Briefing for the Second Reading

Of the Nationality, Immigration Asylum Bill

Introduction

 

In making this briefing we focus on those aspects of the Bill most relevant to our work, specifically those relating to the provision of protection for asylum seekers.

There are a number of positive aspects to the proposals. In particular, welcome changes are proposed to the evidence that adjudicators and the Tribunal can take into account when considering an appeal. In addition, the somewhat tortuous provisions of the 1999 Act in relation to the so-called "one-stop" appeal are to be simplified.

However, many of the Bill's provisions give us serious cause for concern. For example, we very much fear that many detainees including children will be denied effective access to a bail hearing.

Perhaps of most concern is what is not in the Bill. The most controversial proposals of the White Paper- for example, restricting the right to judicially review poor decisions- are still, we understand, the subject of consultation with senior judiciary. We learn this from the Home Secretary and Lord Chancellor's Press Release of 12^th April 2002. We also learn in a footnote to the Press Release that discussion has gone far beyond the proposals in the White Paper. For example while the White Paper proposes the upgrading of the status of the Immigration Appeals Tribunal, it emerges from the footnote to the Press Release that the complete abolition of the Tribunal is now also under consideration. What is quite clear is that a wide-ranging and radical review of the appeals and judicial review process is proceeding at the same time as the Bill is going through Parliament and that the Government is yet to decide on some absolutely fundamental issues.

We understand that, whatever the Government does decide, proposals will be brought forward by amendment at some point in the Parliamentary process. But we don't know when. In the meantime it seems Parliament is to be left to debate and scrutinise a footnote to a Press Release. We would very much welcome any assurances we can be given that there will be sufficient time for these amendments to be properly considered, scrutinised and debated.

Detention

Abolition of Routine Bail Hearings- Clause 48(6)

The Home Office's failure to implement the provisions for routine bail hearings in Part lll of the 1999 Act was disappointing enough. However, the logic of the decision to abolish such hearings is extraordinary. It seems we cannot afford this protection to detainees because we are detaining too many of them (see Chapter 4.84 of the White Paper).

It is indeed the case that detention is to be used on a huge scale. The amount of available detention space is to be increased to 4,000 places. Assuming that the average period of detention is to be, say, 2 months, this amounts to some 24,000 people being detained each year (this figure ignores, of course, those asylum seekers detained in Oakington). Concern here is heightened by the intention, stated in the White Paper, to detain families with children for longer periods (see Chapter 4.77 of the White Paper).

We fear that the increased use of detention will leave many detainees without access to representation and without effective recourse to the complex elective bail provisions of the 1971 Act.

Examined in the round, we believe that the provisions for detention and bail do not comply with Human Rights Act 1998:

 

·                    Article 5(4) of the European Convention on Human Rights requires all those who are detained to have speedy access to the courts for the lawfulness of their detention to be decided;

·                    Article 6 of the ECHR guarantees prompt access to a fair, public hearing before an independent Tribunal in matters (such as bail hearings) which are determinative of an applicant's civil rights.

 

We are also disappointed that Section 46 of the 1999 Act will also be abolished. Section 46 was intended to confer similar rights on asylum seekers to those enjoyed by people charged with serious criminal offences. However asylum seekers will not now enjoy a clear statutory presumption that they will be granted bail.

 

Appeals

 

Appeal Rights

 

The Bill sets out – with welcome clarity – the decisions attracting appeal rights. However, we are concerned that a small but significant minority of individuals are to be denied appeal rights before the Immigration Appellate Authorities in a way which will inevitably push litigation into the High Court. It is the current view of the Immigration Appeals Tribunal[1] 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[2], have appeal rights on human rights grounds which the IAA can determine when removal directions are served. However, under the new provisions, such removal directions are not designated an appealable decision. The Government’s proposals[3] 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 61(2)) 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.

 Certification under Schedule 4 Paragraph 9 to the 1999 Act

 The White Paper announced the decision to abolish the certification provisions under which many appellants whose appeals are dismissed are prevented from taking their case to the Tribunal (see Chapter 4.65 of the White Paper). For these appellants, at present, the only recourse for a poor decision is to the Administrative Court by way of an application for Judicial Review. To allow them to apply for leave to appeal to the Tribunal offers a quicker and cheaper route under which to seek redress against a poor decision and, as the Home Office argues in the White Paper, simplifies the whole process.

