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Asylum and Immigration (Treatment Of Claimants Etc) Bill 2003:
Defend the Rights of All!

"The wrong target: a Bill too far"

Asylum and Immigration (Treatment of Claimants, etc) Bill

Two Very Powerful People

Asylum Aid's statement on the Asylum and Immigration Bill

The Asylum and Immigration (Treatment of Claimants, etc.) Bill 2003 will be voted on in the House of Commons today, Monday March 1. The Bill had its second reading in the Commons on December 17, 2003, and having passed through the House of Lords, now is set to complete its Report Stage and third reading in the Commons. Condemnation of the proposed new legislation continues to grow from all quarters. Sixty-two organisations have put their names forward in open opposition to the Bill.

It is clear that asylum seekers and immigrants are being targeted at this time by the government as being an alleged problem for society. This is both racist and anti-human. In bringing in the legislation, the government is enshrining further arbitrary authority in law, and is showing that it is the government itself for whom the rights of the people count as nothing.

Under the Bill, a new Tribunal and the Home Secretary of State will be able to take decisions and no court will be able to challenge them. The Bill places the Home Secretary and the President of the new single tier Tribunal beyond the rule of law. It does this by removing judicial scrutiny of all decisions of the new Tribunal and all removal or deportation decisions of the Home Secretary. The Bill expressly provides that no court may entertain proceedings to challenge such decisions - even where these involve an error of law, breach of natural justice, irregularity or lack of jurisdiction.

This proposal is antithetical to the rule of law. It gives arbitrary power without possibility of judicial scrutiny to both the new Tribunal and the Executive itself, and demonstrates the myth that Britain is the "safe" country that asylum seekers and immigrants throughout the world seek to enter.

It underlines once more the fact that far from rights being given a guarantee under law, the so-called "war on terrorism" in all its ramifications, including the disinformation that is an integral part of it, is further corrupting political life in Britain. For example, the measures will have the effect of abolishing the right to apply for a writ of habeas corpus in certain circumstances, which would apply to British citizens also (if for example in a disputed identity case the Home Secretary sought to effect such person's removal in consequence of an immigration decision).

Its anti-human outlook, as commentators point out, is evident, for example, from the fact that, in removing all support from parents whose asylum claim has been rejected, the bill will allow the Home Office to remove children from parents who are destitute, and who refuse to be deported. The parents will be denied food and shelter, and consequently face the threat of their children being taken into care as a means to coerce them to leave the United Kingdom. Parents will have no option but to agree to their children being placed in care if they are to secure essential support for them.

The Bill is an affront to all those who stand for human rights and justice. It attacks and discriminates against the vulnerable. It is an attack on the rights of all and must not pass.

Briefing from Keith Best, Chief Executive of the Immigration Advisory Service. on Second Reading Debate

House of Commons Wednesday 17 December 2003

The Asylum and Immigration (Treatment of Claimants, etc) Bill

Summary

• This is a Bill too far, both in adding unnecessary further legislation which will add to existing confusion (including among the judiciary) and in its unfair and draconian powers which remove the rule of law that is part of our heritage and has been won over the otherwise unchallengeable actions of the executive over many centuries. The Bill is a constitutional outrage. Moreover, it targets asylum seekers as the problem rather than the inefficiencies of the Home Office in processing claims. The absence of judicial oversight could lead to placing people’s lives in jeopardy by denying them the protection they should, in law, receive. It appears that the Home Office is indifferent to this.

• The ink on the Nationality, Immigration & Asylum Act 2002 is hardly dry (and much of it remains to be implemented) without its provisions being given a chance to work and be evaluated so why is there a need for further legislation unless the Government got it wrong last year?

• "It is essential that we have a properly functioning system of immigration and asylum appeals and the opportunity for High Court judicial scrutiny of decisions" (the Minister Baroness Scotland on 29 July 2002). We agree. The removal of higher judicial oversight of the way in which appeals are handled by adjudicators (to be known as immigration judges) will lead to perverse and disparate determinations going unchallenged even on fundamental matters such as breach of natural justice, irregularity, lack of jurisdiction etc. An inevitable consequence is that this will bring the judiciary into disrepute. There is a more detailed opinion on this aspect from the IAS Director of Legal Affairs which is enclosed.

• It seems that the actions of immigration officers, however irrational, unfair and beyond their powers will not be subject to any judicial scrutiny as they are excluded from any judicial oversight [s.108A(e) in Clause 10(7)] if their decisions are a decision to remove a person from the United Kingdom, a decision to deport a person or any action in connection with a decision to remove a person from the United Kingdom or to deport a person, if the removal or deportation is in consequence of an immigration decision.

• This is a charter for gross violation of human rights, especially in view of the enhanced powers that they are given in the Bill. They will be able to act in a racially discriminatory way. Interestingly, violence against an immigration officer is not included in the list of offences for which they will have the power of arrest. There is no guarantee that adequate training will be given to enable them to exercise such powers properly.

• If the Government cannot be persuaded to retain a two-tier system in line with the Leggatt proposals then it is essential that there is judicial review of decisions which are not in accordance with the law. If this is not to be by way of judicial review to the Administrative Court (hearing oral argument) then we urge that this should be by way of statutory review, as introduced by the Government in the 2002 Act. As Baroness Scotland claimed "statutory review is an important part of our policy to provide a fair but swift and efficient system… Statutory review provides a quick process to correct errors that may have been made by the tribunal, so that cases can be sent back to the tribunal, where oral evidence can be given."

• Undocumented asylum seekers make it more difficult to remove those who fail to establish a lawful right to remain but many will never have had documents and under Article 31 of the Refugee Convention should not be penalised for entering the UK that way: "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence." Convicting such persons of a criminal offence and then sending them to prison will not deter such entry and is not in the taxpayer’s interest. There may be credible reasons why an asylum seeker is frightened of giving a reasonable excuse. The Government should think of more inventive ways of dealing with such persons.

