British Refugee Council Briefing on UK Aslylum Law

Tamils - a Trans State Nation..

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
- Tamil Poem in Purananuru, circa 500 B.C

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The Government has now published its Immigration & Asylum White Paper (this is a set of proposals Government wants to consult upon), called 'Fairer, Faster and Firmer: A Modern Approach to and Asylum.' The White Paper is the result of a year-long review process, part of the Government's Comprehensive Spending Review. The consultation period on the White Paper lasts until 30th October. As a result of the White Paper, new legislation on immigration and asylum matters is expected early in the next Parliamentary session in 1998/1999 - most likely in January or February 1999.

The Immigration & Asylum White Paper covers the whole process of seeking asylum in the UK. It contains 44 separate proposals from the Government to try and reform how refugees and other migrants are treated here. While some of the proposals are positive, the Refugee Council is concerned that in many of the areas there is a real risk that the Government's proposals will make the situation even more chaotic, cumbersome and costly.

This briefing aims to take you through the Government's proposals with regard to asylum seekers and refugees, explain what they mean, what their implications seem to be, and what the Refugee Council thinks of them. It also looks at the timetable for consultation leading up to a new Asylum and Immigration Bill next year and provides you with some key contacts for further information. The Refugee Council will be issuing regular updates and campaign news over the next few months to keep you informed on key developments.

The system of asylum in the UK is in chaos. The Government Minister in charge, Mike O'Brien MP, admitted that it is "a shambles." Presently, it is a system where everybody loses - resources are wasted or used unwisely, it can take years to get a result, and - most of all - it causes a lot of human suffering.

When asylum seekers come to the UK fleeing persecution at home and ask for refugee status, they face a difficult time. First of all, they can wait many years for a decision, and when they finally get a decision it is likely to be a refusal. Often these refusal decisions are of poor quality and are challenged through an appeal. Then the appeals can take years - delayed by poor organisation, lack of resources, and, as a recent Refugee Legal Centre study shows, most frequently by Home Office or court adjournments.

Currently, there are an astounding 52,000+ asylum seekers waiting for a first decision on their case - plus over 21,000 waiting for appeal decisions. Shockingly, around 10,000 people have been waiting since 1993 to get an answer from the Home Office - and while they wait, they are in limbo, unable to really restart their lives.

Asylum seekers face so many other difficulties and hurdles - the use of detention is arbitrary (without any time limit, often in prison); many are forced into poverty by being denied access to welfare benefits or decent housing; they face many barriers to getting employment and making use of their skills. Since February 1996, most asylum seekers have been forced by destitution into asking for basic shelter and food from local councils. This system is very inefficient, wastes money, causes many problems - for councils and for the asylum seekers themselves - and can be damaging to local race relations.

Against this backdrop, the new Government announced in Summer 1997 that it was undertaking a full review of the asylum process. The Home Secretary, Jack Straw MP, said the Government wanted a 'firm, fair, fast' system. This new White Paper, together with consultation documents on appeals and immigration advice, will lead next year to the third major reform of UK immigration and asylum law in six years.

The Government's White Paper on Immigration & Asylum:
what it means and the Refugee Council's response

The Immigration & Asylum White Paper looks at the whole process - from when people are trying to flee their country and get to the UK, through support for asylum seekers while they wait for a decision and use of detention, to the appeals process and the removal of failed asylum seekers from the UK. The Government's stated aims for the White Paper are to fulfil its obligations to 'genuine refugees' and produce a system which is 'fair, firm and fast.'

Below, this briefing looks at the proposals in the White Paper which affect asylum seekers and refugees, what they mean, and what the Refugee Council's response is to them. The briefing is organised so that the four main areas of the White Paper - the use of detention; supporting asylum seekers while they await a decision; the decision-making procedure itself; and dealing with the backlog of asylum decisions - are dealt with first, followed by other issues contained in the White Paper and the timetable for consultation and new legislation.

