White Paper on Immigration and Asylum

 This paper sets out the RLC’s views on the proposals in the White Paper. We comment in particular on those proposals set out in Chapter 4 that have most relevance to our work with asylum seekers.

 1. Introduction

 1.1   The White Paper announces some positive developments. We are pleased that the Government is looking at resettlement. Although the proposals fall some way short of integrating access to representation within the determination and support processes, some positive commitments are made about such access. In the context of asylum appeals, we are delighted that the abolition of certification will increase access to the Tribunal and will avoid much unnecessary and costly litigation in the High Court.

 1.2    The White Paper claims to herald the introduction of a holistic approach to the handling of asylum seekers applications (4.20). While we welcome this approach, the failure sufficiently to engage with key elements of the determination process, means that this laudable aim is not followed through in the proposals as a whole. In particular, we are disappointed that The White Paper is mute on the much-criticised initial decision-making process (most recently in the context of Zimbabwe). 

 1.3   It is with disappointment that we note that the focus of much of the White Paper is on deterrence and removal, not the protection of refugees. In our view, a process that focuses on deterrence and removal and any decisions it might produce would lack credibility.

 1.4   We welcome the opportunity to comment on the White Paper and hope we can engage constructively in a debate on the future of the asylum determination process. In this spirit, we would advocate the design of a process based on the need to identify those in need of protection. It should be possible to deliver fair decisions quickly. If all parties can be confident in the decision making process then any outcome of that process is far less likely to be challenged.

 1.5   In this context we ask the Government to consider a perhaps more radical approach in which decision making on asylum applications is undertaken by an independent body, a model successfully adopted in Canada and Sweden.

 2. The Global Context

 2.1    We are pleased that the White Paper acknowledges the global context and the need for a strategic international approach to the search for sustainable solutions to refugee issues. On a European level, the process of establishing common asylum procedures and policies within the context of member states' commitment to a "full and inclusive" application of the 1951 Convention is an important starting point. We do wonder why, however, the UK, in common with some other member states, is pre-empting this work by introducing domestic legislation.

 3. Resettlement Programme

 3.1  We welcome the proposal to develop a resettlement programme. However, the effectiveness of such a programme depends much on the detail of its implementation. We would be concerned that eligibility criteria may introduce factors that may not be relevant to the refugee definition. For example, criteria might discriminate in favour of candidates with specific work skills and exclude those who might be most vulnerable in refugee terms. We would prefer the UNHCR staff to select candidates for resettlement on the basis of Convention based criteria.

 3.2   We would be concerned that the resettlement scheme does not affect the way in which spontaneous arrivals are treated. As in the case of Australia, asylum procedures must be assessed primarily on the quality of the treatment of the many who arrive spontaneously, rather than of the few who arrive under a resettlement programme.

 3.3   Although a resettlement programme may alleviate the problem of trafficking and smuggling, it is not the solution (4.16). We note with disappointment that the raft of measures that force asylum seekers into the hands of smugglers and traffickers will be retained and buttressed (Chapter 6).

 4. Border Controls

  4.1   There is an increased emphasis on border control by, for example, the increased use of visa requirements, airline liaison officers and pre-clearance schemes.

 4.2   In Chapter 6.5, it is stated that Airline Liaison Officers will have denied boarding to the UK to over 22,000 inadequately documented passengers over the past year. No thought is given as to how many of these people might have been refugees, nor what might have happened to them as a result of being turned away from an airport. We are particularly concerned that Airline Liaison Officers have been placed in airports in countries such as Sri Lanka and Kenya where there is a high incidence of human rights abuse. On a conservative assumption, 20% of the 22,000 passengers denied boarding might have claimed asylum. And on a conservative application of present success rates for an initial decisions and appeals well over 1000 of these claimants would have been granted protection.

