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You are here: BAILII >> Databases >> United Kingdom Journals >> Clements, 'Asylum in Crisis, An assessment of UK Asylum law and policy since 2002: Fear of Terrorism or Economic Efficiency' URL: http://www.bailii.org/uk/other/journals/WebJCLI/2007/issue3/clements3.html Cite as: Clements, 'Asylum in Crisis, An assessment of UK Asylum law and policy since 2002: Fear of Terrorism or Economic Efficiency' |
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[2007] 3 Web JCLI |
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Lecturer in Law, University of Hull
Copyright © L.M. Clements 2007
First published in Web Journal of Current Legal Issues
This article reviews current legislation and government policy on asylum in the United Kingdom. It assesses whether asylum legislation is being prompted by the fear of threats of terrorism, or whether government strategy is a genuine attempt to solve the perceived asylum crisis. The Article examines some of the human rights issues to which the asylum legislation gives rise. The author concludes that, in particular, the Asylum and Immigration (Treatment of Claimants) Act 2004 raises a number of important human rights issues. It is also concluded that some measures on asylum passed since 2002 have indeed been prompted by a fear that asylum and terrorism are linked, but that the belief that tough asylum laws will be a deterrent to terrorist activities is counter-productive. The fear of such a link has nevertheless led to a policy resulting in suffering for many who have genuinely sought refuge in this country. The author suggests that terrorism legislation should be the only proper means to increase national security, not asylum law, and that it is only in this way that the United Kingdom can maintain its respect for the human rights of genuine asylum seeker.
- Introduction
The background to the current debate- The context
What was real thinking behind the post - 2001changes?
Fear of Terrorism or Economic Efficiency?
The Statistics- Background to the 2002 Legislation
The Nationality, Immigration and Asylum Act, 2002
What Effect Have the Above Decisions Had in Practice on the Quality of Life of Failed Asylum-Seekers?
The Asylum and Immigration (Treatment of Claimants) Act 2004
The Immigration, Asylum and Nationality Act, 2006- Appeals and Related Matters
Illegal Working
Accommodation
Integration Loans- The 1951 Convention
Conclusion
Asylum law and policy is an area which can easily become a hot political potato and this is certainly true in the United Kingdom. Political commentators have suggested that the asylum system in the United Kingdom has now reached crisis point. (Moore). Support for this assertion can be found to some extent in the major and frequent changes to asylum law and policy that have taken place in this country since 2002. That is not to say that there were not frequent changes even before 2002, as will be indicated below. However, those changes that have been made since 2002 are of a different type and strictness, reflecting, perhaps, the public mood following the post-2001 terrorist attacks and the global threats of terrorism that have become part of daily lives in the UK.
The Nationality, Immigration and Asylum Act, 2002, was the first piece of legislation in this area post-2001. This Act was passed relatively quickly after the Immigration and Asylum Act 1999, which is outlined below, but the 2002 Act soon appeared to be in real trouble, necessitating yet further legislation in the form of the Asylum and Immigration (Treatment of Claimants) Act 2004. In March 2006, the Immigration, Nationality and Asylum Act, the latest in a line of legislation in this area, received the Royal Assent. This latest Act is being brought into force by a series of Regulations and is not expected to be fully implemented until 2008. Such a quick succession of enactments is suggestive of a system that is either in crisis or which is responding reactively to a deep-seated fear, such as the threat of terrorism. Is this in fact the case? Have measures which have been taken since 2002 been essentially a knee-jerk reaction to the increasing fears of terrorism in the United Kingdom? Or have they instead been a systematic attempt to deal with a situation which is increasingly reaching crisis point and are therefore about economic migration?
This article will review the current legislation on asylum in the United Kingdom, assess whether the legislation is in reality being prompted by the fear of threats of terrorism or is a genuine attempt to solve economic aspects of the asylum crisis in the United Kingdom, whilst at the same time examining some of the human rights issues to which United Kingdom asylum legislation gives rise.
In order to understand the current law and policy on asylum in the United Kingdom, it is first of all necessary to have an appreciation of the political, social and economic context in which that law and policy has been formulated. In particular, it is necessary to have some background knowledge of the law on asylum in the UK pre-2000, the general situation regarding asylum in the European Union since 2002 and of the global threat of terrorism that has occurred during the same period.
The UK signed the 1951 Convention Relating to the Status of Refugees in 1954 and signed the Protocol in 1968. Since then, the UK has in practice given effect to the terms of the Convention, but it was not until the Asylum and Immigration Appeals Act, 1993, that the Convention became part of UK law. Until 1993, there was no asylum-specific legislation; instead, the asylum system was governed by the general immigration laws. The Asylum and Immigration Appeals Act, 1993, established the primacy of the 1951 Convention in UK asylum law and gave immigration authorities the power to detain asylum-seekers whilst the outcome of their claim was pending. The 1993 Act also set strict time limits within which appeals against asylum decisions had to be made.
Since the 1993 Act, there have been a number of important legislative changes in UK asylum law. The Asylum and Immigration Act, 1996, for example, removed welfare benefits entitlement from asylum-seekers who made their claim for asylum only after their arrival in the UK, rather than at the point of entry. The 1996 Act also introduced a “white list” of “safe” countries; asylum claims made by those from such countries were treated by the Home Office as having no substance to them. The Act further ensured that those individuals who had travelled through a “safe third country” before arriving in the UK, and who failed to claim asylum whilst in that country, could only bring an out-of -country appeal against a decision refusing them asylum in the UK. Restrictions were also placed on asylum-seekers being able to work in the UK. Asylum-seekers were only allowed to take up employment if their claim for asylum had not been determined within 6 months; an employer who took on an asylum-seeker with false work permits or no documentation at all could face criminal sanctions if the employer had done so knowingly.
The Immigration and Asylum Act 1999 then introduced the National Asylum Support Agency, which was made responsible for providing support for destitute asylum seekers and their dependants during an asylum claim or whilst an appeal was pending. The 1999 Act also enabled the dispersal of asylum-seekers to different parts of the UK. It extended the offences of entering the country by deception, whilst those who clandestinely brought illegal entrants into the UK now faced severe penalties. Asylum applications could also be certified as “manifestly unfounded”, whilst the right of appeal was restricted and “One-stop” procedures for appeals were introduced.
The 2002 Nationality, Immigration and Asylum Act made further important changes to the UK asylum system following the terrorist attacks in the USA. These changes included the removal of the right to work, abolition of Exceptional Leave to Remain for up to a four year period and the introduction of the infamous section 55, which allowed removal of NASS support to those asylum seekers who had failed to make an asylum claim “as soon as reasonably practicable” after arrival in the UK.
Since the attacks of the eleventh of September 2001, the date of the assault on the Twin Towers and other targets in the USA, the public’s attitude towards asylum has changed. Asylum seekers had somehow become connected in the minds of many with global increases in acts of terrorism. (BBC News, 2006) This unwarranted association has contributed to increased hostility towards asylum seekers and press prominence given to asylum issues in the United Kingdom. The seventh of July 2005 suicide bombings in London did nothing to allay the perceived connection between asylum and terrorism, although such a connection did not exist in that situation. It is noteworthy that the four bombers who died in the attacks of July 7 2005 were Hasib Mir Hussain, Tavistock Square bus bomber, born and raised in Leeds, Germaine Lindsay, Russell Square bomber, raised in Huddersfield, Shehzhad Tanweer, Aldgate bomber, born in Bradford, and raised in Leeds and finally Mohammad Sidique Khan, Edgware Road bomber, born and raised in Leeds. None of these four were or had been asylum-seekers. Neither did the link actually exist in the more recent arrests of fourteen people in London on terrorism charges or in the arrests of nine people in Birmingham in early 2007 (New York Times, 2006). In August and September, 2006, 14 people, mainly from North East London, were charged with various offences under the terrorism legislation, including the 2006 Act. Again, however, none of these people were asylum-seekers or refugees.
