Briefing for Report Stage of the Nationality, Immigration Asylum Bill

Introduction

1.                  The Refugee Legal Centre is an independent charity providing advice and representation to asylum-seekers and those seeking protection from human rights abuses. This briefing focuses on the appeals provisions contained in Part 5 of the Bill, in particular further late government amendments[1] proposing the abolition of in-country appeal rights for certain individuals and their summary return to the countries they have fled. That further significant changes to the asylum appeals system have again been introduced mid-way through the parliamentary process is deeply unsatisfactory. As we have previously noted, it significantly limits the way in which specialist organisations such as the Refugee Legal Centre are able to inform the debate in this increasingly complex area.

 Appeal Rights

“Clearly unfounded” cases.

 

2.                  In the most recent amendments tabled, the government proposes that, in “clearly unfounded” cases, individuals are to be summarily removed back to their own country, to pursue their appeals at a remove.

 

3.                  The Refugee Legal Centre wishes to express its deepest concern at the suggestion that individuals can meaningfully pursue appeals from the very countries they fear persecution. To summarily return individuals back to the countries they have fled raises the most serious doubts about the UK’s willingness and ability to comply with international human rights and refugee law and its stated commitment to provide a safe haven to those at risk.

 

Removal to Third Countries

 

4.                  The amendments also propose for individuals – regardless of the strength or weakness of their claim - to be removed to an unrelated third country to pursue their appeals from there. It is entirely unclear how an appeal right of this nature would be meaningful when those representing in such cases would be based in the UK. The instruction of representatives from abroad and the gathering of evidence would be severely inhibited, for obvious reasons. Nor is it clear on what basis third countries – which are essentially being used as holding grounds - will support individuals whilst they attempt to exercise their appeal rights within the UK.

 

5.                  The Refugee Legal Centre is even more concerned to see that these provisions are intended to have quasi-retrospective effect, applying as they would to appeals lodged under the current legislation. Thus individuals will be at risk of summary detention and removal to pursue the remainder of their appeals from abroad when mid-way through the appeals system in the UK.

 

6.                  The Bill’s stated aim of strengthening the Immigration Appellate Authorities (IAA) was to be commended. Yet these clauses  - and the apparent retention of certification powers[2] generally, despite a pledge in the White Paper to abolish them -  fundamentally conflict with that aim: the inevitable result of denying individuals meaningful access to the IAA will be the proliferation of challenges to certificates by way of judicial review: exactly what the Bill wants to avoid.

Appeal Rights: general.

 

7.                  It is the current view of the Immigration Appeals Tribunal[3] that individuals served with removal directions have a right of appeal against them (notwithstanding no new immigration decision has been taken). Thus individuals whose asylum appeal rights were at an end when the Human Right Act came into force[4], have appeal rights on human rights grounds which the IAA can determine when removal directions are served. However, under the clause 66 of the Bill, such removal directions are not designated an appealable decision. The Government’s proposals[5] are in direct conflict with the Tribunal’s common sense approach to this important issue, as challenges to those removal directions would end up being taken in the High Court; a slower, more expensive and less appropriate remedy.  Further, it is our view that individuals who are granted temporary leave of a year or less (Clause 67(1)(b)) should be permitted to pursue their claims for asylum. There is nothing to prevent the Secretary of State from granting limited periods of leave consecutively, thereby denying individuals the right to refugee status and consequently, their right to be reunited with family members.

The One-Stop Appeal.

  

8.                  The 1999 Act heralded the introduction of the "one-stop" appeal. In reality, however, it introduced a complex, multi-stage and largely unworkable process. The Bill overhauls this process and the result appears to offer a simpler and more effective scheme (although much will also depend on the procedure rules under which the scheme will be implemented). This is very much to be welcomed.

Restrictions on Appeal Rights - Clause 80

  

9.                  We have very real concerns however about the certification provisions relating to the proposed one-stop process set out at Clause 80. These provisions are intended to guillotine further appeal rights where it is alleged that a specific claim should have been made in a prior appeal. Although similar provisions are contained in the 1999 Act, they are subject to basic safeguards: section 73(2) of the 1999 Act only bars further appeals where they could “reasonably” have brought at the same time as an earlier appeal. Thus, individuals let down by unscrupulous or negligent representatives have a vital safety net taken from them: they will be barred from bringing further appeals regardless of the merit of those appeals or the reason why they were not brought earlier.

