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Commons Second Reading 17
December 2003
SUMMARY
Amnesty International
UK, the Refugee Council and the Refugee Legal Centre believe it is clear that
the public wants a system that helps refugees in fear of their lives and deals
effectively with those who have been fairly rejected. This Bill would severely
damage any prospect of achieving this.
We believe the best
way to establish such a system is to get more decisions right first time. Doing
this will lead to fewer appeals, speedier results, lower costs and greater
public confidence in the system.
KEY POINTS
1. Poor initial decisions are the main
cause of delay.
2. The government should focus on getting
decisions right first time
3. The Bill
would restrict appeal rights, put the appeal system beyond the reach of the courts
and deny justice to refugees
4. Refugees should not be jailed for not
having valid travel documents on arrival
5. The UK must share not shift its responsibility for refugees
1
. POOR INITIAL DECISIONS ARE THE
MAIN CAUSE OF DELAY
THE BILL
The Bill contains no
measures aimed at improving the quality of initial decisions.
SUMMARY
OF CONCERNS
·
The number of
appeals upheld against Home Office refusals by adjudicators confirms - but is
not the only indicator - that the problem of poor decision-making that has
dogged the system for many years remains.
· The recent increase in the number of initial decisions made has not seen a reduction in the proportion of decisions overturned on appeal.
KEY POINTS
q Getting more
decisions right first time will lead to fewer appeals, speedier results, lower
costs and higher public confidence by the system. Even if the Government met its target for processing appeals within 4
months, the additional costs to the taxpayer of getting so many decisions wrong
first time – including the use of adjudicators’ time, legal fees and support
and detention costs while the appeal is resolved - are self-evidently
significant.
q The Home
Office’s own figures reveal that, in the twelve months leading up to October
2003, 20 per cent (15,130 cases) of appeals heard at the first tier of the
appeal system against initial refusals were allowed. The success rate for many
countries is even higher. For example, currently 41 per cent of Somali and 30
per cent of Zimbabwean appeals heard are successful.
q The Home Affairs Select Committee, in its report on ‘Asylum Removals‘
(April 2003), expressed its concern with ‘the high number of initial decisions
which are not sustained,’ (paragraph 36).
The Committee concluded that ‘improvements are essential to the process
of initial decision-making,’ (paragraph 135).
2. THE
GOVERNMENT MUST FOCUS ON GETTING DECISIONS RIGHT FIRST TIME
THE BILL
Clause 6 lists types
of behaviour – such as the use of false documents - that must be taken into
account by decision-makers in determining whether to believe a statement made
by someone claiming asylum. The only other decision-making aspect of the Bill
is Clause 10 (appeals). Additionally, the Department of Constitutional Affairs
has outlined plans to restrict legal aid for asylum seekers.
SUMMARY OF CONCERNS
·
Decision making on
asylum claims should be ‘front-loaded’ - resources should be focused on good
quality, defensible decisions early in the decision-making process.
·
Funding for legal representation at the outset of an asylum
claim improves first initial decision-making and should be retained.
·
A credible first
initial decision-making process also makes it easier to tackle misuse of the
system, because the appellate authority would not be clogged up with refugees who
have received poor quality initial decisions.
KEY POINTS
q
Clause 6 is unnecessary – how someone arrived into the UK is
already taken into account by decision-makers in assessing an applicant’s
credibility insofar as that is considered relevant on the facts of each case.
The clause is also unbalanced – it does not have regard to the difficulties
faced by refugees in seeking refuge in this country
q
‘Front-loading’ cases enhances efficiency by ensuring that
the initial Home Office decision is based on a full understanding of the
applicant’s case and is therefore reliable.
This avoids the need for appeals against initial refusals that should
never have been made and cannot be defended.
q
An essential component of such an approach is early
provision of good quality legal advice and representation so that the
individual may make a full statement of all the relevant elements of their
claim for refugee status. Good legal representation may be all that stops a refugee being sent home
to torture or worse. Commenting on the Government’s outline of its proposals to
cut legal aid for asylum seekers, a memorandum from the specialist advisers to
the Constitutional Affairs Select Committee noted, ‘one might also think that
the Government might be in favour of retaining legal aid for initial
applications, in order for lawyers to assist the Home Office in coming to the
right decision at an early stage. Regrettably that is not the case, and these
proposals make that abundantly clear.'
3.
THE BILL WOULD RESTRICT APPEAL RIGHTS,
PUT THE APPEALS SYSTEM BEYOND THE REACH OF THE COURTS AND DENY JUSTICE TO
REFUGEES
THE BILL
Clause
10 replaces the current two-tier tribunal system (adjudicators and the
Immigration Appeal Tribunal (the IAT)) with a single tier (the Asylum and
Immigration Tribunal (the AIT)). Clause
10 also prevents judicial review, which would insulate the Home Secretary and
the proposed AIT from any kind of legal challenge to any asylum decision.