Whilst efforts to tighten border controls and restrict asylum were being made in the United Kingdom well before the seventh of July attacks, those attacks did make the unwarranted connection between terrorism and asylum more prominent in the public’s mind and made further restrictive legislation on asylum more likely and easier to push through. Anti-terrorism rhetoric has enabled the government to push through legislation which has made genuine asylum-seekers destitute and this has, in turn, led to a number of human rights issues arising. Such anti-terrorism rhetoric, however, is not based on any firm proof that asylum-seekers are more likely than anyone else to be involved in terrorist activities. In fact, asylum-seekers are more likely to be fleeing from terror, persecution and torture themselves than be participants in it. (Refugee-Action). As Steve Symons, of Asylum Aid, has put it:
“Any seriously-minded terrorist is unlikely to choose a route where claiming asylum immediately puts you into contact with the authorities” (BBC(a)).
The 1951 United Nations Convention on Refugees contains “exclusion clauses” which ensure that those who do commit serious human rights abuses, serious non-political crimes, and acts contrary to the principles of the United Nations are excluded from having refugee status. (See Articles 1(F) and 33(2) of the 1951 UN Convention on Refugees.) The 1951 Convention also allows for the expulsion of a person who is considered to be a danger to the national security of a country to which he/she is applying for asylum. The latter is the only exception in the Convention to the principle of nonrefoulement. This principle normally protects a refugee from being returned to their country of origin if to do so would put their life or freedom in serious jeopardy; but, where national security is at stake, States may return an asylum-seeker in circumstances which would otherwise breach this principle. Under these provisions, therefore, any person who is a terrorist cannot, by definition, be a refugee and can either be refused entry or expelled from any State-Party to the Convention.
Asylum-seekers who enter the United Kingdom are obviously also subject to the same general laws as any other citizen; and, statistically, are more likely than others to be the victims of, rather than the perpetrators of, crime. (Association of Chief Police Officers, 2003; Asylumaid).
Upon arrival in the United Kingdom, an asylum-seeker is fingerprinted, security checked against United Kingdom and European Union databases, their photograph is taken and immigration officials issue them with identification. Biometric technology is now being used in this process and a high-tech identification card may be issued which provides a more secure way of tracking people through the United Kingdom asylum system. The recent Immigration, Nationality and Asylum Act 2006 will allow data-sharing between the United Kingdom customs service, the police and the Immigration authorities and also gives powers to the latter to verify a person’s identity by checking their fingerprints against the biometric data contained in that person’s travel documents. Biometrics are now seen as a means of filling in the gaps in the more traditional methods of border control and therefore increasing security against terrorism by ensuring that a person really is who he/she claims to be. The Home Office first started issuing biometric cards (Application Registration Cards, or ARC’s), instead of the Standard Acknowledgement Letter, to asylum-seekers in Croydon in 2002. However, human rights implications arise from the increased use of biometric data in the fight against terrorism, because a person’s right to privacy may be breached by the collection, processing and distribution of his/her unique characteristics. Furthermore, there are data protection issues at stake in the use of such procedures. Nevertheless, advocates of biometric identifiers argue that these disadvantages are a necessary price to pay for increased security against terrorism and that biometric identifiers do assist in the return of failed asylum-seekers by identifying accurately the person’s true country of origin. It is also claimed that the data held in the microchip of an Application Registration Card is ‘protected’ from misuse and that the privacy issue has been addressed by revealing the information that is placed on the Card to the individual asylum-seeker concerned (Thomas, 2006).
There are also other stringent controls on asylum seekers, such as regular reporting to police stations or to immigration centres. The same controls, however, do not apply to others who pass through the United Kingdom legally as visitors. Notably, the terrorist attacks that were made on America in New York on the eleventh of September 2001 were made by people who had documents which would have allowed them to enter the United States legally, although this fact is often forgotten. It is equally notable that the attacks, actual and thwarted, that have so far occurred in the United Kingdom have involved resident citizens of the United Kingdom, not asylum-seekers or refugees and that those asylum-seekers who have so far been charged with terrorism offences have been cleared of those charges (Guardian, 2006a). Furthermore, between the eleventh of September 2001 and the end of December, 2004, seventeen people were charged under terrorism legislation in the United Kingdom, but fewer than eight were known not to be British nationals. Nevertheless, the public perception remains that some asylum-seekers may be involved with crime and terrorism. For example, when asked to define what an asylum seeker was in their school assembly, a Liverpool secondary school’s children replied that “[a]n asylum seeker is a suicide bomber” (Guardian, 2006a).
If the above perception of asylum being mixed up with terrorism were based on fact rather than suspicion, then, logically speaking, the larger the number of asylum-seekers entering the United Kingdom, the greater the fear and mistrust amongst the general public and the greater the political pressure on government to deter and curb asylum-seekers from entering the United Kingdom. Equally, stern measures to deter and curb asylum could then be justifiable on the grounds that there was a proven threat to national security. As this article will attempt to demonstrate, this seems to be the thinking behind the manner in which, and degree to which, the United Kingdom Government has reacted to asylum issues since 2002 through the measures it has taken on asylum and immigration. The right to seek asylum, declared in Article fourteen of the Universal Declaration of Human Rights, has been increasingly eroded since 2002 by a range of measures which, in combination, act as a deterrent to entry into the United Kingdom and the claiming of refugee status.
These measures, it will be suggested, are more a reflection of anti- terrorism rhetoric and playing on the public’s fears of terrorism than about economic efficiency. In other words, at grass roots level, United Kingdom asylum legislation and policy now appear to have much more in common with anti-terrorism than acting as a genuine means of deterring ‘economic migration’ to the United Kingdom. This raises the question whether the United Kingdom could be running into problems under the asylum and immigration legislation unnecessarily, mainly because of the human rights issues which have been raised in that context since 2002. “Economic migration” does not seem to be regarded as a “problem” by the Government in relation to the large numbers of workers coming into the United Kingdom via the newly acceded countries to the European Union, such as Poland, but it is used as the supposed reason for border controls regarding asylum. However, it will be argued here that the real reason for tighter border controls regarding the latter is not so much ‘economic’ but an attempt to assuage public fears which link asylum to terrorism. It will also be argued that these fears are not only unfounded but have led to legislation and policy which place the United Kingdom in some difficult human rights corners.
In order to assess the impact and importance of the legislative changes that have taken place in the area of asylum since 2002, it is necessary to view these changes in the light of the statistics on asylum both in the United Kingdom and in Europe as a whole.
In 2002, the number of asylum applications to the United Kingdom exceeded one hundred and eleven thousand, a 20 per cent increase on the 2001 figures (Asylum Statistics, 2002). The 2002 figures represented 29 per cent of asylum claims in the European Union as a whole. More than two-thirds of the applicants to the United Kingdom, however, failed to claim asylum at the point of entry and were thereby denied benefits under section 55 of the Nationality Immigration and Asylum Act, 2002. This is due to their failure to have claimed asylum “as soon as is reasonably practicable” after arrival in the United Kingdom. A large number of entrants to the United Kingdom claim asylum only after being here for awhile. The general suspicion, particularly amongst politicians, is that some of these people enter the country illegally and may pose a threat to national security. Whilst asylum-seekers entering the United Kingdom may in fact be among the most vulnerable people in United Kingdom society, they have nevertheless been in danger of being denied important benefits because of their failure to report to the authorities as soon as possible. The constant fear has been that these asylum-seekers, deprived of benefits, would be forced by circumstances to turn to crime, begging and prostitution in the United Kingdom because they would otherwise become destitute. The fear that asylum-seekers are mixed up with crime and other hostile activities could therefore be in danger of becoming a self-fulfilling prophecy.
