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)

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)

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)

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