Select Committee on Home Affairs Memoranda

Memorandum submitted by Immigration Advisory Service (AI 2)



  IAS is the largest not-for-profit service provider of free immigration, asylum and nationality legal advice and representation with over 30 years' experience. It has sixteen offices in the UK and one abroad and more than 300 staff. It is not a campaigning organisation other than within its charitable object to advance the education of the public in the law relating to immigration in the United Kingdom. It is mindful of the "Compact—Getting It Right Together: Compact on Relations between Government and the Voluntary and Community Sector in England" [Government Command Paper (CM4100) presented to Parliament in November l998] Clause 9 "Undertakings by Government" of which states "9.1 To recognise and support the independence of the sector, including its right within the law, to campaign, to comment on Government policy and to challenge that policy, irrespective of any funding relationship that might exist, and to determine and manage its own affairs."


    —  There should be a period of stability in immigration[1], asylum and nationality law and practice with changes made only in accordance with a strategic plan and based on sound evidence and research. We believe that the change in emphasis to a policy based on economic and social needs of the UK provides a foundation for this.

    —  While immigration policy should be determined by Government the implementation of that policy and the evidence on which decisions are made should be provided by an independent body.

    —  UK policy should be seen in the context of achieving a common European Union policy which should be based on best practice rather than minimum standards.

    —  There should be universal early access to legal advice by all those affected by immigration control.

    —  Actions of the executive in immigration matters should be subject to effective judicial scrutiny especially where this affects life and liberty. There should be a presumption of liberty for immigration detainees, thereby putting them in no worse position than persons accused of criminal activity (subject to the Bail Act 1974).

    —  Decisions and appeals in all immigration matters should be as speedy as is commensurate with the interests of justice. Procedures with tight deadlines, however, can be counter-productive.

    —  Reception ("accommodation") centres should be based on the experience of other countries and what is likely to reduce tension among both the resident population and asylum seekers.

    —  The Government should consider how best to improve research and statistics in immigration matters in order to reduce tendentious and irresponsible debate.

    —  There should be a review of the way in which human and financial resources have been deployed on immigration matters.

    —  Removals should be effected in a humane way with incentives and opportunities for persons to resettle permanently in their countries of origin. Part of the process of resettlement is allowing persons while in the UK to develop and learn new skills. Greater use of reporting should be used for those likely to overstay on the basis that the greatest deterrent to overstaying is the fear of detection and that this may prejudice subsequent entry to the UK.


  1.1  In 30 years' experience IAS has not known a period of greater turmoil and legislative change in immigration than within the last 10 years. The period has been characterised by the appearance of a lack of strategic planning, ill-considered experimentation based on inadequate research and reversal of previous policies, all of which have undermined public confidence. Consistently, targets have not been met whether in the timescale for achieving timely decisions or in removals of those no longer lawfully entitled to remain. The Bill presently before Parliament is the fourth major piece of legislation within that period which appears to have established a triennial cycle in addition to significant changes in the Immigration Rules and immigration procedures and appeals. We are concerned that this has led to an inappropriate use of public money and feel that greater scrutiny should be given to this aspect of IND.

  1.2  In immigration the 1993 Act[2] abolished the right of appeal against refusal of visitors' visas but this was then partially re-established, after considerable criticism from Britain's ethnic communities whose families were greatly affected, by the reintroduction of a right of appeal for family visits. Although welcomed, this was marred by the Government introducing fees for exercising the new statutory right of appeal (for the first time in a social welfare tribunal). This stimulated concerted criticism which led to the fees being reduced on two occasions and then abolished by a provision in the 2002 Bill. Vouchers were introduced for asylum seekers in the 1996 Act[3] on the basis that benefits were a main draw or "pull" factor for asylum seekers coming to the UK.[4]  This was not based on any sound evidence or research and involved creating a parallel benefits system which provoked criticism both as to the principle of stigmatising asylum seekers and its bureaucratic inefficiency. Vouchers were abolished by the present Home Secretary in April 2002. There have been other examples of dramatic changes of direction.