The detention of asylum seekers is a national scandal. Any asylum seeker can be detained merely on the suspicion of an Immigration Officer that they will fail to keep to the terms of their admission to the UK. Currently, around 800 asylum seekers are detained in special centres or in prison. The vast majority are not charged with any criminal offence and do not understand why they are detained. No time limits are placed on their detention. When an immigration officer decides to detain an asylum seeker, there is no independent automatic check on that decision. Studies have shown that detention can have a devastating effect on the mental health of asylum seekers perhaps fleeing persecution and imprisonment in their own country. In 1997, 221 asylum seekers were detained who were later found to be refugees or given ELR by the Home Office.

The Government is proposing that the detention of asylum seekers is reformed so that:

· the current reasons for detention will remain - but Ministers have made clear that the use of detention is to be focused at the end of the asylum process, after refusal on appeal, where there will be a 'presumption of detention pending removal, following dismissal of appeal';

· all detained asylum seekers will have a hearing after seven days in detention, at which the possibility of bail will be looked at (this is called a bail review) - the Government has not yet decided whether this will be before an immigration adjudicator or a magistrate. There will be a subsequent review for anyone not granted bail at the first hearing;

· it retains the right to detain large groups of asylum seekers where there appears to be 'a systematic attempt to breach the immigration control' (this appears to refer to large-scale 'spontaneous' arrivals of asylum seekers);

· all detained asylum seekers will receive written reasons for their detention, initially as a checklist. Written reasons will continue to be issued to detainees at monthly intervals;

· immigration detention places will be expanded and the Government will move toward a goal of never detaining an asylum seeker in prison.

The Refugee Council deplores the arbitrary way that asylum seekers are detained. We have campaigned for reform of the whole system. The Government's proposal for bail reviews after seven days in detention is an improvement on the current system, but it will be inadequate unless: there are monthly bail reviews; all bail reviews are before a magistrate; the emphasis of proof in bail reviews is shifted to a presumption for release (this is the case for all cases of non-immigration detention); cash sureties for release are reduced to a reasonable level (currently they are frequently set at £2,000); and detainees are ensured proper legal representation at bail hearings.

The Refugee Council believes that asylum seekers should only ever be detained if they have committed a crime or it can be proved that there are individual, exceptional circumstances which indicate that they will abscond and that all detention decisions should be subject to regular bail reviews. The proposal to detain most asylum seekers after refusal of their appeal is inhumane, unworkable and will punish only those people who stick by the rules.

No asylum seeker should ever be detained in a prison, unless he or she has committed a crime. While the Government's stated aim of moving toward a time when no asylum seeker is detained in prison is therefore a positive move, we point to the fact that there is no timetable for, or extra resources allocated to, achieving this goal - and urge that any expansion in special detention places must see a corresponding reduction in the use of prisons.

We regret that the Government has not made an unequivocal statement that it will not detain refugee children under 18 years of age.

The Refugee Council opposes any proposals to detain asylum seekers en masse, either after appeal or those deemed to be in a 'systematic attempt to breach the immigration control' - such measures are arbitrary by their very nature. There are other methods that can be used for asylum seekers short of detention, e.g. regular reporting to the police.

Support for asylum seekers in the UK is in chaos. The Asylum & Immigration Act 1996 introduced a two-tier system of support for asylum seekers: people who claimed asylum at the port of entry could claim income support (at a lower rate than normal), housing benefit, and council tax benefit; people who claimed asylum once inside the country or who were appealing against a refusal got nothing. Access to affordable social housing was severely restricted. Thousands of asylum seekers became destitute, and there was widespread suffering.

After some destitute asylum seekers, hungry and homeless, took their cases to court to try and get help from local councils under community care law, High Court and Court of Appeal decisions in late 1996 and early 1997 shifted responsibility for supporting most asylum seekers from national to local government. Under the National Assistance Act 1948, local councils had a responsibility to care for destitute adult asylum seekers without children by providing them with 'support in kind' - shelter, a bed, food and little else (families and unaccompanied refugee children were supported by local councils under the Children Act 1989). This system is complex, unfair, wasteful of public money, is damaging to local race relations, and causes misery to asylum seekers. Most seekers now exist at the edge of poverty.

