Introduction: Citizens Advice, CABx and relevant work
Citizens Advice is the co-ordinating body for the 530 Citizens Advice Bureaux (CABx) in England, Wales and Northern Ireland.[1] In the financial year 2002-03, these CABx dealt with over 83,000 asylum, immigration and nationality advice enquiries, some 19 per cent more than in 2001-02. Currently, 24 CABx 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 thus offer legal advice, assistance and representation in relation to asylum and immigration appeals.
As well as setting and monitoring standards for the advice work of CABx, Citizens Advice undertakes national social policy, media and parliamentary work. In recent years, we have published two major social policy reports on the National Asylum Support Service-administered asylum support system – Process error (February 2002) and Distant voices (October 2002) – as well as many shorter papers, submissions and consultation responses on various asylum, immigration and entry clearance matters. We participate in a number of Home Office IND stakeholder groups/user panels.
General comments on the Bill
The publication of the Bill, on 27 November, followed the issuing of a joint consultation paper by the Home Office and Department for Constitutional Affairs (DCA) on 27 October. The content of the consultation paper was extremely limited and the deadline for responses (17 November) unduly short, making it difficult to give a detailed response. We can see no good reason why a more meaningful consultation exercise could not have been conducted.
We are also somewhat surprised that the Government should be bringing forward further new legislation in this area, when so many provisions of the Nationality, Immigration & Asylum Act 2002 remain to be implemented and/or evaluated. For example, a key plank of the 2002 Act was the creation of a “seamless” system of asylum induction, accommodation, reporting and removal centres. Far from being complete, and thus liable to evaluation, this system is still largely nascent. As yet there are no accommodation centres (Part 2 of the 2002 Act), only two induction centres (one of which was created overnight in January 2002 by renaming a collection of bed and breakfast hotels as the Dover Induction Centre), and no mechanism for the (somewhat essential) payment of expenses in respect of travel to one of the new, regional reporting centres (as provided for in Clause 69 of the 2002 Act).[2]
That said, we welcome and support some elements of the new Bill, namely the introduction of a new criminal offence of trafficking people into the UK for the purpose of exploitation (Clause 4), the strengthening of the powers of the Office of the Immigration Services Commissioner (OISC), and the introduction of a new criminal offence of advertising or offering to provide immigration advice or services when unqualified (Clauses 16 to 19).
For the time being, we reserve judgement on the provision for electronic ‘tagging’ of certain adults subject to immigration control (Clause 15). In our view, the selective and targeted use of ‘tagging’ as a genuine alternative to detention under Immigration Act powers of, say, failed asylum seekers and others would be welcome, but we would strongly oppose the routine and/or indiscriminate use of such ‘tagging’. We hope that Ministers will clarify their intentions in this regard at Second Reading, if not before.
However, we have serious concerns about and/or oppose the following Clauses:
Clause 2: new offence of entering the UK without a passport;
Clause 7: failed asylum seeker families: withdrawal of support;
Clause 10: unification of appeal system and ouster of judicial review;
Clause 14: new offence of failing to co-operate with the process of re-documentation; and
Clause 20: fees in excess of the administrative cost of processing applications.
In addition, we endorse the concerns of specialist organisations such as the Immigration Law Practitioners’ Association (ILPA) in respect of Clauses 6, 11 and 12 (and Schedule 3).
Furthermore, we are calling upon the Government to add two new clauses to the Bill in respect of asylum support:
- a Clause providing for a right of appeal to the Asylum Support Adjudicators (ASA) against all decisions of the National Asylum Support Service (NASS) to refuse support to an asylum seeker, under section 55 of the Nationality, Immigration & Asylum Act 2002, on the grounds that he or she did not apply for asylum “as soon as reasonably practicable”; and
- a Clause establishing Regulations in respect of the back payment of regular NASS support not received by an asylum seeker due to a process error on the part of NASS and/or Sodexho.
We take no position on Clauses 1, 3, 8, 9, 13 and 21.
