Asylum review: Executive Summary

Fit for purpose yet?

The Independent Asylum Commission’s nationwide review of the UK asylum system in association with the Citizen Organising Foundation - Executive Summary

The Independent Asylum Commission (IAC) is conducting a nationwide citizens’ review of the UK asylum system. It has collected evidence from several hundred individuals and organisations, through public hearings, written and video evidence, and research. The provisional findings of the Commissioners are set out at the end of each Section headed Commissioners’ Interim Findings.

In 2006 the then Home Secretary, John Reid, included the asylum system in his condemnation of a department that was “not fit for purpose”. These Interim Findings provide a provisional assessment of whether the UK asylum system is ‘fit for purpose’ yet. The Commission will publish its final conclusions in May, June and July 2008, and will make credible and workable recommendations for reform that safeguard the rights of asylum seekers but also command the confidence of the British public.

Key Conclusions

1. The Commission has found almost universal acceptance of the principle that there must be an asylum system, and that it must be applied fairly, firmly and humanely. These criteria must be fulfilled for the UK system to be ‘fit for purpose’.

2. The Commission has found that the UK asylum system is improved and improving, but is not yet fit for purpose. The system still denies sanctuary to some who genuinely need it and ought to be entitled to it; is not firm enough in returning those whose claims are refused; and is marred by inhumanity in its treatment of the vulnerable.

How we decide who needs sanctuary

• The Commission commends the strenuous efforts being made by the Border and Immigration Agency to deal with asylum claims more effectively.

• Despite these efforts, a ‘culture of disbelief’ persists among decision-makers. Along with lack of access to legal advice for applicants this is leading to perverse and unjust decisions.

• The adversarial nature of the asylum process stacks the odds against asylum seekers, especially those who are emotionally vulnerable and lack the power of communication.

How we treat those seeking sanctuary

• The Commission has found that the treatment of asylum seekers falls seriously below the standards to be expected of a humane and civilised society.

• The detention of asylum seekers is over-used, oppressive and an unnecessary burden on the taxpayer, and that the detention of children is wholly unjustified.

• Some of those seeking sanctuary, particularly women, children and torture survivors, have additional vulnerabilities that are not being appropriately addressed.

What happens when we refuse people sanctuary.

• The Commission recognises that refused asylum seekers should not be treated over-generously. However, the enforced destitution of many thousands of refused asylum seekers is indefensible and runs the risk of placing a shameful blemish on our nation's proud record of providing for those who come here in search of sanctuary.

• The current arrangements for returning people who have been refused sanctuary are not effective enough and are sapping credibility and public confidence in the asylum system.

• There can be no criticism of cases where refused asylum seekers are encouraged, by fair and positive means, to leave the UK. Enforced returns, on the other hand, have not always been handled with the necessary sensitivity.

For further information see

www.independentasylumcommission.org.uk.

For media enquiries contact Jonathan Cox on 07919 484066.

Section 1: How we decide who needs sanctuary

At the difficulty of accessing the asylum system for people who need sanctuary.

• That the lives and welfare of people in need of sanctuary are put at risk as a consequence of policies designed to prevent illegal immigration to the UK and Europe.

• That some new arrivals have extreme difficulty claiming asylum in-country due to the limited number of Asylum Screening Units and the inadequacy of their opening hours.

• That some asylum seekers are penalised when they arrive in Britain with a forged passport or without any passport having done so for understandable and non-criminal reasons.

At the unacceptably poor standard of some initial asylum decisions.

• That there is inadequate understanding among decision-makers of the different circumstances faced by asylum seekers who are seeking sanctuary from persecution.

• That there is a lack of consistency in the quality of first-instance decision-making and that the workloads of New Asylum Model case owners may be too high.

• That the high rate of cases won on appeal indicates a high rate of poor initial decisions.

• At the style and content of substantive interviews by BIA decision-makers. The Commission received evidence of the inappropriate use of leading questions at interview; non-implementation of gender guidelines when engaging with traumatized women; inappropriateness of interpreters with regards to ethnic and religious sensitivities; inappropriate questions to assess religious conversion; and errors in transcription

• That BIA decision-makers may not always have access to up-to-date and relevant Country of Origin Information, nor apply it appropriately to each case to help them make good decisions.