 4.3   The Government announces the increased use of "pre-clearance screening" (6.9). This method of border control, in which British consular staff stationed in Prague airport have refused many potential passengers permission to embark on flights to the UK, has attracted much controversy. The disproportionate refusal of pre-clearance to Roma passengers has left officials open to allegations of racism. Moreover, the scheme is in breach of Article 14 of the Universal Declaration of Human Rights that guarantees the right to seek an enjoy asylum from persecution in other countries. Czech Roma asylum seekers have been granted asylum in the UK and it is therefore our view that some Roma will be turned back at Prague airport who would have been granted asylum had they been allowed to travel to the UK to make a claim.

 4.4    In Chapter 5, the Government indicates that it will adopt new approaches to tackling criminal networks involved in bringing illegal immigrants to the UK. But by preventing refugees from coming to the UK legally by the imposition of, for example, entry clearance requirements, many will be forced into the hands of criminal networks.

 5. Induction Centres

 5.1   It is proposed that asylum seekers will be given screening interviews at induction centres. It is clear from the present pro forma questionnaire for such interviews that they will cover substantive issues regarding the claim for asylum. In our view they should not, particularly in the absence of independent legal advice. 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.

 5.2   We would ask for clear assurances that no pressure will be put on individuals to make voluntary departures, and that it will be made clear that there is no power to remove whilst appeals are pursued (cf 4.21, bullet point 3).  It is essential in this context that asylum seekers have access to legal advice.

 6. Initial Decision Making in the Existing Determination Process

 6.1   The White Paper does little to acknowledge the value of well-reasoned defensible decisions. The quality of Home Office fact finding and decision making is the key to an efficient appeals system. We remain concerned with the quality of decision-making. In particular, we are concerned that a refusal letter rarely demonstrates that there has been meaningful consideration of the individual merits of a case. The insertion of standard paragraphs using a word processor replaces making a decision on the facts and issues of the case.  The Home Office should therefore aim for a substantial improvement to the quality of its decision-making and the extent to which quality decision-making contributes to the overall speed of finally deciding the asylum claim should be recognised.

 6.2              If the Home Office refuses an application without undertaking the necessary fact finding and obtaining the necessary evidence, the court will be put in the position of having to consider issues which the Home Office should have considered had it operated its targets more flexibly and efficiently. Adjudicators in the Immigration Appellate Authority will address issues for the first time or address issues again not yet adequately considered, with the result that the decision making process simply recommences from scratch at the appeal hearing where it makes greater demands on resources than would be made by dealing with these matters at the initial administrative level.

 6.3              The Home Office should adopt a more proactive decision making process. Asylum seekers should be given the opportunity to comment on draft refusal letters, correct inaccuracies respond to adverse credibility findings and raise any matters that may not previously have been before the Home Office. The Home Office and asylum seeker’s representative could thus ensure that all issues relevant to the case had been fully aired prior to decision.

 6.4   The process of identifying and seeking to limit issues should not stop at refusal. However, following refusal no one Home Office official is responsible for the conduct of a case until very shortly before the hearing. We recommend that a designated Home Office official has the conduct of a case from the time an appeal is lodged until the file is passed to a Presenting Officer in good time before the appeal is listed. Such officials and Presenting Officers should be given clear guidance as to their role. In particular, they should be given both the authority and encouragement to make substantive decisions as to the conduct of a case.

 6.5   Furthermore, the IAA should ensure that each appeal is subject to a meaningful pre-hearing review following submission of any witness statements, bundles etc. The focus of this hearing should be to narrow issues leading to less burdensome and shorter appeals and to fewer adjournments, particularly if coming at the end of an improved Home Office decision-making process. It would allow for a more accurate time estimate and a realistic date for the full hearing, resulting in fewer adjournments and increased efficiency of the use of court time. The President of the Immigration Appeals Tribunal, Mr Justice Collins, has confirmed that pre-hearings reviews should be used pro-actively;

“At any preliminary hearing before an adjudicator, doubts about what matters are in issue should be resolved. If the refusal letter or the explanatory statement is less than clear, that is the time to discover in what respect (if any) the Secretary of State is asserting that the appellant is not telling the truth." Carcabuk & Bla (00/TH/01426; 18 May 2000),

 6.6   As part of the pre-hearing review process, adjudicators should be much more assertive in ensuring the Home Office comply with any directions which are set to facilitate the future conduct of a case. In our experience many appeals are subject to repeated adjournment and prolonged delay as a result of the Home Office's non-compliance with directions.

