The rights of asylum seekers were upheld in two recent court judgments – but those facing deportation on national security grounds were denied justice in a third.
In the first case, the charity Medical Justice (MJ) challenged the UK Border Agency (UKBA)’s practice of snatching refused asylum seekers, including children, and removing them from the country without adequate notice. Normal policy is to give 72 hours’ notice of a proposed removal, to enable legal challenges to be brought in the High Court – and five days where the person is refused asylum with no UK right of appeal, or where removal is to take place by charter flight. But UKBA claimed the right not to give 72 hours’ notice in certain cases, particularly where it alleged that those affected would react badly to the news of removal – including those threatening suicide, and unaccompanied children who might run away. Then, after disturbances at Campsfield House removal centre in March 2007 following delivery of removal directions to a number of detainees, UKBA extended the ‘exception’ policy to include situations where they deemed it contrary to ‘good order and discipline’ to give advance notice. These exceptions to the 72 hours notice were set out in a policy document in December 2009, and came into effect in January 2010.
Access to justice upheld
In the High Court, lawyers for Medical Justice argued that giving no notice risked denying those affected of their right of access to a court to challenge the removal. They told the judge about two Eritrean minors who had been arrested at 4am for removal at 7.30 and 9.30am under the new policy: the first had injured herself preventing her removal, while the second had not been able to stop being removed to Italy, where she had ended up, according to a distressed call she made to her solicitors, living with a male stranger she had met on the street. A young man, Nyam, was arrested at 11pm for removal at 7am and only managed to avoid removal because his solicitor woke a judge at 1.30am and obtained an injunction.
The judge accepted that it was inevitable, or at least highly probable, that many of those to be removed would be deprived of their right of access to the court, because of the huge difficulty in getting hold of a lawyer who was ready, willing and able to advise and, if necessary, to drop everything to mount an immediate legal challenge. He rejected the Home Office argument that those to be removed would have already exhausted the appeals process and would thus have no reason to challenge their removal, pointing out at least four situations where a legal challenge might be necessary:
- when people had made fresh applications and the notice of removal was given at the same time as refusal of the fresh claim;
- when removal was being enforced years after refusal of the asylum claim, by which time family circumstances or the situation back home might have changed so as to make removal unlawful;
- when someone was to be removed to a third country, which gave rise to no right of appeal;
- when the safety of the route of return was in question.
Shortage of immigration lawyers
The judge pointed out that even before the demise of Refugee and Migrant Justice (RMJ), the largest provider of legal advice to asylum seekers, changes to the provision of legal aid since 2000 meant that the private and not-for-profit providers of publicly funded legal services in this field had more than halved since 2001/2, from 527 to only 239 in the whole country. This meant, he held, that ‘there are formidable (if not invariably insurmountable) obstacles to be overcome because of the difficulties of first contacting an immigration lawyer; second the immigration lawyer might be unable to take on the case at such short notice; third the likely unavailability of crucial documents; fourth the problem of obtaining financial assistance and fifth the difficulties of the legal advisor being able to advise and obtain an injunction in the limited time available’. There were no legal safeguards such as deferral of removal where legal help had been sought but not yet found, or where judicial review was threatened but proceedings had not yet been brought.
Right to work upheld
The second case involved the right to work of refused asylum seekers who have put in fresh claims. ZO, a Somali woman, and MM, a Burmese man, had arrived in 2003 and 2004 respectively, and each had sought and been refused asylum. In early 2005, each of them had made fresh claims – in ZO’s case, because the Asylum and Immigration Tribunal later held that Somali women in her position were entitled to international protection. In each case, their fresh claim had not received a response five years later. In 2007, both asked for permission to work while awaiting the outcome of their claim. Both were refused. The Supreme Court held, in July 2010, that that refusal was unlawful.
The case turned on the words of the EU Reception Directive, which was adopted by the European Council in January 2003 as a measure to ensure minimum standards for the reception of asylum seekers which would normally be enough to ensure them a dignified standard of living and comparable living conditions in all Member States. The Directive states that if an asylum claim has not been dealt with after a year, the claimant should be granted access to the labour market. The Home Office argued that the requirement only applied to those making their first asylum claim, not refused asylum seekers making fresh claims. The Supreme Court rejected the argument, holding that the language of the Reception Directive, mirroring that of the companion directives on procedures and criteria for granting protection to asylum seekers, was completely clear and the provisions regarding the right to work obviously applied to repeat claimants – although there were provisions to enable national authorities to curtail rights in cases of abuse.
The decision provides hope to the many thousands of asylum claimants who have been forced into conditions of destitution, misery and depression by the lack of income and enforced inactivity brought about by the ban on working during the scandalously long periods of waiting for their claims to be acknowledged and processed.
The third case saw the Court of Appeal accept the Home Office argument that those facing deportation on grounds of national security are not entitled to a fair trial of the allegations of support for terrorism on which the proposed deportation is based. Secret evidence has been at the heart of the procedures of the Special Immigration Appeals Commission (SIAC) since its foundation in 1997. It is written in to SIAC’s rules, which allow the Secretary of State to withhold details of allegations and supporting evidence from appellants and their lawyers where disclosure would harm national security. The challenge to these rules followed the Supreme Court’s 2009 ruling that those facing allegations of support for terrorism in the context of control orders (ie, British citizens and foreign nationals who cannot be deported) must be told the gist of the case against them to comply with fair trial requirements in the Human Rights Convention.
The Court of Appeal’s ruling creates an enormous disparity in the way foreign nationals who are facing deportation are treated, compared with British and non-deportable foreign nationals facing identical allegations. While the latter group are entitled to know what it is they are being accused of so that they can mount an effective defence, the former group must continue to fight the allegations blindfolded – a situation which the courts accept is unjust.
In the same judgment, the Court of Appeal also confirmed that different rules apply to material which appellants want to withhold from the Secretary of State while presenting it to SIAC. Algerian detainees who claimed that they would face torture on return wanted to present supporting evidence emanating from confidential sources in Algeria, but would only do so under an absolute guarantee of confidentiality, that the material would not get back to the Algerian authorities, who could order reprisals against the informants. They asked SIAC to hear the evidence secretly, without disclosing it to the Secretary of State. SIAC refused, and said that once the appellants presented the material, it was up to the Secretary of State to decide whether to inform the Algerian authorities. The Court of Appeal upheld this stance. Its judgment made it clear that protecting the rights of those facing deportation on national security grounds, and upholding centuries-old standards of fairness, were low on its list of priorities, beneath parliamentary sovereignty and the diplomatic interests of the state. In its appeal to reasons of state, its judgment is reminiscent of eighteenth-century monarchy at its absolutist worst, and eight appellants now face deportation to torturing states, under cover of discredited ‘diplomatic assurances’, on an evidential basis largely unknown to them. An appeal to the Supreme Court is planned.
View and download a copy of the Medical Justice, R (on the application of) v Secretary of State for the Home Department (Rev 1)  EWHC 1925 (Admin) (26 July 2010) judgment
Download a copy of the R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant)  UKSC 36 (pdf file, 74kb)
Download the UKBA Guidance for employers on preventing illegal working: Asylum seekers and refugees (pdf file, 312kb)
View and download a copy of the W (Algeria) & Ors v SSHD  EWCA Civ 898 judgment
Read a Cageprisoners article: ‘UK judges endorse double standards on terror deportations’