Joint Committee On Human Rights Sixth Report


73. Memorandum from the Refugee Council

  The Refugee Council is the largest organisation in the United Kingdom working with asylum seekers and refugees. We not only give help and support to asylum seekers and refugees, we also work with them to ensure their needs and concerns are addressed by decision-makers. We therefore welcome the opportunity to contribute to the Joint Committee on Human Rights' (JCHR) consideration on the proposals for a new structure for the single equalities body and arrangements for the promotion and protection of human rights.

  As you will be aware we have previously already submitted evidence in response to JCHR's previous calls for evidence and also participated in the work of the British Institute of Human Rights (BIHR) published in December 2002.

  In making our response, we have endeavoured to answer the questions set out in your call for evidence of 19 December 2002.

  1.  The convention rights that are applicable to the problems faced by our client group are—

    —  Article 3 Prohibition of torture

    —  Article 5 Right to liberty and security

    —  Article 6 Right to a fair trial

    —  Article 8 Right to respect for private and family life

    —  Article 9 Freedom of thought, conscience and religion

    —  Article 10 Freedom of expression and Article 14 Prohibition of discrimination.

  2.  We are concerned about a range of issues. The recently introduced Nationality Immigration and Asylum (NIA) Act 2002 will give rise to a number of possible breaches of the Human Rights Act in relation to asylum seekers. Indeed in your 17th and 23rd Report of Session 2001-02 you detail concerns and highlight where these breaches could arise. In summary these are—

    —  There is a risk that leaving a person destitute would inevitably threaten a violation of rights under Articles 3 and/or 8 of the ECHR.

    —  There is a risk that the power to support children without related adults might lead to the separation of members of a family, giving rise to a risk of a violation of Article 8.

    —  There are weaknesses of safeguards for human rights in clause 54, in view of:

    —  the burden being placed on the claimant to satisfy the Secretary of State that a claimant has claimed asylum as soon as reasonably practicable;

    —  the lack of objectivity in the requirement that a person must claim asylum as soon as reasonably practicable in order to be entitled to support;

    —  the lack of any appeal to an adjudicator against a decision denying support; and

    —  the absence of any power to provide support pending an application for judicial review of the decision to deny support.

    —  There are doubts as to the effect of clause 56, authorising the making of regulations to allow support to be withheld if the Secretary of State is not satisfied that the claimant has given a full and accurate account of various matters and is co-operating with the Secretary of State's further enquiries.

    —  There are weaknesses in safeguards for human rights in clause 56 and a risk of a violation of Article 6(1) of the ECHR through a potential threat to the privilege against self-incrimination.

  The full reports can be found at:

    http://www.publications.parliament.uk/pa/jt200102/jtselect/jtrights/176/176.pdf

    http://www.parliament.the-stationery-office.co.uk/pa/jt200102/jtselect/jtrights/132/13201.htm

  We are already beginning to see the effects of the implementation of the NIA Act particularly S55 and S57 which became operational on 8 January 2003. This leaves some asylum seekers without any means of support whatsoever. As stated, we believe this to be a breach of Article 3 and will lead to widespread destitution and it is likely that this will soon be challenged through legal proceedings.

  3.  The measures related to the support of asylum seekers are, according to the National Asylum Support Service (NASS), likely to affect up to 100 people a day. In relation to detention there are currently 2,000 detention spaces and we estimate that at any one time there are likely to be 1,400 asylum seekers in detention.

  4.  We feel that these failures of service provision are not failures of good practice but are breaches of the Human Rights Act.

  5.  The issues of concern that we have do not presently fall within the remit of any of the Commissions. The Commission for Racial Equality's authority is derived from the Race Relations legislation and not the Human Rights legislation. Therefore, whilst they are able to take up any race issues in relation to certain asylum seekers and refugees, they do not have the remit to take up the human rights issues. Likewise, the Equalities Opportunities Commission and the Disability Rights Commission, whilst able to take up discrimination aspects of individual cases, will not be addressing the human rights issues involved.

  6.  As asylum seekers and refugees are not a racial group they will not fall into the remit of the proposed single equalities commission after implementation of the EU Directive on grounds of sexual orientation, religion and age. It is difficult to envisage how the issues that are of concern to us could fall into the remit even following the EU Directive.

  7.  On the basis of Articles 8 and 14 of the ECHR, the Child Poverty Action Group successfully challenged the Home Office and the Department of Health's refusal to grant milk tokens to asylum seeking women who had recently given birth. (Regina v Secretary of State for Health and Secretary of State for the Home Department Ex Parte T and S).

  Article 5 (1) (F) was the basis of the Refugee Legal Centre's challenge of the Home Office's detention in Oakington of four Iraqi Kurds (Regina v Secretary of State for the Home Department Ex Parte Saadi (FC) and others (FC).

  Legal challenges are currently being mounted by Refugee Legal Centre, Liberty and individual solicitors against the Home Office on the basis that S55 and S57 of the NIA Act breach Articles 3, 6 and 8 of the ECHR.

  8.  As we believe many of our concerns arise from legislation as opposed to bad practice, it is inevitable that recourse lies in legal proceedings. It is our view therefore that essential remedial action would involve legislative amendment and policy changes.

  9.  As we outlined in our earlier response we firmly believe that there is a need for a body, independent of government that has the powers to promote and protect human rights. This response is attached at Annex A.

