Home Affairs Committee – Seventh Report Asylum – QARN_QPSW

13 Quaker Peace and Social Witness and Quaker Asylum and Refugee Network contribution

1. Introduction

Work with refugees and asylum-seekers is an expression of our commitment to justice, equality and peace. During the twentieth century Quakers were active in the Kinder Transport, enabling the children of persecuted Jews to come to the United Kingdom. The experience of the Quaker Asylum and Refugee Network, today, includes helping individuals and families with asylum applications; finding solicitors; helping with housing problems and providing emergency shelter and basic food needs for those who are destitute; teaching English and enabling access to education and employment advice; dealing with health and psychotherapeutic services for those who are traumatised; visiting those in detention.

We are deeply concerned at any attempt to undermine Britain’s commitment to a framework of human rights. We welcome this inquiry as an opportunity to reaffirm a practical commitment to human rights at the centre of the asylum system. We affirm the European Convention on Human Rights and the Refugee Convention as the litmus test of our commitment to human rights. In this submission we address our particular concerns regarding: the quality of decision making, destitution, and immigration detention.

2. Decision making

2.1 Quality of initial decision making

Improving the quality of initial decision-making would go a long way to restoring faith in the asylum system; an important aspect of this is ensuring access to Legal Aid. Over a quarter of asylum refusals are currently overturned on appeal.

A grandmother who fled to Britain on a false passport after her husband had been lynched outside the family home. Her asylum application was refused and she went through many years of physical and mental distress before her appeal was eventually upheld.

The quality of decision-making should comply fully with the commitment to the standard of justice that our membership of the European Convention on Human Rights implies.

2.2 Context of decision making

Initial decisions are made within a ‘culture of disbelief.’ A report by Asylum Aid101 demonstrates the damaging nature of an assumption that applicants are lying. In this research, all women, 87% of the cases examined were initially refused, the majority because the UKBA did not accept the credibility of the applicant’s asylum claim. However, 42% of these decisions were overturned on appeal, far above the average for all asylum cases (which stands at 28%). This figure goes up to 50% when including decisions made after the reconsideration of an initial appeal. Immigration judges accepted the credibility of the applicant’s claim in every one of the successful appeals.

Perverse decisions are made frequently: ‘Recently a man who has a good relationship with his young son was removed to Sri Lanka, and his right to participate in Family Court proceedings for Contact to the son was denied him because he said he wanted Contact with his son – this was used as the reason for continuing the removal on the grounds that he was trying to circumvent UKBA decisions. He was told he could participate from Sri Lanka.’102

2.3 Lack of appropriate information and the need for improved communication

Caseowners and Tribunal judges are not provided with sufficient information to make reasonable and proportionate decisions. Legal Aid resources limit the number of expert reports that are funded to support a claim, whether in relation to country information, or verification of a document. This lack of accurate and up to date information leads to refusals and appeals to the Tribunal. Many applicants represent themselves at the Tribunal. Information before the Tribunal is often lacking in relevance and outdated. Some applicants are very young. An immigration judge spoke to a member of QARN about the difficulty of being able to make sound and proportionate judicial decisions, where the applicant is not represented, and may, also have language difficulties.

Country of Origin Information reports may be out of date. Information from the Foreign and Commonwealth Office is not always represented in the guidance. Better direct communication between these two Government departments would enhance the quality of decision making in relation to asylum claims.

An example of a positive approach to this problem comes in the Syria Country Information Report:http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/coi/syria/report-08-12.pdf?view=Binary which came about as a result of a QARN member making contact with the Home Office. As a result at para 20.03: KURDS: For recent information on the situation of Kurds in Syria, see the Syria and Reports web pages of the UK-based International Support Kurds in Syria Association – SKS. [48a-48b]

On the wider issue of how decision making can be improved we fully support the recommendations of Right First Time—Asylum Aid’s recent report. Legal representatives and UK Border Agency officials agreed that better “structured communication” early in the asylum process about the nature of the claims to be determined, along with the submission of ‘witness statements’ in advance of asylum interviews detailing the claim and the evidence to support it, were likely to lead to better quality decisions and significant savings in time and money.

