Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 342 - 359)



  Chairman: Good afternoon. You will have heard what happened earlier, so did we. Thank you very much for coming. Mr Howarth?

Mr Howarth

  342. Ladies and gentleman, you will have heard, as the Chairman said, some of the questions in particular I asked earlier on. Can I address my first question to Nick Hardwick. You were quoted in The Observer on 25 June as being somewhat critical of the Home Secretary. You said "The challenge for Jack Straw is to interpret the Geneva Convention in a modern context but consistently with . . . fundamental principles". How consistent are the Home Secretary's proposals, particularly his reflective speech at Lisbon, with the fundamental principles of the 1951 Convention in your view?

  (Mr Hardwick) First of all, can I say that we welcome the Home Secretary's speech. We welcome a debate on these issues. I do think that what was positive overall about what the Home Secretary had to say was that he placed it in the context of how can States best protect refugees in the 21st century, how can the conclusions of the Tampere Summit be implemented, rather than simply in the context of how do we keep migrants out. To that extent, I think it was welcome. I have to say that within what he said there were a number of ambiguities and I am not sure precisely what he meant by some points. As you will recall, he divided the globe up into three groups of countries. In the first he talked about countries within which there were widespread and severe human rights' abuses and he suggested that from those countries the EU States could take refugees on a quota basis. As I think some of your other witnesses have said if that was in addition to the existing rights then that would be a welcome initiative. I can think of examples, for instance, in the Kosovo crisis before the war with NATO began where there were a number of refugees escaping from that situation into Italy, the Italian authorities could not cope, they were crossing the Adriatic in extremely dangerous circumstances, in the hands of traffickers. Certainly our counterparts in Italy were calling for precisely such an evacuation and quota system then. If it was in replacement of the existing individual rights of people to claim asylum, then frankly we would be back in the situation that existed in the 1930s when Jewish refugees from Central Europe could come to Britain if they were pre-selected from outside the country but as late as 1938 Britain imposed visa restrictions on Jews coming from Austria and Germany and those who came spontaneously or illegally were returned. I think there would be a very real danger in return in that situation. At the other end of the spectrum the Home Secretary talks about a group of countries from which it would be hard to imagine a genuine asylum claim being made, and as you know he listed the EU States and the North American States. I think it would be hard to argue with that except that he added to his list of States—and I quote—" . . . and many others". It is the " . . . and many others" which causes us concern. I think in the article to which you refer I gave the example of Turkey which wants to join the EU and I think that would be very dangerous if it is assumed that because Turkey is an EU State no asylum—

  343. Turkey is not an EU State yet and it is not likely to be unless it resolves some of its problems.
  (Mr Hardwick) If one took a view that there could be no asylum claim entertained from an EU State, the point is the membership of the EU is not static and is going to expand. I do not want to be entirely negative. I think there are ideas within the Home Secretary's statement which deserve to be further explored but certainly we have concerns about some of the fundamental proposals.

  344. Do you accept that the Home Secretary was concerned about that preamble to the Convention which I mentioned, the burden on the States receiving some of these flows, when he said " . . . Even those who drew up the 1951 Convention were exercised by the need to balance the individual right of protection with the management of large flows of people migrating for diverse reasons". Do you accept that is a legitimate concern? Would you not share my view that it is the job of the Home Secretary, as elected by the British people, to match his duties and responsibilities which are every bit as important as the duties and obligations under the Convention to the British people?
  (Mr Hardwick) Of course those responsibilities have to be balanced but I think it is important, also, to place the obligations or the responsibilities that fall on the UK in context. As has already been said, the European Union States only take 4 per cent of the world's refugees. Most of the 25 million refugees in the world do what they have always done which is walk on foot from one very poor country to another, the numbers which come here are only a tiny proportion. If you look at within the EU those refugees or asylum seekers who come to Britain, the idea that we are taking more than our fair share is simply not the case. If you look at the numbers who come here as a ratio to the existing population, in other words you take some account of the size of the country, then the latest figures I have been shown suggest that we are more or less at the European average. I think the fundamental premise that is behind that question, that somehow or other we are taking more than our fair share, I do not think the facts actually bear that out.