• The creation of criminal offences and measures such as electronic tagging send a message that the Government regards many asylum seekers as criminals and will worsen racial discrimination and race relations.

• The requirement under Clause 6 that an IND caseworker (acting on behalf of the Secretary of State) "shall take account of any behaviour by the claimant that the deciding authority thinks—(a) is designed or likely to conceal information" etc will lead to wrong and unjust initial decisions which will have to be overturned on appeal when an adjudicator (immigration judge) looks at the overall credibility of the claim and discounts any lack of credibility due to withholding information for reasons of fear of reprisals etc.
• We welcome the measures to prevent trafficking of people for exploitation.

 

Yet more legislation

On 24 April 2002, opening the Second Reading debate on the Nationality, Immigration & Asylum Bill the Home Secretary said: "building on the White Paper proposals that received almost unanimous support, it is important that we get the legislation right. From the beginning to the end of the process, we must offer to potential refugees from oppression, economic migrants or other visitors a warm welcome to a country in which the systems can be trusted to operate fairly, competently and robustly. Today's Second Reading builds directly on the measures in the White Paper". He said "if the measures put in place are not carried out properly, competently and speedily—it will not matter how we legislate, and we will have to return to the House to seek legislative means of redress."

Mr Blunkett should be asked which measures have not been carried out properly to justify further legislation especially when he contended that the measures in the 2002 Act have been effective in reducing the number of asylum claims! Part of the solution to dealing with asylum seekers set out, controversially, in the 2002 Act was the building of 750 bed accommodation centres – yet not one brisk has been laid on any of these so far – another untested "solution".

You will see in our attached submission we refer to the comments made by the President of the Immigration Appeal Tribunal Sir Duncan Ouseley about the confusing nature of such a plethora of legislation.

 

Poor, inadequate consultation invariably leads to bad legislation

The 2002 legislation followed exhaustive consultation on a major White Paper whereas the new Bill gave no opportunity for effective consultation (see attached initial response from IAS to which a reply was received after the deadline for the full submission). Many measures in the new Bill were not even mentioned at all in the consultation eg extra fees for immigration applicants. You will see from our submissions that there should have been a draft Bill and/or Special Procedure Committee to deal with such controversial legislation.

 

Asylum figures do not justify such measures

According to the Government asylum applications are running at about half the rate of the previous year. The reasons for this may be many, including a diminution in persecution in those countries that traditionally over the last few years have provided the greatest numbers coming to the UK (eg Afghanistan, Iraq, Sri Lanka). The UNHCR publication "Asylum Levels and Trends in Industrialized Countries, January - October 2003" shows that in 28 countries (excluding the UK) the January – October 2003 level is 15% below January – October 2002 (the UK is excluded from most of the analysis due to a lack of data for October). With fast-track procedures in Oakington and Harmondsworth (both involving detention) and the speed of decisions (81%of applications received in the period April to June 2003 had initial decisions reached and served within two months, compared with 75% for the previous quarter according to the Third Quarter statistics) the new proposed powers seem otiose.

 

Removal of access to the courts

The proposal to have a single tier Asylum and Immigration Tribunal is contrary to the Leggatt report on tribunals (which advocates two tiers including a single second tier tribunal for all) and would have to be changed if Leggatt were adopted. This was referred to during the debate on 29 July 2002 on the 2002 Bill in which the Minister Baroness Scotland speaking for the Government said "We therefore intend primary legislation to put beyond doubt that the tribunal should be able to focus wholly on whether the adjudicator's determination gives rise to a point of law. We consider that to be a better use of judicial resources in a two-tier appeal system. Furthermore, as I am sure that many Members of the Committee are aware, Sir Andrew Leggatt recommended in his report on the review of tribunals that appeals to the second appeal tier should be on a point of law only."

During the same debate on 29 July 2002 in the House of Lords on substituting the Government’s new statutory review for judicial review she said (Hansard: Column 723): "The most appropriate court to hear appeals from the adjudicators is the Immigration Appeal Tribunal…. So the High Court has the advantage of, first, reading the determination made by the adjudicator; secondly, looking at the issue on a point of law that was made by the IAT president or vice-president; and thirdly, determining whether the arguments put forward before the adjudicator and by the vice-president are flawed on a point of law, which would include a perverse assessment of facts. The judge would then decide whether on those bases he or she should say, "No, this is unmeritorious and it should stop here", or that the matter should be sent back to the IAT for the appeal to be determined on a full hearing."

She went on to say: "A statutory review process has been designed which will provide more effective protection than would exist with the superior court of record proposal. As a result of our discussions with the senior judiciary we are confident that we can manage the Administrative Court and its workload efficiently." Later, she stated "Statutory review will only replace judicial challenges of tribunal decisions to refuse to grant permission to appeal against the adjudicator's determination. It will not stop judicial review applications against other categories of decisions."

She also stated (29 Jul 2002 : Column 726) "Judicial review will still exist for other aspects of the immigration and asylum process; for example, challenges against certificates or removal directions, or the administrative process in IND" and "It is essential that we have a properly functioning system of immigration and asylum appeals and the opportunity for High Court judicial scrutiny of decisions."

The Government needs to explain why in just over a year it is expecting its Ministers to stand on their heads.

As Clause 10 removes review of decisions flowing from the immigration and asylum decision, namely decisions to remove and actions taken consequent upon the immigration decision this means that persons can be removed unfairly and in breach of natural justice and human rights without challenge.