 7.    Appeals to the Adjudicator and the Tribunal

 Access to justice

 7.1    We are concerned at the suggestion that the introduction of human rights appeals meant that some of those whose appeal rights were exhausted used human rights applications as a means of delaying removal. No evidence has been adduced to support this claim. In part, this is a problem of the Government's own making since the Home Office drafted the commencement provisions of the 1999 Act so as to prevent asylum seekers with pending appeals from raising human rights grounds until after their asylum appeal rights had been exhausted and shortly before, therefore, they were due to be removed.

 7.2    It seems there will be an initiative to restrict the right to a human rights appeal for asylum seekers whose appeal rights were exhausted some time before the effective implementation of the 1999 Act. However, such people may well have put down solid roots in the community. They maybe married and have children. It is particularly important that human rights be protected in these circumstances. This may not be convenient to the policy objective of increasing removals but it is the fair and humane. To deny such individuals appeal rights within the Immigration Appellate Authority will inevitably push their cases into the Administrative Court for applications for judicial review, with the attendant delay and cost this entails. Moreover, the Immigration Appeals Tribunal has recently stated that such cases fall within its jurisdiction[1]. The Government’s proposals are in direct conflict with the Tribunal’s common sense approach to this important issue.

 7.3    We welcome the decision to abolish the certification provisions under which many appellants whose appeals are dismissed are prevented from taking their case to the Tribunal (4.65). For these appellants, 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.

 7.4   However, we fear that an underlying reason for this proposal might be to direct cases to a point in the process where, under changes also announced in the White Paper, there is no remedy against a poor decision whether by way of an application for Judicial Review or otherwise. As a result of the abolition of certification all appellants will be able to apply for leave to appeal to the Tribunal where there are merits for making such an application. However, it is intended there will no longer be a remedy against a poor decision to refuse leave to appeal. This is because it is also proposed that the Tribunal be upgraded to the status of a superior court of record (4.66). As such it is intended that a decision to refuse leave to appeal to the Tribunal will not be susceptible to judicial review.

 7.5   The proposal to prevent the judicial review of a decision to refuse leave to appeal to the Tribunal should also be considered in tandem with the provisions of the amended procedure rules introduced in January. Under these Rules, a decision to refuse leave to appeal is no longer served on both parties by the court but rather is sent to the Home Office for service on the appellant. Taken together the proposals to abolish certification, upgrade the Tribunal and allow the Home Office to serve refusals of leave to appeal, all seem designed to facilitate removal. We have serious concerns with an appeals process that appears to be designed to facilitate removal rather than to provide supervision and scrutiny of decisions to refuse asylum.

 7.6   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:

7.7    Clearly, the decision to abolish certification is sensible. However, we believe that there should be very careful consideration of the proposal to upgrade the Tribunal to the status of a superior court of record. If the Government proceeds with this proposal, it should, at the very least, examine appropriate safeguards (one such might be a provision allowing an applicant to renew orally an application for leave to appeal which has been refused).

7.8   Further, if the status of the Tribunal is upgraded, the Government should ensure that representatives of organisations funded under Section 81 of the 1999 Act, such as the Refugee Legal Centre, continue to have rights of audience before the Tribunal.

Adjournments

7.9   The suggestion (4.66) that there should be a statutory “cut off” date, beyond which no adjournments can be granted, 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

 7.10   The above rule 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.

 7.11 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.

8. Decision Making and Appeals - A Radical Approach

8.1    The above criticisms of the determination process are not new and should be seen in the context of the general concern, expressed repeatedly over many years, that there is a culture of disbelief among decision makers. Refugee Legal Centre staff encounter this culture on a daily basis. It is underlined by the Home Office's decision-making statistics for the year 2001. Asylum seekers from many countries that are infamous for wide-spread human rights abuse have a negligible chance of success in the initial decision making process (refugee status was granted in 6% of substantive decisions from Zimbabwe, 5% from Colombia and 3% from Turkey). In deed when analysed it is apparent that the overall success rate for the year 2001 is cut by almost one half (from 11% to 6%) if just three countries, Afghanistan, Somalia and Sri Lanka, are excluded from the calculation. One might suspect that factors other the individual circumstances of each asylum claim have an influence on the likelihood of success in a case.