• That the appeal stage is becoming part of the first-instance decision-making process rather than a process of independent review, meaning that Border and Immigration Agency decision-makers do not always conduct a proper analysis of the individual protection claim

That the adversarial asylum system is heavily weighted against the asylum seeker.

• That some asylum seekers who have their initial decisions ‘fast-tracked’ have less chance of receiving a fair hearing.

• That there is a lack of legal advice for asylum seekers during their initial interview leading to unjust decisions.

• That the right to appeal is curtailed if an asylum seeker comes from a supposedly safe third country.

• That there is a shortage of solicitors to represent appellants and that asylum seekers are denied justice if their solicitors do not appeal in time or do not have the relevant information.

• That cuts in the legal aid budget have led to an increase in appellants appearing unrepresented.

• That there is insufficient opportunity for redress if an asylum seeker's appeal is not heard, if they are not properly represented, or if they are failed through maladministration or other human error.

• That the Asylum and Immigration Tribunal may not issue adequate guidance for immigration judges assessing the credibility of appellants.

• That good medical export reports to support an appellant’s case are hard to obtain, expensive and are not always given due consideration.

• That the way courts use expert witnesses and County of Origin Information is not consistent.

• That segmentation of fast-track appeals and the tight time-frame for preparing a case for detained fast-track leads to too many people appearing without proper legal or other representation.

Section 2: How we treat people seeking sanctuary

Nations are commonly judged by the standards of humanity with which they treat people who are seeking sanctuary from persecution. The Commissioners are disturbed to have found much evidence of shortcomings in the treatment of

asylum seekers – from the use of administrative detention to inadequacies of support.

While all asylum seekers are in a vulnerable situation, the Commissioners are concerned to find that some individuals, such as children, disabled people and torture survivors, have additional vulnerabilities that are not adequately recognised or reflected in their treatment.

Key findings:

• That administrative detention is not necessary for most people seeking sanctuary, is hugely costly, and should never be used for children or pregnant women.

• That some of those seeking sanctuary have additional vulnerabilities that are not appropriately addressed in the way children, women, older, disabled, and lesbian, gay, bisexual and transgender (LGBT) asylum seekers, and torture survivors are treated.

The Commissioners affirm:

• The desire of the Home Office to find alternatives to the detention of children and families.

• The desire of the Government to resolve all outstanding and future asylum claims within a reasonable timeframe.

• The willingness of the Border and Immigration Agency to engage stakeholders in working for improvements to the treatment of people seeking sanctuary.

• The desire to review the UK’s reservation to Article 22 of the UN Convention on the Rights of the Child.

The Commissioners express concern:

• At the cost of detention

• That insufficient reasons for detention are given, that individual circumstances are rarely stated and the decision to detain is not transparent and accountable.

• That the levels of suicide and self-harm in detention centres are unacceptably high.

• That detention is unacceptably open-ended and administrative with some individuals ‘parked’ in detention for substantial periods.

• At the inappropriate detention for many convicted foreign prisoners alongside asylum seekers, which adds to the trauma of asylum seekers who have committed no crime.

• That there is poor and inadequate access to legal advice and representation for detainees.

• That detainees face extreme difficulties in communicating with the legal representatives advising them on their asylum claim.

• That the recent introduction by the Legal Services Commission of exclusive contracts may mean that the choice of solicitors for detainees will become more limited.

• That a bail system designed for those accused of criminal offending is being applied to asylum seekers, with insufficient modification to reflect the fact that they are not criminals.

• That no presumption is applied in favour of bail and that detainees face difficulties accessing information about bail.

• That there is a lack of representation available for detainees’ bail hearings and solicitors refuse to do bail hearings because the ‘merits test’ means they can only represent those who have a 50% chance of success.

• That access to medication and psychiatric care is at present inadequate and should be improved.

• That health care is not provided to detainees by the National Health Service.

• That staff are not adequately trained to ensure the health and welfare of detainees.

• That some detention facilities designed on presumption of short-term stays are being used for long-term detention and that there is inadequate tracking of the time individuals spend in detention.