Dealing with undocumented asylum seekers

We acknowledge that processing undocumented asylum seekers places added difficulties on the Home Office but sending them to prison (most will be unable to pay a fine so prison will be the inevitable consequence) at great public expense when the prisons are already overcrowded is not the answer. Many asylum seekers will have never possessed a passport, not least because the regimes from which they have escaped have not allowed them to have one. They may well fail to give a reasonable explanation, within the meaning of the legislation, as to why they do not have travel documents and if they have been instructed to destroy them by those who have facilitated their entry (such as smugglers) this will not constitute a reasonable excuse anyway. They may be fearful of reprisals on themselves or their families if they show that they have relied on smugglers.

The Minister should be asked if by making asylum seekers criminals he intends to exclude them from the asylum process by virtue of that fact.

Another way of dealing with undocumented arrivals which is either to require photocopies of travel documents to be lodged with the carrier prior to embarkation or for the carrier to hold the travel documents of passengers during the flight and to return them to passengers in the presence of a British immigration officer appears to have been shelved due to opposition from the Department of Transport.

Greek airline Olympic Airways routinely confiscates the passports of ethnic minority passengers on its flights according to a report by the BBC. The airline argues it wants to cut down on the fines it faces for bringing asylum seekers into the UK and admitted the measures could be viewed as racist. Olympic Airways confirmed it regularly carries out extra security checks on Chinese, Asian, Taiwanese and eastern European passengers. The airline says by retaining the passports during the flight, they ensure they can be produced to immigration officials. The BBC's Caroline Cheetham said the airline argues the measures are the only way they can stop asylum seekers boarding their flights with fake documents, destroying them during the flight and then arriving in the UK claiming asylum with no documentation.

As to removing unsuccessful claimants who have no documentation and who have exhausted their legal remedies to remain in the UK the Government should consider an international travel document (such as the old Nansen passport) which, if accepted by other countries as a valid document, would enable such persons to travel to other countries. This is of particular importance bearing in mind Clause 14 in the Bill which makes it a criminal offence not to comply, without reasonable excuse, with steps that the Secretary of State may require someone to take so as to enable their deportation or removal from the United Kingdom. This will include going to the Embassy or High Commission of the state from which the asylum seeker has fled and obtain a travel document. It is possible that by bringing themselves to the attention of such states asylum seekers could have a new claim for asylum on the basis that they become refugees sur place.

 

Support for families

In the Second Reading debate on the last Act it was put to the Home Secretary that Home Office figures show that over the past decade about 45 per cent of applicants were accepted, either as refugees or as people granted exceptional leave to remain and he was asked if he would agree that the figures show that there has always been a significant number of people whose cases have been accepted as valid, and that we have a duty to resolve their cases in the most humane and efficient way possible. Mr. Blunkett responded "I certainly have a clear commitment to meeting those people's needs in the most humane and efficient way possible."

That has a hollow ring when so many genuine asylum seekers who will be granted refugee status are being denied any support and accommodation through the operation of s.55 of the 2002 Act. The failure to allow a right of appeal to an Asylum Support Adjudicator has met with criticism from all agencies and the judiciary (there are more than 800 injunctions, cynically not contested by the Home Office, which have been issued against the Home Office requiring the continuance of support) as well as costing the taxpayer a great deal of money in legal aid fees in the Administrative Court (High Court) – whereas there is no legal aid available to be represented before an Asylum Support Adjudicator.

Like many others we are concerned at the implications of removing support from families that might lead to children being taken into care. There may be many reasons why parents might regard their responsibility to their children as being to abandon them to care in the UK until they reach their eighteenth birthday rather than removing them to an uncertain future in a troubled land. The parents might leave the UK or seek to go underground. Trying to force them to leave the UK under such a threat to their children is crude, inhumane and likely to be ineffective. Andrew Cozens, the president of the Association of Directors of Social Services, is reported as having said the move runs contrary to the objectives of the 1989 Children Act. It will be small comfort to local authorities on past experience of receiving payments from the Home Office that this is provided for in respect of such care costs.

Removal of asylum seekers to safe third countries

Clause 12 and the Second List of Safe Countries in the Schedule is ominous [Schedule 3 Part 3 paragraph 8 (2)] in that it would entitle the Government to remove an asylum seeker even before the claim is entertained or while the claim is pending to a country in, say, Africa unrelated to that person’s origin or travel but where, through a bilateral agreement, the receiving country would entitle the person to reside there. The Secretary of State would need to be satisfied that the country would observe the tenets of the Refugee Convention but not the Human Rights Convention (ECHR). The Explanatory Notes make it clear that this provision relates to where a person can be removed to a safe third country without substantive consideration of his asylum claim and, in certain cases, without substantive consideration of any associated human rights claim. Moreover, by virtue of clauses 10 and 11 there is to be no right of appeal either in-country or outside the UK.

This paves the way for the UK dishonouring its obligations under the Refugee Convention by not determining the status of refugees on its own territory which is implicit in the fact that a refugee does not achieve that status by virtue of a decision or determination but by virtue of coming within the definition of the Convention from the beginning. The decision process only confirms or denies that status.

The only safeguard is that the order adding countries to the list must be laid before Parliament subject to positive approval [paragraph 2(c)]. It is not explained, however, why the Secretary of State feels he needs the power under Part 5 of Schedule 3 [paragraph 3] "If the Secretary of State is satisfied that it is necessary by reason of urgency to make an order under this paragraph without complying with subparagraph (2)(c)—(a) he may make the order without complying with that provision" ie without subjecting the proposal to positive resolution. The Minister should be asked in what circumstances he foresees the need to exercise such power initially avoiding the approval of Parliament.

 

Additional fees for immigrants

This is a novel concept expecting those without political representation in the UK to contribute to the UK’s general taxation. It is a form of advance taxation where you pay for benefits which may accrue in the future – it has alarming implications for UK residents if applied to them in due course! Clause 20 of the Bill entitles the Secretary of State to "exceed the administrative costs of determining the application in that it reflects benefits that the Secretary of State thinks are likely to accrue to the person who makes the application."