The Government is proposing to reform the system of supporting asylum seekers in the UK by:

· amending the National Assistance Act 1948 to remove responsibility for supporting destitute asylum seekers from local authority social services;

· removing local authorities' current responsibilities to asylum seekers under homelessness legislation and replacing them with the new arrangements;

· setting up a new national agency to run a programme of 'support in kind' for asylum seekers across the country. Under this new 'cashless' system, the national agency - operated by the Home Office and holding a centralised support budget - would organise local support packages for asylum seekers around the country by contracting with local authorities, housing associations, the private and voluntary sector to provide housing, food and other essentials. If local councils refuse to co-operate with the new scheme, the Home Secretary can order them to. Other essential costs - such as telephoning lawyers or travelling to the Home Office to pursue the asylum claim - would be covered. Unaccompanied refugee children would be exempt from this system and would continue to receive support from local authorities under the Children Act 1989. Asylum seekers will be made only one offer of accommodation and support somewhere in the UK - if they refused this offer they would be entitled to no other state support.

· running the new support scheme as a 'safety net' and last resort - asylum seekers would be expected to first find their own means of support, or look to their friends, relatives or communities.

The Refugee Council fears that these proposals will turn the current shambles into something even worse. The White Paper is short on detail in this area, and many questions remain unanswered. Nevertheless, the 'safety net' support system set out is likely to hit asylum seekers badly and risks building up a massive problem of social exclusion. It appears that the Government has chosen the harshest, most expensive and complicated system of support.

Asylum seekers currently supported under the National Assistance Act 1948 receive very basic services - a roof over their heads, a bed, food. They have no money to buy any other essentials. With no additional extra cash resources to what was being spent on the previous system, organising 'support in kind' on a national scale will spread those resources even thinner.

The Refugee Council has always argued that the best, most efficient way to support asylum seekers is to allow them access to welfare benefits and employment. Restoring welfare benefits for all asylum seekers would be cheaper and simpler to administer than the present system or the Government's new proposals. Allowing asylum seekers to work lets them become self-sufficient, start rebuilding their lives and their dignity, and give something back to the UK in taxes and skills.

The Refugee Council will be putting a strong case for a better support system to the Government. Though return to welfare benefit rights seems politically unachievable, there are other ways to make a 'support in ' system for asylum seekers more humane and fairer. The Refugee Council will be consulting widely with partners to build a strong alternative case.

The way the Home Office makes decisions on asylum claims is in crisis. It takes years to get an answer on your asylum claim from the Home Office - and the quality of the decision-making is poor, leading to many appeal challenges. Currently, 52,000 asylum seekers are waiting for a first decision on their claim - about 10,000 since 1993 or before, and around 20,000 between 1993 and the end of 1995. New cases take nearly 14 months to get a result. Over 21,000 asylum seekers are awaiting appeal verdicts.

It is clear that any attempt to make the decision-making system faster will fail unless the backlog is dealt with. The Government is proposing to:

· let over 10,000 asylum seekers who have been waiting for a first decision from the Home Office since before 1st July 1993 settle in the UK by giving them 'Indefinite Leave to Remain (ILR)'. This excludes any asylum seeker who made a claim between those dates but who has received a negative decision from the Home Office;

· give asylum seekers who claimed asylum between 1st July 1993 and December 31st 1995, who are waiting for a first decision from the Home Office, grant of 'Exceptional Leave to Remain (ELR)', which will be considered on an individual basis, taking account of the delay, compassionate and other exceptional factors. Perhaps 20,000+ people will fall into this category. This excludes any asylum seeker who made a claim between those dates but who has received a first negative decision from the Home Office;

· reduce the backlog to minimal levels and achieve a target of two months in making first decisions by April 2001;

· ensure that any asylum seeker within the cases backlog who has received a final refusal on appeal and is subject to a removal or deportation order will face those orders being carried out.

'Indefinite Leave to Remain' allows people to settle in the UK without any restriction on their length of stay and with broadly the same rights as a British citizen. After having ILR for one year, you can apply for British citizenship if wished. People with ILR are subject to the same family immigration rules as British citizens. 'Exceptional Leave to Remain' allows people to stay in the UK with broadly the same rights as a British citizen. Under the new system, ELR will be granted for one year initially, followed by three years. After four years with ELR, the recipient can apply for ILR. People with ELR have no family reunion rights - but they are allowed to apply for limited family reunion after four years (for more details on ILR and ELR see the Refugee Council briefing 'Indefinite Leave to Remain, Exceptional Leave to Remain, and the Government's Proposals: what this means').