• At the use of the detained fast-track system, the high rate of negative decisions, the criteria for assigning a case to the fast-track system, and the lack of time allowed to prepare cases and appeals.

• That there is inadequate access to internet, phones and phone chargers for detainees.

• That there is inadequate access to interpreters for detainees.

• That the Independent Monitoring Boards are not taking a more proactive role in monitoring the detention estate.

• That recommendations made by reports from the Chief Inspector of Prisons into detention centres are frequently not implemented.

• That there is an inconsistency of operating standards across the detention estate.

• That, while we have encountered examples of staff acting in a proactive and positive manner, we have also found many examples of the opposite, and staff still do not receive adequate training in important issues such as mental health, religion, and racism.

• That complaints are not soundly and independently investigated.

• That the contracting out of detention services reduces transparency and accountability; it leads to financial constraints and a reduction in opportunities such as those of visiting or for communal religious observance.

• That the role of chaplains in offering pastoral care is often not understood or is frustrated by Managers of Religious Affairs.

• That detainees are frequently moved between different centres unnecessarily, and often a great distance from family and friends; that this also results in the loss of belongings.

• That, while we are in favour generally of all alternatives to detention being given serious consideration, procedures involving a risk to human dignity are not subject to safeguards such as independent advice for the applicant and proof of genuine consent.

At the inadequacies of support for asylum seekers

• At the service provided by BIA.

• That it is so difficult for asylum seekers, their legal representatives, MPs and other interested parties to get answers to specific questions about cases and to track the progress of cases.

• That reporting procedures can be traumatic and inhumane, for instance by requiring those in receipt of vouchers to purchase tickets for bus and train journeys to get to reporting centres.

• That asylum seekers face destitution at the beginning of their claim because of lack of access to Asylum Screening Units

• That some asylum seekers experience destitution (homeless and lacking money for basic food or other necessities) due to maladministration.

• That there are administrative delays in receiving support, for example catching up with changed addresses.

• That there is no legal aid for asylum support hearings.

• That there is no support available while waiting for a decision on support.

At the treatment of children in the asylum system

• That children continue to be detained.

• That the UK reservation on Article 22 of the UN Convention on the Rights of the Child currently means that there is a lower level of protection for children seeking asylum.

• That vital decisions on unaccompanied asylum seeking children are taken without the presence of someone who represents the rights of the child.

• At the lack of access to legal representation for unaccompanied asylum seeking children.

• That support arrangements provided for unaccompanied children by local authorities are not fully reimbursed by central government.

• At the culture of disbelief and related practice of age-disputing unaccompanied children who seek asylum.

• That if there are reasonable grounds for suspecting a false statement of age, the dispute is not always promptly referred for independent assessment by suitably qualified experts using a humane and sensitive procedure.

• That children and young people face exclusions from normal activities in which other children participate, such as travel or opportunities for tertiary education.

• That the threat to deny support to families of refused asylum seekers and to take their children into care remains part of Government policy.

At the treatment of women in the asylum system

• That a woman’s claim may often, to her detriment, be made together with that of her husband or partner, instead of being given independent consideration.

• At the lack of understanding and recognition that women may have particular problems in accessing help and support.

• That the Government’s own gender guidelines are inconsistently observed.

• That women are being wrongly selected for detained fast track against the guidelines in the Asylum Policy Instructions.

• That the detention of pregnant women has a negative impact on their health and well-being.

• That women’s cases based on sexual violence are not properly presented under the fast-track system.

• That gender-specific claims for asylum such as Female Genital Mutilation and trafficking are not adequately addressed by the asylum system.

At the treatment of those with health needs in the asylum system

• That there is confusion and inconsistency over entitlement to health services.

• That charging for secondary care is having a detrimental effect on the health and well-being of refused asylum seekers and may pose a health risk to the wider population.

• That asylum seekers with health needs dispersed across the UK may suffer a break in continuity of care through dispersal.

• That HIV/Aids treatment is denied to refused asylum seekers who cannot pay for treatment and the implications for this in terms of public health.

• That there is a high level of mental illness among asylum seekers and that the asylum system fails to recognise this and in some cases exacerbates or causes stress.