8.2    In our view a conflict of interest could arise from the Home Office's dual function of assessing asylum claims and controlling immigration. In particular there is the potential that policy considerations might cloud the consideration of a case on its individual merits.

8.3    We believe that the separation of the immigration control and decision making functions offers an opportunity to make a fresh start and invest a new confidence in the determination process. This approach is not so radical that it has not been successfully implemented elsewhere. Canada has for many years adopted such an approach. In the European context, Sweden has shown it can be a success.

8.4    In Canada, an independent refugee board makes initial decisions on asylum claims. The separation of decision making from immigration control promotes objective, well-reasoned decision-making.  In particular, in Canada the same person both interviews the asylum seeker and makes the decision on his/her claim. That person is far better placed to assess the asylum seekers, credibility this being the issue on which most cases are decided. Applied to the UK, the Canadian model would produce better decisions, fewer appeals where the issues were fewer and better focussed and generally a more efficient, streamlined process.

8.5    In the Canadian model, an independent documentation centre collates evidence of the country conditions. We were a member of a joint working party comprising Home Office officials and representatives from various refugee agencies, including the UNHCR, Amnesty International and the Refugee Council that produced a report in 1998 unanimously recommending the establishment of such a centre in the UK. An adequately funded independent documentation centre should make a positive impact on decision making of the Home Office and the IAA, increasing the efficiency and cost effectiveness of the determination process. It would provide an objective and up to date source that would inform decision-making and would, we believe, have avoided the recent controversy over the Home Office's country assessment on Zimbabwe.

8.6    We urge the Government to consider undertaking a radical review of the initial decision-making process and adopt a model similar to that found in Canada. As part of the review further consideration should be given to the UK's appeals process to determine whether, as in the Canadian model, the determination of appeals should be devolved to the same body, or whether it should continue to be dealt with by the IAA.

9. Access to Representation

9.1    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.

 9.2   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.

9.3    We hope that such a pro-active approach is taken in relation to the proposed 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 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.

9.4    We understand that, contrary to paragraph 4.53, a decision has already been made to abolish voucher/cash only support. Such a proposal would have a significant impact- 20% of asylum seekers elect to have the voucher only package. It will have a disproportionate impact in London where 71% of asylum seekers on voucher only support live. Clearly this decision 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. 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.

9.5   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.

 10. Detention

 10.1    The failure to implement the provisions for routine bail hearings in Part lll of the 1999 Act has been disappointing enough. However, the logic of the decision to abolish Part lll is extraordinary (Chapter 4.84). It seems we cannot afford this protection to detainees because we are detaining too many of them.

 10.2   Examined in the round, we believe that the provisions for detention and bail do not comply with Article 5 of the ECHR. In a particular, we fear that the increased use of detention (we are told that 4,000 asylum seekers will be detained at any one time) will leave many detainees without access to representation and without effective recourse to the complex bail provisions of the 1971 Act.

 10.3   Although it is proposed that sections 53 and 54 will be implemented, section 46 will 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.

 10.4  We reject the suggestion that families and children should be detained in any circumstances (Chapter 4.77). We know of no evidence that indicates that family groups are a particular problem in terms of enforcement. In our experience such groups are the least likely to fail to comply with any conditions of temporary admission. We are extremely concerned that prolonged detention may be harmful to the not only to the development but also to the physical and psychological well-being of children.

 10.5  The White Paper addresses the problem of children where their age is in dispute (Chapter 4.56). This is almost entirely a problem of the Home Office’s making. In almost every case in which the RLC has been involved, an age dispute has been resolved in favour of the child. In our extensive experience argument in such disputes is often yet one more stage in a protracted legal battle. Legal argument here is expensive and ultimately utterly pointless since in the long run children are usually recognised as such and eventually released.