By contrast to the United Kingdom, its European neighbours have seen a steady fall in asylum applications in the period since 2002 (Migration Source). During 2002, the average decrease in asylum applications in the European Union was 1 per cent. Between 1997 and 2001, Germany, for example, saw a 15 per cent drop in the number of applications for asylum. This decrease has been attributed to restrictive measures in place, which included a crackdown on illegal working in Germany and much tighter border controls. Belgium almost managed to half the number of asylum applications in one year in 2001 after the replacement of cash benefits with support in kind.
According to the former Home Secretary, David Blunkett, the increase in asylum applications to the United Kingdom in 2002 was “deeply unsatisfactory but no surprise”. Much of the blame for the problem of the sheer numbers of asylum-seekers entering the United Kingdom was put at the door of the Sangette camp, its closure and the breaching of Channel Tunnel security at both Coquelles and Frethun. The Boulogne constituency in France had been home to a Calais transit camp, which held approximately one thousand, five hundred immigrants who were awaiting deportation back to their country of origin. At the time, there were sensational news reports of several detainees escaping from the camp and attempting to smuggle their way into Britain via the Channel Tunnel. Relations between Britain and France deteriorated when Britain accused the French authorities of deliberately allowing some of the detainees to escape.
The problem of large numbers of asylum applications to the United Kingdom prompted the Government to introduce the measures contained in the Nationality, Immigration and Asylum Act, 2002, with the alleged aim of reducing the burden of asylum on the State and making the United Kingdom’s borders stronger and safer. At the time of the 2002 Act, the annual cost to the British taxpayer of the asylum system was estimated to exceed one billion pounds sterling. Since then, however, Home Office figures have shown a marked decrease in the number of asylum-seekers entering the United Kingdom. In 2003, the United Kingdom had 49,405 asylum applications, but in 2004, there were only 33,960 asylum applications. This downward trend continued into 2005 and the first half of 2006. By August 2004, asylum applications had fallen to their lowest level since 1997, a cut of 70 per cent on the figures for October 2002. Most of the asylum-seekers coming to the United Kingdom in 2004 came from China, Iran, Somalia and Afghanistan. (Asylum Statistics, 2004).). At the same time, the number of failed asylum-seekers being removed from the United Kingdom had risen from 10,740 in 2002 to 13,005 in 2003, representing a 21 per cent increase.
Commenting upon the favourable change in the statistics, Des Browne, Home Office Minister at the time, stated:
“The Government is committed to pursuing a balanced asylum and immigration policy and today’s figures show that is working…We have made good progress in dramatically cutting asylum claims, which are now back down to 1997 levels, while removing a far greater proportion of asylum seekers that were being removed in Spring 1997.”
But the human and financial cost of this so-called “success story” for the Government has been quite high. In 2002, the £80,000,000 detention centre at Yarl’s Wood in Bedfordshire was burned down within three months of opening and in July 2004 Britain’s biggest detention centre, Harmondsworth, near Heathrow, suffered from a riot which caused £5,000,000 worth of fire and other damage (Home Office(a)).
Further Government measures have also been enacted since 2002 to take the asylum system in the United Kingdom out of the crisis which it appeared to be in. However, the question arises as to whether those measures which have been taken represent a genuine attempt to deter economic migration to the United Kingdom or whether they have in reality been prompted by concerns of terrorism in the United Kingdom and the continuing fear that somehow asylum and terrorism are linked. Is the United Kingdom asylum system really an “open door” for terrorists and what impact has the war on terrorism had on asylum law and policy in the United Kingdom?
In answer to these questions, it is first of all necessary to outline and analyse the Nationality, Immigration and Asylum Act, 2002, the Asylum (Treatment of Claimants) Act, 2004 and the most recent provisions contained in the Immigration, Asylum and Nationality Act, 2006 and to view these measures in the context of increasing acts of global terrorism.
The Nationality, Immigration and Asylum Act, 2002 stemmed from the Government’s White Paper, “Secure Borders, Safe Haven on Asylum: Integration with Diversity in Modern Britain” (Cm 5387). This represented the fourth attempt in ten years to reform the laws on asylum in the United Kingdom. Prior to the White Paper, the law on asylum had been largely contained in the controversial Immigration and Asylum Act, 1999. In particular, section 95 of the 1999 Act enabled the Secretary of State to arrange for the support of those asylum-seekers and their dependants who appeared to be destitute. The most notorious aspect of this legislation for asylum- seekers was the voucher system, which has been criticised for its degrading impact upon them and their identification in the local community in which they lived as “asylum seeking persons”, fostering division and conflict within the locality (Clements, 2001).
The voucher system left an asylum-seeker with a unique money management problem in a country in which they were already unfamiliar with the monetary system. Retailers were entitled to keep the change from the unspent part of vouchers on goods supplied to an asylum-seeker. This put asylum-seekers in a position of vulnerability and confusion, merely serving to encourage resentment and unrest amongst the asylum-seeking population.
The killing of a Kurdish Asylum seeker, in Glasgow and the stabbing of another asylum seeker in Hull, together with clashes with local residents in the Pearson Park area of Hull, in August 2001, highlighted the need for the Government to take further action and to encourage respect for diversity of culture (IRR, 2003). The asylum system had lost credibility in the public’s eyes and needed yet another overhaul. At the same time, the attack on America on the 11th of September, 2001 took place, and this led to heightened fears of terrorism affecting the United Kingdom.
The Government White Paper, “Secure Borders, Safe Haven” sought to ensure “end-to-end credibility” in relation to asylum. The White Paper assumed that the apparent lack of credibility would be removed by measures aimed at a high degree of monitoring and surveillance. This was to be achieved through a system of induction, accommodation, reporting and removal centres and the end to bail hearings for detained asylum-seekers.
Induction centres were seen as the first stage in a holistic approach to asylum applications. It was proposed that a national network of such centres be established, located, on the whole, near to ports of entry, each providing full board for two hundred to four hundred asylum-seekers. Asylum- seekers sent to these centres on arrival were to be interviewed, briefed by staff, provided with information about the asylum process and given written information about obtaining legal advice. The expectation was that the asylum-seeker would be at the Centre for no more than about a week before being moved on to either an Accommodation Centre or an National Asylum Support Service address.
The White Paper also outlined a new regime for asylum-seekers to report to either a police station or a reporting centre. This would be done daily in the case of those asylum-seekers placed in the Accommodation Centres but less frequently in other cases; failure to report could lead to detention and loss of support. Reporting centres were also to act as communication centres for decisions on asylum applications or appeals, thus speeding up and making more efficient the whole asylum process.
The above measures indicate a much more robust approach to asylum than had previously been taken, but what really lie behind this change of approach? What part, if any, had terrorism, or the threat of it, to play in Government thinking about asylum issues? It is suggested that whilst specific aspects of the changes in asylum law from 2002 onwards are not directly attributable to the fear of terrorism, the general changes in asylum law can be linked to that fear. As the number of asylum claims exceeded one hundred thousand in 2002, there was also an economic impetus to decrease that number, but it is suggested that the main impetus was not so much an economic as a security one. There has for some time been a suspicion, particularly amongst politicians, that those applying for sanctuary in the United Kingdom are not really fleeing from persecution or torture, but are simply either “economic migrants” or are people who may be involved in terrorist activities. It is suggested that it is the latter fear of terrorism that lies behind some of the proposals emanating from the government over the last four years. This fear, seemingly shared by a large number of the public, has enabled legislation to be got through Parliament, despite some real human rights concerns. It could be argued, for example, that the fear of terrorism was behind the proposals to house asylum-seekers in secure processing centres in the United Kingdom before allowing them to be moved into ordinary housing in cities across the United Kingdom.
