32nd REPORT: ILLEGAL MIGRANTS: PROPOSALS
FOR A COMMON EU RETURNS POLICY
Letter from Liam Byrne MP, Minister of
State, Home Office tp the Chairman of Sub-Committee F
I am grateful to the Committee for the report
on its inquiry into the EU proposal for a Directive on common
standards for the return of illegally staying third country nationals.
I enclose a memorandum on the Government response.
I shall arrange for copies of the response to
be placed in the library of the House.
4 August 2006
Government Response
INTRODUCTION
The Government welcomes the above Report issued
on 9 May 2006 on the Community proposal for a Directive on common
standards for the return of illegally staying third country nationals.
We commend the hard work of your Committee in producing this Report,
and also thank the Committee for the various opportunities afforded
both Ministers and Officials of Her Majesty's Government to provide
evidence. The Government is also very grateful for the opportunity
to participate in the 11 May 2006 House of Lords Debate on the
report, attended by Baroness Scotland on the Government's behalf.
We have set out in turn below, our response
in relations to the conclusions and recommendations contained
in your Report.
GENERAL CONCLUSIONS
1. I am pleased that the Committee shares
the Government's general assessment of the Draft Directive and
endorses our decision to exercise our option not to opt-in at
this stage.
2. We agree that the current draft directive
is deeply flawed in a number of respects and may result in the
lowering of standards in a number of Member States. Furthermore,
we consider that the Draft directive does not strike the right
balance between safeguards and assistance to Member States on
return. We believe that it would impose unnecessary burdens that
would reduce the effectiveness of our returns and undermine much
of the good work done by EU governments.
3. Negotiating the Draft Directive within
a process that involves co-decision between the Council and Parliament
is challenging. The UK Government intends to continue to participate
actively in negotiations as far as possible, and will seek to
bring about the changes that are required to make the Draft Directive
viable. I thank the Committee for its recommendations. We will
seek to incorporate them in our policy where possible.
SCOPE
4. The Directive describes the categories
to which it applies as "illegally staying third-country nationals".
The Committee in its report emphasised that this Directive deals
with widely differing categories of persons, some of whom will
have entered the EU legally or resided there legally. It also
stated that the definition must in any case clarify the position
of those with pending appeals, and those whose rights of appeal
have not been exhausted.
5. The Government acknowledge the fact that
the term "illegally staying" in the description of third-country
nationals covers a range of persons including those who may have
initially entered and resided in a Member State legally. We agree
that grouping these persons together with others who have entered
and resided in a Member State illegally is unfortunate.
6. Following clarification of the Commission,
it is the Governments understanding that persons subject to the
Directive, as currently drafted, would have already exercised
or exhausted all their rights of appeal and would therefore be
subject to removal.
READMISSION AGREEMENTS
7. The UK has opted into all Commission
mandates for the negotiation of EC Readmission Agreements, whilst
continuing to pursue bilateral resolutions to returns issues,
with Readmission Agreements, Memoranda of Understanding and other
informal arrangements to address pressing operational issues such
as those concerning re-documentation. In general, where bilateral
co-operation is good, we prefer to maintain that relationship,
and possibly reinforce it with Bilateral Memoranda of Understanding
(MoU) rather than formalising arrangements.
8. Formal agreements do not necessarily
guarantee the acceptance of EU Letters as alternatives to passports.
The promotion of the use of EU Letters as alternatives to official
passports is and remains a feature of both EU and bilateral policy.
We actively seek to persuade third countries to recognise EU Letters
as viable alternatives to official passports, and we support and
encourage the Commission in its efforts to this end. We will continue
to follow the Commission's handling of Community Readmission Agreement
closely and constructively.
COUNTRY OF
ORIGIN INFORMATION
9. Accurate and accessible Country of Origin
Information (COI) is essential for taking decisions on asylum
claims. The UK recognises the value of close cooperation between
Member States in determining the conditions prevailing in countries
to which irregular migrants and failed asylum seekers are to be
returned.
10. The Government intends to ensure that
the UK is able to continue to collate its own COI, but is happy
to work with other states. The Government supports allowing other
EU states access to our existing COI as part of a Common Portal
and indeed all COI reports are publicly disclosable and accessible
on the internet. The British system is open and public. Any COI
from other countries that might be used in determining claims
would have to conform to British standards including openness.