 

10.              To deny such individuals appeal rights within the Immigration Appellate Authority will inevitably push their cases into the High Court for applications for judicial review, with the attendant delay and cost this entails.

Applications to the Tribunal and Judicial Review

 Restricted Access to the Courts.

 

11.              A further late government amendment, tabled only at Committee stage, proposes a severe curtailment of individuals’ rights to challenge certain decisions of the Tribunal in the High Court. Under the present regime, an individual may apply for leave to appeal to the Tribunal against a dismissal of their appeal by an Adjudicator. If leave to appeal is refused, they have the right to seek judicial review of that decision: an initial written application for judicial review may, if unsuccessful, be followed by a renewed oral application.

 

12.              Clause 85 now provides for a “statutory review” of the legality of the Tribunal’s refusal of leave by written application only, there being a statutory “cut off” of the High Court’s jurisdiction to hear such applications after this stage. We believe this is not only wrong in principle but also flawed in practice.  In no other area of the law has the executive sought to bar individuals’ access to the higher courts. Individuals who may be at risk of serious human rights abuses should not be singled out for such treatment.

 

13.              The restriction of an application to written form only means that Judges are unable to require further assistance from representatives on complex issues of law. Thus, the current power for Judges to adjourn complex cases on the papers for oral argument will be lost. This can only penalise cases raising novel and difficult points of law, and the development of a strong body of refugee law jurisprudence.

 

14.              Most crucially however, this will result in injustice: Refugee Legal Centre clients were successful in a significant proportion of cases where a written application had been unsuccessful and where a decision was taken to renew applications orally:

                 

Time Limits for Statutory Review

 

15.              The Refugee Legal Centre considers that the proposed time limit of 10 working days for challenging a refusal of leave by the Tribunal presents a real risk of injustice, not least when considered alongside the new provisions for deemed service (see paragraph 20). The timely disposal of reviews is already achievable by existing powers. The Administrative Court routinely refuses permission where an application for judicial review has been made within 3 months but not "promptly". The government's assertion that the current time limit for judicial review is currently three months takes no account of actual practice.[7] The Administrative Court already has the power to issue require permission applications to be made more promptly than at present.

 

16.              By excluding any judicial discretion over time limits, there is a real risk that meritorious applications will fail, even where there was a good reason for the delay. Access to legal representation in areas of dispersal is currently a real problem, and would be significantly aggravated by such tight time limits.

 Exclusion from protection.

 

17.              A further late amendment (Clause 57) moves to exclude from the protection of the Refugee Convention individuals who (i) have been convicted of a crime in the UK and sentenced to at least 2 years’ imprisonment; or (ii) have been convicted abroad and sentenced to at least 2 years and could have received a 2 year sentence in the UK for a “similar” offence. Such individuals are presumed to have been convicted of a particularly serious crime[8] and to constitute a danger to the community. The onus is on the individual to rebut that presumption. This is to be contrasted with the provisions of the Refugee Convention. Article 33(2) denies an individual its protection only where s/he has been convicted of a particularly serious crime and in fact constitutes a danger to the community.

 

18.              The government has effectively sought to rewrite the terms of the Convention. The arbitrariness of this provision is all too readily apparent: consider the treason laws in Zimbabwe: these hand out draconian sentences to political activists seen as a threat to the Mugabe regime. Consider also apartheid-era South Africa: Nelson Mandela would have been liable to automatic certification when his ANC colleague Oliver Tambo had been welcomed as a political exile in London.

 

19.              This amendment ignores the fact that adequate provisions already exist within the Refugee Convention. It can only result in a proliferation of appeals against inappropriately issued certificates. It should not be permitted to stand.

Costs and Wasted Costs.