What extra cost will be placed on an elderly mother abroad wishing to visit her family in the UK? Will this make it prohibitively expensive and therefore prevent her visit? What about visitors coming to see sick and dying relatives? How will the Government quantify in financial terms the "benefits" of such visits to the individuals? Why was this proposal not mentioned in the, albeit ridiculously thin, consultation document on which IAS and others were asked to comment prior to the Bill being published?

There were justifiable howls of protest when the Government announced that it was, for the first time, charging students and others who wish to extend their leave in the UK or otherwise change their status £155 even if this was to extend for a few months. Students already have to pay the application fee to come to the UK, pay for all their tuition fees (at overseas rates) and their accommodation and maintenance and now an extra fee to change their status. It seems that the Government, with another measure never previously introduced, will expect them to contribute to general taxation. This is immigration only for the rich. The Guardian (Monday December 8, 2003) reported that the Government is considering an additional fee of £500 on top of the already high application fees although this may be the maximum. Such additional fees, however, even at a modest level could deter students and others from coming to the UK and this will alarm educational establishments which rely on foreign student fees as income.

A letter in the Guardian on 9 December from Alistair Spooner of Lookfar Ltd states "Our company works in the educational sector and we know that the UK is just one of many countries fighting for foreign students in an extremely competitive market (Migrants face £500 charge to enter UK, December 8). The UK has a good international reputation for quality schools and courses, but the proposed surcharge of £500 on top of existing student-visa fees would decimate this market. Cost is still the most significant factor in student choice of country. Any short-term rise in revenue would be negated by a large drop in the number of students coming to this country. People who have studied in the UK are far more likely to have closer business ties to the country in the future. This surcharge would hurt Britain's long-term economic interests and should be removed from the upcoming legislative changes."

These measures give a hollow ring to the expressions of Ministers that they welcome immigrants and send confusing signals. The reality is that they see them as a milch cow. There was controversy some years ago when the Government stated that all entry clearance operations had to be self-financing. IAS exposed that this included a poor applicant having to contribute to the Business Class travel of London officials visiting posts overseas as well as other remote administrative costs taking creative accountancy to new levels of invention.

JCWI (Joint Council for the Welfare of Immigrants) Briefing for Report Stage and 3rd reading on 1 March 2004

We are concerned about:

Clause 7 which may result in the children of families being taken into care once the appeals of their parents against refusal of asylum have been dismissed.

But do not forget the rest of the Bill. In particular:

Clause 11 which, unique to immigration and asylum decisions only, removes the inherent jurisdiction respected since Magna Carta of the highest courts in the land to review a decision of the lower court or the Secretary of State.

MPs are urged to support the amendment being laid by Neil Gerrard MP on 1 March to omit Clause 11.

Clause 2 which criminalises asylum seekers simply for not having a passport, and contravenes a central principle of the Geneva Convention that asylum seekers should not be punished due to the method of their entry.

Clause 16 (electronic monitoring) which, together with detention, imposes a method of control currently used only on convicted criminals.

Clause 13 (safe third country removal) which allows the removal of asylum

and Sch 3 seekers before their asylum claim is decided to another country which is deemed in the Secretary of State’s opinion to be safe.

The Bill is described as the final phase of asylum reform and seeks to introduce ‘speed and finality’ to the appeals and removals process. But the question to be asked is, at what cost?

Parliament’s Joint Committee on Human Rights has described parts of the Bill to be "inherently objectionable" 1. The Committee has stated that plans for a single-tier Tribunal whose decisions are immune from challenge in the courts, could violate the Convention rights of immigrants and asylum seekers. The need for adequate judicial scrutiny is even greater for immigration and asylum decisions, described as "poor" by the Home Affairs Select Committee2.

Although the Bill contains welcome measures in extending the ambit for the prosecution of traffickers, JCWI maintains very serious concerns on much of the Bill, highlighted in this paper. It must be remembered that the proposals mooted not only have serious implications for those seeking asylum, but settled communities as well, such as those seeking to exercise family reunion rights or extend their stay in the UK and wish to challenge decisions of Home Office or entry clearance officials.

Clause 11: Appeals

• Abolition of the Immigration Appeal Tribunal

Clause 11 proposes to abolish the current second tier of appeal from an adjudicator to the Immigration Appeal Tribunal. This proposal is based on the Home Office’s assertions that asylum seekers are "(lodging groundless appeals to delay removal"3.

Currently, an appellant only has one effective appeal before an adjudicator known as a "one-stop" appeal, with explicit barriers laid down in the 2002 Act preventing further appeals being lodged prior to removal on grounds which have been or could have been raised earlier4. An appeal from the adjudicator to the IAT can only be brought with the permission of the IAT itself, and then only if there is a real prospect of success or other compelling reason5.

Although the grant of leave is tightly monitored by the IAT, statistics demonstrate clearly that over 36% of decisions6 by adjudicators have merited reconsideration over the past year. Over half (58.7%) of subsequent IAT decisions were allowed in favour of the appellant7.

The new Bill permits a written review only, not by a separate body, but the same body (renamed the Asylum and Immigration Tribunal) that reached the decision in the first place. Only one re-hearing may be ordered, even if the decision reached after a second hearing is flawed.

• Abolition of judicial scrutiny by higher courts

To compound the possibility of injustice resulting, decisions of the proposed Asylum and Immigration Tribunal (AIT) will not be subject to any form of judicial review in the higher courts, unless "bad faith" (dishonesty, corruption or bias) can be demonstrated on the part of the new Tribunal. Only the President of the new AIT will have the liberty to ask the Court of Appeal to review a decision, but then only, to give an "opinion" and not make a decision.

The bar on further judicial scrutiny not only applies to decisions of the new AIT, but also decisions of the Secretary of State himself. Currently, those decisions of his which are not subject to any form of statutory appeal, may be challenged in the High Court by way of judicial review. Crucially, these decisions include any form of removal or deportation from the UK, as well as nationality decisions under wide-ranging powers of deprivation of citizenship introduced under the 2002 Act.

