Asylum system flawed, rules High Court

Judge's decision leaves Home Secretary furious and his 'get tough' policy in disarray

The Government's "get tough" policy on asylum- seekers was thrown into disarray yesterday when a judge ruled that ministers were forcing immigrants to choose between returning to persecution in their own country or a life of destitution in Britain.

The High Court ruling is expected to affect hundreds of political refugees who have been denied basic state benefits because they waited too long to ask for help.

Under 2002 immigration rules, asylum-seekers entering Britain only qualify for free accommodation and food if they make an application within reasonable time – usually when they arrive at a port of entry.

But Mr Justice Collins said yesterday the initial decision-making process that led to six unnamed applicants being refused assistance was "flawed".

He acknowledged his ruling would "weaken the anticipated effect" of the Government's new rules on benefits. But he added: "Parliament can surely not have intended genuine refugees should be faced with the bleak alternatives of returning to persecution – itself a breach of the Refugee Convention – or of destitution."

The judge also criticised the long delays that have plagued the immigration system and helped to contribute to Britain's £1bn-a-year asylum bill. He said: "I am, of course, well aware that the volume of those entering the United Kingdom, usually unlawfully, and seeking asylum has created and is continuing to create what seems an intractable problem. Many claims are refused, but the sheer numbers have resulted in unacceptable delays."

David Blunkett, the Home Secretary, reacted angrily to the judgment and said the Government would mount an appeal early next month.

"This measure is an important part of our asylum reform programme, which is dealing with widespread abuse of the system and reducing unfounded claims," he said. "It is simple common sense that asylum-seekers should lodge their claim as soon as they arrive if they expect support from the Government. We must continue to be able to operate a robust policy and people who try to abuse our asylum system will not find us a soft touch."

Human rights groups welcomed the ruling as a victory of human rights over a draconian system that victimised some of the most vulnerable people in the world.

Mr Blunkett told The World at One on BBC Radio 4: "Frankly, I'm personally fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them." He acknowledged the right of the courts to review public policy decisions but added: "I also have the right to say Parliament did debate this, we were aware of the circumstance, we did mean what we said and, on behalf of the British people, we are going to implement it."

Mr Blunkett made clear that the Government was intending to carry on with its existing policy.

Oliver Letwin, the shadow Home Secretary, said the time had come to tear up existing asylum arrangements and start again. He said: "The only route now through this chaos is to abolish the whole asylum system and replace it by a rational system of quotas for genuine refugees," he said.

Shami Chakrabarti, a spokeswoman for the civil rights group Liberty, described the judge's ruling as an "important victory for human decency". She said: "To deny individuals access to food and shelter and potentially leave them to starve or freeze on Britain's streets is a degrading, humiliating and wholly unacceptable policy."

The judge ruled that the human rights convention was not automatically breached by refusing aid to someone who was destitute. What had to be established was "a real risk" of destitution leading to injury to health. But "insufficient consideration" had been given to the issue and the decisions made in the case of the six in his court "must be quashed and reconsidered, if that has not already happened".

The judge added: "The individual's reasons for not claiming must be considered and that means at least asking about the pressures on him, what he was told and what his beliefs were."

Mr Justice Collins said that in each of the six cases there had been a breach of article 6 of the human rights convention because of the absence of any right of appeal against the decision to refuse benefits.

Human rights lawyers had argued that to leave someone destitute would breach article 3 of the European Convention on Human Rights, which prohibited inhuman or degrading treatment. The judge said: "It is clear that there is no duty on a state to provide a home. It may even be that there is no duty to provide any form of social security."

But Mr Justice Collins said he was satisfied "there will normally be a real risk" that to leave someone destitute would violate their human rights.

Margaret Lally, acting chief executive of the Refugee Council, was encouraged by the judgment. "Every day asylum-seekers are arriving at our doors freezing cold, hungry, exhausted and confused."

The six refugee cases

The six refugees claiming political asylum came to Britain last month.

Q is a 20-year-old Iraqi Kurd who arrived in London by lorry. He spent his first night in "a tunnel by a telephone box". He approached immigration authorities at Croydon in south London. He was refused support because of the "lack of detail" in his answers on his journey to the UK. The judge said he had poor legal advice.

F is a 37-year-old Angolan soldier arrested and accused of spying who escaped and came overland. He was sent to Newcastle airport to make his claim. His plea for assistance was rejected because immigration officers were not satisfied he was unable to claim asylum at the airport. But Mr Justice Collins said F's account should have been investigated further.

M, a 42-year-old Rwandan Hutu woman, was raped and beaten by Tutsi soldiers. She escaped to Uganda and flew to London. She claimed asylum at Croydon but was refused support because she could have claimed at the airport. The judge said her story might have been difficult to accept "but it does not necessarily show she did not arrive when she says she did".

B is a 16-year-old Ethiopian whose father had been suspected of involvement in a proscribed political movement. She arrived at Heathrow without being questioned. She spent the night at the airport "in tears". She tried to claim asylum at the information desk but was told it was too late that day. Her request for food and shelter was rejected because she had failed to claim asylum on arrival. The judge said there was no suggestion her description of what happened after she had passed through immigration control was untrue.

J, an Iranian, arrived in a lorry. He fled persecution after converting to Christianity. The 26-year-old said he did not claim asylum because he did not know how to. Immigration authorities told him his story did not seem credible. The judge said it was difficult to follow that, particularly as no questions were asked of J. His claim has been allowed.

D is a 22-year-old Angolan whose home was raided by soldiers. His father was shot and his mother and sister raped. He was arrested and beaten, but escaped and flew to London.

He was found a bed, but had to sleep rough in the street outside the Home Office in Croydon the following night. The judge said: "This claim illustrates the importance of sensitivity in considering a claimant who may have suffered serious trauma which may affect his ability to explain himself."