11. However, we have concerns about the
value of setting up a potentially expensive electronic repository,
particularly if parts of the information contained in it cannot
be used by the UK and other countries that operate open to scrutiny
systems, or which might not allow for absolute transparency. We
would however support plans for a feasibility study to be carried
out, before any further consideration is given to establishing
an EU COI database as proposed by the Commission.
PERIOD FOR
VOLUNTARY DEPARTURE
12. The Committee stated that it agrees
with the requirement of Article 6(2) that a return decision should
"provide for an appropriate period for voluntary departure".
The Home Office already has provisions in place to allow an individual
to depart voluntarily where it is appropriate to do so. These
provisions are available throughout the asylum process. We do
not agree that a separate period for voluntary return should generally
be provided for at the end of the process when the decision to
return is made as this would provide people with additional scope
to frustrate the removal process.
DETENTION
13. The UK Government acknowledges the seriousness
of a decision to detain. Detention is used sparingly and for the
shortest period necessary. Where an individual has not made arrangements
to leave the country voluntarily, or is assessed as unlikely to
do so, detention may be considered as appropriate action to enforce
removal. The power to detain must be retained to preserve the
integrity of immigration control and detention is usually appropriate:
— initially to establish the basis
of a person's claim or identity;
— where there are grounds for believing
that the person will not abide by any conditions attached to the
grant of temporary admission or release;
— as part of a fast track asylum process.
14. Whilst detention is kept under continual
review and will not be longer than necessarily there are exceptional
cases where a prolonged period of detention is required.
15. We are pleased that the Committee agrees
with our view that an absolute and non-extendable maximum to the
period of detention will give Member States insufficient flexibility.
Our assessment is that a fixed upper limit would significantly
diminish the possibilities of effecting removal in a number of
cases.
16. The Committee stated that the requirements
of Article 15 in relation to conditions of temporary custody should
apply to the manner in which third-country nationals are taken
into custody, as well as to their treatment when in custody. We
agree with this point and regret the unfortunate but rare incidents
highlighted in the report.
17. Before a family is due to be removed
the Immigration Service will undertake a pastoral visit. The visiting
officers will aim to assess the family's circumstances and identify
whether there are any special needs which must be catered for
when it comes to the removal process. The fact that a mother is
breast-feeding is one such factor to be taken into account.
18. The officers will also aim to establish
an appropriate time to effect the removal of the family in order
to cause the least possible disruption and to safeguard the wellbeing
of all those concerned.
19. An individual risk assessment is conducted
in each case in order to determine the risk of absconding. The
risk may vary according to the stage in the process and a reporting
centre may be the best location for detention to take place if
it is considered that, for instance, service of a negative decision
may prompt a family to sever contact with IND.
20. Other than in exceptional cases where
it would be in the best interests of an individual to remove them
more quickly, there is a minimum period of 48 hours between the
service of removal directions and removal, during which time an
individual/family may arrange for property to be delivered to
a detention centre/point of embarkation.
21. Immigration officers are required to
allow the family sufficient time to prepare when they arrive to
effect removal.
22. One of our main priorities is to ensure
the safety and welfare of those we are attempting to remove and
it is of course preferable that a child remains with a parent
during the detention and removal process. If a child is not present
at the time of the visit, our aim is to reunite the child with
his/her parent as soon as possible.
23. Families do of course have the option
of departing the United Kingdom voluntarily once their application
has been refused and all of their appeal rights exhausted. This
option would negate the risk of family members being separated
at the point where the Immigration Service are required to enforce
their removal.
24. If a family has demonstrated a willingness
to depart voluntarily, discretion can be exercised as to the precise
timing of removal in order to allow for example, a family member
to complete examinations leading to a significant qualification
for which he or she has already undertaken a substantial amount
of study.
25. We must balance these considerations
with the need to maintain the integrity of the immigration control
and enforce the removal of those people who no longer have any
lawful basis to remain in the United Kingdom.
26. The United Kingdom's published asylum
statistics contained data on the periods of detention on a snapshot
basis. The latest Quarterly Asylum Statistics now include information
about the length of time individuals stay in detention. The Committee
stated that the Directive provides a good opportunity to make
the systematic collection of comparable data on detention a mandatory
EU-wide requirement. We agree and will aim to pursue this during
negotiations.