  1.3  In addition to these domestic changes there are significant moves to achieve a European Union common immigration and asylum policy yet there is uncertainty as to how many of the domestic changes are based on achieving greater uniformity rather than being particular to the UK. It would be helpful for the Government to be more explicit on this. We are concerned, also, that despite draft directives and other proposals which set out reasonable standards initially these are then reduced in the light of inter-governmental discussions.

  1.4  The effect of all this has been to make immigration law one of the most complicated and volatile areas of law in the UK. Following the report of the Wilson Committee the present immigration appeals structure was set up in the 1969 legislation (later consolidated into the Immigration Act 1971). The tribunal system (rather than the courts) was chosen not least because it was felt that the matters for adjudication would be mainly fact rather than law. That is now questionable. All adjudicators appointed since 1986 have been legally qualified (although there was no requirement for this).[5] It means that there is now even greater need for access to legal advice for those affected and proper judicial scrutiny. To use the words of a previous White Paper "The more complex a system of immigration control, the greater the risk of unfairness."[6] There is strong evidence to suggest that there will be a considerable shortage of competent legal advisers in this field.

  1.5  We welcome the change in the basis of immigration policy set out in the White Paper Secure borders, safe haven away from one rooted, arguably, on racist considerations of the 1960s to one based on the economic and social needs of the UK. We feel that this change of emphasis forms a good base on which to proceed.


  2.1  Against this background IAS feels that what is now needed is a period of stability without experimentation other than that based on sound research and within a strategic framework. This should take account of the experience of those agencies with knowledge of the effect of policies. Yet, despite appearances of taking account of such views, there is little evidence that the Government is heeding such advice. We understand that the 330 responses to the Government White Paper Secure borders, safe haven were not read until after the Bill had been published and were not placed in the House of Commons Library until after Second Reading debate in the Commons: there has still been no digest of these produced by the Government. The present proposals for accommodation centres are being pushed ahead and there seems little room for an adverse evaluation[7] despite universal opposition and experience from abroad and the Home Office's own research; yet there is a general consensus, which could be harnessed, that reception centres in a different format are worthy of consideration. We would expect a true pilot project to look at several other forms of reception centres, such as smaller ones in urban environments, the Dutch model of using rented barges in ports close to urban areas, etc.

  2.2  Our major concerns about the legislative changes proposed in the Bill are set out in the letter from the Chief Executive Keith Best to Lord Filkin dated 4 September (see Attachment). These concentrate on various attempts to exclude effective judicial scrutiny of the actions of the executive, whether in respect of those in detention or with rights of appeal. We consider early access to legal advice and effective judicial scrutiny as essential elements in a system that can command public confidence and not lead to injustice.

  2.3  Such confidence would be enhanced in our view by establishing an element independent of Government on both information about countries of origin of asylum seekers and also decisions on applications. We accept and would endorse the right of a democratically elected Government to set immigration, asylum and nationality policy but believe that the execution of such policy would inspire greater public confidence if it were seen to be independent. We commend to the Committee elements of the Canadian system.

  2.4  We support the Government's desire to see greater speed in processing applications so long as this is commensurate with justice. We regret that the time, effort and money which has been devoted to trying to achieve this in asylum cases has not been replicated in immigration (non-asylum) ones. In the latter there is an absence of effective targets and monitoring and the length of time between refusal of applications and the hearing of appeals leads to a blight of applicants' lives, whether students, spouses or dependent relatives, on the basis of justice delayed being justice denied. Yet haste can also be the enemy of speed. Tight deadlines for submitting appeals and preparation of cases which leads to inadequate representation is a false economy. There has to be a balance and we feel that the Government has not yet got this right.