The sweeping ouster of any form of judicial intervention is unprecedented in its breadth and magnitude, applying to all immigration decisions, including the decisions of entry clearance officers abroad as well as both asylum and non asylum decisions by Home Office officials. The proposal seeks to withdraw fundamental rights, some of which can be traced back to Magna Carta8.

In summary, in its current unamended form, clause 11 will:

• Allow the Home Office to remove and deport failed asylum seekers without any judicial interference;

• Deny access to justice to one of the most vulnerable groups in society;

• Lead to further unfair and inconsistent decision-making, as there will no longer be any supervisory role by the present Immigration Appeal Tribunal in setting precedent, resulting in the loss of a valuable body of jurisprudence. The IAT plays a vital role in controlling and re-addressing poor decision-making by adjudicators. Axing the IAT in its current form will lead to an increase in poor decisions in an inadequate appeal process;

• Fail to recognise that refugee law is a particular complex area of law and in order to ensure and safeguard consistency in asylum decisions, the possibility for appellants to challenge such decisions at higher courts should be left open. It is the higher courts that develop precedent-setting law;

• Ensure a lack of accountability, and no judicial oversight addressing irregularities, points of law and/or fact. This creates a structure completely outside the rule of law and therefore inherently unconstitutional;

• Be incompatible with the principles of the ECHR; Article 6 of the European Convention on Human Rights provides for the right to a fair trial.

• Affect the independence and the impartiality of the appellate authority, reinforcing the view that it is merely an extension of the Home Office;

• Not just concern asylum decisions, but all immigration and human rights decisions, as well as decisions in relation to detention.

Clauses 2 and 3: failure to produce a passport and forgery

Clause 2 will make it an offence, punishable by imprisonment, for any non-British or EEA national arriving at a UK port, not to have a passport. It will be a defence for that person to furnish a "reasonable excuse" to the immigration officer. Bearing in mind that illegal entry in the hands of agents is the only way in which an asylum seeker can enter the UK as a result of the various visa restrictions and fines for carriers imposed by the current and previous governments, presumably travelling to seek asylum may be such a defence.

However, deliberately destroying or disposing of a document on the instructions of an agent cannot be relied upon as a reasonable excuse under the new proposals. In our experience, the threshold set when defining ‘reasonable’ has been high and with the added proviso regarding the deliberate disposal of a passport, there will be no effective defence. This seems harsh and likely to mean that many asylum seekers, on entry to the UK would be committing a criminal offence, punishable by a prison sentence of up to two years.

Similarly, clause 3 will penalise asylum seekers who produce forged passports on entry. It is not clear what defences lie in forgery and counterfeiting legislation to protect asylum seekers from prosecution.

Both clauses 2 and 3 contravene Article 31 of the Geneva Convention which forbids a signatory country from prosecuting those seeking refugee status on account of their illegal entry. The proposals go against the spirit of the Convention by creating offences which will operate as punitive measures in breach of the UK’s international obligations. Article 31 was incorporated into the Convention exactly to prevent this type of legislation from being enacted9.

Although there is the power to impose fines rather than a custodial sentence, those seeking refugee status will rarely be in a position to be able to pay fines, therefore if convicted of a passport offence under these clauses, an asylum seeker is more likely to be given a custodial sentence than a non-asylum seeker who commits an offence that has a similar sentence power attached to it.

Successive governments have succumbed to a tradition of introducing measures which make it more difficult for asylum seekers to enter the UK and have implemented more and more restrictive legislation to discourage them from seeking asylum in the UK. Clauses 2 and 3 are in that vein, raising serious concerns about the government’s overall commitment to refugee protection.

Clause 7 – withdrawal of support to families

This clause seeks to deny financial support and accommodation currently provided by NASS to the families of asylum seekers whose asylum appeals have been dismissed. It is proposed that support and assistance is halted once the Secretary of State has certified that a person has failed "without reasonable excuse to take reasonable steps to leave the UK voluntarily".

In order for a local authority to maintain its obligations to the welfare of children in such families, it is feared that they may have to be placed into the care of that local authority. JCWI’s concerns focus upon when a certificate would be issued by the Secretary of State. We rather suspect that the Home Office will adopt as standard practice the issue of a letter certifying that a claimant has not taken reasonable steps within weeks of an AIT appeal being dismissed. It is unclear whether the Secretary of State would issue certificates in respect of countries that he does not in practice remove people to.

Where a family’s claim for asylum has failed but they fear return or cannot be returned, the implications are:

• The family would be forced to live way below the poverty line and would be vulnerable to exploitation, poor and overcrowded housing. This would impact negatively on the family and especially on the children;

• The family would be forced to accept that their children will be taken into care;

• The onus is taken off the Secretary of State to remove failed asylum seekers from the UK and puts the onus on the family to try to leave the UK or to remain here in destitution;

The proposal will operate by way of amending Schedule 3 of the 2002 Act which will allow support to be provided if and when the family’s Article 3 right not to suffer inhuman or degrading treatment is breached. However, the threshold for such a breach in support cases is very high and in a recent JCWI case10 the Court of Appeal ruled that where harm is self-inflicted the UK is not under an obligation to support a family.

Clause 16 - electronic monitoring

Clause 16 proposes to allow the electronic tagging of any person who is subject to a residence restriction. This will include the vast majority of asylum seekers who are subject to such restrictions on account of their method of entry to the UK.

