News

When the Asylum and Immigration (Treatment of Claimants etc) Bill was published last November the news was filled with reports of its controversial plans to take into care the children of failed asylum seekers who refused to return to their countries of origin. Since then it has become apparent that there are much wider reaching proposals in the bill that could threaten every asylum seeker.

Last month a report from the parliamentary joint committee on human rights added weight to the barrage of criticism facing one of these proposals - to create a single tier of appeal for asylum seekers.¹ Under the current system anyone who has been refused asylum and had their first appeal rejected can seek permission to go to the Immigration Appeal Tribunal on the grounds that the adjudicator has made an error in law. If this fails, they may be able to go to the Court of Appeal and, as a last resort, take their case to the House of Lords. In some circumstances, where there is no right of appeal, asylum seekers can seek a judicial review in the High Court.

But clause 11 of the bill proposes that asylum seekers who have had their claim rejected will only be able to take their appeal to a new Asylum and Immigration Tribunal. If they are unsuccessful they will have no right to further appeal but will only be able to ask the tribunal to review its own decision. They will have no access to the higher courts. Only the president of the tribunal would have the discretion to seek an opinion from the Court of Appeal.

Further proposals would also prevent legal challenges being made to Home Office actions relating to subsequent deportation. These actions could include detention and the timing and nature of removal. There is no other tribunal in the UK legal system that cannot have its decisions challenged.

Specifically, the removal of judicial review will mean that a Home Office or tribunal decision that might be outside the law cannot be challenged and this, warns the Immigration Law Practitioners' Association (ILPA), "breaches the fundamental constitutional principle of the rule of law".

The proposal has outraged many. In its report, the joint committee on human rights says the removal of judicial review from tribunal decisions could lead to many laws being broken: "There is a real danger that this would violate the rule of law in breach of international law, the Human Rights Act 1998 and the fundamental principles of our common law."

The ILPA states that clause 11 of the bill is "undemocratic and sets a dangerous precedent of restricting the fundamental legal rights of an unpopular minority".

Others agree that asylum seekers are being singled out unfairly. Refugee Action argues that even people convicted of the most serious crimes have a right to appeal to the courts. "If the government was doing this to any other group in society then I don't think they could get away with it," says Dave Garratt, deputy director of asylum advice at the charity.

He says government support for asylum seekers has declined over the past 10 years but that these proposals are the harshest yet. "Given that this is a situation where you may be sending someone back to a country where they may face death there should be as many safeguards as possible."

Although the government argues that the new tribunal will provide adequate legal safeguards because of its ability to supervise itself, the ILPA disputes this. It says the opportunity to apply to the tribunal itself for a review of its own decision goes against the basic principle of natural justice that "no one should be a judge in their own cause". It also sees the tribunal's ability to seek an opinion from the Court of Appeal as "clearly inadequate" as it prevents the courts from intervening in cases where the tribunal is "blind to their own error".

Justifying the removal of appeal to the higher courts last month, David Lammy, a minister in the Department for Constitutional Affairs, told MPs that the first appeal outcome is changed by further appeal in only a small percentage of asylum cases. He added that the proposals would speed up the appeals process as too many asylum seekers were trying to "play the system" in order to stay in the UK as long as possible.

However, Labour MP Neil Gerrard, chairperson of the all-party parliamentary group on refugees, says although there will be people who try to drag out their claims, the problem is minimal. Although only a relatively small number of cases are overturned, it is the significance of cases rather than how many that is important, he says. "The cases that get to judicial review and go to the Court of Appeal are often highly significant and set case law."

The ILPA also believes the government overstates the level of unfounded claims. It cites Refugee Council figures suggesting that in 2001 51 per cent of asylum seekers were successful at various appeal stages or the Home Office withdrew its refusal.

Others question whether the proposals will speed up the process. Labour MP Hilton Dawson is "intensely sceptical" about this because tribunals will be aware that they are the only course of appeal and therefore will take longer deliberating.

