As new immigration laws come into force, human rights and immigration barrister, Frances Webber, gives her view on recent developments.
Within days of the 2002 Nationality, Immigration and Asylum Act coming into force on 7 November, and even before it was published, the first Czech and Slovak Roma were being bundled out of the country under its provisions. The first week’s crop included a woman who had been raped by police, and a husband and wife who were being sent to different countries. (And we only know about them because lawyers were able to stop their removal by seeking judicial review.) The government has not only re-introduced the infamous ‘white list’ of the Tories’ 1996 Asylum and Immigration Act, but has gone further than the Tories by removing, rather than merely curtailing, in-country rights of appeal by asylum seekers from countries on the list unless they can rebut the ‘presumption of safety’. They argue that the ten ‘accession states’, the countries of central and eastern Europe accepted for membership of the EU in 2003, are safe and democratic and so no-one coming from them is expected to be a genuine refugee. Tell that to the Roma, the most despised and persecuted group in Europe.
Appeals become meaningless
Ironically, it was the Tories who introduced in-country rights of appeal for asylum seekers, in 1993, in response to a threatened condemnation from the European Court of Human Rights which never materialised. Now, not only has Labour taken those rights away from central and eastern European asylum seekers, but, through procedural rule changes, it has made appeals by asylum seekers from many other countries virtually meaningless, by creating a super-fast appeals track allowing appeals to be heard within days of refusal. This gives asylum seekers absolutely no chance to get medical or other evidence in support of their claims, and condemns thousands to removal to countries where risk to life, liberty and bodily integrity are real and immediate.
Resistance to the Act in and outside parliament focused on the segregation provisions – the plan to house destitute asylum seekers in large 750-bed camps miles away from anywhere, with their own on-site educational and health facilities, so as to prevent asylum seekers’ children from integrating in local schools, thus making their removal difficult. The last-minute horse-trading to prevent the Bill’s falling on the last day of the 2001/02 parliamentary session resulted in only very minor concessions. But the government’s profound authoritarianism comes through in many other provisions.
Gathering more information
The Act contains yet more policing powers for immigration officers and information gathering by the Home Office. Bio-data such as iris imprints may be required in any applications, and a databank of such bio-data can be set up to check and prevent forgeries. The bodies from which immigration officers will be able to demand information about immigrants and asylum seekers include local authorities, Inland Revenue, banks and employers. Thus the government will be able to keep tabs on all immigrants and asylum seekers who are not detained, checking not only whether they are committing offences but also where they are living, whether and where they are working, and what assets they have.
New conditions on non-citizens
To naturalise as a British citizen, candidates must now possess not only a clean criminal record and adequate knowledge of the language, but also an understanding of ‘democratic’ values assumed to be uniquely British, and British citizens can have their citizenship withdrawn if they do anything the Home Office considers seriously prejudicial to British interests. As for asylum seekers, those in the camps who stay out all night could have their asylum claims withdrawn, while those not living in the camps must report periodically to ‘reporting centres’. Asylum seekers needing support can no longer opt for subsistence support enabling them to live with friends, but must take a package of subsistence and accommodation which will remove them from their communities. The price of community support will thus be destitution. And asylum seekers and refugees who commit offences could have their claims or their status withdrawn.
Although the new camps for destitute asylum seekers are not detention centres, they may as well be, isolated as they will be from communities, and magnets for racists’ attention. But many more asylum seekers, including families with children, will be detained as the government’s immigration detention estate continues its four-fold expansion.
No right to work
The measures of segregation, surveillance, detention and removal show that Labour’s asylum policy continues and intensifies the trends of punishment and deterrence begun with dispersal in the 1999 Act. It is driven not by principle or human rights but by the politics of toughness. Principles of humanitarian compassion, common sense and economy would allow asylum seekers to make use of their education and skills to work while they wait for a decision on their claim. This reduces their dependency, enhances their dignity, provides them with a bit of cash to supplement or even replace the sub-subsistence benefit they get (70 percent of income support), and brings into the economy much-needed skills, often in nursing, construction or engineering, all defined as shortage occupations. None of this is controversial. But the government has not only repeatedly refused to extend asylum seekers’ rights to work, but has recently removed altogether the right to work of asylum seekers who had been waiting over six months for a decision on their claim. Such is its determination to ensure the total exclusion of asylum seekers from society – even though around half will eventually prove their entitlement to stay.