The Refugee Council strongly believes that the backlog of asylum cases must be cleared for any new system to work faster - otherwise it would simply fail under the accumulating weight of cases. The Government's proposals are a positive step forward - but we remain very concerned that they have not done enough to clear the backlog, deal with its causes and give the new system a chance.

The Government's proposals will only deal with just over half of the backlog of initial decisions - using their own figures it will still leave approximately 20,000+ cases. It does not touch at all the appeals backlog of over 21,000. It is a fact that many cases in the appeals backlog are from countries that suffer clear and ongoing human rights abuses - by the end of June 1998, the backlog featured over 4,100 cases from Turkey, 4,160 cases from former Yugoslavia (including Kosovo), 3,475 cases from the Democratic Republic of Congo (former Zaire), and over 3,600 from Sri Lanka. It is also a fact that the backlog has risen by 1,900 cases from March to June 1998, and that the average wait for a decision on a new asylum claim has risen over the last year and now stands at 14 months.

The backlog needs radical action to clear it - the Government's stated target is to process new asylum claims within six months. The viability of their proposals for supporting asylum seekers depends on this target being met. Yet the backlog, even after these proposals, will stand at thousands of cases; a major programme of computerisation at the Home Office to speed up decision-making has been delayed; and immigration officer staff numbers face cutbacks (last year 271 posts were lost).

We welcome the Government's decision to start to tackle the backlog, but are concerned that they have not gone far enough.

The Government has also recognised that a faster system is only sustainable with fairer decisions. They have set up a new Country Information & Policy Unit to co-ordinate background information on refugee-producing countries, published their own internal reports on the major producing countries for the UK, and are consulting on setting up an independent documentation centre to establish common, authoritative sources of information for asylum cases.

Previously, the Home Office Immigration & Nationality Directorate was notorious for its 'culture of disbelief.' Steps do seem to be being taken to address this - the rate of positive decisions on asylum claims is currently at 33%, compared to 24% in 1997.

The Refugee Council welcomes the Government's actions so far in ensuring decision-making on asylum cases is both more open and fairer. But it remains concerned that many of the underlying causes of slow, poor-quality decision-making are still there. As well as measures to speed up decisions - computerisation and reorganisation of the Immigration & Nationality Directorate - there must be measures to shore up fairness: an independent documentation centre; transparency in decision-making; ready access to good legal advice for asylum seekers; and more training for asylum caseworkers. The Refugee Council believes that fairness is inseparable from the speed of the system - both for humanitarian reasons and because poor-quality, unfair decisions are easily challenged on appeal and so just add to the backlog and costs of the system.

The White Paper proposes changes to refugee status and ELR. With immediate effect, asylum seekers granted refugee status will be granted ILR, and those granted ELR will have to wait four years to apply for ILR rather than seven. Transitional arrangements will ensure that no one already granted ELR is worse off.

The Refugee Council welcomes this improvement, but is concerned that family reunion rights for people with ELR will also be improved.

The White Paper also proposes that the 'white list of designated countries' ('white list') will be abolished although it will remain in force until new legislation is in place.

The Refugee Council welcomes this proposal, but believes the 'white list' should cease operation immediately.

The Government has also issued two other consultation documents - on reforming the asylum appeals process, and on regulating immigration advisers. These areas are also covered in the White Paper. While not considering them here in detail, this briefing sets out below the basics in each area and what our position is on them. Contacts are given in section 8 for further information in these areas.

The asylum and immigration appeals process is in a shambles. The procedure is complex and difficult to understand; asylum seekers face very tight deadlines in which to lodge an appeal and are then faced with interminable delays in getting a hearing and decision; and currently over 21,000 cases remain stuck in a massive backlog.

