Asylum and Immigration (Treatment of
Claimants, etc) Bill 2003 Clause 2
ILPA Briefing for Second Reading 17
December 2003
Why is
clause 2 important?
Ø
Clause 2 automatically criminalizes any person
arriving in the UK without a valid passport or “satisfactory”
identification document.
Ø
Clause 2 affects everyone entering the UK, including
British citizens and European nationals and above all, people
seeking protection and sanctuary under the Refugee Convention
and other humanitarian laws such as the European Convention
on Human Rights.
Ø
Clause 2 will not solve the perceived problem of
illegal immigration. It will further reduce routes to
protection from persecution and put refugees at increased
risk of harm and exposure to ever more dangerous means of
entry into the UK.
Ø
Clause 2 will breach the UK’s international legal
obligations contrary to Article 31 (1) of the Refugee
Convention[1]
Ø
What does clause 2 say?
There are a
significant number of criminal offences which a person
entering and exiting the UK without acceptable documentation
can currently be charged with[2]. These criminal offences are prosecuted
through the courts already. Clause 2 of this Bill duplicates
and widens existing criminal offences and in effect creates a
new offence of deliberate document destruction without good
cause.
Clause 2 (1)
and (2) sets out the circumstances in which a person will
commit an offence but fails to provide even the basic
safeguards normally afforded to persons questioned under
criminal procedures such as an interview under Police and
Criminal Evidence Act procedures, under caution and with a
legal representative present. It is silent on the
burden of proof regarding reasonable cause/excuse and upon
whom this falls.
Clause 2 (3)
and (4) provides a limited statutory defence for failure to
provide satisfactory documentation. These defences are inadequate
to protect even those people with a good reason for arrival
if they have with them anything less than a valid passport or
similar travel/identity document without good cause in the
opinion of an immigration officer. These defences are subject
either to an immigration officer’s subjective decision
as to what is reasonable and satisfactory or they are
excluded completely.
Clause 2 (5)
(iii) denies a statutory defence to people who destroy
their documents on the instruction or advice of facilitating
agents.
The
reality for very many asylum seekers is that they have no
option but to escape from harm using the facility of agents
They must comply with instructions, often under fear of harm
to self or family left behind at home. They have to depend on
agents absolutely in their flight from persecution. For those
who are told to destroy their documents before arrival it is
a decision beyond their control. In complying with
instructions to claim asylum it is also done in a reasonable
cause. Unfortunately agents are a prerequisite of escape for
all but the few asylum seekers, they are economically and
psychologically powerful and are able to dictate the terms of
their agency. Asylum seekers should not be punished for being
forced to make use of this relationship.
Clause 2 (6)
and (8) increases the powers of an immigration
or police officer to demand production of documents “on
request” from any person, at any time and to arrest
without warrant.
Clause 2 in
its entirety significantly increases the risk that an
individual’s Refugee Convention rights will be breached
and that refugees will be punished and detained contrary to
the UK’s international obligations for seeking
protection in the UK.
For
further information, please contact ILPA's representative
Syd
Bolton on 020 7697 1488 or 07966 519 588
ASYLUM AND IMMIGRATION (TREATMENT OF
CLAIMANTS ETC) BILL 2003
CLAUSE 2
BRIEFING FOR SECOND READING 17 DECEMBER
2003
IMMIGRATION LAW PRACTITIONERS ASSOCIATION
(ILPA)
INTRODUCTION
ILPA is
opposed to the provisions contained in Clause 2 of this Bill.
Its powers are extensive and unnecessary. Like other clauses
to the Bill it represents an attempt to re-define the U.K’s
terms of engagement with our Refugee Convention obligations
by further weighting the asylum determination system against
those seeking our protection. It creates a situation where
for many asylum seekers the only means of obtaining passage
to and entry into the UK to legitimately claim asylum is made
a criminal offence unless proved otherwise. It will have the
effect of putting the most vulnerable people’s lives
even more at risk.