27. Whilst we recognise the Committee's
recommendation to incorporate into the Directive's substantive
provisions, the Council of Europe Guidelines on Forced Returns,
the Committee will of course be aware that when these guidelines
were adopted the UK indicated a reservation with regard to a number
of those guidelines, notably 2, 4, 6, 7, 8, 11 and 16. The UK
has no intention of lifting its reservations to those guidelines.
The guidelines mirror the proposed provisions of the Directive
in many areas and our reservations reflect the serious concerns
we have to those issues raised by both documents.
CHILDREN
28. We agree with the Committee's recommendation
that the Directive should define a child, and minor, as a person
under the age of 18.
29. We agree that children should only be
detained as a measure of last resort, only where necessary and
for the shortest period of time. As the most recently published
statistics demonstrate, the vast majority of families with children
spend seven days or less in detention. Each case is considered
on its merits and the presumption is always in favour of granting
temporary admission or release wherever possible.
30. It was also the Committee's view that
children should be removed to their country of origin only in
the company of a family member or other responsible adult. The
Committee also stated that where unaccompanied removal is unavoidable,
the child should be handed over only to a person with proven parental
responsibility, and that the legal guardian in the Member State
in question must be informed of the identity of the person. We
agree that unaccompanied children should be returned only where
appropriate arrangements exist in their country of origin.
31. There is a long-standing Ministerial
commitment that unaccompanied minors will only be returned if
we can either trace their families or establish adequate reception
and care arrangements in the proposed country of return. In the
latter case, the arrangements would not necessarily require the
presence of a person with parental responsibility. But they would
involve a package of reception, care and reintegration support,
an appropriate escort on the flight home and collection by a suitable
partner organisation at the airport.
STATUS OF
THOSE NOT
REMOVED
32. It is a matter of policy that leave,
or equivalent provisions for protected persons, are not granted
on the basis that there is, for the time being, no practical way
of removing a person.
33. Once the appeal process has been exhausted,
unless they have been granted some form of leave on non-asylum
grounds, failed asylum seekers and other persons subject to removal
no longer have a right to remain in the UK and there is a reasonable
expectation that they should return to their country of origin
voluntarily. As already stated asylum applicants and irregular
migrants may opt for voluntary return at any point of the respective
process.
34. To provide leave or other status equivalent
to that provided for protected persons to those who cannot be
immediately removed from the UK would undermine the immigration
process. It is important for the integrity of our asylum and migration
system that we do not create additional barriers to the removal
of an individual who lacks any lawful basis of stay in the UK,
even if there are (for example) practical difficulties which,
for the time being, are impeding or delaying the making of arrangements
for his removal.
35. IND carefully considers all asylum and
human rights claims on their individual merits in accordance with
our obligations under the 1951 UN Refugee Convention and the European
Convention on Human Rights (ECHR) against the background of the
latest available country information. If an applicant demonstrates
a need for international protection and they meet the definition
of a refugee under the terms of the 1951 Convention, asylum is
granted. If they are otherwise vulnerable they may engage our
obligations under the ECHR, in which case they will be granted
Humanitarian Protection or Discretionary Leave. If their application
is refused, they have a right of appeal to the Asylum Immigration
Tribunal against the consequent immigration decision. In this
way we ensure that we provide protection to those asylum seekers
who need it.
APPEALS AGAINST
RETURN DECISIONS
AND RETURN
ORDERS
36. The Committee stated that it thought
that the drafting in Article 12(2) is defective. It recommended
that it be amended so that in all Member States, appeals which
are not rejected at a preliminary stage as clearly unfounded should
result in suspension of the return decision or removal order until
the appeal is disposed of. We do not agree with this view.
37. All decisions that require the departure/removal
of a person unlawfully in the United Kingdom or a member of the
family of such a person attract a statutory right to appeal to
the independent Asylum and Immigration Tribunal (AIT), and that
the persons are aware of this right. Unless the appellant claims
that his removal would breach the ECHR, the Refugee Convention
or the Community Treaties, our position is that an out-of-country
right of appeal is an effective remedy. While judicial review
is available in relation to any act of a public body we would
argue that permission to apply for judicial review should be refused
where there is a statutory right of appeal to the AIT against
the same decision.
