1. This paper sets out the response by Citizens Advice to the consultation paper New Legislative Proposals on Asylum Reform, issued jointly by the Home Office and the Department for Constitutional Affairs (DCA) on 27 October 2003.
2. Citizens Advice is the co-ordinating body for the 530 Citizens Advice Bureaux (Citizens Advice Bureaux) in England, Wales and Northern Ireland. In 2002-03, these Citizens Advice Bureaux dealt with over 83,000 asylum, immigration and nationality advice enquiries, some 19 per cent more than in 2001-02. Currently, at least 24 Citizens Advice Bureaux hold a contract in immigration with the Legal Services Commission and/or are registered at Level 3 with the Office of the Immigration Services Commissioner (OISC), and are thus able to offer legal advice, assistance and representation in relation to asylum and immigration appeals.
General comments on the consultation exercise
3. The content of the consultation paper issued on 27 October is extremely limited, and the time given for responses is unduly short. Indeed, the three-week consultation exercise does not comply with the November 2000 Cabinet Office code of practice on consultation. Given that most, if not all, of the proposed measures might easily have been included in the 2002 Act, we can see no good reason why a more meaningful consultation exercise could not have been conducted.
The asylum & immigration appeals system
4. We understand the rationale behind the proposal to merge the current two tiers of the asylum and immigration appeals system into a single-tier tribunal, and might well be sanguine about this proposal were we confident that every appellant could be assured of timely access to good quality legal advice and representation before the proposed, single-tier Asylum & Immigration Tribunal (AIT). However, given the existing national shortage of good quality legal advice and representation, especially in the regions, and the current confusion and uncertainty over the future of publicly-funded legal services in immigration and asylum, we cannot be confident of this. And it seems likely that, where an appellant failed to secure effective legal representation before the single-tier AIT, the scope for (another, subsequently engaged legal representative) seeking judicial review in the courts would increase.
5. We are disappointed that, yet again, the Government appears to be overlooking the impact on the asylum appeals system of the variable quality of initial Home Office decision-making. We note that, in the first half of this year, 20.1 per cent of the asylum appeals actually heard and determined by IAA adjudicators were allowed; in the case of Sudanese nationals the success rate was 40 per cent, and in the case of Somali nationals (one of the largest groups of applicants and appellants) it was 37.6 per cent. In fact, these figures understate the actual success rate on appeal, as they exclude the unpublished but seemingly significant number of asylum appeals that are conceded by the Home Office without ever being forwarded to the IAA for determination.
Undocumented passengers
6. We strongly oppose the proposed new criminal offence of being “undocumented without reasonable explanation”. This measure is clearly intended to be a deterrent (to the destruction of one’s documents during the journey to the UK), but for it to be effective as such would necessitate significant numbers of prosecutions and (costly) terms of imprisonment. Apart from anything else, this might well prove to be in breach of Article 31 of the 1951 UN Convention on Refugees.
7. In our view, the second proposed new criminal offence of “failing to co-operate with re-documentation” is unlikely to prove to be an effective remedy to the problem of failed asylum seekers refusing to co-operate with the re-documentation process. Under existing policy and practice, such individuals already face indefinite detention under Immigration Act powers, and it is difficult to see how the prospect of a (relatively short) prison sentence will be any more effective as an inducement to co-operation. And, of course, upon completion of any such prison sentence, the individual will still be in the UK.
Safe third country cases
8. In our view, the question of whether an asylum seeker can be ‘safely’ returned to a third country should be determined on a case by case basis, in the light of all the individual circumstances of the case, rather than on the basis of pre-determined lists of supposedly ‘safe’ third countries.
Restricting family support
9. We strongly oppose the proposed early termination of support for families, as soon as their asylum claim is finally rejected rather than, as now, if and when they fail to comply with a removal direction. This would simply result in families being left homeless and in destitution pending removal. Apart from our concern about the individual hardship and wider health and social problems that this would inevitably cause, we note that the families concerned would have no incentive at all to co-operate with the authorities with regard to their eventual removal. For example, it is not all clear how the Home Office would communicate removal directions to homeless families for whom it no longer has an address.
10. To our mind, this proposal raises wider questions about the lack of any coherent Government policy in respect of the rapidly growing population of finally refused asylum seekers left homeless and in destitution without any real prospect of removal. Inevitably, some, perhaps many, such individuals are exploited through illegal employment or forced into criminal activity. And, as the Home Office no longer holds an identifiable address for the vast majority, any likelihood of their timely removal is simply much reduced.
The Office of the Immigration Services Commissioner
11. We welcome and support these proposals, which should improve the effectiveness of the OISC regulatory scheme. The OISC scheme has imposed a significant bureaucratic burden on the not-for-profit advice sector, including the CAB Service, and we are therefore disappointed to learn of the failure of the designated professional bodies, and the Law Society in particular, to co-operate fully with the Commissioner and his staff.
12. We note that, in 1998 and 1999, it was concerns about the conduct and quality of service of solicitors and other commercial advisers, rather than advisers in the not-for-profit sector, that led the Government to establish the OISC regulatory scheme. To date, however, the OISC scheme appears to have had little beneficial impact on the conduct and quality of service of solicitors.
Race equality impact
13. In our view, the best way to promote good race relations is to treat all minority racial groups – including would-be migrants, asylum seekers and even refused asylum seekers – with dignity and respect. The message that comes from the reforms proposed in this consultation – and from much of the policy and practice underpinning the existing immigration and asylum systems – is that immigration applicants, and especially asylum seekers, do not deserve the same legal and human rights as the rest of society. We believe that, over time, this has – and, indeed, can only have – a deeply corrosive effect on community relations.
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