Refugee groups and lawyers believe that the new Asylum Bill will result in profound changes in the legal and constitutional landscape of Britain as well as stripping asylum seekers of further legal and social rights.
The Asylum and Immigration (Treatment of Claimants, etc.) Bill is the fifth asylum Bill in eleven years and Labour’s third since 1997. It was published at the end of November and is expected to be law within six months.
Unlike the last two Bills, this one is shorter, with just 26 clauses and two schedules. The Bill creates further criminal offences for asylum seekers who arrive with no documents or who refuse to co-operate with removal by applying for new ones from their embassy; introduces electronic tagging for asylum seekers; gives immigration officers more arrest, search and seizure powers; withdraws all asylum support from families who don’t leave within a fortnight of their asylum appeal being dismissed; extends the definition of ‘safe countries’ and removes a number of layers of appeal rights.
Criminalising asylum seekers
Clause 2 of the Bill makes it a criminal offence for non-European Economic Area nationals to be unable, without reasonable excuse, to show a valid passport or other travel document to an immigration officer on arrival, for him- or herself or for dependent children. Being instructed by an agent to destroy or dispose of travel documents is not a ‘reasonable excuse’. The penalty is up to two years’ imprisonment and an unlimited fine (six months in the magistrates’ court).
Very few asylum seekers have their own passports – indeed, possession of one’s own passport is usually taken by immigration officers to mean that the holder is not a genuine refugee, since the authorities of a persecuting country are unlikely to issue their opponents with the means of escape. Agents bringing asylum seekers to the UK generally provide them with false travel documents which they need to board the aircraft, ferry or train bringing them here, and tell their charges to destroy or dispose of them (to cover the agents’ tracks). Article 31 of the Refugee Convention, recognising the difficulties genuine refugees are likely to face in reaching safe countries, prohibits the prosecution of asylum seekers who enter the country illegally, provided they claim asylum promptly and ‘show good cause’ for their illegal entry. In 1999, the High Court denounced the immigration, police and prosecuting authorities for their failure to implement it. In direct contravention of Article 31, hundreds of asylum seekers who had entered the UK on false documents were being sentenced to prison terms of up to six or nine months. In response to the High Court criticism, the government enacted legislation which provided a defence to the charge of possession of false documents. Lawyers have expressed the view that clause 2 appears to contravene Article 31 of the Refugee Convention.
Clause 14 of the Bill also makes it a criminal offence to fail without reasonable excuse to comply with a broad range of demands which the Secretary of State might make to obtain documentation for someone’s removal, including provision of fingerprints or other biometric data, making an application to the embassy of the person’s country, attending interviews and asking questions and filling in forms ‘accurately and completely’. It is hard to think of any other field where failing to tick a box on a form, or failing to provide fingerprints, might result in imprisonment, but the maximum sentence for this offence is two years imprisonment.
Immigration officers are to have more powers of arrest without warrant, search and seizure on reasonable suspicion of offences including fraud, conspiracy, bigamy, perjury, obtaining by deception, theft, handling stolen goods and giving false information to a registrar. Thus if, in the course of an immigration interview the immigration officer forms a suspicion that any of the offences has been committed, he or she may arrest the interviewee, subject him or her to a search, enter his or her home and search it, and seize documents and other relevant items there.
Withdrawal of support
The provisions which have attracted the most media and public attention are those extending to families the rules which already deprive failed childless asylum seekers of all support if they don’t leave the country. The inhumanity of forcing parents to give up their children has been underlined by, among others, the new Tory leader Michael Howard, for whom, however, the answer is speedier deportation of whole families. The difficulty is that – as the Home Office itself recognised – there are many countries of origin which are simply not safe enough to send failed asylum seekers back to. Some countries, like Zimbabwe, Sierra Leone and Iraq, are the subject of Home Office policies. Nationals of other countries simply find themselves in a limbo, unable to work or obtain support, yet never told to report for removal. It is feared that the denial of support will result in whole families going ‘underground’ to prevent children being taken into care, leading to a swelling underclass of people working as sweated labour in inhuman conditions for virtually nothing, unable to obtain health care or send their children to school on pain of discovery and separation.
Legal remedies removed
The clause which is causing most concern to lawyers, however, is none of these, but is a sub-clause in the provisions relating to appeals. The government had indicated that the two-tier appeal system of adjudicator and Tribunal was to be replaced by a one-tier appeal. What it had not indicated before the Bill’s publication was that rights of appeal and review from the Tribunal to the High Court, the Court of Appeal and the House of Lords were also to be abolished. The ‘ouster’ clause proclaims that ‘no court may entertain proceedings for questioning’ the Tribunal’s decisions, which are to be final.
In no other field apart from immigration is recourse to the higher courts prevented, in apparent breach of article 13 of the European Convention on Human Rights, which enjoins Member States to provide effective remedies against potential breaches of Convention rights. The Court of Appeal has frequently spoken about the high constitutional importance of access to the courts, and senior judges are likely to oppose the attempt to deprive them of their supervisory role, particularly in asylum cases where the consequence of getting it wrong can be fatal, and the Home Office and the immigration appeal Tribunal have frequently got it wrong in the past.
But the deprivation of access to the higher courts has to be seen in the context of the proposals to remove legal aid from asylum claimants and to reduce it in asylum and immigration appeals. On the one hand, asylum seekers are told that they will only be given one chance to persuade a legal body of the merits of their claim. On the other hand, they are to be deprived of the legal help required to do it. Add in the fact that most asylum seekers don’t speak English and are unfamiliar with the procedure; that many are suffering from physical and psychological effects of their experiences, that many are dispersed to parts of the country where legal expertise is sparse and where they face hostility and marginalisation, while others receive no support at all and are supposed to prepare and present their claims while homeless and with no means of support, and the impact of this measure on those whom it will affect begins to come into focus.
It will be hard to monitor the effect of the denial of access to the higher courts, since those who formerly benefited from the protection of those courts will have become invisible – whether by removal from the country or by disappearing into its grim underworld. But it appears to enshrine into law the concept that those who are not citizens of this country are entitled only to a curtailed and second-class justice system, thus undermining the universality of the human rights protection which was hitherto recognised as the birthright of every human being.