38. Judicial review provides a route for
an effective remedy in those cases where an asylum and/or human
rights claim is made, such that the statutory appeal to the AIT
would normally be required to be an in-country appeal, but we
decide to certify the claim as clearly unfounded under section
94 of the Nationality, Immigration and Asylum Act 2002, denying
an in-country appeal. Judicial review is not, in law, a suspensive
remedy but removal action will always be suspended in this type
of case.
39. We do not therefore agree that all appeals—except
where asylum or human rights claims certified as clearly unfounded—should
result in the suspension of the return decision or return order
pending the decision on a substantive appeal.
40. It is possible to pursue effectively
an appeal from outside the UK. At paragraph 93 of your report,
you quoted the Government as informing you that between 2003 and
2005 only four persons had successfully brought an out-of-country
appeal. We would like to clarify that these figures relate to
appeals brought under section 94 of the Nationality, Immigration
and Asylum Act 2002 following a denial of an in-country appeal
for claims certified as clearly unfounded. The AIT deals with
numerous appeals brought by people outside of the United Kingdom
where the appellant has never been present in the United Kingdom.
It also deals with a number of appeals brought by persons previously
in the UK. Whilst the issues in an appeal may be different where
the appellant has previously been in the UK, the access to the
appeal system is the same and is effective.
JUDICIAL OVERSIGHT
OF DETENTION
41. We agree that detention is a serious
matter and there should be an effective opportunity to test whether
or not the administrative decision to detain is correct. Detained
persons may apply to the Asylum and Immigration Tribunal (AIT)
for bail irrespective of whether there is a pending substantive
appeal before it. This right to apply for bail is notified to
the detainee. Applications for bail can be made as many times
as a detainee wishes and, in most cases, at any point of their
detention. Bridget Prentice clarified this point in a letter to
the committee so the statement in paragraph 103 that judicial
review (or habeas corpus) is the sole possibility of judicial
oversight is in fact not the case. The Quarterly Statistical bulletins
for the last two quarters of 2005 show that 395 (quarter 3) and
415 (quarter 4) individuals were bailed from detention.
42. The Committee has commented on information
and answers given about the substantive appeals and judicial review
process. It is important to distinguish these against opinions
given on detention and legal remedies for this. The Committee
refer to the information quoted in paragraph 111 as a statement
on availability for legal assistance to make a bail application
whereas actually it refers to the availability of legal aid for
substantive appeals and judicial review proceedings.
43. Legal aid is available for an individual
to challenge the lawfulness of the detention decision before the
courts. This ensures proper access to justice. Legal aid is also
available, subject to the statutory tests, for proceedings to
appeal against, or seek a review of, a return and/or removal order.
We do not however accept that funding should be provided in cases
that fail to satisfy the statutory tests. It is important that
resources are focused on cases that have merit.
44. As stated in the evidence given to the
Committee, the decision to detain is administrative and detention
decisions are also kept under review at successively higher levels
within the Home Office. We do not agree that the decision to detain
should be subject to automatic or direct judicial supervision.
There already exists provision for any detained person to challenge
the lawfulness of their detention before the courts. That is still
the position and automatic judicial oversight of detention where
no application is made is not something we would advocate.
45. The current available remedies, together
with legal assistance provisions and our administrative structure,
comply fully with Article 5(4) of the ECHR.
THE RE-ENTRY
BAN
46. The Committee raised a legal base point
in relation to Article 9 of the Directive (re-entry ban). As the
Committee says, the test is whether the re-entry ban provision
is incidental to the returns component of the proposal in which
case Article 63(3)(b) of the EC Treaty may be used as the single
legal base—or whether it should be regarded as pursuing
a separate objective requiring Article 63(3)(a) as an additional
legal base. This test can be difficult to apply in practice. In
this case we consider that the predominant purpose of this proposal
is to set standards and procedures relating to the return of illegally
resident third country nationals. We regard the provisions in
Article 9 providing for removal orders and return decisions to
include re-entry bans as being incidental to this predominant
purpose. We can confirm, therefore, that it is our view that this
proposal can be adopted on the basis of Article 63(3)(b) alone.
47. We nevertheless consider that EU instruments
should not be made if there is a real question of Subsidiarity,
which we consider exists. The fact that some of the matters provided
for by the Draft Directive, including the re-entry ban are best
left to Member States to deal with internally, forms part of our
argument for not opting into the Draft Directive. Among other
things, the time limits would be arbitrary in nature and involve
considerable administration in monitoring the bans.