Similarly, the same fear may have been behind the unsuccessful proposals, announced in March 2003, that Transit Processing Centres were going to be established on Europe’s borders to act as a deterrent to abuse of the United Kingdom asylum system. The then Home Office Minister, Beverley Hughes, also suggested that “pilot” schemes of Regional Zones for Protection might be set up, which might include an element of processing. The basis of the latter scheme was that asylum-seekers could be deported from the United Kingdom for a period of six months to a United Nations designated Regional Protection Area, presumably in the hope that the political situation in the country of origin would have stabilised in the meantime, thus allowing the asylum-seeker to then be returned home.
The element of processing would enable identification of potential security threats. However, fears that the move to Regional Protection Areas could involve the United Kingdom infringing Article 3 of the Geneva Convention led the Government to drop the proposal; and, in June 2003, the Government also decided to drop the idea of Transit Processing Centres. At the same time, there were statements in the press that continued to make the connection between asylum and terrorism (New Statesman, 23rd January, 2003). In January 2003, the then Home Secretary, David Blunkett, was asked by the New Statesman about this connection in the minds of some people and replied, “I’m worried about tension and frustration spilling over into the disintegration of community relations and social cohesion. I’m worried about people taking the law into their own hands.” However, such connections were not based on any firm evidence that asylum-seekers in particular were or are a threat to United Kingdom national security. Indeed, David Blunkett also stated that ‘We should not assume that asylum-seekers are any more likely to be terrorists than anyone else. That would be wholly wrong, and deeply damaging to social cohesion and good race relations in this country.” Nevertheless, the fear in the minds of the public and Government, as unfounded in fact as it may be, has, it is suggested, continued to play an important part in shaping the legislation and policy on Asylum and Immigration since 2002.
Following on from the proposals contained in the White Paper, discussed above, the Nationality, Immigration and Asylum Act 2002 was introduced. The main changes which this Act brought about in relation to support for asylum-seekers are contained in the infamous section 55. It is in this provision that the deterrent aspect of the changes in asylum law can be seen. Under section 55, asylum-seekers would only be eligible for National Asylum Support Service support if they could prove that they had applied for asylum, were destitute and that the application for asylum had been made “as soon as reasonably practicable” upon arrival in the United Kingdom. In addition, section 57 of the 2002 Act enabled the Home Secretary to introduce secondary legislation for the withholding of National Asylum Support Service support to in-country asylum-seekers, to applicants who could not provide an account of how they had arrived in the United Kingdom, to those who did not provide information about how they had been living since their arrival, or to those who did not cooperate with the authorities. What lie behind these changes, it is suggested, was the fear that those who fell into the previous categories were somehow “suspect” and might be linked to terrorist activities.
Section 55 received much criticism, particularly from the Refugee Council, which claimed that it would
“potentially affect the lives and wellbeing of thousands of asylum applicants in the UK forcing them into extreme poverty and making it more difficult to pursue their asylum application” (Refugee Council, 2002 para 5.1)
The Refugee Council expressed its concern that the effect of the change in the support criteria would lead to homelessness and extreme destitution, forcing many in-country asylum applicants to live on the streets and thus undermining the Government’s other policies on Rough Sleeping and Social Inclusion. Unsuccessful asylum-seekers could even feel coerced, it was thought, into returning to their country of origin because of the destitution forced upon them as a result of the withdrawal of accommodation and benefits. There was criticism that the Government’s position could be in breach of human rights law (Refugee Council, 2004). It has even been suggested that the very existence of section 55 sends a negative signal to the world about the United Kingdom Government’s commitment to human rights in asylum issues and its respect for the rule of law.
In response to such criticisms, the then Home Secretary announced, in December 2003, that, for the purposes of section 55, in general a person who applied within three days of entry to the United Kingdom would be considered to have applied for asylum “as soon as reasonably practicable” and would be given support. This, however, made only a slight practical difference to the situation faced by an asylum-seeker and did little to quell the human rights concerns about the government’s approach to asylum issues.
The heaviest human rights attack on Section 55 came in the conjoined cases of R on the application of Adam, Tesema and Limbuela) v Secretary of State for the Home Department, [2004] EWCA Civ 540; [2004] All ER (D) 323, in May 2004, a case later to reach the House of Lords. In these joined cases, the Secretary of State appealed to the Court of Appeal ( Civil Division ) against the grant of judicial review of his decision not to provide support to three asylum-seekers who had not claimed asylum “as soon as reasonably practicable”. The question before the Court of Appeal was the level of destitution necessary before an asylum-seeker’s suffering or humiliation amounted to ‘”inhuman or degrading treatment”, contrary to Article 3 of the European Convention on Human Rights. The Court of Appeal dismissed the appeal on the ground that collectively, the policy of the Secretary of State would have the effect of crossing the threshold of Article 3 in the case of a substantial number of people, even though in any particular individual case that might not be so. That policy was therefore adjudged unlawful as violating Article 3 of the European Convention on Human Rights.
On appeal, the House of Lords dismissed the Home Office’s appeal. Their Lordships analysed section 55 of the 2002 Act, noting that sub-section 55 (5)(a) imposed an obligation on the Secretary of State to provide support under section 95 of the 1999 Act for the purpose of avoiding a breach of Article 3 of the European Convention on Human Rights. This raised two issues. First of all, how was sub-section 55 (5)(a) to be construed, and secondly, in what circumstances would an asylum-seeker need to be placed as a result of refusal of support by virtue of section 55 before Article three was breached? Their Lordships concluded that it was not necessary for Article 3 to have already been breached before the power contained in sub-section 55 (5)(a) of the 2002 Act could be exercised by the Secretary of State. The power was there in order to enable the Secretary of State to avoid a breach of Article 3 of the Convention by intervening and taking action. This raised the question of the circumstances that needed to be present before the margin had been crossed, requiring such intervention to take place. To answer this, it was necessary to examine the entire package of restrictions and deprivations which surrounded an individual asylum-seeker and to ask whether these as a whole could be described as “inhuman or degrading treatment”. Their Lordships stated that “destitution” sufficient for the purposes of section ninety five of the 1999 Act was not in itself enough for this purpose. What was necessary was that an asylum-seeker should have made it clear that his/her situation had become such that the conditions which he/she was enduring were on the verge of crossing the threshold and reaching the necessary degree of severity to amount to “inhuman or degrading treatment”, and in breach, therefore, of Article 3. In order to determine whether that “threshold” was in danger of being crossed, however, various factors would need to be considered. These included the sex of the asylum seeker, their age and state of health, whether they had explored all other avenues of assistance, such as charity provision, and the length of time that he/she had been, and were likely to continue to be, without the necessary support unless intervention took place. Relevant in approaching this issue would be the exposure to the elements from rough sleeping, risks to health and safety arising from rough sleeping, the effects of not having proper washing and toilet facilities and the psychological consequences to the individual of suffering from these kind of deprivations. It was not possible, in their Lordships’ opinion, to formulate a simple test which would apply to all cases:
“But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeable finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed.” (Lord Bingham of Cornhill, [2005] UKHL 66, paragraph 9)
The result of the Limbuela ruling is that if a breach of human rights would otherwise result, a public body which has the power to act must exercise that power in order to avoid such a breach. However, the decision seems not to have troubled the Government unduly. The then Secretary of State for the Home Department, Mr. McNulty, in commenting on the Limbuela case in Parliament, stated:
“The House of Lords ruling in Limbuela and Others leaves intact a fundamental principle within our approach to asylum which is that people should claim as soon as they arrive in the country. The Law Lords have recognised that there are difficult decisions to be made and each case has to be judged on its individual merits. We are studying very carefully their judgment and considering whether we need to make any adjustments to our existing procedures and processes.