Denying benefits
Another of the Act’s provisions which is guaranteed to lead to more social exclusion is the denial of even the miserable provisions of asylum support to single asylum seekers who don’t claim as soon as ‘practicable’ after they arrive in the UK. This is a grotesque echo of the Tories’ removal of benefits from asylum seekers in 1996, on which the Labour party took a principled stand in opposition, and an index of how far Labour has moved to the right since then.
Removal at any cost
The government’s determination to remove asylum seekers at all costs, even at the cost of serious psychiatric damage and possible suicide, has been shown up in a number of recent cases in the High Court. The Ahmadis won their judicial review of their removal to Germany – a brutal operation involving the destruction of the door of the mosque where the family were staying, the separation of children from parents as the Ahmadi parents were detained, and the subsequent detention of the children when they went to visit their parents in detention. The operation was also, it turned out, unlawful. The Home Office seriously misled the family by reassuring them that they would be given a secure status in Germany when no such decision had been taken in Germany and no such status was granted to them there. This has serious repercussions for Mrs Ahmadi in particular, in the light of her extremely vulnerable psychiatric condition and the lack of treatment for those without status in Germany.
Independent judiciary?
Although he upheld the Ahmadis’ complaint, the judge refused to order their return to the UK, ruling (at the urging of the Home Office) that video links would enable them to exercise their right of appeal in Germany. The appeal started in November, then stopped owing to Mrs Ahmadi’s fragile health, and is due to resume shortly. It is set to take a total of ten to twelve days – a record for an immigration appeal – because the Home Office believes that losing the case will create an important precedent for those not wanting to be returned to a European country to have their claims dealt with under the Dublin Convention, and is pulling out all the stops to win the case. Another High Court judge ruled in late November that the removal of a psychiatrically disturbed asylum claimant to Germany would contravene fundamental human rights. But in a third case, involving the removal of a suicidal Ivorian woman to France, the Home Office barrister argued that ‘to create a de facto rule that anyone attempting suicide will not be removed would be to encourage asylum seekers to make suicide attempts’. This argument won the day, the judge ruling that the woman could be removed notwithstanding the risk of self-harm.
Detention deemed lawful
As the provisions for automatic bail hearings, passed in 1999 but never implemented, were repealed, the government’s plans to detain many more asylum claimants were endorsed by the House of Lords, which in October upheld the right to detain any asylum seeker in Oakington and similar short-term detention centres for up to seven days to decide their claims. This was the end of the challenge to Oakington detention which saw temporary success in 2001 when a High Court judge ruled that arbitrary detention of asylum seekers was a breach of the European Human Rights Convention.
And as the country’s most senior judges in the House of Lords extinguished the last hopes of those who believed that Australian-style detention can’t happen here, another band of judges, hardly less senior, in the Court of Appeal held that there was nothing unlawful about the provisions of the Anti-Terrorism, Crime and Security Act 2001 allowing for the indefinite detention of foreigners suspected of being ‘international terrorists’. The judges endorsed Blunkett’s decision that a ‘public emergency threatening the life of the nation’ exists so as to justify derogating from fundamental human rights guarantees which prohibit such open-ended detention. They endorsed too his blatant discrimination against foreigners, on the incomprehensible basis that foreigners don’t have the right to live here, so that makes it all right to lock them up without trial or charge. Of course, their detention is subject to review by the Special Immigration Appeals Commission, so it is not purely by executive diktat. But the usefulness of that independent scrutiny of national security detainees’ detention has been severely undermined by the judges’ extremely deferential, not to say obsequious attitude to ministerial decisions in the national security field.
The judges’ performance in these cases is exactly the opposite of what a robust democracy needs. Effectively they have surrendered their independence, by saying that the ministers know so much more than they do about the issues that they should not presume to overrule them on what constitutes a threat to national security.