48. At paragraph 170, the Committee stated
that it believed that the re-entry ban should be imposed only
on those persons who represent a serious risk or have been convicted
of a serious crime. We think that Member States should have the
flexibility to decide how long a ban should be, considering the
different circumstances in each case.
49. Like the Committee, we could not accept
that a person previously removed from the UK could have their
ban effectively withdrawn by simply paying the costs of the removal.
This is an area of concern as it would condone the abuse of the
control by those who are financially well off, while those without
such financial means are excluded.
50. Additional difficulties would arise
for the UK in the implementation of re-entry bans as we have no
access to the relevant areas of the Schengen Information System.
Lack of access to the relevant SIS data is one part of the reason
the Government opposes the EU-wide re-entry ban.
51. Whilst we note the Committee's concern
regarding the lack of equivalence of the immigration data entered
onto the SIS, the UK does not itself enter immigration data onto
Article 96 of the SIS as a consequence of the Commission and other
Member State's interpretation of our non-participation in the
border-related elements of the Schengen acquis. We therefore cannot
influence negotiations on how Member States enter data onto this
part of the system.
52. The UK has made clear on several previous
occasions that it would be beneficial for the UK and Schengen
States to share immigration data. Our proposals to do so, however,
have been refused. It has been made explicit that the UK will
not be permitted to access SIS immigration data unless we first
join the immigration parts of the Schengen acquis, and consequently
give up our current frontier controls.
53. As you are aware, the UK participates
in the judicial and police co-operation elements of the Schengen
acquis but has chosen not to take part in the visa and border
related provisions.
54. We have no plans to become a full member
of Schengen. The Government remains convinced that as a result
of our geographic position and the threat posed to the UK by irregular
migration and cross border organised-crime, maintaining the UK's
frontier controls is the most effective way for us to manage our
borders. We are working to deliver stronger, more secure UK borders
through, for example, our e-Borders programme and the Border Management
Programme. We will of course, where possible, continue to seek
arrangements for sharing of immigration data.
Letter from the Chairman of Sub-Committee
F to to Liam Byrne MP
Thank you for your letter of 4 August 2006 enclosing
the formal Government Response to this report. Once Parliament
resumed after the recess Sub-Committee F, which I chair and which
was responsible for the report, was able to consider the response
on 11 October and again on 1 November.
The usual manner of proceeding is for reports
to be debated in the House once the response has been considered.
However this report has already been the subject of a Take Note
motion when, shortly after its publication, it was debated together
with the earlier report on Economic Migration to the EU.
Because of this, the Committee has decided that it will not seek
a further debate on this report. The members of the Committee
did however have a number of comments on the Government's response.
DETENTION
You acknowledge the seriousness of detention,
and set out in paragraphs 17 to 24 the practices which the Home
Office attempts to follow in order to make the detention and subsequent
removal of illegal immigrants as humane as is consistent with
the need to "enforce the removal of those people who no longer
have any lawful basis to remain in the United Kingdom". Certainly
those practices, if adhered to, would go a long way to address
our concerns about the manner in which people are taken into detention,
the length of their detention and the conditions of their detention.
We doubt however whether those practices are
adhered to as strictly as they might be. In paragraph 16 of the
response you describe cases of the type we refer to in paragraphs
66 and 67 of the report as "unfortunate but rare". We
regard them as more than unfortunate, and less than rare, and
we deprecate the Government's unwillingness to publish statistics
on the length of detention, as they have been requested to do
in the course of debates on Immigration Bills. We would be glad
to know what steps you propose to take to ensure that these guidelines
are indeed strictly adhered to. When cases of the type we highlighted
do come to light, what steps are taken to investigate what has
gone wrong, and to ensure that the lessons are learned, so that
such cases do not recur?
We were indeed aware that the United Kingdom
has entered reservations with regard to a number of the Council
of Europe Guidelines on Forced Return, and that these would have
to be lifted before the Guidelines could be incorporated into
the draft Directive; we noted as much in footnote 142. You state
that the Government have no intention of lifting any of the reservations.
To give just one example, we cannot see why the Government should
have entered a reservation against Guideline 11 which, if incorporated
in the Directive and in national law, would have the potential
to improve the detention conditions of children and families.
We would welcome an explanation.