  345. Do you think the Convention confers an absolute right or is there any room in your view for qualification whatsoever?
  (Mr Hardwick) Certainly I would not want to see any change at all in the basic principles of the Convention which were drawn up—

  346. It was drawn up in 1951 specifically with the consequences of the Second World War in mind. I know that was changed in 1967 but the whole thing was predicated on the armies of refugees. Indeed, I was brought up in Hamburg in 1956 and still then we were seeing the consequences of the flows of refugees.
  (Mr Hardwick) As you say it was drawn up at a time of mass refugee movements within Europe and many of those were coming our way and there was at that time a generous response to that mass movement within Europe. It was also, if I might say, drawn up out of the direct experience of what happened prior to the war when refugees seeking sanctuary had been turned away by European states. It was clear that the European states, the initial signatories, said "we will not make that mistake again". For myself, I think it is too early to forget those lessons.

  347. So you do not think there will be any case for a kind of reinterpretation of the Convention on a regional basis bearing in mind that the Convention was drawn up to deal with a European problem 50 years ago when people could not travel but, as I said earlier, now they can just jump on an aeroplane? Perhaps there ought to be a regional solution to these problems.
  (Mr Hardwick) I would not want to see that. I think that is going down a very slippery slope. If some of the richest countries in the world are seen to be taking an even smaller proportion of some of the world's refugees, those countries in the south that are the really large refugee receivers will start to question why they should continue to do that.


  348. Forgive me, do you mean refugees or do you mean migrants or do you mean both?
  (Mr Hardwick) At this time I am talking about refugees. As I was saying, the vast majority of the 25 million refugees are in the south and it is a number of very small, very poor countries that truly do take a disproportionate share of those. If the richer countries were seen to be being more restricted, closing their doors in the way that I think Mr Howarth was suggesting, that would have very damaging repercussions for the whole international regime.

Mr Howarth

  349. The reason why I put that question to you is that there are cultural repercussions of these flows. If you are suggesting that we should all take our share from wherever in the world then that does create some cultural problems, whereas taking people from within your own continent does reduce the cultural implications to a certain extent.
  (Mr Hardwick) I think I would disagree with you there. I do not see that as creating problems, I see that as creating opportunities.

  350. We will just agree to differ on that then. Can I just refer you to another item. As you have probably heard, we have been going round various parts of Europe and the United Kingdom seeing how border controls are being implemented and one of the things we have found here is what happens when somebody comes into this country without papers is they are refused permission but they are not turned around and put on the next flight, like they are in Algeciras from where they go straight back to Morocco, or like they are on the Czech/German border straight back to the Czech Republic. Here they invariably get released—and perhaps I should address this part to the two ladies if I may as you represent the Immigration Law Practitioners' Association—and what they told us was that these people then immediately get advice from lawyers and advisory services involved in the immigration business to tell them that they should plead that they are refugees, asylum seekers, and tell them how to describe what has happened to them so that they can better explain their case for asylum. I wonder if the two ladies might not share my view that this is a pretty corrupt practice by lawyers seeking to provide what are economic migrants with a bogus claim for asylum seeking in this country? Is that a concern to either of them?
  (Ms Finch) It would be a concern if it was true.

  351. So all that these immigration officers have told us is completely untrue, they have spun us a complete web of deceit?
  (Ms Finch) Lawyers are professional. I am a barrister and my friend here is a barrister and we have professional codes. We also have professional bodies which people can complain to. Certainly if barristers and solicitors were doing that and people found out they would be in serious trouble with the Law Society or Bar Council. We are officers of the court, we are supposed to tell the truth. We do not stand up as barristers and tell a story that we know is untrue.