  2.5  Part of ensuring confidence in an effective immigration and asylum policy is to ensure that those who are not lawfully entitled to remain are encouraged to leave or, if they fail to do so, are removed. It is essential to have figures as accurate as possible in identifying the nature of the problem (see Absence of Meaningful Statistics below) and to have targets which are realistic. The original target set by the then Home Secretary Rt Hon Jack Straw MP of 30,000 removals a year (subsequently modified to 2,500 per month, now abolished altogether) was unrealistic in the light of experience of being able to remove only c.1,000 per month. In view of fluctuating figures of asylum applications and grant of status (very much depending on the profile of asylum seekers which in turn depends on the situation in countries which generate asylum seekers) it is better, in our view, not to have numerical targets. We are concerned that some of the longest overstayers may be the most difficult to detect and that resources are diverted consequently into removing "soft" targets, namely those who, although overstayers, are complying with Home Office requirements (such as reporting).

  2.6  We feel that greater use should be made of reporting for those who are likely to become overstayers so that contact with the Home Office is not lost. Some presently thought to be overstayers will not have had contact with the Home Office for several years and, indeed, may have already left the country unknown to the Home Office. The most effective deterrent to overstaying is the likelihood of detection and the prospect that this may prejudice a further visit to the UK.

  2.7  We are concerned at frequent reports of cases where persons reporting to the Home Office are taken into detention without any prior warning and removed the following day without them being able to collect their personal possessions or make arrangements regarding their accommodation, engagements etc. IAS has personal examples of this inhumane treatment. There is little evidence to the contrary that in most cases persons informed that they must leave will do so in an orderly fashion without the need for detention.

  2.8  The most effective way of ensuring that asylum seekers return to their country of origin is for this to be done voluntarily (as with the Kosovans) with incentives and we support in principle the new policy of the Government in respect of Afghanistan so long as this is done with those affected having prior access to independent competent legal advice and disclosure of the full facts about their country of origin and not as some sort of bribe.

  2.9  IAS recognises that the greatest desire of most refugees is to be able to return to their familiar surroundings in their country of origin and to be able to live in peace without fear of persecution. This can be achieved effectively only by having agencies on the ground in those countries which can help find accommodation away from areas of persecution and which can assist in finding employment or self-employment. Funding individuals and families to do this is a necessary concomitant. IAS accepts that this could be regarded as a "pull" factor if applied universally to all who apply for asylum rather than those whose claims are accepted either as refugees or with exceptional leave to remain so there would have to be flexibility. A failure to provide such assistance is likely to lead to those returned seeking to come back to the UK (a circular movement experienced by Pakistan regarding Afghan refugees).

  2.10  Part of preparation for return is for persons while in the UK being able to develop existing or learn new skills and this is why IAS regards the Government's new policy or refusing to allow asylum seekers to work even after a period of six months to be ill-advised as well as expensive in terms of extra benefits, demeaning to the asylum seekers who wish to provide for themselves and their families and contrary to opinion polls which indicate that the British public expect asylum seekers to support themselves where possible. One valuable contribution that can be made by the UK as host country is the teaching of English.

  2.11  It is axiomatic that the desire to return to a country of origin is lessened the longer persons remain in the UK and put down new roots, especially where this involves children attending school, making friends, becoming fully familiar with the English language etc.


Accommodation Centres

  Despite the Home Office stating that it wanted a pilot to see if accommodation centres may provide a way of processing asylum seekers there is little evidence that models other than the large, rural ones proposed are contemplated. The Government has proposed three similar centres rather than a variety of different ones. It seems that at the end of the evaluation process the decision has already been taken that these centres will be successful, whatever the difficulties. IAS would like to see experiments with clustered centres as proposed by the Refugee Council and the use of moored accommodation as used widely on the continent as well as any other appropriate models. We are concerned at the capital cost (undisclosed) of the building of such centres and the annual costs of provision of services. We do not see why a broad estimate of these costs cannot be given for reasons of commercial confidentiality. We would hope that the Government would be prepared to look at cheaper options such as those that are rented and involve no capital cost—so long as these provide reasonable accommodation and services for their residents and if at the end of the evaluation are deemed to be unsuitable are returned to the lessor. The Home Office proposals appear to be contrary to the advice of every agency working in the field and against the evidence of its own Immigration Research and Statistics Service officers who visited Belgium, Denmark and Sweden and that of the continental experience. Yet all major agencies agree that the UK should experiment with reception centres. Our concern is the difficulty in providing adequate legal advice to a large number of persons in a remote rural area.