  10.  It is clear from the BIHR research that there is a great lack of awareness of individual rights under the Human Rights Act and there is an urgent need for much greater promotion which an independent body could do.

  11.  At this stage our principal concern is that a Human Rights body is actually established rather than on the structure such a body should take.

  There are arguments to be made both for and against the single equalities body also encompassing human rights. It is possible that having one body could strengthen some of the issues. However it is possible that this would give it such a wide remit that the human rights agenda could be lost or greatly diminished.

  On balance we feel a separate body would ensure greater clarity in concentrating on the human rights agenda.

Annex A

Refugee Council Response to a Human Rights Commission for the United Kingdom

INTRODUCTION

  1.  The Refugee Council welcomes this opportunity to contribute to the Joint Committee on Human Rights' consideration of the desirability for a Human Rights Commission to be established in the United Kingdom.

  2.  The Refugee Council is the largest organisation in the United Kingdom working with refugees and asylum seekers. We not only give help and support to asylum seekers and refugees, we also work with them to ensure their needs and concerns are addressed by decision-makers.

THE NEED FOR A HUMAN RIGHTS COMMISSION

  3.  The right to asylum—the right to be free from persecution—is a basic human right. This year, the Refugee Council celebrates the 50th anniversary of the 1951 UN Convention relating to the Status of Refugees which, over the years, has helped to protect millions of ordinary people.

  4.  The Refugee Council, other refugee organisations and human rights groups, backed by a number of reports, have expressed concern that the human rights of asylum seekers and refugees are not being respected properly in the United Kingdom. The Joint Committee may be aware that criticisms about the voucher system and the lack of access to legal advice for asylum seekers, for example, have been made by the UN Committee on the Elimination of All Forms of Racial Discrimination, Amnesty International and the United Nations High Commissioner for Refugees ("Reception Standards For Asylum Seekers In the European Union", UNHCR, Geneva, July 2000).

  5.  It is not possible for established bodies, such as the Commission for Racial Equality, to address all the issues facing asylum seekers and refugees because of statutory or other limitations.

  6.  It is our view, therefore, that a Human Rights Commission, working closely with other bodies with special responsibilities for particular rights, would be a significant step towards fostering a human rights culture in the United Kingdom and, in defending the human rights of asylum seekers and refugees, would help protect the right to asylum from being undermined.

  7.  A Human Rights Commission could also fulfill an important role in monitoring and investigating the extent to which the human rights of asylum seekers and refugees are protected and advise government and Parliament of necessary reforms in law (existing and proposed), policy or procedures. It should also be able to take test cases and make interventions in cases where it is in the public interest that the law or actions be challenged or clarified.

  8.  For example, despite widespread criticism of the practice, the Home Office is currently rejecting a significant proportion of asylum applications on the grounds that the applicant did not complete (in full and in English) and return (within a rigid 10 day deadline) a form outlining his or her asylum application prior to interview. These asylum applications, even if they are from countries which the Home Office accepts pose significant risks, such as Iraq and Afghanistan, are rejected without having their merits considered. Many applicants issued with such refusals appeal to the Immigration Appellate Authority at great expense and at further delay. A Human Rights Commission could investigate whether such a practice had the effect of abridging the human rights of asylum seekers and inform Parliament and the public of its findings and recommendations.

  9.  The Human Rights Commission may also wish to investigate the detention of asylum seekers. Asylum seekers are currently unable to challenge the lawfulness of their detention before a court and the many of those detained are in prisons, sometimes amongst convicted prisoners.

  10.  The Refugee Council believes creation of a Human Rights Commission would be particularly beneficial to efforts to promote public awareness and understanding of human rights issues, including our responsibility to protect the human rights of others. On this last point in particular, the Refugee Council is aware there exists hostility in the media and in many members of the public towards asylum seekers and refugees. Despite the fact that asylum has been high on the political agenda, much of this intolerance is based on ignorance of even the most basic facts.

  11.  For example, a Mori poll in the Reader's Digest magazine (November 2000) found that although a majority of respondents believed that refugees come to the UK because they regard it as a "soft touch", many based their views on incorrect assumptions on how much support asylum seekers receive. Respondents, on average, believed that asylum seekers receive £113 a week to meet their essential living needs. The real figure is £36.54 a week for a single adult.

  12.  The Joint Committee may also wish to examine recent reports by the UN Committee on the Elimination of All Forms of Racial Discrimination and the Council of Europe's European Commission against Racism and Intolerance. Both bodies criticised politicians for failing to educate public opinion on asylum issues

  13.  It is likely that the people most in need of a body like the Human Rights Commission to help safeguard their human rights will also be those, such as asylum seekers, least able to access it due to a range of information and resource barriers. It is therefore essential that the Human Rights Commission be mandated to pay particular attention to the needs of such groups.

RESOURCES

  14.  It is necessary for the success of the Human Rights Commission that it is resourced fully to carry out its functions. We would expect it to be empowered to conduct investigations; to require people to provide information; to require people to cease conduct which the Commission considers to be unlawful; to conduct legal proceedings; to assist other parties in legal proceedings; to issue Codes of Practice; to conduct research; to engage in a range of activities designed to heighten awareness within their remits and other such activities deemed necessary.

SUMMARY

  15.  For the reasons outlined above, the Refugee Council welcomes the Joint Committee's consideration of this important question and believes there is an overwhelming argument for the establishment of a Human Rights Commission.

17 January 2003


 
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