 

20.              Another late amendment (Clause 90(3)) paves the way for Adjudicators to be given the power to make orders relating to the costs of proceedings. Thus Adjudicators would be able to disallow representatives’ costs, or making representatives pay the costs of the other party personally. The quality of Home Office decision-making is of extremely variable quality. Perhaps unsurprisingly therefore, the right to appeal against a refusal of asylum (or a refusal to grant leave on human rights grounds) is an automatic one, dependent only on the service of appeal forms within the designated time period. A costs regime sits uncomfortably with this notion of automatic access to the courts, and fails to take account of the role of the Home Office in generating appeals. The threat of a financial penalty being levied against a representative may place undue pressure upon them, inconsistent with the requirement of fundamental justice that they provide truly independent representation based upon their professional judgment as to the strength of their case in law. There is a regime put in place by the Immigration and Asylum Act 1999 to ensure the provision of good quality legal advice (the Office for the Immigration Services Commissioner: see that Act, sections 83-93): there is no need to undercut that system by looking elsewhere in the process.

 

Restriction of Adjudicators’ powers - Clause 90

 

21.              Clause 90 sets out the basis on which rules are to be made regulating procedure before Adjudicators. We are concerned that Adjudicators discretion to regulate the conduct of appeals is to be almost entirely removed, in a way which could hinder the just determination of appeals and conflict with the United Kingdom’s international obligations. There should be no “requirement” for Adjudicators to act in a designated way. Rather they should retain their current ability to regulate their procedure as they think fit, taking into account the exigencies of any given case.

 

22.              Under Clause 90(2)(c) Adjudicators would be required to dismiss appeals without considering their merits, whereas at present they have a discretion to dismiss or allow appeals where there has been non-compliance with procedures. For Adjudicators to retain only that part of their powers which is favourable to the Home Office gives rise to a perception of partiality. Moreover, compelling Adjudicators to dismiss appeals without considering their merits is once more likely to push litigation into the High Court, as it negates individuals’ access to justice and a proper determination of their protection needs.

 

Presumptions as to service.

 

23.      A late amendment tabled by the government (Clause 90(2)(n)) provides for statutory presumptions as to the service of Adjudicator and Tribunal decisions. This recalls rule 42(1)(a) of the 1996 Procedure Rules under which a determination was deemed received 2 days after posting, regardless of the actual date of receipt. This rule was successfully challenged in the High Court[9] on the basis that it subverted the statutory appeals regime. The same concern arises once more: any appeal to the Tribunal is to be brought within 10 working days, thus there is a risk that appeal rights could be negated by decisions which have been lost or delayed in the post.

 Restriction of Adjournments- Clause 90(2)(g) and (h)

 

24.      Clause 84(2)(h) gives the Lord Chancellor power to impose a “cut off” date, beyond which no adjournments can be granted. It is fundamentally misconceived. At present, Adjudicators and the Tribunal can grant adjournments in extremely limited circumstances:- 

"The appellate authority shall not adjourn the hearing unless it is satisfied that refusing the adjournment would prevent the just disposal of the appeal."   Rule 31(1), Procedure Rules 2000

 

25.              Rule 31 recognises that an appeal may, exceptionally, be hindered by the refusal of an adjournment. An example might be where appellants have been deserted at the court door by unscrupulous representatives, or where vulnerable individuals have had to be referred for expert medical assessment. Whilst such cases are rare, they do arise. A blanket prohibition on adjournments could force cases to proceed on incomplete evidence, ultimately leading to fresh claims having to be made and going through the system again.

 

26.              Furthermore, the logic of the proposal is that it is only the appellant who requests the adjournment of cases. The reality is that almost as many adjournments are caused by the Home Office and the court as by the appellant. Cases are frequently adjourned due to the Home Office's failure to comply with the court's directions (for example, to disclose to the appellant's representative vital information on which the Home Office's decision was based). Cases are often adjourned because the Home Office has lost its file, failed to reconsider new information that has been before it for some months, or failed to disclose to the appellant important documentary evidence until the day of hearing. We fear that this proposal could penalise appellants for the Home Office's inefficiency.

 

Consideration of Evidence - Clause 69(4)

 

27.              Under Section 77(3) and (4) of the 1999 Act, the IAA could consider and take account of evidence arising after the Home Office's decision as regards some aspects of an appeal (asylum and Article 3 grounds) but not in regard to other aspects (eg Article 8 grounds). This provision is replaced in the Bill with a proposal that (subject to some exceptions) all grounds be assessed in accordance with evidence arising up to the date of the hearing. This is to be welcomed and is in line with the UK’s international obligations under the ECHR.