A spokesperson for the ILPA thinks some cases could take longer because lawyers will take them to the European Court of Human Rights in an attempt to out-manoeuvre the restrictions in the UK. And more asylum seekers could go underground, afraid that the wrong decision will be made by the tribunal.

It is also uncertain whether those asylum seekers rejected by the court more quickly will be deported equally speedily, or simply left hanging around. Although deportation rates have increased considerably, there is no doubting that the system would have to improve even further to ensure failed applicants were sent home promptly.


Many ask how the government can propose cutting opportunities to appeal when the Home Office's initial decision-making on asylum applications is so poor. A recent report from Amnesty International, based on Home Office figures, revealed that 13,875 or one in five decisions were overturned on appeal in 2002 and 16,070 in 2003 -Êa 16 per cent increase.²

In a report on the bill last December the House of Commons home affairs select committee said that it supports the simplification of the appeals process in principle, but that it should not take place until initial decision-making has improved. However, for many, even if decision-making at every stage improved, the proposals would remain fundamentally wrong.

Clause 2 is another part of the bill attracting criticism. Currently entering its final stages in the Commons, it would make it a criminal offence for asylum seekers, including unaccompanied children, to arrive in the UK without a reason acceptable to the Home Office for not having a passport. The government says the proposals are intended to deter traffickers from telling asylum seekers to deliberately destroy their travel documents on the way.

A group of organisations, consisting of Amnesty International, the Refugee Council and the Refugee Legal Centre, argues that asylum seekers are "powerless" to refuse to obey the instructions of ruthless traffickers and smugglers and therefore should not be punished. The coalition adds that these traffickers often demand that documents are destroyed or returned as a condition of travel.

The ILPA is also critical of the clause. "The proposals would punish refugees for behaving like refugees. It is accepted that they need to travel on fake documents to get to the UK," says a spokesperson. He explains that often this is because people cannot obtain travel documents from the authorities in the countries they are fleeing.

The organisations conclude that the clause pays insufficient regard to the protection provided by article 13 of the UN Refugee Convention. This states that asylum seekers should not be penalised for their illegal entry as long as they present themselves to the authorities promptly.

It remains uncertain as to whether both clauses will become law but, in the case of clause 11, at least, many feel the government is defending the indefensible. "It could be strongly argued that the ousting of judicial review of tribunal decisions contemplated by clause 11 has not been justified by any argument advanced by the government," concludes the parliamentary joint committee on human rights' report.

Last week, the Commons committee on constitutional affairs added its condemnation of the government's proposals which appear even more over-zealous in the light of dramatic falls in the number of asylum seekers coming to the UK and much of Europe. With such a background and further bitter criticism expected in the House of Lords some form of climbdown might just be on the cards. CC

¹ Parliamentary joint committee on human rights, Asylum and Immigration (Treatment of Claimants, etc.), Fifth report of Session 2003-4, from www.publications.parliament.uk

² Get it Right: How Home Office Decision Making Fails Refugees from www.amnesty.org.uk

Winning on appeal

• A is an Iranian woman who feared persecution due to her activities for a Kurdish political party. As a child she was imprisoned in Iran with her mother who suffered injuries which are still visible today. Subsequently, her mother has been recognised as a refugee. An adjudicator did not find A to be credible and dismissed her appeal. The tribunal refused to consider a further appeal, finding that the adjudicator's decision was fully supported by the evidence and that there had been no arguable legal error. When this was challenged on judicial review the High Court accepted that there was an arguable case and the matter was returned to the tribunal. After considering the matter, it suggested that the adjudicator had been wrong in concluding that the woman was not credible. As a result the home secretary granted her leave to remain.   
• B is an Albanian whose wife was raped. Both he and his wife were diagnosed as suffering from post-traumatic stress disorder. On appeal the adjudicator gave no weight to two expert psychiatric reports because he did not believe the accounts upon which they were based. This approach was rejected by the High Court as "putting the cart before the horse". This subsequently established case law on the point.