SUMMARY OF
CONCERNS
·
The removal of 2nd tier appeal rights together with
the abolition of the higher courts’ powers to scrutinise decisions of the new
appellate authority or decisions to remove asylum seekers from the UK
constitute the most dangerous – and constitutionally unprecedented - proposals
in the Bill.
·
Delays in appeals before the IAT are minimal in cases which
do not have a real prospect of success.
·
The statistics show that the existing second tier appeal to
the IAT retains value.
·
Unlike other tribunal systems dealing with issues that are
not matters of life and death, there is no right of appeal to the Court of
Appeal or from there to the House of Lords
·
The proposed prevention of judicial review has serious
constitutional implications for the UK.
·
The new AIT would be unaccountable and could act unfairly
without fear of intervention by the courts.
KEY POINTS
q Appeals to the
IAT are subject to a strict merits test. Currently, appellants who wish to
challenge an adverse adjudicator decision must apply for leave to appeal to the
IAT. The IAT considers the merits of each case on the papers and will not
entertain an unmeritorious or unimportant case. Save in a handful of cases in
which leave to appeal is granted for some other compelling reason, all cases
which proceed in the IAT have a significant prospect of succeeding. Cases held
not to be meritorious are dismissed summarily within a matter of days.
q The IAT will
only grant leave if there is a real prospect that appellant will be found to be
a refugee or otherwise in need of protection (or exceptionally if the case is
of general importance). In these circumstances, any further delay in the
determination process would appear to be entirely justified and necessary to
achieve justice.
q Without the
check of the second-tier of appeal, some refugees may not be recognised as such
by the Government and may be removed to face persecution or worse. Government
figures on the success rate at the IAT are misleading since they appear to be
calculated on the number of appeals allowed by it as a percentage of the number
of appeals originally made to adjudicators.
q The Chief
Adjudicator has recently confirmed that in 2002-2003, 25% of applications for
leave to appeal to the IAT were granted, and 55% of cases that went to appeal
were allowed by the IAT or remitted to an adjudicator for reconsideration
because of errors of law that may have affected the outcome.
q No other
tribunal systems (eg those concerned with land, pensions, social security,
employment and tax) have barred judicial oversight of the appellate authority’s
decisions.
q The attempt to
prevent judicial oversight is of major constitutional significance and seeks to
put the decision-making process beyond the law. The AIT would be a tribunal not
a Court –yet it would review its own decisions on the papers alone, just once.
The AIT would become the only judicial or quasi-judicial appointees - save for
the Judicial Committee of the House of Lords – who would be totally
unaccountable before any court of law. So for example, decisions of the AIT
could not be challenged even if they breached the rules of natural justice.
There are numerous examples of natural justice challenges having been
successfully made to the High Court under the present system.
q The prevention
of judicial review is likely to be incompatible with the European Convention on
Human Rights.
4. REFUGEES
SHOULD NOT BE JAILED FOR NOT HAVING TRAVEL DOCUMENTS
THE BILL
Clause
2 would make it an offence for refugees, including unaccompanied children, to
arrive in the UK without a reason acceptable to the Home Office for not having
a passport. Complying with instructions given by an agent would not appear to
be an acceptable defence. The offence would carry a sentence of up to two
years.
SUMMARY OF
CONCERNS
·
The Bill is in danger of criminalising many refugees forced
to flee on false papers.
·
Clause 2 pays insufficient regard to the protection afforded
by Article 31(1) of the Refugee Convention. This provides that asylum seekers
should not be penalised on account of their illegal entry and presence
providing they present themselves promptly to the authorities.
KEY POINTS
q
Measures penalising refugees for arriving without travel or
identity documents, in effect, punish refugees for behaving like refugees.
UNHCR, the UN’s refugee agency, points out that ‘in most cases a person fleeing from persecution will have
arrived with the barest necessities and very frequently without personal
documents.’ Often this is because of the impossibility of obtaining a passport
from the very authorities that are responsible for the acts of persecution from
which people are fleeing.
q
The destruction of documents will frequently not be in the
person’s control. Many people whom the
Home Office recognises as refugees have only reached safety in the UK through
smuggling or trafficking networks. They
are powerless to refuse to obey ruthless smugglers and traffickers who demand
they destroy or return documents as a condition of travel. Clause 2 would
expressly penalise refugees, including women and children, if a trafficker or a
smuggler forces them to either destroy or hand back their documents - even if
complying with such instruction is the only way to escape persecution.
q Clause 2 pays
insufficient regard to the Home Office’s own research which shows that a
majority of asylum seekers arriving in the UK are ignorant of asylum procedures
in the destination country, and are reliant on the advice of agents to secure
passage to a safe country.