Clauses 2 and 14: new criminal offences
We strongly oppose the proposed new criminal offence of entering, or attempting to enter, the UK without a passport or equivalent document (Clause 2). It is self-evident that the criminalisation and imprisonment (for up to two years) of undocumented asylum seekers would do nothing to improve the efficiency and efficacy of the asylum determination process, and this proposed measure is clearly intended to be a deterrent (to the destruction of passports or equivalent documents during the journey to the UK).
However, for it to be effective as such would necessitate significant numbers of prosecutions and (costly) terms of imprisonment. Apart from anything else, such imprisonment would be in breach of Article 31 of the 1951 UN Convention on Refugees where the individual concerned is a refugee.[3] We note that the Home Office is still paying out large sums in compensation to some of the hundreds of refugees unlawfully prosecuted and imprisoned during the late 1990s, in breach of Article 31, for the use of forged travel documents to transit the UK.[4]
- We urge the deletion of Clause 2 from the Bill.
In our view, the proposed new criminal offence of failing to co-operate with re-documentation (Clause 14) would be unlikely to be an effective remedy to the (undisputed) 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 would be any more effective as an inducement to co-operation. And, of course, upon completion of any such prison sentence, the individual would still be in the UK.
- We urge the deletion of Clause 14 from the Bill.
Clause 7: refusal of asylum support
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 (Clause 7). This would result – indeed, is clearly intended to result – in families with children being left homeless and destitute pending removal.
Apart from our deep 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 or voluntary return. For example, it is not all clear how the Home Office IND would communicate removal directions to, or arrange voluntary assisted repatriation for, homeless families for whom it no longer had a postal address.
To our mind, Clause 7 raises wider questions about the lack of any coherent Government strategy in respect of the rapidly growing population of finally refused asylum seekers left homeless and in destitution without any real prospect of removal.[5] 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 (or voluntary assisted repatriation) is simply much reduced.
- We urge the deletion of Clause 7 from the Bill.
Proposed new Clause: refusal of asylum support: appeals
In addition to our concerns about Clause 7, we are calling upon the Government to insert a new Clause into this part of the Bill, providing for a right of appeal to the Asylum Support Adjudicators (ASA) against a decision of the National Asylum Support Service (NASS) to refuse, under section 55 of the Nationality, Immigration & Asylum Act 2002, an asylum seeker’s application for NASS support. Section 55 of the 2002 Act provides for such a refusal of support where NASS considers that the individual did not apply for asylum “as soon as reasonably practicable” after entering the UK.
Since section 55 came into force in January 2003, CABx have been approached by a growing number of asylum seekers left homeless and destitute after being refused NASS support under its provisions. For example, a CAB in London reports being approached in September 2003 by a pregnant Turkish woman who had applied for asylum just five days after (clandestinely) entering the UK. By the time the woman approached the CAB, she had not eaten properly for several days.
In the absence of any right of appeal against such a refusal of support to the Asylum Support Adjudicators, and faced with the seemingly routine rejection by NASS of requests for reconsideration of the original decision in the light of subsequent developments, CABx can do little more than try and find a solicitor willing and able to consider making an application for judicial review in the High Court. In common with other organisations, CABx are aware that the vast majority of the more than 1,000 such legal challenges to date have been successful (with costs almost invariably being awarded against the Treasury Solicitor).
To our mind, this is not only wrong in principle, but is an extremely inefficient and costly way in which to determine an individual’s entitlement to NASS support. We estimate the total cost to the taxpayer of the more than 1,000 judicial reviews of section 55 refusals to date to be well in excess of £5 million.
We believe that, in order to ensure that the provisions of section 55 are applied only where appropriate, and to obviate such costly legal challenges in the courts, all section 55 refusals should be subject to a right of appeal to the Asylum Support Adjudicators (ASA). The ASA adjudicators are well qualified to determine such matters – indeed, they are considerably better qualified to determine such matters than the NASS executive officers who make section 55 decisions – and are well placed to give valuable feed-back to NASS on the quality and appropriateness of such decision-making.