We hardly need to emphasise the importance of
improving the conditions of detention of children: you will be
are aware of the recent report of HM Chief Inspector of Prisons
following her unannounced inspection of Yarl's Wood Immigration
Removal Centre on 13-16 February 2006, to which reference was
made during Questions in the Lords on Monday 23 October. In a
number of respects her report remains critical of the conditions
of detention of children in the centre.
CHILDREN
It seems that you are not prepared to undertake
that unaccompanied children should be returned only to a person
with proven parental responsibility; instead you point to a Government
commitment to remove them only if their families can be traced
or "adequate reception and care arrangements" can be
established. The point of our recommendation was to avoid children
being returned to persons who purported to have parental responsibility,
but in fact did not. The Ministerial commitment you describe includes
"collection by a suitable partner organisation at the airport",
but it is not clear whether this would meet our concerns with
regard to the policy of returning trafficked children to reception
institutions in their country of origin. I wonder if you could
give us more details on this.
We were kindly given sight of an earlier draft
of the Government response. This included an undertaking to "offer
round-the-clock support for returnees, and long-term monitoring
arrangements to ensure oversight of child protection issues".
We are disappointed to see that this undertaking was deleted from
the final draft which you sent us, and wonder what the reason
was for this change. Does this imply that you are no longer prepared
to offer returnees such support?
APPEALS AGAINST
RETURN DECISIONS
On the question of the effectiveness of out-of-country
appeals, there is certainly some confusion over the evidence we
were given, The original evidence given to us by Tom Dodd (whose
letter of 15 February 2006 is printed on page 44 of the evidence
section of the report) was that "a total of four persons
have been successful in out-of-country appeals and been returned
to the UK". This figure surprised us so much that the Clerk
sought confirmation of it. The figure was confirmed, and we were
told that this covered the years 2003 to 2005. This is the evidence
we quote in paragraph 93 of our report.
Now however you offer a further clarification,
explaining that the figure we were given applies only to appeals
under section 94 of the Nationality, Immigration and Asylum Act
2002, ie those cases where the Secretary of State has certified
(wrongly, as it transpires) that a human rights or asylum claim
is "clearly unfounded". It seems that there are, as
we had initially suspected, many more out-of-country appeals,
but that these relate mainly to persons who had never been in
this country, and never would be unless their appeals were successful.
This in your view shows that access to the appeal
system from outside the UK is "effective"; you also
state in paragraph 37 of the response that "[your] position
is that an out-of-country appeal is an effective remedy".
It would be useful if you could give figures showing the proportion
of out-of country appeals which succeed, and any evidence to counter
our view that an appeal should suspend the return process.
JUDICIAL OVERSIGHT
OF DETENTION
We are grateful to you for pointing out in paragraph
41 of your response the extent to which bail applications can
be made, and the fact that they are successful in a significant
number of cases. But perhaps you could comment on the statement
in the evidence of Bail for Immigration Detainees, which we quote
in paragraph 102 of the report, that "many detainees have
no legal representation and therefore cannot access elective bail
procedures".
We do not understand paragraph 42 of the response,
where you say that we "refer to the information quoted in
paragraph 111 [of our report] as a statement on the availability
of legal assistance to make bail application". We do not
refer in that paragraph to bail applications; we were discussing
there the need for legal aid for substantive appeals.
One provision of the draft Directive which we
strongly supported was that there should be automatic judicial
oversight of detention; we recommended that this should be adopted
in United Kingdom law, and we set out in paragraphs 103-107 and
114-115 our reasons for this view,-which was particularly supported
by the Council of Europe Human Rights Commissioner. In paragraph
44 of your response you state that automatic judicial oversight
of detention where no application is made "is not something
[you] would advocate". You do not however give reasons for
this; we would be glad to know them.
We look forward to receiving your reply on these
points.
2 November 2006
Letter from Liam Byrne MP to the Chairman
of Sub-Committee F
1. Thank you for your letter of 2 November
2006. Please accept my apologies for the lengthy delay in responding.
I have responded to the issues you raise below.