2.4. Legal Representation

Competent legal representation is increasingly difficult to find. Immigration Advisory Services and Refugee Migrant Justice—have been forced to close, and the number of solicitors/legal advisors offering this service is diminishing. A QARN member referred to the recent closure of a solicitor’s firm in Leicester requiring asylum applicants, in this case young Afghani boys, to go out of town to find a lawyer, without funding to pay for travel. Blakemores, a major legal aid firm in Birmingham has also recently closed.

Without good early legal representation the person seeking asylum is at a distinct disadvantage in presenting their case and evidence. Asylum seekers, who are held in detention, have a much greater chance of obtaining bail if they have legal representation.103

Runnymede’s report Justice at Risk 2012104 shows that the fixed fee funding system penalises conscientious repre­sentatives and encourages shoddy work. The report also describes how the low quality threshold for legal aid work exacerbates this perverse incentive.

We support the recommendation of Asylum Aid that legal aid should be available at an early stage to provide incentives for the submission of detailed witness statements and other evidence, before the first UKBA asylum interview.

3. Destitution

Once an applicant’s claim to asylum has been refused and there is no outstanding appeal, all forms of support are removed 105. In the opinion of the Joint Committee on Human Rights, destitution in some cases reaches the Article 3 threshold of the European Convention on Human Rights for inhuman and degrading treatment.106 We are disappointed that the findings of the Joint Committee on Human Rights that the Government is practising a deliberate policy of destitution have not been remedied.107

We are acutely aware of the impact of this policy on asylum seekers. Faith and other groups in the UK make weekly collections of food which is delivered to charities supporting those who are destitute. In Oxford, food is regularly provided for about 30 families of destitute asylum seekers/refugees. Quakers in the north and London, take those who are destitute into their own homes, help with the running of winter night shelters or lead charities to organise spare room accommodation from volunteers.Hosting by Spare Room and others in National No Accommodation Network (N ACCOM)108, a Christian network, can only meet the urgent need of a minority of thousands rendered destitute.

The following comments were made by volunteers with a charity which has supported destitute asylum seekers and refuges for the past ten years:

‘We wish we could report that the demand for services offered is falling, but the need for support is actually increasing. More than seventy destitute asylum seekers are being supported each week. Over a third of these have been destitute for over a year.’ These are people who are hungry, in poor physical or mental health, often fearful, with limited access to legal and other advice. Yet they have skills and talents which would be an asset to this country.’109

Destitution has a serious impact on both mental and physical health.A man staying at the night shelter in Manchester had inadequate footwear, so his feet were always cold and wet, eventually requiring hospital treatment. Local Quakers gave a grant for footwear for nightshelter guests.

Destitution creates demands on the police and the health service. People forced to sleep on the streets are vulnerable to crime, both theft and violence, including racial violence. Those seeking asylum who have been subject to or witnessed extremes of violence will often suffer from severe mental distress. Destitution can be the last straw. We encourage the committee to reaffirm a Common Law ‘duty of care’ to those seeking asylum.110

The Government asserts that “no person who has sought our protection need be destitute whilst waiting for an application to be decided”. Research shows that destitution occurs frequently at transition points during the asylum process111. This often results from errors on the part of the United Kingdom Border Agency (UKBA) in administering support, while asylum seekers themselves do not understand the process.

In one example a young man of 17 or 18 arrived knowing no English and did not understand the importance of lawyers. He was moved from one part of the country to another and lost contact with his lawyer and was regarded as not being entitled to support. He became destitute and did not have money for fares from the Midlands to the north to see his lawyer.

There is considerable evidence to show that asylum seeking families, including those waiting for an initial decision on their application, cannot meet their basic subsistence needs when support is provided. This is inconsistent with a policy of promoting the welfare of children.

Still Human Still Here, a coalition of which Quakers are a member, has examined the reasons for this situation and demonstrated that the overall level of support provided is inadequate.112 In 1999 the level of support was set at 70 per cent of Income Support, on the basis that it was for a short period of time, and that housing and utilities bills would be paid for separately. Support rates have been further reduced in recent years and it is now calculated that in 2011-12, a couple with children received 59% of Income Support and a lone parent just 52%.113 In 2012 – 13 there has been no increase in line with Income Support. Before these recent reductions Refugee Action114 found evidence of severe hardship, including parents who experienced hunger and were unable to feed their children.

