Crunch time for asylum

At the beginning of the year, thousands of asylum seekers – many
here legally – faced destitution as a consequence of section 55 of
the Nationality, Immigration and Asylum Act 2002. This denies basic
state support to those who have not claimed asylum “as soon as
reasonably practicable” after arriving in the UK. This is just one
element of a government policy designed to halve the country’s
asylum intake. However, it has come up against the judiciary, which
has called the policy inhumane. So is it crunch time for the asylum
system?

Section 55 is not the only provision of the new act to receive
judicial scrutiny. There is to be a legal challenge this week to
section 54, which removes the right to state support from European
Economic Area (EEA) nationals and their dependants, failed asylum
seekers and people who have overstayed their visas. Section 55 is
aimed at deterring the influx of illegal immigrants, and section 54
aims to put an end to benefit shopping when they are here.

The judicial review concerns a failed asylum seeker, who is seeking
residence in the UK on the basis of her marriage to an EEA
national. She applied for welfare benefits to Lambeth Council but
was refused because of her immigration status.

According to Tauhid Pasha, the legal, policy and information
director at the Joint Council for the Welfare of Immigrants who is
bringing the challenge, the woman and her son were left destitute.

Pasha recently acted for an older Bangladeshi man, an illegal
immigrant in this country for six years, who was dying from cancer
in hospital. The hospital said it could not offer any more
palliative care or chemotherapy. His maximum life expectancy was
six months but Camden social services department in north London
refused to assist him. When Pasha visited the man he was staying in
a rundown hotel and was unable to feed himself or even get to the
toilet. The JCWI threatened legal action against Camden, citing
article 3 of the European Convention on Human Rights which protects
individuals against inhumane and degrading treatment. The council
retreated and put together a care package.

Last month Mr Justice Collins ruled in the High Court that section
55 of the legislation fell foul of article 3. A 22-year-old man
from Angola, named D in court, who earlier in the year had arrived
at Heathrow Airport seeking asylum, was one of six test cases that
the court examined. According to the judge, his claim “illustrated
the importance of sensitivity in considering a claimant who may
have suffered serious trauma which may affect his ability to
explain himself”.

D found his father, a political activist opposed to the Angolan
government, shot dead and his mother and sister stripped and raped
by soldiers after they raided his family home last December.
Traumatised, D spent his second night in Britain sleeping rough on
a freezing pavement in Croydon, London, outside the Home Office
immigration and naturalisation department. He was denied support
after his immigration officer said he had not claimed asylum “as
soon as reasonably practicable”. It was his misfortune that the act
came into force on 8 January – the day he arrived.

The ruling left the government’s asylum policy in tatters and home
secretary David Blunkett seething with frustration. “I don’t want
any mixed messages going out, so I am making absolutely clear that
we don’t accept what Mr Justice Collins has said,” he said on BBC
Radio 4’s The World at One. “We will seek to overturn it.
We will continue operating a policy that we think is perfectly
reasonable and fair.”

In an appeal earlier this month, attorney general Lord Goldsmith
told the Appeal Court that Mr Justice Collins had made “some very
serious errors” in his ruling that would result in the new
legislation being “unworkable”. He argued that last year 110,000
people had claimed asylum, the equivalent of a new small city every
year, and more than 65 per cent had made their claims after
arriving in Britain. Tough new legislation was necessary to stop
the UK being a “magnet” for such claims.

Refugee support groups have seen the high price of the government’s
new policy. About 250 injunctions have been taken out on behalf of
asylum seekers applying for state support pending the outcome of
this appeal. According to Margaret Lally, acting chief executive of
the Refugee Council, when the legislation was being passed
ministers did not say that new arrivals would be left to “sleep
rough, reliant on food parcels and blankets to help them through
the winter”. Yet this is precisely what is happening, she
says.

Some have made their way to the Hammersmith and Fulham Law Centre
in London, including two Iranian men who had spent two days in the
back of a lorry. According to solicitor Sue Willman, they thought
they were going to die. Conditions were so cramped that the women
in a compartment overhead could not move and had to urinate on the
men below. The men arrived at Dover to find that there was no
customs officer for them to report to so they boarded a train to
London. The men were later advised that the way to progress their
application for asylum was “to dial 999”. They did, were arrested
and spent a night in the station. They were then told to go to the
Home Office immigration and naturalisation department in Croydon
and for the second night they slept rough.

There are reports of people making their asylum claims within 24
hours of arrival and still being turned away with no right to
appeal. Homelessness charity Shelter has obtained injunctions for
45 clients now, and reports that many ended up walking the 10 miles
between Croydon and their West End office because they could not
afford the train fare.

The section 55 challenge has, at the government’s own insistence,
escalated into a stand-off between parliament and the judiciary. As
Blunkett bluntly put it, he was “fed up with having to deal with a
situation where parliament debates issues and the judges overturn
them”. A couple of weeks earlier Tony Blair appeared to consider
derogating or even pulling out altogether from the human rights
convention rather than temper his own asylum policies.

Mr Justice Collins’s judgement appears to have stiffened
ministerial resolve to take on the judges. Certainly a 10 Downing
Street source told one tabloid that Blair was considering
legislation to “enshrine the sanctity of acts of parliament and
limit the power of the judiciary to alter its meaning by developing
case law”.

So what about the ruling? According to Liberal Democrat peer and
constitutional lawyer Lord Lester QC, it was neither wrong in law
nor was it a surprise to anyone who had been following the
Nationality, Immigration and Asylum Bill through parliament. He was
a member of the parliamentary joint committee on human rights that
had reviewed the bill.

“We said at the time that having such a wide power reserved to the
home secretary gave rise to serious risks and so the writing was
always on the wall,” he says.

In particular, the committee urged that the regulations should take
into account the trauma of people (like D) in assessing whether it
was reasonable for a claim to have been made at the port of entry.
The Home Office had argued that it only required the home secretary
to consider the claim and not the claimant. But Lester says: “The
facts of those six test cases prove that the present government’s
policy is unfair and completely lacks humanity.”