A leading immigration barrister spoke at a recent meeting of the Law Centres’ Federation on the likely impact of the Asylum and Immigration (Treatment of Claimants, etc) Bill.
“The steady stream of Asylum Acts continues: 1993, 1996, 1999, 2002 and soon, 2004. The Asylum Bill, likely to become law within weeks, is set to drive asylum seekers further to the margins of society.
There is a lot in the Asylum and Immigration (Treatment of Claimants, etc.) Bill. It creates new offences for those arriving with no documents or refusing to co-operate with removal; introduces electronic tagging for asylum seekers; gives immigration officers more arrest, search and seizure powers; withdraws all asylum support from families who do not leave ‘voluntarily’ when their asylum appeal is dismissed; extends the definition of ‘safe countries’; and removes appeal rights.
Entering without documents
In 1993, I was involved in an asylum case at the House of Lords. The Home Office’s barrister tried to argue that arriving in the UK without a passport was illegal. Their Lordships laughed. They said, ‘so, if we fall off a yacht in the Channel and swim to shore without a passport, we are illegal immigrants?’ They ridiculed the suggestion. But, under clause 2 of the new Asylum Bill, not only would you be an illegal entrant, you would also be committing a criminal offence and could go to prison for two years, if you could not produce a passport when you were interviewed on or after arrival.
It is important to understand why asylum seekers arrive on false documents or destroy documents en route. You cannot claim asylum until you are outside your own country (the definition of a refugee is someone outside his or her own country and unable or unwilling to return). And you need a passport or travel document to get out of the country because airlines are fined £2,000 for each undocumented passenger they bring. But very few asylum seekers have their own passports. In fact, the Home Office has often treated possession of a properly issued passport as an indication that the holder is not a refugee, on the assumption that the authorities of persecuting countries frequently refuse to allow their opponents the means of escape.
So you are forced to turn to an agent to provide you with a false document to enable you to get on the aircraft. But often the agent wants the document back to re-use it, or wants you to dispose of it so that the authorities cannot learn the agent’s modus operandi. However, destruction or disposal of the passport on the instructions of an agent does not count as a defence against the new criminal offence proposed in the Bill. Organisations such as JUSTICE and the Law Society are therefore concerned that the clause contravenes Article 31 of the Refugee Convention, which bans the imposition of penalties on refugees entering the country of refuge illegally, provided they claim promptly and show good cause for their entry. The High Court accepted a few years ago that the routine arrest of falsely documented asylum seekers on arrival breached Article 31, and the Home Office had to pay compensation. Now it looks as if they are trying to do the same thing again.
Co-operating with removal
The second new criminal offence covers the other end of the asylum process. Under clause 21 of the Bill, you can be sent to prison for two years for refusing or failing to co-operate with arrangements for your own removal from the UK. In other words, in order that travel documents can be obtained from your embassy to enable your admission back to your home country, you will have to fill in a form accurately and completely, attend an interview at the embassy or submit to having your photo or fingerprints taken. This would be less worrying if Home Office decision-making was more accurate and there were fewer asylum seekers who were rejected despite having genuine cause to fear persecution in their home country. Unfortunately, the Home Office is far from infallible, as several reports have pointed out.
The danger of forcing asylum seekers to co-operate with their own removal is that genuine asylum seekers could then face repercussions if their embassies find out that they have claimed asylum in Britain. Some countries of persecution, such as Iran, Sudan and Libya, have been known to send assassins abroad to deal with opponents. Many asylum seekers are therefore fearful of reprisals if embassy officials of their country know they are in the UK. The reprisals could be against them or against their families back home. The Home Office argues that they do not tell embassies that those needing travel documents are failed asylum seekers. But they do not have to – embassy staff can guess. In some countries, simply applying for asylum is seen as virtually treasonable. Clause 21 creates very serious problems for some asylum seekers.
The Bill gives immigration officers significant new powers. Clause 9 allows officers to arrest immigrants in mid-interview, on suspicion of fraud, bigamy, theft, obtaining by deception, forgery or false statements. Not only can an arrest be made, officers can also conduct searches, enter homes, search them and seize documents and other evidence.