We are adopting tough new means to crack down on opportunistic behaviour. In particular, we are setting up tightly managed new processes for handling late and opportunistic claims as part of the new asylum model announced in the Government's “Five-Year Strategy for Asylum and Immigration”. The impact of this will be that those who seek to play the system will receive a very quick asylum decision and so will, in reality, have very limited access to benefit, should they qualify for this while that decision is being taken.”(House of Lords, Hansard, November 24th, 2005, Column 2302W.)
The impact of the Limbuela case on Government policy has therefore not been as significant as might have been expected, since it leaves the issue of the need for intervention in order to avoid a breach of human rights to be decided on a case by case basis.
The Limbuela case was considered in the case of R (on the application of AW) v Croydon London Borough Council [2005] EWHC 2950 (Admin), [2005] All ER (D) 251. According to the Queen’s Bench Division (Administrative Court), if, in the case of a failed asylum-seeker who satisfies the criteria of section 21(1) and (1A) of the National Assistance Act 1948, (infirm person in need of care) the provision of support becomes necessary in order to avoid a breach of the Convention rights, then the provision of that support should be made by the local authority pursuant to section twenty one of the National Assistance Act 1948, (rather than by the Secretary of State under section 4 of the 1999 Act). In deciding whether a failed asylum-seeker was “destitute” in order to obtain relief under section 4(2) of the 1999 Act, the Secretary of State has to take into account support which is available from the local authority under section twenty one of the 1948 Act. If such support was available, then the failed asylum-seeker was not “destitute” and therefore did not qualify for support under section 4(2).
The ruling makes it clear that the responsibilities of the Secretary of State under section 4(2) of the 1999 Act and those of the local authority under section 21 of the 1948 Act do not overlap. Once a person’s claim for asylum has been denied, all support is withdrawn, unless the failed asylum seeker can qualify for “hard case” support under section 4 of the Immigration and Asylum Act 1999. The persons who may seek “hard case” support are those whose asylum claim has failed but who are awaiting removal from the United Kingdom and those whose asylum claim has likewise failed, but who cannot be removed due to the fact that the circumstances in their country of origin make them “non removable”. However, in order to qualify for “hard case” support, these two categories of failed asylum-seeker must prove either that they are “non-removable” or that they are complying with efforts to remove them from the United Kingdom. Many failed asylum-seekers do not apply for “hard case” support; some of them are simply unaware of its existence, or of their entitlement to apply; some would rather not apply at all than be moved to another area of the country, away from friends and the support network in the area to which they have become accustomed.
Failed asylum-seekers were at one time not even informed by the Secretary of State that they might qualify for “hard case” support, but a High Court ruling has meant that the Secretary of State does now need to inform them. In Salih and Another v Secretary of State for the Home Department, [2003] EWHC 2273 (Admin), Stanley Burnton J ruled that the Home Secretary would need to reconsider the policy of not informing failed asylum-seekers of the existence of the “hard case” support scheme.
According to the British Red Cross, there continued to be a sharp rise in homeless failed asylum seekers sleeping rough in London in 2005 (Guardian, 2006b). Charities, like the Red Cross, have been transporting failed asylum-seekers to soup kitchens and night shelters in different parts of the Capital in order to stop them from starving or becoming victims of street crime. Churches have also been providing food and shelter to prevent failed asylum-seekers from becoming destitute as a result of government policy. Local authorities, who sometimes have to take the children of failed asylum-seekers into care because of destitution of the family, have also become concerned about the plight of these people, calling upon the government to institute an urgent review(Clements, 2006). In short, little or nothing has changed since the Limbuela case was decided. Whilst the legal mechanisms are in place, the government’s policy remains unchanged and the individual failed asylum-seeker still faces the choice of deportation or destitution in the United Kingdom.
In June 2004, before the Limbuela case had reached the House of Lords, their Lordships dealt a blow to the Government’s asylum laws by ruling in R ( on the application of Ullah ) v Special Adjudicator; DO v Secretary of State for the Home Department, [2004] UKHL 26; [2004] 3 All ER 785, that grounds for asylum could include the realistic fear of religious persecution and not just the risk of physical torture (Article 9 of the European Convention on Human Rights). Furthermore, in R ( on the application of Razgar ) v Secretary of State for the Home Department, [2004] UKHL 27; [2004] 3 All ER 821, decided by the House of Lords at the same time as the Ullah case, it was ruled that the rights protected by Article 8 (privacy and family life) of the European Convention on Human Rights could be breached by the foreseeable effects on the health of an asylum-seeker of his enforced removal from the United Kingdom. This could still be the case, even if there were no breach of Article 3 involved, so long as the facts relied upon were sufficiently strong. The ruling in the Ullah case was, amongst others, cited as one of the reasons for reaching this conclusion. The combined result of the various cases outlined above is that asylum-seekers who have entered the United Kingdom appear to have been recognised by the judiciary as entitled to the same human rights protection under the European Convention on Human Rights as do British citizens.
Asylum-seekers coming from the new European Union countries, but who were already in the United Kingdom at the time of accession, also won the right to bring a High Court challenge against the Government’s decision to prevent them obtaining benefits. As asylum-seekers, they had been prevented from supporting themselves by working in the United Kingdom, but they were nonetheless eligible for State support. Upon accession of the country of origin to the European Union, however, these people became expected, as European Union citizens, to support themselves without being given adequate time by the Government to make the adjustment from State support to employment and self-support. The Government’s decision was attacked as being unfair and unlawful and Collins J, hearing the application, stated “I think all the evidence points one way as to whether it was reasonable to expect them suddenly to find work when they had not been able to work” (BBC(b)).
Whilst the case was adjourned, advice to local authorities from the Home Office was not to terminate support for this category of person until a full Human Rights Act 1998, assessment had been undertaken for each applicant. Local Authorities were therefore put in the very difficult position of making a judgment whether they should continue support in a particular case in order to prevent the possibility of a human rights challenge. Clearly, United Kingdom asylum law by this stage had lost a degree of credibility. The House of Lords ruling in the Limbuela case, discussed earlier, then added a further blow to the Government’s asylum laws and plunged the asylum system deeper into crisis.
What, then, did the Asylum and Immigration (Treatment of Claimants) Act 2004 have to offer in terms of reforming the asylum laws in the United Kingdom?
The 2004 Asylum and Immigration (Treatment of Claimants) Act was aimed, amongst other things, at asylum-seekers who lodge what appear to be “groundless” appeals in order to delay deportation, and those who destroy their documents in order to make what are perceived to be “unfounded” asylum claims. The thinking behind the latter provision may well have been terrorist-fear related, because the destruction of documents might lead to a suspicion, whether grounded in reality or not, that those responsible were acting in a manner incompatible with security measures in the UK and were trying to hide something in their background which the immigration authorities ought to know about.
Sections 1 to 5 of the 2004 Act aimed to introduce new offences to tackle this perceived abuse of the asylum system. These offences include entering the United Kingdom without a valid passport without reasonable excuse (section 2), forging immigration documents (section 3) and trafficking of people for exploitation (section 4). Up until the middle of 2005, 288 persons had been convicted of an offence under section 2, whilst a further 88 were awaiting trial.
In praise of the 2004 Act, the then Home Secretary, David Blunkett stated:
“The Act will speed up the appeals and removals process. Everyone benefits from a fair and decisive system and we need to make clear to those who have reached the end of the road and do not have valid claim that they must leave…
...The Act will also ensure that those trying to enter or stay in the UK do not benefit from dishonesty by destroying or discarding their travel documents to prevent or delay removal…This is part of our balanced approach. We are determined to be tough on those who seek to abuse the system.” (House of Lords Debates, Hansard, March 15th, 2004, Column 59.)
The procedures surrounding section two offences, however, are questionable from a legal perspective. The decision on whether to prosecute turns on what the asylum-seeker has said at an initial screening interview, but applicants only have access to a solicitor after the screening interview has already taken place and the person concerned has been charged with an offence under section 2. Evidence collected at the screening stage, without the presence of a legal representative, should therefore not be admissible in court; and, if it is admitted, it is arguably in breach of the person’s human right to due process, under Article 6 of the European Convention on Human Rights.