The Government has now issued some options for reforming and speeding up the asylum and immigration appeals process. Many of the proposals are lacking in detail, and it is therefore difficult to know what their real effects would be or how they would work. The basic proposals are:

· to establish a comprehensive, in-country right of appeal for asylum seekers (excluding those who pass through a listed 'safe third country' and who will only be able to appeal once removed to that country). This means that each appeal would look at all the relevant issues - the asylum claim, UK asylum and immigration law, obligations under human rights conventions such as the European Convention on Human Rights, compassionate grounds, and representations by MPs or others, including deportation appeals - rather than an interlocking series of separate appeals as at present;

· to restructure the appeals process, perhaps leaving only a single tier of asylum appeals adjudicators; or retain the second-tier Immigration Appeals Tribunal and strengthen it as a court of record presided over by a High Court judge (this is the Government's preferred option);

· to remove the presumption that the appeal will be an oral hearing and do more appeals only on written documentation;

· that all asylum cases will receive a final decision on appeal within six months of the claim being made.

The Refugee Council welcomes any positive moves to simplify and speed up the appeals process. The Government has said that asylum seekers are 'spinning out' appeals - but the facts show that a majority of cases are held up by court, Home Office or administrative delays, not the asylum seeker him or herself. We support the proposal to make asylum appeals comprehensive in scope, and are for the retention of the Immigration Appeals Tribunal as a court of record. The Refugee Council opposes the ending of the emphasis on oral appeals, and the retention of 'safe third country' appeals only after removal.

The Government is proposing legislation to require all non-legally qualified immigration advisers to register. A new Government unit would prosecute unscrupulous advisers.

The Refugee Council supports moves to regulate immigration advisers and ensure that the standard of service is high. We are concerned that the new national register is operated in such a way that it does not prevent small grassroots organisations - such as refugee community organisations - from being able to register and provide a service to their communities (for example, by setting registration fees too high).

The White Paper makes clear that, both for backlog and new cases, any asylum seeker refused both on the first and subsequent appeal decisions, and who is served with a removal or deportation order, will face removal from the UK.

The Refugee Council accepts that, in a fair, open system of asylum, the Government retains the right to remove asylum seekers who fail to meet the refugee criteria and who do not qualify to stay for other humanitarian reasons - provided that this removal is done in a humane way in line with international human rights obligations. We remain very concerned that the system is not demonstrably fair or trustworthy, and that many asylum seekers currently refused may face return to persecution or death. The Government must do more to improve decision-making before many removals can be fully accepted.

· to increase the number of Airline Liaison Officers (ALOs) from the existing five to 20 by the end of 1999. ALOs are immigration officers stationed with airline staff at airports in countries of major immigration or forced migration to the UK. Their purpose is to help check passenger travel documentation, in order to refuse travel to people carrying false documents;

· target resources for at-entry controls 'more effectively' - this may result in changes in how checks are made when people enter the UK;

· examining the possibility of integrating the issue visa and entry clearances with 'leave to enter';

· require all carriers to notify immigration service when they are carrying a third-country national to small ports in the UK;

· strengthening carriers' liability by training for carriers, possibly extending its remit, and looking at measures to improve carrier compliance;

· where problems arise with particular destinations or nationalities, there will be increased diplomatic efforts in the country of migration to try and counter the image of the UK as a 'soft touch';

· extend immigration officer powers of arrest, provide them with the power for search, entry and seizure;

· extend and strengthen existing criminal offences around seeking leave to enter or remain in the UK through deception;

· failed asylum seekers who use 'blatant deceit' will be liable to prosecution;

The Refugee Council is against pre-entry controls on asylum seekers. The use of ALOs and a range of other pre-entry and on-entry controls severely limit the ability of people facing persecution actually to flee their country and get to safety. After all, if you are - for example - an Iraqi dissident who has been tortured or imprisoned by the Iraqi regime, it is difficult for you to go to the Interior Ministry (home of the secret police) and ask for your own passport. Asylum seekers are obviously often forced to travel on false papers, and this is recognised by the UN Refugee Convention. Increasing already tight pre-entry controls will force more and more asylum seekers into the arms of people traffickers and smugglers, leaving them prey to crime and exploitation.

The Refugee Council is also very concerned at the race relations implications of the proposed increased powers for immigration officers and registrars.

The White Paper makes clear that the Section 8 employment offence will be retained and a statutory code of practice introduced (this offence makes it illegal for employers to employ asylum seekers without permission to work).

The Refugee Council regrets that the Government has not carried out its manifesto pledge to repeal this offence.

The White Paper proposes considering the setting up of a pilot project to help asylum seekers and refugees return to their home countries if they wish to.