 The provision for the abolition of these provisions presents no real technical challenges so far as the drafting of the Bill is concerned. We are surprised and disappointed therefore to note the absence of any such provision in the Bill. There is evidence about a possible change in the Government's position in the footnote to the Home Secretary's Press Release of 12^th April, although no indication is given as to why thinking might have changed.

 

The One-Stop Appeal - Clauses 63, 74 and 92

 

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 74

 

We have very real concerns however about the certification provisions relating to the proposed one-stop process set out at Clause 74. 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.

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.

The Future of the Tribunal and Judicial Review

 The Home Office proposed in Chapter 4.66 of the White Paper to upgrade the Tribunal to the status of a superior court of record. The intention here is to ensure that a decision to refuse leave to appeal to the Tribunal will not be susceptible to judicial review. In terms of fairness of the determination process much will ride on the Tribunal's ability to make defensible decisions to refuse leave to appeal. In our view it would be wrong to invest such blanket confidence in the Tribunal when it has, in a small but significant number of cases, got it wrong. The most important aspect in our response to the White Paper was that either the proposal should be abandoned, or very serious consideration should be given to meaningful safeguards against poor decision- making.

 The proposal is therefore absolutely central to the proposed reform of the appeals process and to our concerns about such reform. And yet it is absent from the Bill. We understand that relevant provisions are still subject to consultation with senior judiciary (see the Home Secretary's Press Release of 12^th April) and that, at some point in the Parliamentary process, amendments are to be brought forward. This is unacceptable. These proposals form a central plank to the legislation. As is stated in the Press Release it is crucial that these changes "command the confidence of the public as well as the judiciary".

 But what perhaps is of greater concern is that officials are considering radical proposals that go far beyond the ambit of the White Paper. All we know of these proposals is from a footnote to the 12^th April Press Release:-

" Notes to editors:

1. The recent White Paper - Secure Borders Safe Haven - was published on 7 February 2002 (Home Office press notice 038/02).

2. The Government will consider retaining certification of cases that do not merit full appeal rights, and is looking at the introduction of a statutory review process to replace existing judicial review of refusals to grant leave to appeal by the Immigration Appeal Tribunal, and of certification decisions. The Government is also looking at whether a single tier appeals system would produce an overall speedier resolution of asylum claims. The Government is considering whether to introduce these measures in the Bill."

It is worth noting that the footnote directly contradicts some decisions announced in the White Paper. For example, the footnote states that the Government is considering retaining certification while the White Paper states that it "…will simplify the current appeals system by ending the procedure for the certification of certain cases by the Secretary of State…"(Chapter 4.65). It now appears that possible proposals in relation to the Tribunal range from raising its status to that of a superior court of record, to abolishing it in favour of a single tier system. Far-reaching changes to Judicial Review are being considered - through introducing an entirely novel process, some sort of "statutory review".

 What is quite clear is that a wide-ranging and radical review of the appeals and judicial review process is proceeding at the same time as the Bill is going through Parliament and that the Government is yet to decide on some absolutely fundamental issues. As such, we think believe the publication of the Bill should have been delayed to ensure effective parliamentary scrutiny. As it is, confidence is hardly engendered if debate on such crucial proposals is to be restricted to the later stages of the passage of the Bill. We would very much welcome any assurances we can be given that there will be sufficient time for the consideration and debate of any such amendments.

 Restriction of Adjudicators’ powers- Clause 84

 Clause 84 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.

 Under Clause 84(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.

 Restriction of Adjournments- Clause 84(2)(g) and (h)

 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

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.

 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 - Clauses 63(3) and 80(3)

 

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 an eminently more sensible proposal that (subject to some exceptions) all grounds be assessed in accordance with evidence arising up to the date of the hearing.

 

Restriction on Appeals to the Tribunal- Clause 79

 

The removal of the Tribunal’s factual jurisdiction gives 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

Access to Representation

 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.

 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.

 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.

 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.

 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 Clause 25 be amended to reflect this.

 Clause 34 of 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.

 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

22^nd April  2002

 

For further information, please contact the following:-

Deri Hughes-Roberts 020 7780 3227

Emma Saunders 020 7780 3235

Mark Symes 020 7780 3274