Quakers in Leeds, one of the main Home Office dispersal cities, are concerned about inadequate support for children. The ward where thirty eight per cent of children live in poverty is home to many families seeking asylum.

A single adult asylum seeker has to pay for food, clothing, toiletries, travel and other essential living expenses on just over £5 a day. The Government has not provided an adequate explanation of how it has calculated this assessment of the cost of essential living needs, or why it has reduced this level in recent years.

Section 4 support is available for those whose claims have been refused, when the Government accepts that they are temporarily unable to return to their country of origin for reasons beyond their control .It is delivered through the Azure plastic payment card which can be used only in certain retailers. It is not possible to get the best value for money, as the card cannot be used in markets or discount stores. Those with cards have no cash for example for phone calls or bus fares.

Those seeking asylum are seldom permitted to work. This maintains them in a state of dire poverty while the Government has to fund their unemployment. It exacerbates the depression from which many seeking asylum are prone.

We affirm the proposals of Still Human Still Here and recommend115:

3.3.1 Asylum support rates should be equivalent to at least 70% of Income Support and paid in cash. Account should be taken of the additional needs of families with children.

3.3.2 Annual increments for asylum support rates should be linked to annual increments to Income Support rates.

3.3.3 Lone parents should have their asylum support rates increased to 70% of Income Support as a matter of priority.

3.3.4 Section 4 support should be ended. Those eligible for this support should be given mainstream Section 95 support or its equivalent.

3.3.5 16 and 17 year old asylum seeking children should be treated as dependent children and not independent adults in relation to support rates, as is the case in other areas of government policy.

3.3.5 Asylum seekers who have not had their cases resolved in 6 months or who have been refused, but cannot be removed, through no fault of their own, should be granted permission to work.

4. Detention

We deplore the use of immigration detention as an instrument of policy. There are serious human and financial costs and we believe that there are viable alternatives, some of which are outlined in UNHCR’s most recent guidelines on detention.116 It costs £110 per day or over £40,000 a year to keep someone in detention. 117 The annual immigration detention bill in the UK approaches £200 million.118 One economic analysis of alternatives to long-term detention argues that an improved risk assessment [resulting in earlier release of detainees] could produce cost savings of £377.4 million over a 5-year period.119

At a time when the nation is facing major reductions in all NHS, welfare and public services, the high costs of immigration detention should be scrutinised, as should the contracts with companies such as Serco, G4S and Mitie, to whom the running of Immigration Removal Centres has been outsourced.

A member of QARN commented: ‘I was supervising the Wanstead older Children’s (Quaker) Meeting on Sunday. I did an ad lib on the Food Project of Refugee and Migrants project. …….. One of the young people, aged 11 or 12, who likes to ask probing questions, asked why the UKBA spent so much money detaining people and providing them with food and shelter. Would it not be cheaper to let them work or support them in the community?’120

Bishop Michael Doe sees privatisation as creating a moral hazard:121

‘There are of course fundamental moral issues, about

(1) a commercial agency being paid to incarcerate others.

(2) an elected government betraying its duty by transferring its responsibilities to others: I note that in the Chairman’s report (of Mitie plc) the public sector is a “client” rather than an employer or manager, so one is able to hide behind the other…’

We consider all immigration detainees, including those with a Deportation Order should live in the community, once their prison sentence has been served. Quakers are deeply concerned over the use of indefinite detention, as a principle that is anathema to the rule of law.122 We note the many practical difficulties experienced by those seeking asylum in access to the courts. While Article 6 of the ECHR provides that “everyone is entitled to a fair and public hearing within a reasonable time by an impartial tribunal established by law” this does not, in our experience represent the experience of many asylum seekers.

The decision to detain is an administrative one, with inadequate judicial oversight. An asylum seeker faced with the prospect of being detained should be brought promptly, within 24 – 48 hours, before a judicial or other independent authority for review of the detention decision. There should also be regular period reviews of the necessity for continuation of detention.