The Refugee Council welcomes this proposal. Most refugees want to be able to return to their home countries, and practical help to enable them to do so in a voluntary and supported way is a constructive idea.

The Government is inviting consultation on the proposals contained in this White Paper. The consultation period lasts until 30 October 1998. The Refugee Council will be working with all its partners to make sure that the refugee voice is heard by the Government. Over the next few months we will be talking to our members, refugee agencies, international bodies such as UNHCR, and grassroots refugee community organisations about the specific proposals within the White Paper and what our reaction should be to them. You will find our initial thoughts in this briefing. The Refugee Council will be campaigning hard to try and change the things we are unhappy with and get the best possible deal for refugees.

After the consultation period has ended, the Government will draw up an Asylum and Immigration Bill and present it to Parliament early in 1999 - probably either January or February. The Bill will then pass through Parliament and be debated, before being voted through and receiving Royal Assent. This is likely to mean Summer 1999. Any measures contained in the new Act are unlikely to be in force on the ground until Autumn or Winter 1999. The passage of the Bill through Parliament will allow for more campaigning opportunities, and we will be pressing the Government to use a special process known as a Special Standing Committee to examine the new law in detail - this will allow expert evidence to be called on from organisations like the Refugee Council. All the current support arrangements for asylum seekers will remain in place until new legislation is passed and the new support agency set up.

Section 8 of this briefing gives you further contact details if you have any questions about the White Paper and what the Refugee Council is doing. We will be sending out regular briefings to keep you informed of campaigns and developments.

This new White Paper fails to address the urgent need for a comprehensive settlement policy for refugees in the UK (those asylum seekers who have been allowed to stay either with refugee status or ELR). The lack of such a thought-through policy, backed by strategic services, leaves the majority of refugees struggling alone or with limited resources to rebuild their lives and make a success here in the UK.

Some strategic investment in the first stages of refugee settlement would pay dividends - studies (including one by the Home Office) have shown that refugees are often highly skilled professionals, net contributors to the economy, and more likely to be self-employed and employ others. A proper settlement policy would also begin to tackle the massive problems of social exclusion refugee communities face - one of this Government's stated key aims.

The Refugee Council will continue working with the Government to try and influence the development of a real settlement policy. A positive step forward would be the establishment of a Standing Conference on refugee issues, bringing together all the key bodies - central and local government, the voluntary sector, refugee communities, and the private sector - to start the debate.

The Refugee Council will be issuing further briefings to keep you updated on developments and ask your help in campaigns. In the meantime, if you have any questions about the Immigration & Asylum Paper, what the Refugee Council is doing, or about refugee issues in general, please contact the person below:

General address, telephone, fax and e-mail contacts:
Refugee Council, 3 Bondway, London SW8 1SJ
Tel: (0171) 820 3000
Fax: (0171) 582 9929
E-mail: [email protected]

For information on campaigns:
Jessica Yudilevich, Tel: (0171) 820 3043
Mike Kaye, Tel: (0171) 820 3046

General information requests:
Mike Young, Tel: (0171) 820 3080
Matthew Grenier, Tel: (0171) 820 3039
or dial (0171) 820 3000 and ask for an Information Officer

Advice for individual asylum seekers or organisations working with them: Refugee Council Advice Line: (0171) 582 9927
Open 10am to 1pm Monday to Friday

Refugee Legal Centre, Sussex House, 39-45 Bermondsey Street, London SE1 3XF
Tel: (0171) 827 9090

Free legal advice and representation for asylum seekers - experts in refugee law.

Joint Council for the Welfare of Immigrants (JCWI), 115 Old Street, London EC1 9JR
Tel: (0171) 251 8708

Immigration Law Practitioners Association (ILPA), 1st Floor, Linsey House, 40-42 Charterhouse Street, London EC1M 5JH
Tel: (0171) 251 8383

Professional Association of Immigration Lawyers. Maintains register of solicitors and barristers who are ILPA members.

UN High Commissioner for Refugees (UNHCR), Millbank Tower, 21-24 Millbank, London SW1P 4QP
Tel: (0171) 828 9191

Office of the UNHCR's representative for UK and Ireland. Principal international refugee agency. Has UN mandate to protect refugees.