5. THE
UK MUST SHARE NOT SHIFT ITS RESPONSIBILITY FOR REFUGEES
THE BILL
Clause
12 and Schedule 3 of the Bill would allow the Home Secretary to refuse to
consider an asylum application made in the UK on the grounds that the applicant
can be removed to another country, irrespective of whether the applicant has
any links with it. At the time of
writing, the purpose behind this new power is unclear. It is possible that this
power will be used by the Government to develop its controversial idea of
sending applicants to ‘Zones of Protection’, or ‘safe havens’, in or near
refugee-producing regions.
SUMMARY OF
CONCERNS
·
The provision deeming human rights
claims relating to removal to a third country to be unfounded is likely to be
incompatible with the European Convention on Human Rights.
·
The Secretary of State can add to the
list of countries to which asylum seekers can be sent while their asylum claims
are pending – the present list therefore offers little comfort.
·
Insofar as this provision enables
(whether by intention or otherwise) the setting up of “Zones of Protection”:
(i)
The determination procedures in the
Zones of Protection are unlikely to meet UK standards of fairness so as to
ensure compatibility with the UK’s international obligations
(ii)
There is concern about whether the
human rights of those removed to Zones of Protection will be safeguarded -
experience of refugee camps in the developing world has shown that, with the
best will in the world on the part of the relevant authority, human rights are
routinely abused.
(iii)
Removing asylum seekers to Zones of
Protection in the developing world is likely to shift the burden on examining
claims to States which already shoulder a greater burden of the world’s
refugees than the UK, and which are less well-equipped to deal with additional
cases
KEY POINTS
q The Bill extends the Secretary of State’s powers to remove an asylum
seeker to a third country without deciding the asylum claim. Asylum claims and
human rights claims that relate to conditions in the third country would be
deemed by statute to be unfounded (regardless of the facts of the individual
case).
q Whilst in the third country, asylum seekers would not have effective
access to UK status determination procedures. In developing countries there is
good reason to doubt the fairness and effectiveness of the procedures that will
be adopted to ensure that no applicants are removed from the third country to
another State in breach of the Refugee Convention or the European Convention on
Human Rights.
q Experience of refugee camps in the developing world also gives cause for
concern at the treatment applicants will receive whilst their claims are being
processed in the third country, and in particular whether that treatment will
violate their human rights.
q Although the countries listed in Schedule 3 are not routine human rights
abusers, no provision is made for the examination of the facts of an individual
case to determine whether for a particular applicant, removal to that third
country will violate his or her human rights. Further since the lists in
Schedule 3 can be added to by the Secretary of State, the human rights conditions
currently pertaining in the countries on the list offers little comfort.
q The concept of responsibility-sharing and international solidarity
underpins the Refugee Convention and the international protection regime. The
Government’s proposal seek to shift responsibility for some of the world’s most
vulnerable people away from the UK. Yet the UK is one of the world’s richest
countries. Even when its physical size and national population are taken into
account, the UK comes just 32nd (source: UNHCR) in the share it
contributes to the global system, well below top-ranked Iran, Burundi and
Guinea. Inevitably, moving the responsibility for asylum seekers away from the
UK and out of Europe will shift it on to poorer countries that have less
capacity to provide them with adequate protection.
q
Developing countries support seven out
of ten of the world's refugees. Most host countries in regions of origin are
poor, many are themselves in a state of conflict and most lack adequate systems
for safeguarding human rights. The UK government (ranked 32nd in its responsibility share of the
world’s refugees) is currently holding talks with the Tanzanian government
(ranked 4th) with a view to establishing a ‘protection zone’ there.
It is unprincipled of the Government to be further shifting responsibility for
refugee protection to poorer countries.
q
The provision could be used to facilitate the removal of
asylum claims to ‘Zones Of Protection’. It is therefore unclear how it fits in
with recent Government statements. Immigration Minister Beverley Hughes has
told the Home Affairs Select Committee that the measures in the Bill on safe
third countries would have ‘no
relevance...at all’ to the ‘Zones of Protection’ concept (Q. 868; 19 November
2003). During the debate on the Queen’s
Speech, the Prime Minister himself ridiculed the idea of sending asylum seekers
to impoverished countries. ‘That would be
an interesting conversation. The British Foreign Office: "Hello, are you a
very impoverished nation? You've got to be really impoverished. How do you
fancy a few thousand British asylum seekers?" A piece of cake. That is not
fantasy island but a fantasy policy that shows that the Conservatives have no
genuine policy agenda.’ (Hansard, 26 November 2003; col. 30).
FURTHER INFORMATION:
Amnesty International UK: Jan Shaw 020 7417 6356
Refugee Council: Imran Hussain 020 7820 3044
Refugee Legal Centre: Deri Hughes Roberts 020 7780 3227