  352. So are you saying this is not happening?
  (Ms Finch) There may well be clients who come in who have been told to tell a story by agents and a lawyer may have doubts about that particular story but we are not judges, we are lawyers, we are paid to represent that person.

  353. It is a pretty lucrative business to be in, is it not?
  (Ms Finch) Actually immigration law is not a lucrative business. Most solicitors' firms will tell you they can only do it because they are making money out of conveyancing or other work. You certainly cannot make money out of asylum applications.

  354. So the householder is not only being stung on their fees for conveying their property, they are also paying for asylum as well?
  (Ms Finch) It is not a choice a lot of people make.

  Mr Howarth: I will bear that in mind if I come to sell my house.

  Chairman: There is no anti-lawyer bias in this Committee I want you to know, Ms Finch.

Mr Howarth

  355. I do not want to press it too much further. Ms Rogers, would you agree with what Ms Finch has said?
  (Ms Rogers) Absolutely. Naturally we would not in any way condone the operation of consultants or other individuals who pose to be immigration lawyers who are, in fact, not lawyers, who pose to be immigration lawyers and set up the sort of scenario that you have set out of a bogus claim and so on, of course we would not condone that. Indeed, that is precisely why even to be a member of the Immigration Law Practitioners' Association we have to be satisfied that they are properly regulated. No-one can say they are a member of ILPA if they are not properly regulated by a professional body or management committee. I agree entirely with Ms Finch, lawyers do not set up bogus claims. There may be individuals who tell us bogus claims but we are not judge and jury of that, we are there to represent them.

  356. So you believe whatever story they tell you?
  (Ms Rogers) It is not for us to believe—

  357. You will take it on trust?
  (Ms Rogers) It is not for us to believe or disbelieve. We are there to represent, we are not there to disbelieve.

  Mr Howarth: You have just heard what the Professor has said about the time that all this is taking. This is itself a magnet to people to come to this country and you, as lawyers, and the courts are part of this inexorable process of delay, spin-out—

  Mr Stinchcombe: It is called justice.

  Mr Howarth: Mr Stinchcombe is saying it is justice but he is a lawyer as well. The Professor has said this is part of the problem.


  358. We have no prejudices here.
  (Ms Finch) What we would like to say about that is clearly, and it has been shown by research, delay occurs in the decision making process at the beginning in the Home Office, that is where the bulk of the delay comes in. Now the time to a decision and being in court is extremely short, they are listing within weeks and not months. The lawyer's side is quick, perhaps too quick because sometimes you have to get medical reports or reports from the courts. You hear about Kurds coming to this country in 1989 who are still in the courts now because there were no decisions made in 1995/96, that was where the delay was. Lawyers could do nothing at that point because we had given all of our evidence in to the Home Office and nothing came back.
  (Ms Rogers) Also the delay occurs because of one of the points made by the previous speakers, that the decision making itself is so poor. Because it is so poor these cases do have to go to court. There will be delay if cases have to go to court which should not be there in the first place.

Mr Howarth

  359. Can I ask you one final question. In what percentage of cases do you advise a client that they have not got a leg to stand on and the best thing they can do is to make their way to the port and return from whence they came?
  (Ms Finch) Clearly now there is this controlled legal representation for representing in front of a tribunal, which is a new part of the Legal Aid, you have to advise whether or not there is sufficient merit for them to get controlled legal representation. If they cannot get controlled legal representation and unless they are prepared to pay privately they will not have anybody who will represent them. That is a test that has been put in, they have to say "you have got to have at least a 45-50 per cent chance otherwise you will not be represented". There will be people who feel very strongly they have a case and they have not been persecuted for Convention reasons. That is one of the difficulties with the Convention, that it is old-fashioned and the categories of persecution are limited. Perhaps the most difficult, say "I have a client who is being persecuted by the Mafia in Ukraine", he clearly has been persecuted, he does not fall within the Convention, in that case you would tell him he does not fall within the Convention but you could say he could try—

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