 

Restriction on Appeals to the Tribunal - Clause 85.

 

28.              The removal of the Tribunal’s factual jurisdiction gives considerable cause for concern. Whilst it is rare that the Tribunal grants leave on factual issues, its discretion to do so should be retained in this factually complex area. Thus, where country situations change (such as in Zimbabwe) individuals might be compelled to make fresh claims for asylum, rather than raising these new issues for the Tribunal to consider. The extensive increase in the number of adjudicators in recent months has placed many inexperienced decision makers into a complicated role: the Tribunal’s present jurisdiction is a vital insurance against their getting things wrong.

Access to Representation

 

29.              Although not directly related to the drafting of the Bill access to representation is crucial to the question of whether the proposed legislative processes will operate fairly. Access to representation is a key issue that should underlie any debate on process and any assurances Ministers can give on this matter would be welcome.

 

30.              Lack of access to representation has for many years been a significant problem for asylum seekers. The problem has been alleviated recently by a number of positive developments. In particular, the introduction of the provision of legal aid for asylum appeals and the integration of legal advice and representation within the Oakington decision-making process has been positive. In addition, more funds have been made available to the Legal Services Commission for the representation of asylum seekers. Nevertheless more can be done. What is conspicuously lacking in the White Paper is a strategic approach to the integration of representation into the decision making process.

 

31.              In terms of dispersal, the Government has relied on a supply and demand approach. Availability of specialist representation has not been a factor in the choice of dispersal areas. The Government has assumed, however, that over the course of time, representation will become available. This is not good enough. Even if it is accepted that demand will eventually be satisfied, an immediate shortfall will leave asylum seekers without representation (and it is quite clear that a failure to secure representation does reduce chances of success at appeal in asylum cases). The Government has conceded that dispersal should be much better managed and we would urge it to consider access to representation as a key element in this. In particular, the Government should ensure that there is adequate availability of representation before commencing dispersal into a new area.

 

32.              We hope that such a pro-active approach is taken in relation to the proposed Induction and Accommodation Centres. As regards Induction Centres it seems access to advice is not to be guaranteed. This is particularly problematic since it is proposed that asylum seekers will be given screening interviews at these centres. It is clear from the present pro forma questionnaire for such interviews that they will cover substantive issues regarding the claim for asylum. We are also concerned to learn, that individuals will be given information – on arrival – about making voluntary departures. Further, they will be asked to sign a declaration at the end of the induction process confirming they have understood various legal processes involved in their claim and that they will leave the UK should their claim fail. For all these reasons, it is essential that asylum seekers are guaranteed access to representation at induction centres.

 

33.              As regards Accommodation Centres, there is an encouraging indication that representation is in the Government's thoughts at 4.36 of the White Paper where it is stated that residents will have access to legal advice. What level of advice will be available remains unclear and the statement that "legal advice is not a pre-requisite to initial decision making" suggests that Government thinking falls disappointedly short of a model we and organisations such as the UNHCR would advocate in which representation is fully integrated within the determination process. We call on the Government to integrate representation within the determination process. As regards Accommodation Centres, we ask that the Bill be amended to reflect this.

 

34.              The Bill paves the way for the abolition of cash only support. Such a proposal would have a significant impact- 40% of asylum seekers supported by NASS have elected to have the subsistence only package. Abolition will have a disproportionate impact in London where the great majority asylum seekers on cash only support live. Clearly abolition of cash only support gives rise to a number of serious concerns. Many asylum seekers will be forced to live away from family, friends and their community in areas where, unlike London, there is little access to specialist legal advice and at far greater cost to the tax-payer (since NASS will have to provide accommodation). Those who chose to stay in London with, for example, their family, will have no funds at all to travel to access specialist legal advice, health care etc.

 

35.              In our view, meaningful access to representation is crucial to the delivery of fair decisions. The decision-making process will lack credibility if representation is not fully integrated within it. Without credibility, the process will not deliver one of its stated objectives, to increase the rate of removal. It is only by making fair decisions to grant or withhold protection that this objective can begin to be realised.

 

Refugee Legal Centre

10 June 2002

 

For further information, please contact the following:-

Deri Hughes-Roberts 020 7780 3227

Emma Saunders 020 7780 3235

Mark Symes 020 7780 3274