7. Memorandum from JUSTICE
JUSTICE is an all-party law reform and human rights
organisation, with a long-standing interest and concern in asylum
law and practice. We set out our main concerns in relation to
the Bill below that relate to our areas of work.
JUSTICE welcomes certain aspects of the Bill such
as the abolition of the voucher scheme but finds it unfortunate
that the Bill does not make any radical changes to the asylum
determination process itself, thereby missing a further opportunity
to ensure a fair and effective system.
Asylum and refugee policies raise complex issues.
A principal area of concern is the decision-making process, and
whether individual claims are being decided fairly and effectively.
In 1997, JUSTICE, with the Immigration Law Practitioners' Association
and the Asylum Rights Campaign, highlighted the need for improvements
to the initial decision-making process, which would then inform
and aid the whole of the rest of the asylum system. In Providing
protection, we called for:
Access to advice
and representation from the beginning of the process.
Better decision-making, by well-trained
decision-makers, on the basis of improved access to information
about countries of origin and about case law.
Thorough reform, instead of the piecemeal
changes which have happened over the past decade.
JUSTICE believes these concerns have not been addressed
in the Nationality, Immigration and Asylum Bill. The changes to
the asylum process are concentrated on support and accommodation
provisions. However there is nothing at all to improve the way
in which applicants put forward their claims for asylum and the
manner in which those claims are determined both by the Home Office
and the appellate system. There is little recognition of the concern
claimants and appellate judges have frequently expressed about
the quality of Home Office decision making. If appeals are to
be the first time the real facts and issues in a claim are identified,
there are bound to be errors and legitimate sense of grievance
1. We welcomed the commitment in the White Paper
Secure borders, safe haven to ensure that asylum seekers
are properly supported and accommodated whilst their claims are
being considered. We also welcomed the assurance in that consultation
paper that legal advice, and other crucial services, such as healthcare
are to be ensured to residents of these centres. Whilst we welcome
the fact that certain services are provided for in the Bill, JUSTICE
is concerned that legal advice is not amongst the facilities to
be offered to residents of accommodation centres (clause 25(1)).
The importance of legal advice prior to making an initial claim
for asylum cannot be over emphasised, it is crucial in order for
applicants to able to claim asylum fairly and effectively.
2. The centres proposed will accommodate only
a small proportion of people; the majority will be housed in communities,
dispersed around the country, as at present.
JUSTICE therefore finds it imperative that the government resolves
the difficulties around dispersal that were highlighted in it
own dispersal review, in October 2001. We welcome the 2002 White
Papers promise to re-introduce dispersal based on language cluster
areas and hope that this will ensure greater integration of asylum
seekers in host communities. However the National Asylum Support
Service (NASS), were unable to cope with the detailed planning
and local knowledge required, to implement the cluster policy
in the past. It is essential that the new regionalised NASS, is
provided with the necessary support to do so.
3. JUSTICE believes that the government must
ensure that the new regime of induction and accommodation centres
does not militate against integration. If people eventually recognised
as refugees have been isolated for months before their cases are
decided they may have greater difficulty integrating into society.
Therefore wherever possible residence in the community should
4. Consequently we are deeply concerned about
the provisions in the Bill (clause 30 and 31) that require the
isolation of child asylum seekers from mainstream education. This
provision, as well as discriminating against child asylum seekers
will make their integration into society when they are recognised
as refugees even more difficult and traumatic.
5. JUSTICE welcomes the government's intention
to phase out voucher support. Vouchers stigmatised asylum seekers
and lead to unnecessary disadvantage. Abolition of this form of
support may therefore have a positive effect on the integration
6. However we believe it is essential that support
for asylum seekers is in increased from 70 per cent to 100 per
cent of income support for all asylum seekers. Asylum seekers
cannot be expected to support themselves on benefits that fall
short of those levels.
'Support only' option
7. JUSTICE is concerned that asylum seekers allocated
places in accommodation centres, or NASS accommodation, should
not be compelled to reside in those places in the face of reasonable
alternatives. The Bill includes a power to limit subsistence support
to those who have been provided with accommodation (clause 34).
Where it is possible for applicants to remain in the community
they should not be prevented from doing so, and should be able
to access adequate support. At present 40 percent of asylum seekers
supported by NASS are receiving 'support only' and have refused
accommodation places, this indicates that the removal of this
alternative will affect a substantial number of asylum seekers.
It is in asylum seekers, and the interests of the community, that
they integrate into society. They have a greater chance of doing
this if they are able to stay with friends or family while their
claim is being processed, and are provided with support. Asylum
seekers should not have to forfeit state support because they
choose to reside in the community.