Section 8 of the 2004 Act concerns the need for asylum-seekers to be honest when making a claim for asylum by setting out various behaviours which a deciding authority must take into account in deciding whether or not to believe the asylum-seeker’s claim. Certain behaviour, such as that designed or likely to conceal information from, or to mislead, the immigration authorities, are deemed to be damaging to an asylum-seeker’s credibility. Again, there may lay behind this provision the fear of possible terrorist connections of someone whose conduct appears dishonest or who is prepared to conceal certain facts from the immigration authorities. Nevertheless, the provision could adversely affect the protection which should be afforded to refugees, because it could work discriminately against those who entered the United Kingdom in a particular way.
Section 8 in effect allows the Home Office to decide on whether an applicant is a genuine asylum-seeker based on information on how that applicant arrived in the United Kingdom, rather than on the merits of the individual case. However, the 1951 Refugee Convention states that a person claiming asylum should not be judged according to how he/she travelled to or entered the relevant country. It could be argued, therefore, that section eight of the 2004 Act enables the Home Office to act in a way which is contrary to the spirit of the 1951 Convention, if not the letter thereof, and can only be justified on grounds of national security.
Section 9 of the Act, dealing with the withdrawal of support, was designed to encourage families whose asylum claim had failed to opt for a paid voluntary flight home and re-integration assistance back home instead of enforced removal. Support can be withdrawn from unsuccessful asylum-seeking families if the family has not taken reasonable steps to leave the United Kingdom voluntarily. This provision was criticised during its passage through Parliament as an attempt to force asylum-seekers to leave the country for fear of being otherwise starved if they remained and awaited their enforced removal. As Lord McNally put it in the House of Lords debates, “[i]t seems almost reminiscent of the old Speenhamland system and the old Poor Law that a society should inflict destitution on people”. (House of Lords Debates, Hansard, March 15th, 2004, Column 59.) According to the Immigration and Nationality Directorate, section 9 of the 2004 Act was included in order to ensure that “failed asylum seeking families are not eligible for indefinite support at the taxpayer’s expense, where they are not co-operating with the removals process” (Immigration and Nationality Directorate Statement of 22nd July, 2004).
Section 9 of the 2004 Act created a fifth class of person ( i.e. a failed asylum-seeker with a family) who is no longer able to obtain support. Until the 2004 Act was passed, failed asylum-seekers who had children could receive asylum support whilst they remained in the United Kingdom or until they failed to comply with an order for their removal. However, under section 9, they can lose that support if the Secretary of State certifies that the failed asylum-seeker has not taken reasonable steps to leave the United Kingdom. Support for the family will then stop 14 days after the receipt of the Secretary of State’s decision that the asylum-seeker has failed, without reasonable excuse, to leave the United Kingdom voluntarily. This raises the question whether this termination of support for the family and their resultant destitution could be a breach of human rights under Article 3 of the European Convention on Human Rights. In the context of section 55 of the 2002 Act, the case of Limbuela has illustrated the readiness of the courts to consider that the risk of destitution can engage Article three of the above-mentioned Convention. It would therefore seem arguable that the same conclusion might have been reached when there has been a termination of support for the family as a whole of an asylum seeker. However, a High Court ruling suggests otherwise. In January 2006, a Congolese mother of three children, known only as ‘K’, claimed before Mr Justice Bean that section 9 of the 2004 Act violated the United Nations Convention on the Rights of the Child, was in breach of the Children Act 1989 and of the Human Rights Act 1998. The mother had come to the United Kingdom in 2002 and had claimed asylum; she eventually lost her case for asylum and her benefits were therefore cut off. Refusing permission for judicial review, Mr Justice Bean considered that it was not, in his view, arguable that that the policy of removing benefits from failed asylum-seekers with families was incompatible with the European Convention on Human Rights. He added that it was for parliament, not the courts, to decide if the policy enshrined in section 9, which could lead to children being taken into care, was desirable or not. Commenting on the decision, the Refugee Council’s Chief Executive stated:
“The government doesn’t need the courts to inform them that section 9 is inhumane and ineffective. The Refugee Council re-asserts the findings of our joint report with Refugee Action, that this policy of trying to starve out asylum seekers is not the behaviour of a civilised country. Encouraging failed asylum seekers to return home, when appropriate, should not involve coercion and the threat of removing children.” (Refugee Council, 2006)
The government claimed that the intention behind the above policy was merely to encourage families to return home to their country of origin, and to discourage families from applying for asylum, but the effects on the children caught up in this situation can be traumatic. How can the break-up of the family as a result of the withdrawing of benefits work in the best interests of the children? Is the splitting up of the family not itself a breach of the child’s human rights to a family life, within the meaning of Article eight of the European Convention on Human Rights? (Clements, 2006)
There is a right of appeal to an Asylum Support Adjudicator against a decision to remove support under section nine of the 2004 Act, but the adjudicator will only be able to consider issues raised under the asylum legislation itself, not, for example, whether there is a breach of the provisions of the Children Act 1989 also involved. Furthermore, the National Asylum Support Service support will still be discontinued whilst the appeal is taking place.
In the House of Lords stages of the Immigration, Asylum and Nationality Act 2006, discussed later, Lord Averbury moved, and the government accepted, an amendment which would enable the Secretary of State by Order to rule that section 9 of the 2004 Act would cease to have effect. It is to be hoped that this power will be utilised by the Secretary of State, so that the coercion of vulnerable families of failed asylum-seekers to return home becomes a thing of the past. Only then will the perceived need for failed asylum-seeking families to “vanish” cease to exist and the enormous distress and destitution suffered by those families disappear.
Section 10 of the 2004 Act added a new paragraph 5 at the end of section 4 of the Immigration and Asylum Act 1999, which deals with “hard case” support. Section four of the 1999 Act gave the Secretary of State power to secure accommodation for failed asylum-seekers. The Secretary of State has power under these provisions to make Regulations specifying what criteria are to be used in determining whether to provide, or to continue to provide, accommodation to failed asylum-seekers who have not yet been removed from the United Kingdom. These powers enable in particular the passing of Regulations which make continued provision of accommodation conditional upon the “performance of or participation in community activities” on the part of the failed asylum seeker. The sort of thing which the Government seems to have had in mind at the time was 35 hours per week maximum of unpaid and unskilled manual labour, such as domestic maintenance and/or cleaning at the place where the failed asylum-seeker was being housed, or street cleaning, gardening or rubbish clearing activities in or near to the community where he/she was being accommodated. The then Home Secretary, David Blunkett, claimed that the measures were necessary in order to stop problems caused by groups of destitute failed asylum-seekers gathering on street corners. Presumably, one of the fears here was that this type of gathering could lead to criminal activities or public order offences, irrespective of who might be responsible. However, it may be questioned whether this change of approach is in accordance with the United Kingdom’s human rights obligations. Article 4 of the European Convention on Human Rights contains a prohibition of forced labour. It is arguable that any requirement that failed asylum-seekers agree to participation in “community activities” could be in breach of this Article and potentially lead to a number of legal challenges (Chatwin, 2004). There is also the possibility that section 10 could lead to a challenge under Article 3 of the European Convention on Human Rights, since the withdrawal of food and shelter under that provision could be argued to amount to “inhuman and degrading treatment”. This argument is supported by the House of Lords’ decision in the Limbuela case, discussed earlier. The withdrawal of food and shelter would also put women at greater risk, since destitution is more likely to lead to their sexual exploitation and one of the factors outlined by the House of Lords in the Limbuela case was whether the person concerned was male or female.