• That disabled asylum seekers are not entitled to disability-related benefits.

• That the accommodation provided for disabled asylum seekers is sometimes unsuitable.

• That vulnerable groups such as older and disabled detainees are not adequately protected in detention.

At the treatment of torture survivors in the asylum system

• That torture survivors are often not identified by the system.

• That torture survivors are being detained despite Border and Immigration Agency published guidance to the contrary.

• That torture survivors are being fast-tracked against Border and Immigration Agency guidelines.

• That, because of dispersal, torture survivors frequently do not have access to organisations such as the Medical Foundation for the Care of Victims of Torture.

• That there is a lack of understanding among Border and Immigration Agency decision-makers of the reasons why a torture survivor might fail to disclose their experiences.

• At the lack of recognition and understanding that expert medical reports may be slow to arrive, or be altogether absent.

At the treatment of lesbian, gay, bisexual and transgender asylum seekers in the asylum system

• At the treatment of lesbian, gay, bisexual and transgender (LGBT) asylum seekers in the asylum system.

• That some ‘white list’ countries, such as Jamaica, recognised as ‘safe’ may not be so for LGBT asylum seekers.

• That LGBT asylum-seekers may be slow to ‘come out’ and have difficulty providing evidence to substantiate their claim.

• That LGBT detainees are not adequately protected in detention.

Section 3: What happens when we refuse people sanctuary

At avoidable inhumanity in the treatment of refused asylum seekers

• That returns targets such as the “tipping point” can lead to inhumane return decisions and actions.

• That unnecessary violence and carelessness has been used in the conduct of enforced returns, with vulnerable mothers and children targeted, loss of belongings and a lack of accountability on the part of those charged with enforcing the return.

• That improper force is used by escorts in the removal of some refused asylum seekers.

• That many refused asylum seekers cannot return home for periods of time because of problems of documentation, yet still face harsh treatment in the UK.

• That there are high levels of destitution among asylum seekers despite the existence of an asylum support system.

• That destitution is being used as an instrument of policy to force refused asylum seekers to leave the UK and dissuade others from entering.

• That destitute refused asylum seekers include very vulnerable people including heavily pregnant women, torture survivors, the mentally and physically ill, and older people.

• That many refused asylum seekers cannot access health services.

At the social and economic consequences of destitution

• That destitution has far-reaching social consequences, including vulnerability to sexual exploitation, cessation of education and additional individual trauma.

• That through destitution the Government is stigmatising refused asylum seekers and increasing negative public perceptions of already vulnerable people.

• That the prohibition on work for those who cannot be returned is a waste of potential and revenue.

• That refused asylum seekers are vulnerable to illegal working, exploitation, and criminal activity and becoming victims of crime.

At the lack of trust in the system at the end of the process among asylum seekers, refugee charities and the public.

• That until fair and just decision-making becomes the norm throughout the asylum process, there will be little support for tough treatment of refused asylum-seekers.

• That too few refused asylum seekers take voluntary return.

• That there is often inadequate time for a refused asylum seeker to contact their lawyer before being subjected to an enforced return and that BIA staff play a ‘cat and mouse’ game by arranging removals at times when it is difficult for lawyers, social workers or other potential helpers to be contacted.

• That there is no monitoring of what happens to those returned once they have left the UK

At policies and practices that appear not to have been clearly thought through.

• That families with children are detained prior to return of refused asylum seekers.

• That refused asylum seekers are detained with foreign national prisoners awaiting return.

• That children with stable backgrounds and who have lived as part of local communities for many years are being returned suddenly and without consideration for the emotional and psychological impact.

• That Section 4 hard case support is only available to a small proportion of refused asylum seekers, there is sometimes a delay before support starts, and the quality of some accommodation is extremely poor.

• That vouchers provided for hard case support are ineffective, costly and stigmatising.

• That hard case support provided for short-term use is being used to support people for long periods.

• That there is inadequate legal representation for those at the end of the process who may still have protection needs.

• That charter flights are used to return refused asylum seekers to countries or areas of countries that may be unsafe such as Iraq, the Democratic Republic of Congo and Afghanistan.