JCWI is concerned that:

• No criteria are laid down as to who tagging should be applied to;

• When refugees are given the choice, they would prefer to be tagged rather than being detained; however, the notion of electronic tagging does raise concerns in terms of civil liberties and freedom of movement;

• It further associates asylum seekers with criminal activity and in fact does criminalise them in the eyes of the public;

• There is no judicial oversight on how tagging will operate, similar to decisions to detain;

• There would be a significant additional cost in operating such a system. The costs of setting up and maintaining such a system would be better invested in improving the additional decision-making process and ensuring that adequate judicial scrutiny of Home Office decisions is afforded to those submitting claims for protection.

Clause 13 and Schedule 3: safe third country removal

The proposals will permit the removal of asylum seekers, before their asylum claims are decided, to another country (not that of the asylum seeker) which is deemed in the Secretary of State’s opinion to be safe. It remains open, under Part 4 of Schedule 3, for the Secretary of State to choose any country in the world, not necessarily those listed in Part 2 of the Schedule, where he deems that the life or liberty of the person to be removed will not be threatened. There is no provision in the proposals for this opinion to be challenged.

JCWI is concerned that:

• There will be no adequate protection for those alleging breaches under the European Convention on Human Rights;

• The Secretary of State’s record on evaluating the safety of third countries is poor. The designation under existing legislation of Pakistan as a safe country has been held to be unlawful11.

• Safe third country returns should only be carried out once essential safeguards are put in place and only on certain conditions12. Without these essential safeguards, protection under the UN Refugee Convention is compromised;

• Without essential safeguards this proposal would lead to and further encourage chain removals (removal from one "safe" country to another);

• The UK is merely passing the buck onto other states, ignoring its responsibility, shared within the EEA and other countries with which the UK has standing agreements on asylum, under the UN Refugee Convention;

• Case law and the Geneva Convention holds that refugees do have a choice as to where they wish to seek asylum (usually based on ties in the country of asylum);

• It is a fundamental principle that asylum claims ought to be judged on their own merits, this is compromised by removing people under this provision without looking at the case at all;

• There is a danger that any person from any country may be certified under these provisions, as the Secretary of State sees fit.

The Joint Committee on Human Rights13 reiterates JCWI’s concerns on the proposed white list of countries. It states "the presumption that a particular country is always safe for everyone is of questionable validity".

Clause 17 Immigration Services Commissioner: power of entry

Clause 17 permits the OISC to obtain a warrant to enter and search the premises of advisers, including barristers and solicitors to investigate whether or not an offence has been carried out by those not permitted to give immigration advice14.

Whereas steps to regulate the quality of immigration advice are welcomed, the authority to search premises is a power that should not be bandied about lightly. There are real possibilities of infringements of human rights if the exercise of this power is not carried out without strictly applied conditions or accountability.

Under clause(7)(c), wide powers to seize material subject to legal privilege are given to the Commissioner. The provision goes against the essence of lawyer/client confidentiality that is well established in common law and adequate protection for essential liberties are not built in. The Bill must be amended to include an explicit protection for legal privilege. JCWI remains unconvinced the Commissioner requires these powers for the effective operation of enforcement. Legal professional privilege must be a right to be protected: clients would otherwise be less inclined to inform their lawyer in a full and open manner, which in turn would lead to defective advice and representation.

The ‘practicable’ nature of (3)(a) and (b) ought to be ascertained. An amendment causing the clause to read ‘reasonably practicable’ must be inserted to ensure the Commissioner uses every possible way to communicate with a person who may grant access to premises and evidence and is accountable if he chooses not to.

The clause is imbalanced in that it does not give the person the remedy to challenge such a warrant (or seizing of documents), save for by way of judicial review.

Clause 21: Fees

Section 20 allows the Secretary of State to set fees arbitrarily to ‘reflect the benefits’ likely to accrue to the applicant if the application is successful. Part of the fee may be refunded if the application is withdrawn or unsuccessful. Current fees for leave to remain applications are £155.00. Recent press reports state that an additional £500.00 will be charged per application making a total of £655.00.

The provision for charging fees well in excess of the administrative cost of determining a particular type of application is a crude attempt to deflect the overall costs of maintaining an immigration and asylum system characterised by the high costs of detention, surveillance, enforcement and control. Ironically, these very priorities of the government only result in those in need of protection being forced to enter the UK through clandestine means.

Significant cost savings would be achieved if it was made a priority to invest in a fair initial determination process, rather than the high costs of detaining people, biometric cards, iris scanning, electronic tagging, etc.

Imposing the level of fees proposed will constitute a heavy financial burden on immigrant communities, often constituting families on low to middle incomes. Students also fall into this category, and their situation is compounded already through having to pay high overseas student rates.

Overall, measures for imposing such high fees will be discriminatory against those primarily of non-white ethnic origin who may come from poorer countries. Further, the fees will act as a disincentive for those seeking to invest their skills in another country such as the UK, to the economic detriment of the UK15.

1 Report by the Joint Human Rights Committee on the AITOC Bill January 2004

2 Home Affairs Committee Report on the proposed new Asylum Bill, 16th December 2003

3 Government’s Consultation on Proposed New Asylum Measures, 27 October 2003

4 s95 Nationality, Immigration and Asylum Act 2002

5 Rule 18(4) Immigration and Asylum Appeals (Procedure) Rules 2003

6 IAT statistics, September 2002 to September 2003: 10 608 applications for leave granted out of 29 333

7 44.2% cases by way of remittal and 14.5% reversed outright

8 Opinion of Mitre House Chambers which quotes from chapter 29 Magna Carta 1297

9 This is clearly indicated by the statements made in the travaux preparatoires of the 1951 Geneva Convention on the Status of Refugees. The case of Adimi (1999) reinforces Article 31.

10 K –v- Secretary of State (2003)

11 So held in the case of Javed (2002). See Mitre House Chambers briefing.

12 JCWI supports and refers to the UNHCR response dated 26/11/2003

13 Report by the Joint Human Rights Committee on the AITOC Bill January 2004

14 In contravention of s84 Immigration and Asylum Act 1999

15 Home Office RDS research has acknowledged that migrants make a significant net economic contribution to the UK and can boost the development of businesses and labour markets.