DETENTION
2. There are a number of ways in which the
Border and Immigration Agency quality assures the work of its
staff and their compliance with guidance and instructions. The
UK Borders Bill contains provisions to establish a Chief Inspector
of the Border and Immigration Agency, who will have oversight
of practice and procedure in relation to the exercise of enforcement
powers (including powers of arrest, entry, search and seizure)
as part of their broader remit to assess the efficiency and effectiveness
of the Agency. In addition, three statutory bodies oversee and
inspect the Agency's work: The Independent Police Complaints Commission
will oversee the powers exercised by police in pursuance of immigration
functions; the remit of HM Chief Inspector of Prisons already
extends to the detention estate and escort functions of the Agency;
and the Children's Commissioner for England has exercised his
powers to inspect Yarl's Wood Removal Centre and maintains a close
interest in the treatment of children who are subject to immigration
control.
3. Specifically in Enforcement and Compliance
there is a Business Assurance Team which conducts thematic reviews
of particular business areas and compliance with instructions
is a major part of these reviews. In cases of particular concern
an independent internal investigation is commissioned by the Head
of Profession for Enforcement and Compliance [or the Office of
the Children's Champion]. In addition, the Border and Immigration
Agency's Children's Champion keeps matters affecting children
under scrutiny. His role has included the examination of particular
areas of practice, drawing up commendations and the monitoring
of their implementation. You will also wish to be aware that ministers
are currently considering the report of a review of the family
removals process which was designed to identify potential improvements
to the process.
4. All these methods are designed to ensure
that lessons are learnt when mistakes are made and that all reasonable
steps are taken to minimise the possibility of a recurrence.
5. You mention Guideline 11 of the Council
of Europe's Guidelines on Forced Returns. Whilst we have no particular
difficulty with the principles outlined in Guideline 11, which
deals with the detention of children, we would be concerned as
to the possible adverse impact of incorporating these principles
in a binding Directive or in UK law. We would take the view that
the implementation of the principles concerned is not dependent
on them being made mandatory. Indeed, it is already the case that
the general principles in Guideline 11 underpin and inform decisions
about the detention of families with children. But, if they were
to be made mandatory requirements, we could expect them to be
deployed in legal challenges designed simply to prevent or delay
removal. That would not be acceptable.
6. In connection with the detention conditions
for children you mention the report by HM Chief Inspector of Prisons
(HMCIP) following her unannounced inspection of Yarl's Wood Immigration
Removal Centre in February 2006. We react positively to the results
of inspections by HMCIP, making improvements to areas of deficiency
that have been identified wherever possible. In the Yarl's Wood
report, HMCIP made a total of 12 recommendations relating either
directly or indirectly to children at the centre and all were
accepted. The majority of actions required as a result have been
implemented, or we are satisfied that we have addressed the concern
through other means. We remain committed to ensuring that the
conditions in which children are detained with their families
are appropriate.
CHILDREN
7. You refer to an earlier draft of the
Government response and request clarification as to the reason
some areas addressed in that draft were not included in the final
Government response. I am sure you will understand that I cannot
comment on an earlier draft of a response that may have contained
opinions from persons other than the policy leads on this subject.
You may be aware that the Government issued a consultation paper
on changes to the wider unaccompanied asylum seeking children
policy on 1 March this year. When the consultation period ends
on 31 May the Government will consider all responses and develop
policy accordingly.
8. When returning those unaccompanied children
with no basis to stay in the UK, safeguarding the welfare of the
child would always be a key consideration in any decision to return.
However we do not consider that the only safe way to remove a
child is to someone with proven parental responsibility. A child
with no legal right to remain in the UK would only be returned
to their country of origin if the Border and Immigration Agency
was satisfied that safe and adequate reception arrangements were
in place. If it were not satisfied that the reception arrangements
were suitable and safe for that particular child then the return
would not take place.
9. I should clarify that the Ministerial
commitment itself did not include "collection by a suitable
partner organisation at the airport". This is part of our
consideration of what could be necessary if we were to return
a child to something other than their family. Where we know of
evidence of trafficking and that there is a real risk of re-trafficking,
we will consider this as part of the overall consideration of
whether return to the home country would be in the interests of
safeguarding the welfare of a child.
APPEALS AGAINST
RETURN DECISIONS
10. We have previously given you figures
for the number of out of country appeals which arise after certification
under section 94 of the Nationality, Immigration and Asylum Act.
Between November 2002 and September 2006 there were 228 out of
country appeals following certification and just 4 have been allowed.
You have asked for further figures to show that out of country
appeals are an effective remedy. Between April 2005 and December
2006 there were 85,000 Tribunal decisions in out-of country non-asylum
appeals. This figure does not include appeals against refusal
of entry clearance as a family visitor which are counted separately.