5.1 Length of detention

The senior courts have been reluctant to specify a period of time after which the length of detention will be deemed excessive and as a result that bail should be granted. Each case turns on its own facts and must be decided in light of its particular circumstances. However, it is generally accepted that detention for three months would be considered a substantial period of time and six months a long period. Imperative considerations of public safety may be necessary to justify detention in excess of six months. (Bail Guidelines, para 19)123

The above guidance for First-Tier Tribunal Judges was published in July 2011 and revised in June 2012. A recent survey of bail hearings found little evidence that the guidance on length of detention was being taken into account as a matter of course.124Detainees have been held for periods of over four years.125 Between 2009 and early 2011, the High Court ruled on 15 occasions that holding a detainee held for over year with uncertain prospect of removal was unlawful. In 2008 – 2009 the Home Office paid out £3 million and in 2009-10 £12 million in compensation and legal costs arising from unlawful detention.126

A member of QARN spoke to a man in his early 20s who had lied to UKBA about his country of origin and had no supporting documents. He was not removed because there was no evidence of the country to which he should be taken, and he was not released on the grounds that he may abscond. He had been in detention for 2 years at that time.

5.2 Vulnerable groups who should not be detained:

Although it is Home Office policy that detention should be used sparingly and for the shortest period necessary, numbers in detention continue to grow. These include people who, under the Home Office’s own rules, should not be detained 127 e.g. the elderly, pregnant women, those suffering from serious medical conditions, the mentally ill, torture survivors, people with serious disabilities and the victims of trafficking. The High Court has ruled that in detaining a person suffering from severe mental health problems the UKBA was in breach of positive and negative obligations under Article 3 of the European Convention on Human Rights.128

Section 55.8A of the UKBA’s Enforcement Instructions and Guidance states: The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention, and spells out that particularly vulnerable means detainees with poor health, who are suicidal or who are victims of torture. Between 24 January and 30 September 2012, there were 983 Rule 35 reports by medical practitioners in detention centres.129 This resulted in 909 people continuing to be detained and only 74 being released.130

In a report131 on immigration detention casework the Prisons Inspectorate and the Independent Chief Inspector of Borders and Immigration noted:

‘The Rule 35 process did not provide the necessary safeguards for vulnerable detainees. In our sample, a torture survivor had been detained without a clear indication of the exceptional circumstances that had led to his detention. …’

The Home Office has rejected the report’s call for an independent panel to be set up, to review all cases of long-term detention132. Revisions to Rule 35 were published in early February 2013. 133

Other examples from our experience include:

‘An applicant for bail was a minor with a mental disorder. Despite evidence from Medical Justice, a care plan which included a named adult from the Children’s Panel at the Refugee Council, and the applicant’s own wishes, the judge did not accept the barrister’s arguments for bail.’

‘One of our observers was familiar with two of the cases where Medical Justice had produced independent reports. She commented that in one case where the applicant had been a victim of torture there was no reference in court to the medical report. In another Medical Justice case bail was refused.’ 134

We are distressed at the treatment of those being deported. A QARN member writes: I visited Pennine House short term holding facility at Manchester Airport. A young woman from Africa reported at the reporting centre at Dallas Court and was detained and about to be removed. No help was given to her to pick up her possessions. … I picked them up for her—if I hadn’t, she might have been sent back to Africa with nothing, which is dangerous for a young woman

5.3.1 We recommend that criteria for detaining asylum seekers should be clearly prescribed in primary legislation.

5.3.2 Bail applications need to conform to Article 6 (ECHR) standards of fairness. This implies that legal aid should be available in any cases where fairness requires competent representations.

5.3.4 We recommend a statutory provision providing for a presumption of Bail analogous to that of the Bail Act 1976 in criminal proceedings.

5.3.5 We encourage the monitoring of UKBA decisions to detain for consistency and appropriate application of the Guidance and Enforcement Instructions.

5.3.6 We urge that detention should be used as a last resort, for a minimum amount of time, and in any event be limited to three months.

Quaker Peace and Social Witness and Quaker Asylum and Refugee Network

April 2013

 

http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/71/71vw32008_HC71_01_VIRT_HomeAffairs_ASY-13.htm

http://www.parliament.uk/documents/commons-committees/home-affairs/130416%20Asylum%20written%20evidence.pdf