Briefing of Immigration Law Practitioners' Association (ILPA) for Second Reading of Asylum And Immigration (Treatment Of Claimants Etc) Bill, 17 December 2003

In the same parliamentary session that sees Bills abolishing the Lord Chancellor and reforming the House of Lords, with debates rich in references to accountability, checks and balances, two people are given powers beyond the dreams of their peers.

The President of the renamed Asylum and Immigration Tribunal (Clause 10, new s.81) is, by this Bill, freed from the supervision of any higher court (Clause 10, new s.108A). By this Bill, no court in the land can touch the President - or indeed any members of the Tribunal. This is because no court can even "entertain proceedings" where the President or members of the Tribunal act without jurisdiction; where they commit errors of law; where their decisions are based on irregularity or where they breach natural justice. But in case anything has been missed proceedings cannot be entertained either in respect of "any other matter" (Clause 10, new s.108A(3)).

The only person who can ask the Court of Appeal to look at the President's decisions, and then only on "a point of law", is ……. the President. But the Court of Appeal cannot make a decision on the point. All it can do - during the course of proceedings of which the President remains seized - is to give its "opinion" to the President who will then decide the case (Clause 10, new s.108B).

Meanwhile, ruling by fiat, the President can require members of the new Tribunal to follow a particular decision of the Tribunal chosen by the President, whether on law, on fact, or on procedure (Sched. 2, para 22) and decide who hears which case and place some Tribunal members under the supervision of others (Sched.2, para 21).

In the new single tier Tribunal (Clause 10, & Sched 1), there is no room for jurisprudence or precedent, there is only…The President. There is no rule of law. It is difficult to see how someone who believes in the rule of law could accept this appointment. The Lord Chancellor has power to give the President a new title (Sched 1, new Sched. 4 para 4); we look forward to your suggestions.

Not to be outdone, the Home Secretary by this Bill also relieves himself, his departmental officials and immigration officers of any need for concern about judicial scrutiny of their actions. There is to be none. Removal decisions, deportation decisions or "any action in connection with" such decisions, where the removal or deportation is "in consequence of an immigration decision" (which basically means wherever an immigration officer or the home office has reached a decision on an application made - whether an asylum claim, an application to enter made by a business visitor, a spouse or work permit holder, or even someone arriving at the airport who claims to be British but has lost his or her passport) will be incapable of being challenged before the higher courts (clause 10, new s. 108(2)(e)). Quite simply "no court may entertain proceedings for questioning" any such decisions or actions.

Never mind the fundamental importance of the ancient writ of habeas corpus to protect individuals from arbitrary detention or removal in such circumstances. This is plainly a "proceeding" which will not be able to be brought. Why should the Home Secretary seek to take such powers so as to make his decisions and those of his officials above legal scrutiny? Whither next?

Furthermore, in many areas the Home Secretary shrugs off the supervision of even the President. Elaborate lists of "safe" countries are detailed in Schedule 4, but they are irrelevant: the Secretary of State can certify a country as safe for any one individual and brush the lists aside (Clause 12 & Sched. 4, Part 4). He can set fees for any immigration application or process without reference to the costs of the service provided (Clauses 20 & 21). If he places an electronic tag on any adult or disputed minor, the Bill makes no provision for them to challenge this restriction on their liberty (Clause 15). His immigration officers are given wide-ranging powers of arrest without warrant, despite systems of accountability that anyone accustomed to supervision of the police would miss if they blinked (Clause 8).

Trafficking in people

ILPA welcomes the criminalisation of trafficking in people for exploitation, including labour exploitation (Clauses 4 & 5). It is ironic that the clause appears in a Bill that both strangles the developing jurisprudence on the need for victims of trafficking for protection (Clause 10, see above) and criminalises those victims, adults and children, for example for having destroyed their passport on the instructions of their trafficker (Clause 2, see 2(5)(iii)). Clause 6, which seeks to deem the victims liars too, does not, in our view, change the status quo.

Families with children

Have no doubt, the biggest threat in this bill to any family with children seeking asylum is the risk that in the new system their need for international protection as refugees will not be detected (see Clause 10 above). Among the families of "failed asylum-seekers" from whom this Bill seeks to withdraw support (Clause 7) will be people who would, in a fair system, have been recognised as refugees. Refugees or not, we deplore the misery that this Bill seeks to inflict on them by depriving them of support. However, we sound a note of caution now that there may be attempts to harness the outrage this proposal has provoked to deflect attention away from the violence being done them by Clause 10 and others.

Regulating immigration services

ILPA has long worked to maintain the highest standards of advice on immigration and asylum and carries no torch for those who do not meet these standards. We welcome the enhanced powers to deal with such cases (Clauses 16 to 19). More irony, however: the changes to the system of funding for representation in immigration and asylum, being developed in tandem with this legislation, are likely to eradicate the best practitioners, and the best practice from the field, long before these measures eradicate the cowboys and the incompetent.

We are sorry the government forgot…

· To improve the quality of first instance decision-making ……

As more asylum-seekers fail in their appeals because of the measures described above, we shall be told (again) that a low success rate on appeal proves that the Home Office are making a good job of deciding cases. They are not.

· To repeal provisions denying in-country rights of appeal against those home office decisions …….

· To ban the detention of children under immigration act powers ……

· To repeal s.55 of the 2002 Act …..

This provision has created suffering by denying support to those who do not claim asylum on arrival without reasonable excuse, and chaos because the High Court is having to assist the Home Office, on what is almost a case by case basis, to understand what "on arrival" and "reasonable" means and to remind them that no one has repealed the Human Rights Act….yet.