Of these 85,000 appeals, 34 percent were allowed. This figure
is provisional as a final statistical reconciliation of 2006 data
is currently being undertaken.
JUDICIAL OVERSIGHT
OF DETENTION
11. So far as detainee access to legal representation
is concerned, the Legal Services Commission has recently completed
a pilot project to provide legal advice surgeries in removal centres
for two days a week. The pilot was assessed as successful and
its permanent roll-out across the immigration detention estate
is now under consideration.
12. You asked for the Government's reasons
for rejecting automatic judicial oversight of detention. I should
first say that immigration detention has never been subject to
judicial authorisation or direct oversight. This is fully in line
with ECHR Article 5, which does not require there to be such judicial
involvement in immigration detention decisions. Introducing judicial
authorisation or some other form of automatic, direct oversight
would inevitably create a significant burden for the courts and
would simply add another layer to the immigration and asylum processes
that we are constantly seeking to simplify. We believe that our
decision making process on the appropriateness of continued detention
is robust so we do not believe that judicial scrutiny of every
decision to authorise or maintain detention would be an appropriate
use of resources. It is for these reasons that we do not regard
judicial authorisation or automatic oversight to be appropriate.
Indirect oversight does exist: individuals are able to challenge
the lawfulness of their detention through the processes of judicial
review and habeas corpus, and can also apply to Immigration Judges
for release on bail. This satisfies the requirement in ECHR Article
5(4) that detained persons should be able to bring proceedings
before a court to challenge the lawfulness of their detention.
We are satisfied that the current position provides an appropriate
level of judicial oversight.
22 May 2007
Letter from the Chairman to Liam Byrne
MP
You wrote on 22 May 2007 to Lord Wright of Richmond,
the Chairman of Sub-Committee F of the House of Lords Select Committee
on the European Union, in reply to his letter of 2 November 2006.
The Sub-Committee considered your letter at a meeting on 13 June
2007. Lord Wright has asked me to reply since it is standard practice
that correspondence on all European Union Select Committee matters
should be addressed to me.
A delay of over six months in replying to a
letter is, as you concede, a lengthy delay; we accept your apologies.
However your letter deals fully with the majority of the points
the Sub-Committee had raised, and we are grateful for this.
You mention that ministers are considering the
report of a review of the family removals process which was designed
to identify potential improvements. We would be interested to
see a copy of that review, and to learn in due course your reaction
to its suggestions for improvements, and how you propose to take
these forward.
We are puzzled by paragraph 5 of your letter,
dealing with guideline 11 of the Council of Europe Guidelines
on Forced Return. We asked why the Government would not lift the
United Kingdom reservation to this guideline, and your reply is
that the principles in the guideline "underpin and inform
decisions about the detention of families with children",
but that if they were to be made mandatory they might be used
in legal challenges to prevent or delay removal.
We accept that if, as our Report recommended,
the Guidelines were to be incorporated in the Directive, this
would create statutory rights and obligations which might be the
subject of litigation. However it is plain from paragraph 27 of
the response (although not stated in terms) that the Government
has rejected this recommendation. It follows that lifting the
reservation would simply indicate the intention of the United
Kingdom to follow these principles, but would not impose any legal
obligation to do so. The guideline sets out only the minimum requirements
for the humane treatment of children and families in detention.
Unless the Government has no intention of complying with this
guideline, it seems to us that the reservation could and should
be lifted. We would be grateful for your comments.
As regards our recommendation that children
should be returned unaccompanied only to someone with proven parental
responsibility, we are glad to note that a child would be returned
to its country of origin only if the Borders and Immigration Agency
was satisfied that safe and adequate reception arrangements are
in place. However we do not understand your statement that the
"long-standing Ministerial commitment" mentioned in
paragraph 31 of the response does not in fact include "collection
by a suitable partner organisation at the airport". We do
not know the wording of the "long-standing Ministerial commitment"
to which you refer. However it seems to us that paragraph 31 constitutes
an express commitment to us, and more widely, that a child will
not be removed unless there is a suitable package of reception,
care and reintegration support in its home country, and that this
package would include "collection by the International Organisation
for Migration (IOM) and/or a suitable partner organisation at
the airport ...". We would be grateful if you would confirm
our understanding of this Ministerial commitment.
We look forward to receiving your early reply
on these points.
14 June 2007
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