We note that, during the 2002 Act’s passage through Parliament, Ministers indicated both that section 55 would be applied only to those making an asylum claim, after a long period in the UK, simply as a means to delay their removal/deportation, and that all section 55 refusals would be subject to a right of appeal to the Asylum Support Adjudicators.[6]
Proposed new Clause: asylum support: back payments
We are also calling on the Government to introduce a further new Clause into this part of the Bill, amending the Immigration & Asylum Act 1999 so as to allow for the back payment of regular NASS support payments not received by an asylum seeker due to a processing error on the part of NASS and/or Sodexho.
As described in our two social policy evidence reports, Process error and Distant voices, the interruption of regular (weekly) support payments due to a processing error on the part of NASS and/or Sodexho is an all too common feature of the NASS-administered support system established in April 2000 by Part VI of the Immigration & Asylum Act 1999. In such cases, it has been standard practice on the part of CABx (and other advice agencies) to apply for back payment of the missed support payments, and until recently NASS invariably made such back payments (as well as restoring regular support payments).
In August 2003, however, Citizens Advice learnt from CABx that NASS was suddenly refusing to process such applications for back payment of missed support payments. Upon raising the matter with NASS managers, Citizens Advice was informed that the Director of NASS had suspended the processing of such applications, pending an internal legal review of policy to establish whether regular NASS support payments are "entitlements in the real sense". In late October, a NASS official told one CAB adviser that it could take "up to a year" to complete this legal review.
As a result of this legal review, which to our knowledge has never been announced by Ministers or officials, NASS supported asylum seekers who do not receive one or more of their regular (weekly) support payments from NASS, due to a processing error on the part of NASS and/or Sodexho, are now unable to obtain the missed payments. For example, a CAB in London reports being approached by an Ethiopian single mother, with three children. In the summer of 2003, the family did not receive three of its weekly NASS support payments, a total of £412, due to an unexplained processing error on the part of NASS. The family’s regular support payments were restored, but for four months NASS did not respond to the CAB adviser’s repeated applications for back payment of the missed payments (sent by fax and post). Eventually, a NASS official advised the bureau that, while NASS did not deny responsibility for the non-delivery of the family’s three missing payments, the bureau’s application for back payment of these amounts would not be processed due to the ongoing legal review.
We believe that this situation cannot be allowed to continue. If it is the case that there is a lacuna in the 1999 Act in relation to the back payment of undelivered regular support payments – and, if it has not already done so, the Home Office should establish this as a matter of urgency – then the Government should insert a new Clause into the current Bill to amend the 1999 Act and/or provide for the making of the necessary Regulations.
Clause 10: unification of the appeals system
It is disappointing, and somewhat surprising, that the consultation document issued by the Home Office and DCA on 27 October contained no statistics on the outcome of further appeals, against rulings of IAA adjudicators, to the existing second tier, the Immigration Appeals Tribunal. We hope that Ministers will present such evidence at Second Reading.
That said, 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 measure were we confident that every appellant could be assured of timely access to good quality legal advice and representation before the proposed Asylum & Immigration Tribunal (AIT). However, given the existing under-supply of such legal advice and representation, especially in the regions, and the likely negative impact on such supply of the recently announced changes to ‘legal aid’ in this area, we cannot be confident of this.
Asylum and Immigration are highly complex areas of law, and effective legal advice and representation before the proposed AIT would therefore be an essential requisite for justice.
We are also 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 nine months of this year, 20.4 per cent of the asylum appeals heard and determined by IAA adjudicators were allowed. Furthermore, in the case of Somali nationals (one of the largest groups of applicants and appellants) the success rate was 39.1 per cent; in the case of Sudanese nationals it was 38.8 per cent; and in the case of nationals of the Democratic Republic of Congo, Eritrea, Ethiopia, Iran, Russia, Turkey and Zimbabwe it was more than 25 per cent.[7] In fact, these figures understate the actual success rate on appeal, as they exclude the unpublished but significant number of asylum appeals that are conceded by the Home Office without ever being forwarded to the IAA for hearing and determination. We have repeatedly called on the Home Office to publish statistics on this point, to no avail.