The former Liberal Democrat Home Affairs Spokesman, Mark Oaten, suggested that the Government, through the above measure, would be treating failed asylum-seekers like criminals:
“Community service is for people who have committed crimes, not for people who have failed in their asylum claim. If individuals cannot be deported through no fault of their own they should be allowed to do paid work. If the government really wants to reduce the benefits bill they should allow all asylum seekers to work for a decent wage while their applications are pending.” (BBC News, 2004)
Whilst the Government has insisted that the measures contained in section 10 are not punitive, there is nevertheless the risk that the public would still link asylum-seekers with criminality, since the only similar scheme in the United Kingdom is the Community Punishment Order for those who have committed a criminal offence. The danger here is that it is only a short step from linking asylum and criminality to then linking asylum-seekers to terrorist activity in the minds of the public.
A right of appeal to the Asylum Support Adjudicator is given from a decision of the Secretary of State to refuse or discontinue support through the securing of accommodation. Under section 10(7) of the 2004 Act, the Regulations apply to those already in receipt of such support as well as those who seek support after the Regulations come into force, thus having unusual retrospective effect (Immigration and Asylum (Provision of Accommodation to Failed Asylum-seekers) Regulations, 2005, 2005 No. 930). Retrospective effect of legislation is normally regarded as morally acceptable only where there are exceptional circumstances which justify it, but this situation would not appear to be one of those. Hence, the retrospective application is open to objection.
The measures contained in the 2004 Act were thought by the Government to be sufficient to prevent or quell any perceived crisis in the asylum system, but there has been continued criticism of that system, particularly from the Opposition parties in Parliament, making further legislation appear necessary. In June 2005, the Government therefore introduced the Immigration, Asylum and Nationality Bill into the House of Commons. This move was intended, amongst other things, to plug the holes which had appeared in the United Kingdom asylum system, strengthening the United Kingdom’s borders even further.
The Immigration, Asylum and Nationality Act 2006 is part of the Labour Government’s five year strategy on immigration and asylum issues, outlined in “Controlling our Borders: Making migration work for Britain” (Home Office, 2005). Much of the Act, which is very complex and technical, is concerned with immigration and nationality issues rather than with asylum-seekers as such, but it does contain some measures which will have important implications for the latter. The Act is very much a ‘legalistic jigsaw’ because, apart from its complexity, it depends on a familiarity with the existing legislation contained in the 2002 and 2004 Acts, discussed previously. However, the 2006 Act is more obviously aimed at anti-terrorism than its predecessors. Indeed, in commenting on the 2006 Act, Immigration Minister, Tony McNulty has stated :
“The provisions within the Act will help the Government in dealing with people who pose a threat to the UK’s national security, continue our work to strengthen and modernise our borders using new technology, develop closer working between border control agencies and restrict the right of those refused entry to challenge a decision.” (Home Office(b))
The Prime Minister, Tony Blair, in his speech in August 2005, after the July bombings in London, also stated that “[a]nyone who has participated in terrorism or who has anything to do with it anywhere will automatically be refused asylum” (PM’s Press Conference - 5th August, 2005”, 10, Downing Street, London).
Sections 1 to 14 of the 2006 Act are concerned with appeals and related matters. Section 1 gives a right of appeal to those refugees whose right to stay in the United Kingdom has been removed. This provision amends sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002, which deal with rights of appeal in asylum claims. In August 2005, the Government changed its policy in relation to refugees by removing the granting of indefinite leave to remain and granting instead only temporary leave to remain for up to five years. The right of appeal which section 1 contains is an attempt to redress the balance here.
Whilst the right of appeal is to be welcomed, the change of policy which led to the need for such a right is itself open to criticism. Refugees who have been recognised as such will have a period of five years of uncertainty, during which they will be left in limbo, unable to properly integrate into the community or to be placed on an even playing field when seeking work. What thinking lies behind this change of policy? Is it the ability to review a person’s case after five years, thereby deterring that person from engaging in any conduct prejudicial to the renewal of their status? In particular, is it aimed at deterring conduct which may be adjudged to be prejudicial to national security?
The possibility that refugees may lose their refugee status and be returned to their country of origin could itself act as a disincentive to potential employers, as a result of which some important skills in key areas, such as in hospitals and schools, could be lost to the economy. The right of appeal contained in section one does little to address these fears and the very idea of a five year period of temporary leave to remain runs contrary to the policy of integration and the use of an Integration Loan, which the 2006 Act also seeks to encourage. In addition, section 7 subsection one will remove the right of ‘in-country’ appeal in relation to certain asylum decisions, namely, where a deportation order has been made on grounds of national security.
This is more obviously an anti-terrorist measure; it stands in contrast to the situation in which an applicant has made a human rights claim, where normally an in-country right of appeal to the Special Immigration Appeals Commission against a certificate (to the effect that no human rights have been breached) issued by the Secretary of State does continue to apply. The decision to the effect that national security is at stake, however, is not challengeable, except by means of bringing an appeal from outside the jurisdiction. The Government have tried to justify this position by stating that, where national security is at stake, any asylum claim would of necessity fail because of the definition in United Kingdom law of “refugee”, which excludes anyone who is a threat to national security. However, this argument presupposes that the Home Secretary has correctly identified the individual concerned as being a threat to national security, a matter about which there should in itself to be a right of challenge in-country. Out of country appeals may also have adverse effects on particular ethnic minorities and for that reason can work in a discriminatory manner. According to Lord Dholakia;
“Hearings in such cases are costly and complex and it is harder to do justice when the appellant is not present in court and cannot give oral evidence. Claims for compensation and redress will arise. Other people, depending on their situation and the country to which they are returned, will effectively be kept out of any appeal by the provisions.” ( Lord Dholakia at Column 527, Hansard, House of Lords debates, December 6th, 2005)
Section 7 will result in what should have been a one-stage appeal in effect being turned into a two-part appeal in those cases where an individual is deemed to be a threat to national security. This runs counter to the main aim of having a single appeal in asylum cases. Those parts of an appeal regarding a claim for a breach of human rights will be heard before removal of the individual whilst those dealing with national security will only be heard after that individual has been removed from the United Kingdom. However, the very fact that the individual concerned is thought (though not proven) to be a threat to the national security of the United Kingdom could in itself trigger a threat of persecution back in the country of origin and this would make it difficult to separate out the human rights and national security aspects of the appeal. In such cases, the United Kingdom would be “exporting risk”, a perceived risk of terrorism, whilst compromising the human rights of the individual. The Government have sought to allay fears of this by proposing to enter a “Memorandum of Understanding” with those States concerned and by having an independent monitoring of the undertakings given not to ill -treat those individuals being returned to their country of origin on national security grounds. However, relying on diplomacy whilst at the same time forcibly returning individuals to States where they may be at real risk of human rights abuses, could amount to a violation of the United Kingdom’s international law obligations. In addition, if there is a realistic threat from the individual to national security in the United Kingdom, how can “exporting the risk” by removing that individual, counter the threat from global terrorism? The individual, left unmonitored on return to their country of origin, may well be free to continue his/her threat to the United Kingdom, whilst, had he/she been allowed to proceed with the appeal in the United Kingdom, he/she could have been subjected to monitoring and control, with any threat being contained. The above outcome would be a very ineffective means of tackling the fight against global terrorism, at which this section of the Act appears to be aimed.
The sections of the 2006 Act dealing with illegal working, sections 15 to 26, could also act as a disincentive to employ legitimate refugees, because they contain powers for a civil penalty on employers who employ those not allowed to work.(1) Such employers could be served with a penalty notice and forced to pay up to £2,000 for each illegal worker in their employment. Currently, asylum-seekers are not allowed to work until they are recognised as refugees under United Kingdom asylum law.(2) The introduction of a civil penalty by section 15 could cause some confusion amongst potential employers who may feel obliged to ere on the side of caution by refusing to employ any refugees. This could in turn lead to claims of unlawful discrimination on grounds of race. If legitimate workers were to face racial discrimination in the wake of this move, then it could cause further distress, making integration within, and a contribution towards, the community much harder.