ILPA can provide detailed written briefings for those wishing to speak in debates, or improve their own understanding of this field and experts to speak to individual and groups of parliamentarians. Please do not hesitate to contact the ILPA office on 0207 251 8383 or 0207 490 1553 or email info@ilpa.org.uk

ILPA members are barristers, solicitors and advocates practising in all aspects of immigration and asylum. Academics, NGOs and others working in this field are also members. The Association exists to promote and improve the giving of advice on immigration and asylum, through teaching, provision of high quality resources and information. It represents members on numerous government and Tribunal Stakeholder and Advisory Groups.

ILPA has advised parliamentarians of all parties on five immigration and asylum acts in the last 10 years: drafting amendments, briefing; sitting in the Advisors' box - we are busy people, but this matters to our clients: we know your procedures, and we are happy to help

December 2003

David Blunkett’s threat to punish asylum seekers by taking their children into care if they refuse to voluntarily depart from the UK has grabbed all the headlines. However, this repugnant announcement is merely the tip of an ominously large and dangerous iceberg – the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which is set to be sped through Parliament within two to three months.

There is much to condemn in this Bill, but one clause stands out as of particular constitutional significance. Clause 10 of the Bill, if it becomes law, will comprehensively exclude our judges and courts from performing their fundamental role of providing judicial oversight of the government and public bodies.

Anyone concerned for civil liberties and democracy should be deeply disturbed by this clause. Some may marginalise its significance by pointing out that the government’s attempt to free itself from any judicial scrutiny is here limited to its dealings with asylum seekers and other immigrants. Of course, Asylum Aid takes no comfort from that observation and is gravely concerned that our client group should face the prospect of their most vital of human rights – the right to safety from terror and torture – being stripped of the basic safeguard of access to the courts.

However, if the principle that our judges and courts provide ultimate scrutiny of government and ultimate protection for human rights is abandoned, nobody can be sure that this or another government will not welcome the opportunity to exclude the judiciary from other areas where government exercises its power.

In addition to the threat to take away people’s children, Mr Blunkett’s Bill also grants his immigration officers greatly increased powers to arrest and electronically tag asylum seekers, introduces new criminal offences against asylum seekers and further empowers Mr Blunkett to arbitrarily designate types of asylum seeker as safe to remove without full consideration of their claim.

Mr Blunkett will no doubt tell us that he will ensure these powers are used carefully and safely. He has offered such guarantees before, and they have not been honoured.

He said that the power to force asylum seekers into destitution and homelessness (section 55) would only be used against those that had been in the country some substantial time and were clearly able to support themselves. Hundreds of decisions of the High Court forcing Mr Blunkett’s officials to reverse decisions against individual asylum seekers have demonstrated how this power has been wilfully used against any asylum seeker in the UK for any period of time (including a few hours) before making his or her claim.

It was said that magistrates and officers of the Crown Prosecution Service would be instructed upon and have regard to a defence available to refugees before prosecutions of asylum seekers travelling on false documents proceeded. Yet it has become clear that many asylum seekers have been prosecuted and imprisoned without any consideration to a defence that was available to them and should have protected them from prosecution, let alone imprisonment.

Some of the provisions of the Asylum and Immigration (Treatment of Claimants, etc.) Bill:

Clause 10 – excludes the judiciary from oversight of government decisions to refuse asylum and remove asylum seekers from the UK

This is the most dangerous provision in the Bill. Refugees fleeing from terror and torture frequently have needed to turn to the courts for protection against poor and incompetent decisions of the Home Office or Immigration Appellate Authority (IAA). Moreover, judicial scrutiny is critical to ensuring that governments and public bodies act within their powers and with respect to individual’s human rights. Excluding such judicial scrutiny is exactly how the tyrants, from whom many refugees flee, behave; and it is deeply disturbing that our government should be seeking to implement such a measure.

Clause 2 – creates a new offence of entering the UK without a passport, carrying a sentence of up to 2 years imprisonment

Many asylum seekers arrive in the UK without passports. Many of them have never had a passport; and others are instructed or forced to destroy documents by agents. The Refugee Convention itself recognizes this; and specifically provides that refugees should not be punished for travelling without or on false documentation or otherwise entering another country illegally. Moreover, asylum seekers, who arrive with passports, are regularly disbelieved by the Home Office because of the very fact that they presented with a passport from the national authorities, from whom they have fled.

Clause 11 – empowers the Home Secretary to designate parts of a country, and particular types of person (by reference to such factors as their race or gender, as safe and, therefore disentitled to full consideration of their asylum claim in the UK

The Home Secretary already has wide powers to exclude asylum seekers from particular countries from the full consideration of their claims in our asylum system. Extending those powers so that particular groups could be singled out for this exclusion increases the already serious risk of returning refugees to the very terror and torture against which this country is supposed to provide them protection.

Clause 15 – empowers immigration officers to electronically tag any or all asylum seekers

These provisions are not subject to any judicial scrutiny; and no guidance is provided for in the Bill as to when such measures will be justified.

Clause 7 – extends powers to withdraw support for asylum seekers, and it is in conjunction with this that the Home Secretary issued his threat to take away asylum seekers’ children

Homelessness and starvation are already widely used as weapons to deter and punish asylum seekers. Increasing these draconian and inhuman powers so as to take away asylum seekers’ children demonstrates that there are no limits to the cruelty that this government is prepared to unleash against asylum seekers.

Clause 16 – increases the powers of the Office of the Immigration Services Commissioner (OISC) to regulate immigration advice and tackle poor and unscrupulous representatives

Further empowering the OISC to ensure quality of advice and representation is to be welcomed. However, these provisions must be viewed in the context of measures that the government is bringing in to drastically reduce provision for legal aid. Powers to regulate the sector are worthless if the good quality representatives are no longer able to remain in practice because of huge reductions in legal aid funding; and many good solicitors have already put their practice on hold pending final implementation of legal aid reform and given clear warning that they may close. Some have already closed.