Halt! who goes there?

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.