The government have sought to address this potential problem through section 23 of the Act, which requires a Code of Practice to be issued on how employers can avoid breaching the Race Relations Act 1976, whilst at the same time avoiding the civil penalties which the 2006 Act will introduce when fully implemented. As Baroness Ashton of Upholland stated in the House of Lords during the Second Reading of the 2006 Bill, “[w]e [the Government] are clear that those provisions do not give employers licence to discriminate against employees or potential employees on the grounds of race or nationality” (House of Lords Debates, Hansard, December 6th, 2005, Column 518). However, potential employers could face real difficulties in maintaining the fine balancing act that will be required in this context. The only certain way of avoiding the pitfalls here will be for potential employers to require all prospective employees to provide proof that they can legally work in the United Kingdom. This proof will need to be renewed on a regular basis in order to ensure that someone who was legally entitled to work at the date of employment continues to have the legal right to work in this country. This will place a major bureaucratic burden upon potential employers and increase the costs of employment whilst doing nothing to improve race relations.
Some of the most important provisions for asylum-seekers are contained in sections 43 to 46 of the 2006 Act. Section 43 deals with the accommodation of asylum-seekers whose claim for asylum has been rejected but who remain in the Unite Kingdom. At present, “hard case” support, discussed earlier, is not universally available in all areas of the country because it is dependent on private providers having available accommodation in the area in question. Section 43 provides additional support for this category of person by enabling the local authority to provide the ‘hard case’ support instead. However, the low level of support provided under section 4 of the 1999 Act is not to change, whilst section 43 subsection three removes the protection given to those accommodated under section 4 of the 1999 Act from the requirement of a court eviction order under the terms of the Protection from Eviction Act 1977. This will make it much easier for landlords to evict asylum-seekers from accommodation; the latter may therefore end up with no where to live and dependent upon charity.
Section 44 of the 2006 Act provides for “Integration Loans” to be made available for those who have been granted limited leave to enter or remain in the United Kingdom. This will replace the system of backdated payments to those former asylum-seekers whose payments were withheld and which accrued whilst their asylum application was being dealt with. However, this move could be argued to be detrimental to refugees, as it replaces a non-refunded payment with a repayable loan, thereby placing refugees into debt at a time when they are trying to rebuild their lives in an unfamiliar country. This could cause hardship to many refugees who may already be facing problems of debt. The government’s removal of indefinite leave to remain and its replacement by a five year period of limited leave to remain also stands in contradiction to the idea of integration and any encouragement to take out an Integration Loan. It is therefore unlikely that many would wish to avail themselves of such a loan unless faced with no other option.
Section 54 of the 2006 Act deals with the interpretation of the 1951 Refugee Convention and is a clear anti-terrorist measure. Article 1(F) of the 1951 Convention, as mentioned previously, enables refugee status to be denied to a person in certain limited situations where it is considered that he/she is “undeserving of international protection as (a) refugee(s)”. Under section 54 of the 2006 Act, Article 1(F) would be interpreted in such a way that it included the carrying out of, or preparation for, acts of terrorism or encouraging others to commit such acts, even though the conduct may not in itself otherwise constitute a criminal offence.
“Terrorism” is also given the wide meaning attributed to it in section 1 of the Terrorism Act 2000 and this might be construed to include taking part, for example, in lawful demonstrations against the publication, even abroad, of anti-Islamic cartoons. Such a wide interpretation of “terrorism” would mean that Article 1(F) could cover actions falling short of those “undeserving of international protection as refugee” and the end result would be the denial of asylum to many who would normally be considered as deserving of that status. There is no need, in any event, for Article 1(F) of the Convention to exclude terrorists, as that is already implicit in the wording Article 1(F); and, for the avoidance of doubt, this point is made doubly clear through Article 33 (2) of the 1951 Convention.
It would have been more acceptable if this section of the 2006 Act had been confined so as to deny asylum only to those whose conduct can be shown to amount in itself to a criminal offence. It could therefore be argued that, like its contemporary, the Terrorism Act 2006, the latest asylum legislation has been prompted more by fears of terrorism than by the United Kingdom being overrun with economic migrants who are not genuine asylum-seekers.
From the above discussion, a number of conclusions may be drawn on the way in which asylum law and policy has operated in the United Kingdom since 2002.
First of all, it has been argued here that some of the measures on asylum since 2002 have been prompted by a fear that asylum and terrorism are somehow linked and the belief that therefore tough asylum laws will work as a deterrent to terrorist activities. It is perhaps no coincidence that the latest legislation on asylum has been put through parliament at the same time as the Terrorism Act 2006 has also been working its way into the statute books. Nevertheless, any so-called “link” between asylum and terrorism is currently unfounded, but fear of such a link has led to a policy which has resulted in suffering and hardship for many who have genuinely sought refuge in the United Kingdom. It is suggested therefore, that it is not asylum law, but terrorism legislation, which should be used as the proper and central means to increase national security in the United Kingdom. In this way, the United Kingdom would be maintaining its respect for the human rights of genuine asylum-seekers and at the same time ensuring adherence to the 1951 Convention on Refugees.
Secondly, the Asylum and Immigration (Treatment of Claimants) Act 2004 in itself raises a number of important human rights issues which have been outlined in this article. The House of Lords and the rest of the judiciary have so far been very robust in ensuring that human rights violations do not occur in this context and that the rule of law is upheld. An example of this can be found in the Court of Appeal’s decision upholding that of Mr Justice Sullivan to award discretionary leave to stay to 9 Afghan convicted highjackers. (S and others v Secretary of State for the Home Department; Sub nom R (on the application of GG) v Secretary of State for the Home Department [2006] EWCA Civ 1157, [2006] All ER (D) 30) This decision led to tensions between the British government and the judiciary on asylum matters, but the latter claim merely to be applying the law which the government itself has introduced in the form of both the Asylum legislation and the Human Rights Act 1998. It is to be hoped that the judiciary will continue this approach so as to ensure that no further human rights breaches occur. Nevertheless, one lesson to be learned from the Limbuela case, discussed earlier, is that what is really required to make any real practical difference in outcome for individual asylum-seekers is a further change in both government policy and legislation. Those failed asylum-seekers who do not come forward and claim that they are suffering from inhuman and degrading treatment will continue in practice to depend upon charity and friendship, despite the best efforts of the judiciary.
Finally, the provisions contained in the Immigration, Asylum and Nationality Act, 2006, do little to create a fairer asylum system in the United Kingdom. The 2006 Act, for instance, contains no provisions which would improve the quality of the initial decision -making in asylum applications, necessary if numerous and lengthy appeals are to be avoided. Currently, about 20 per cent of such appeals are successful. The provisions on employment contained in the 2006 Act could also lead to uncertainty and discrimination, which could be easily avoided if asylum-seekers were allowed to work after a set period of residence in the United Kingdom. Currently, Immigration Rules provide that an asylum seeker who has been waiting for twelve months for their application to be decided may seek permission to obtain employment, but this is discretionary and does not apply in relation to either self-employment, business or professional activity. The right to work, however, should be regarded as a human right that is not subject to discretion; it therefore should be granted to all asylum-seeking adults who have been waiting for over twelve months, through no fault of their own, for their claim for asylum to be determined.
It may indeed be concluded that the asylum system in the UK is in crisis, but this may be attributed to that system having become mixed up with anti-terrorism rather than keeping to its traditional function of curbing economic migration. It is the fear of terrorism, rather than economic efficiency, which has both shaped and explains the changes which have taken place in UK asylum law since 2002. These changes, however, have been achieved at an unacceptable price; namely, the cost of humane treatment and human rights protection for genuine asylum-seekers.
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