8. JUSTICE welcomes the provisions in the Bill
on international projects. In particular, the provision which
would allow the UK to participate in resettlement programmes for
the admission of refugees in need of international protection
9. In principle, resettlement programmes can
be positive measures, which enable refugees to enter host States
with dignity as refugees rather than having to resort to illegal
means of entry and be the victims of exploitation. They can also
be used to identify, and offer particular assistance to, vulnerable
groups. Any measure that would assist groups in the entry into
Member States and relieve them of the often harrowing journey
by other means is to be supported.
10. We welcomed the government's assurance in
the White Paper that a resettlement programme will operate in
addition to the current asylum procedures. It is essential that
the provision of support and protection through resettlement programmes
do not disadvantage those that make the journey to the UK in order
to seek asylum. Resettlement is in addition to and not a substitute
for non-refoulement. Resettlement cannot be used a pretext to
place further restrictions on in country applicants in order to
deter asylum seekers from arriving in the UK to seek asylum.
11. JUSTICE welcomes the provision in the Bill
for providing financial support to international organisations,
such as UNHCR, that arrange resettlement programmes (clause 43(2)).
However we would stress that in setting out 'eligibility criteria'
to identify candidates for resettlement, the government must prioritise
the protection needs of applicants. The primacy of protection
should not be replaced by the UK's own political and economic
interests. It is important that the selection process is undertaken,
and the criteria set, independently, for example by UNHCR.
12. JUSTICE is concerned that detention centres
renamed as 'removal centres' will not only detain those that are
about to be removed from the UK. It therefore does not make sense
to re-designate detention centres as removal centres.
13. As there is a lack of information on the
status of people in immigration detention at present there is
no means by which the governments assurance in the White Paper,
that detention will be at the end of the process, can be verified.
It may therefore be misleading to rename detention centres.
Detention and Bail
14. JUSTICE is deeply concerned that the Bill
repeals most of Part III of the Immigration and Asylum Act 1999,
which created a system of automatic bail hearings. We are disappointed
that the government places greater importance on streamlining
the removals process than on ensuring the legality of individuals
detention. Individuals must have a right to go before the courts
to argue that detention is inappropriate, including in situations
where asylum and protection seekers have served penal sentences
and there is no question of absconding. It is JUSTICES view that
this position must be reconsidered to ensure that bail provisions
are compliant with Article 5, ECHR
as incorporated by the Human Rights Act 1998.
15. Article 5(4) of the ECHR requires that all
those deprived of their liberty shall be entitled to take proceedings
before a court to decide the lawfulness of their detention. The
present system of bail does not satisfy this provision and JUSTICE
believes that it is critical that Part III of the 1999 Act, which
may ensure compliance is not repealed.
16. Immigration detention should only take place
where it is authorised under Article 5(1)(f) of the ECHR. Detention
is only justified under Article 5(1)(f) to prevent 'an unauthorised
entry' or ' with a view to deportation or extradition'. Excessive
restriction of liberty would be incompatible with Article 5(1).
JUSTICE urges the government to ensure that its obligations under
the ECHR, and the Human Rights Act are met, and that individuals
are not detained in violation of their rights set out in these
17. JUSTICE welcomes an integrated approach to
the induction of asylum seekers, which will assist in the early
identification of any special needs they might have. It is also
essential that asylum seekers are informed about the asylum process,
in a language that they understand, to enable them to comply with
any requirements. However we are concerned about the legal implications
of requiring asylum seekers to sign declarations stating that
they understand these processes. Any consequences of these signed
declarations require further explanation from government.
18. We strongly believe that legal representation
should be made available to applicants at this stage in order
for them to seek advice if necessary. The advantages of informed,
ethical and responsible representation at this stage are for the
benefit of both the asylum seekers and the decision-makers. Such
representation would assist the Home Office in identifying the
real issues involved and narrowing the necessity for, and scope
of subsequent appeals.
19. JUSTICE is however concerned that the induction
process does not become a disguised form of detention in all but
name. A limited restriction on liberty for a short period while
essential procedures are undergone may be one thing; deprivation
of liberty merely because a person is seeking recognition of protection
rights is altogether another. The nearest equivalent in the Netherlands
for example, are the application centres, which are considered
to be detention centres by some NGOs, but not officially by the
government on the grounds that people are free to leave them,
by leaving the country, if they decide to do so.
22 April 2002
168 The NACAB briefing on the Bill indicates that
the 3000 places in accommodation centres is around 3 per cent
of all asylum seekers in accommodation. Back
As pointed out in the NACAB briefing on the Bill page 5, information
in Asylum Statistics: 4th Quarter 2001, Home Office,
February 2002 Back
See the JUSTICE Briefing, Immigration and Asylum Bill, Human
Rights Compliance Statement: House of Lords 1999, page 15 sets
out the international law requirements for Bail provisions, and
see below Back