Clause 10(7): ouster of judicial review
The provisions of Clause 10(7) would effectively preclude judicial review, in the higher courts, of decisions of the proposed Asylum & Immigration Tribunal (AIT).
Again, we understand the rationale behind this proposed ouster of the High Court’s (and Court of Session’s) supervisory or inherent jurisdiction of the proposed AIT – the asylum and immigration appeals process should be as expeditious as is consistent with the need to ensure fairness and justice, as delay can itself create obstacles to an otherwise justifiable expulsion. However, in our view the proposed ouster of judicial review is, at the very least, dangerously premature.
The proposed unification of the appeals system, and the associated creation of a new immigration judiciary, is a radical, unprecedented and therefore untested reform that might well, in practice, prove to be more problematic than the Government appears to anticipate. It is imperative that, during the (quite possibly prolonged) period of implementation and adjustment, access to justice is not impaired. In our view, this would require the continuation of a supervisory role for the higher courts, which already have extensive powers to deal with any manifestly unfounded applications for judicial review that might arise.
- We urge the deletion of Clause 10(7) from the Bill.
Clause 20: fees in excess of processing cost
On 1 August 2003, the Home Office introduced a fees regime for (non-asylum) immigration applications, with the fees set at a rate equalto the administrative cost of processing such an application (£155). Clause 20 would allow the Home Secretary to set such fees at a rate in excess of the administrative cost of processing such an application. A recent press report indicates that, in a regulatory impact assessment of the Bill unseen by Citizens Advice, the Home Office is proposing that this could take the form of a surcharge of up to £500, on top of the current £155 fee.[8]
In our view, this proposed measure runs counter to the Home Secretary’s argument – with which we entirely agree – that effectively managed legal migration is not only good for the UK, but is “vital to [the UK’s] economic and social interests”. Home Office research has shown that legal migrants to the UK contribute £2.5 billion per year more in taxes than they consume in public services (and also that they have little or no adverse affect on the wages or employment levels of the existing population).[9]
Accordingly, there would appear to be no justification for charging would-be legal migrants a fee set at a level “designed … to reflect benefits likely to accrue to the person making that application or for whose benefit the application is made”.[10] Indeed, to our mind the Home Office’s figure for the net financial benefit from legal migration, above, is a very strong argument for the abolition of all immigration application fees, including those introduced in August.
- We urge the deletion of Clause 20 from the Bill.
[1] Citizens Advice Bureaux in Scotland belong to a separate organisation, Citizens Advice Scotland (CAS).
[2] For example, asylum seekers newly dispersed by NASS to Stoke-on-Trent are being required to report monthly to the Immigration Service reporting centre in Solihull, some 45 miles away, rather than to local police stations (as would previously have been the case). The cheapest return rail fare is £12.50.
[3] Article 31 of the 1951 UN Convention on Refugees recognizes that departure and entry into host countries by irregular means may be methods used by refugees, and prohibits the imposition of penalties on refugees for their use of such methods.
[4] “Asylum error to cost UK millions”, The Guardian, 2 October 2003. The Home Office’s practice of prosecuting such individuals, increasingly common from about 1995, was largely brought to an end by the July 1999 High Court ruling, in the case of Adimi, that it was unlawful as it involved breaches of Article 31 of the 1951 UN Convention.
[5] For further information on this issue, see: Mind the gap – failed asylum seekers and hard case support, Stoke-on-Trent CAB, October 2003.
[6] Parliamentary Labour Party (PLP) Briefing, issued (in the name of Home Office ministers) to all Labour MPs on 7 October 2002.
[7] Source: Asylum Statistics: 1st Quarter of 2003, Asylum Statistics: 2nd Quarter of 2003, and Asylum Statistics:3rd Quarter of 2003, Home Office. Figures exclude withdrawn appeals.
[8] “£500 charge to work in UK”, The Guardian, 8 December 2003.
[9] Home Office news release 309/2003, 12 November 2003.
[10] Home Office Explanatory Notes.
Social Policy contacts: James Hulme & Richard Dunstan Social.policy@citizensadvice.org.uk
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