Non-suspensive appeals

  The proposal that failed asylum seekers whose cases are certified by the Secretary of State (in reality, delegated to a caseworker) should exercise their statutory right of appeal from a country abroad to which they would be returned was put into the Bill after the conclusion of the Commons Committee stage and two days before Report. From this it would appear to have been considered for only a short time and, in our judgement, will not work but will lead to an increase in expensive judicial challenges in the Administrative Court. The Home Office failed to send its response to the Joint Parliamentary Human Rights Committee on time and this measure was not considered by the Committee. Even so, its report itemises fourteen areas of human rights concern and the Bill has been described by a leading member of the Committee as the worst yet to be considered.

Expedited appeals

  Without any prior warning a major change in the way in which asylum appeals would be heard was announced by way of a written Parliamentary Answer in the Lords on 30 July. We understand that this has emanated from the No 10 Delivery Unit and we should like to know what, if any, prior consultation was undertaken by the Unit with the Home Office. Certainly, there was no prior consultation with those most affected (IAS and the RLC) who could have pointed out the difficulties. This is another example of a failure to consult those affected and the appearance of a hastily conceived and ill-considered measure.

Absence of meaningful statistics

  In its report in 1995 the National Audit Office[8] stated (at §2.5) that "the number of immigration offenders cannot be estimated with any confidence, and the total cost to public funds, in terms of unemployment, housing and other benefits, is unknown." The absence of such information and research has led to public speculation which has contributed significantly to raising tensions and continuing a debate based on prejudice rather than facts. The number of overstayers is clearly an issue of general public importance yet there are no accurate figures as individuals are not counted in and out of the UK (unlike in countries such as Australia). As only some 20 per cent of passenger arrivals in the UK are from non-EEA countries both the volume and technology should now be available to achieve this. We urge the Home Office to undertake a feasibility study along these lines.


  IAS published a manifesto before the last general election setting out its views in response to various requests. The main issues are as follows:


  1.  Immigration and asylum policy should serve the needs of Britain and not political and public prejudice. To that end it would be preferable if the Government set broad guidelines but the actual decisions and responsibility for implementing the guidelines were those of an independent body: much can be learned from the Canadian system. This would help to remove party politics from the issues, just as an independent Bank of England has taken politics out of setting interest rates. Indeed, there are other examples of public services, such as the Royal Mail, which used to be politically charged when a Minister was responsible, but have not been the case since they became separate bodies.

  2.  A common European immigration policy is a good goal so long as it encompasses the best practice in member countries and not merely minimum standards. This should include, for example, an extension throughout the European Union of the British model of independent adjudicators in public hearings capable of overturning on appeal the decision the Secretary of State. It should also include the right to free, independent, competent legal advice and representation for all those unable to afford it from their own resources.

  3.  The Government should create a coalition across the governmental, media and voluntary sector to promote the historic and future benefits of immigration and a positive image of immigrants in the interests of racial harmony.

  4.  Justice delayed is justice denied. Notwithstanding the desire of the Government to speed up the system (which IAS supports so long as this is commensurate with justice) this policy is being frustrated by delays by the Home Office sending appeals to the Immigration Appellate Authority. For those appellants whose appeals are successful this is a denial of justice.


  5.  There should be greater honesty in immigration policy. This should recognise that demographic projections show that the UK needs both skilled and unskilled immigrant workers (beyond the numbers which might be achieved through lowering unemployment and retraining the British workforce) if the UK is to sustain economic growth and security for its ageing population. To that end economic migrants who wish to come to the UK for work (although not necessarily for settlement) should be entitled to come in as such rather than having to masquerade as asylum seekers. Those who continue to make a contribution to the economy should, if they wish, earn the right to settlement.