The powers of immigration officers have grown immensely since the 1999 Immigration and Asylum Act. Police officers had become reluctant to deal with immigration matters following the death of Joy Gardner in an attempted deportation in 1993 and the outcry that followed in Black communities. The 1999 Act gave immigration officers massive arrest and search powers to enable them to take over from the police’s role. They now have all the powers of police officers with few or none of the responsibilities: they are not under a statutory duty to comply with the Police and Criminal Evidence Act (which provides some checks on police power), nor are they obliged to provide access to lawyers.
Asylum seekers already have to give fingerprints and will soon have to give other biometrics such as iris imprints. Under the Bill, asylum seekers who are not held in detention centres will have to comply with electronic tagging, voice recognition and global positioning technologies.
The measures described above have received little publicity even though their effects could be devastating. To date, campaigners have necessarily had to concentrate their protests on particular elements of the Bill. Attention has focused on clause 8, which proposes the withdrawal of support from asylum-seeking families who do not leave voluntarily once their claims are refused and their appeals rejected. This is already the position for single people and the 2002 Asylum Act extended it to asylum-seeking families who do not report at the airport for removal when they are told to. Now, the new Bill proposes simply to deprive families of all support if they do not leave before being told to.
At present, the Home Office does not seek the compulsory removal of all families illegally present in the UK because of the expense and practical difficulties involved in doing so. People are refused, their appeals are dismissed, and then, very often, nothing happens at all, for years. Sometimes, this is because of policy: the Home Office has non-removal policies on certain countries, such as, for the moment, Iraq. Occasionally, removals do not take place simply because they do not get round to it.
The new proposal reflects the fact that, from the Home Office’s point of view, to induce people to go is cheaper than enforcement. For those affected by this measure, all NASS support will end. Local authorities will be unable legally to support these families. Children will be looked after or accommodated but not their parents. Presumably those from ‘non-removal countries’ will be able to apply for ‘hard cases’ support, which is absolutely basic hostel accommodation, as single people do at present. But, as well as the misery inflicted on asylum-seeking families, another result of this clause will be to weaken the integrity of ‘voluntary return programmes’. According to London’s mayor, Ken Livingstone, ‘these will be likely to become surrogate forms of coercive removal’.
The fear is that the clause will force families underground at the end of the asylum process, swelling the underclass of people working as sweated labour, like the cockle pickers, in inhuman conditions.
Stripping out legal rights
Another aspect of the Bill which has attracted widespread criticism, is the proposal to reduce appeal rights. The so-called ‘ouster clause’, which proposed the removal of any legal challenge to the Immigration Appeals Tribunal in higher courts, would have created an enclave in Britain’s legal system where the basic right to judicial review had been removed. Condemnation of the proposal by senior judges has led to the ‘ouster’ being dropped and although one level of appeal has been removed, the right of appeal to the Court of Appeal has been preserved.
However, under the new system of allocating legal aid, effective from 1 April 2004, a 5-hour financial threshold has been imposed on solicitors working on the initial decision-making process. There is also now the requirement that prior authority for all appeal work must be obtained. And asylum and immigration claimants are given a unique client number which means that an immigrant or asylum seeker who has been represented incompetently by one firm will find it very hard to get help from another.
There is also no payment for solicitors’ attendance at interviews unless the client is very vulnerable. An immigrant or asylum seeker is thus worse off than even a criminal defendant who at least has the right to a lawyer at the interview. Immigration officers, at their discretion, allow legal representatives to be present at interviews on condition that they do nothing to intervene in the interview. Ironically, the Legal Services Commission, which allocates legal aid, now claims that legal representatives are not needed at interviews as all they do is sit there and do nothing! The Home Office and the Department for Constitutional Affairs make no secret of their desire eventually to remove legal help altogether from asylum claimants until their claims are refused. Recent reports from the Home Affairs Committee, the House of Lords EU committee and the Constitutional Affairs Committee all severely criticise the quality of Home Office decisions on asylum – but removing legal help does not encourage better decisions.”