  6.  There should be an open recognition that British immigration policy of the last thirty years which has been based on restricting non-white immigration is no longer appropriate to a more multi-cultural, multi-ethnic and multi-religious society which obtains today nor does it reflect the bases of various skills around the world (the most obvious examples being computer software programming, education and health workers required from non-white countries).

  7.  There should be a requirement that all explanatory statements (explaining the reasons for refusal, without which an appeal cannot be heard) from overseas posts following a refusal of entry clearance should be sent to the Home Office within two months of the refusal and that the appeal should be listed within two months thereafter: currently, some explanatory statements are not being despatched for several months to a year. If an appeal is allowed there should be no further delay in issuing entry clearance.

  8.  A common European Immigration Policy should recognise and preserve the special status in UK immigration law of Commonwealth citizens.

  9.  The Government should implement the presumption of liberty and routine bail hearing provisions of the 1999 Immigration and Asylum Act without any further delay.


  10.  There should be a fast-track procedure to identify those asylum seekers who are likely to be allowed to remain in the UK, by being given either refugee status or exceptional leave to remain, and their skills should be harnessed as soon as possible allowing them to lead economically productive lives and integrate into society.

  11.  The refusal of asylum claims on grounds of non-compliance for those who are unable to return their Statement of Evidence Forms (SEFs) within the required time of 10 working days is a breach of the UK's obligation under the 1951 Convention on the Status of Refugees; it is scandalous that the percentage of these refusals rose to as high as 40 per cent. Strict time limits for return of SEFs should be applied only where an applicant has access to legal advice and assistance in their completion and only from the date of such legal advice.

  12.  The current practice of early interviews when asylum seekers are traumatised after an often long and tortuous journey is inhumane. No asylum applicant should be interviewed by a Home Office official within a few hours of arriving at a port of entry unless legally represented and consent is given to an early interview. Otherwise, asylum seekers should be given temporary admission and required to complete a Statement of Evidence Form.

  13.  No appeal against refusal of asylum before the Immigration Appellate Authority should proceed in the absence of the appellant unless good cause is shown and the adjudicator is satisfied that the non-attendance of the appellant is wilful.

  14.  Other than in exceptional circumstances asylum seekers should not be detained; families should be allowed to remain together and should not be detained.

  15.  Asylum seekers should be afforded the same human dignity as other UK citizens, in line with the UK's obligations under the 1951 Convention: it is clear from Home Office research that benefits are not a significant draw factor and asylum seekers should be given the same benefits in amount and extent as other claimants in the UK.

  16.  Dispersal of asylum seekers to areas to which they do not want to go among an unprepared resident population is a recipe for racial tension and violence: dispersal should be only as a result of the informed choice of asylum seekers to areas which have the necessary facilities and welcome.

September 2002

1   Unless otherwise specified the term "immigration" in this paper includes asylum and nationality issues. Back

2   Asylum and Immigration Appeals Act 1993. Back

3   Asylum and Immigration Act 1996. Back

4   The latest Home Office research indicates that benefits do not constitute a significant reason for asylum seekers coming to the UK. Back

5   see Home Office and Lord Chancellor's Department a joint consultation document about this published on 13 July 1998 referred to in Fairer, Faster and Firmer-a modern approach to immigration and asylum Government White Paper Cmnd 4018 which preceded the 1999 legislation. Back

6   Fairer, Faster and Firmer-a modern approach to immigration and asylum Government White Paper Cmnd 4018 §3.8. Back

7   Hansard Written Answer 3 Jul 2002: Column: 430W Beverley Hughes: "We set out the likely criteria for evaluating accommodation centres in the White Paper published on 7 February 2002 (Cm 5387). We are still considering the details of the evaluation process. We expect the trial centres to be successful. If in the light of the evaluation of the trial there is a need to modify any aspect of the centres, we will address that at the time." Back

8   "Entry into the United Kingdom" Report by the Comptroller and Auditor General HC 204 Session 1994-95 22 February 1995. Back

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