These new
offences are neither needed to enhance and strengthen
immigration controls nor to fill any gap in the law. Indeed,
such widely drawn powers may create unworkable laws which
although creating an environment for arbitrary arrest,
detention and prosecution may ultimately prove incapable of
securing the conviction of the very people it purports to be
aimed at.
Summary
of New Proposals:
The Bill
if enacted in its current form will
- Add to
existing false/inadequate documentation offences
- Create
a new offence of failure to possess satisfactory
documentation, including the destruction of a document to
delay or enhance a claim to remain
-
Provide only limited defence, including “reasonable
cause” but excluding people who have had to comply with
or rely upon the instruction of agents to flee
persecution.
-Presumes
guilt for failure to produce a document on request
- Gives
wide powers of arrest without warrant to immigration officers
and police alike.
-Potentially
exclude convicted asylum seekers from Refugee Convention
protection
The
current position
The existing
range of criminal offences contained in the Immigration Act
1971 and elsewhere is already sufficient to prosecute
entrants to the UK for lack of acceptable documentation and
illegal entry without creating new offences. There is growing
evidence from NGO’s and ILPA members that these existing
powers are being used with increasing frequency and that the
numbers of foreign nationals convicted and sentenced to
imprisonment for documentation offences is growing without
the need for wider laws.
The special
circumstances and protections afforded to a refugee seeking
asylum must be secure against this current willingness to use
criminal powers to deter illegal entry
As UNHCR has
very recently clarified “The intent behind Article 31
of the 1951 Convention is to ensure that persons seeking
international protection are not penalized for their illegal
entry or presence, provided that they come directly from a
territory where their life or freedom was threatened, present
themselves without delay to the authorities and show good
cause for their illegal entry or presence. In
granting this protection from penalization, Article 31
recognizes, inter alia, that departure and entry into host
countries by irregular means may be methods used by refugees
fleeing persecution to reach safety.”[3]
The issue of
Article 31 protection of asylum seekers has been well
rehearsed and articulated in both Houses during the passage
of previous legislation, particularly s31 of the Immigration
and Asylum Act 1999 which sets out the statutory defences to
documentation offences and entry or presence in order to
claim asylum.
S31 of IAA
1999 was introduced as a late new clause by Lord Williams of
Mostyn[4] as a
direct consequence of the finding of the High Court in the
case of R v Uxbridge Magistrates ex parte Adimi and
others[5] that
there had been unlawful prosecution of asylum seekers
contrary to Article 31(1). A number of “Adimi”
compensation claims for wrongful imprisonment have settled
subsequently for around £40,000 + per claim[6] and higher.
The defences
provided by IAA 99 s31 were meant to provide an assurance
that Article 31 refugee rights would be respected and that
unlawful prosecutions would be thereby minimised if not
completely eradicated.
Despite
assurances about how such cases were to be handled, following
a brief lull in prosecutions, anecdotal and individual case
evidence suggest that prosecutions for documentation offences
are rising and being brought contrary to the CPS’s own
guidelines and the Home Office Asylum Policy Instructions.
Such cases pass through the criminal system with alarming
haste. The Home Office have stated to the Asylum Rights
Campaign group that they do not collect data on such cases.
Custodial
sentences of between 4 and 12 months, often handed down
within days of arrest and without pre-sentence reports are
the norm. Guilty pleas in the magistrates courts are often
used even where there is a s31 defence to reduce the risk of
longer sentences and/or being committed to the Crown Court.
Recent cases
show that even now, despite procedures meant to prevent such
prosecutions, they are being brought with profound
consequences for those charged.
Example 1
1999
In
the Spring of 1999 a Palestinian woman arrived in the UK
fleeing from Kuwait. Her husband had disappeared and she and
her daughter had been subjected to violence in their own home.
She was travelling alone with her two young children, intent
on joining her brother in Canada to make an asylum claim. She
transitted via the UK and when leaving to catch the flight to
Canada was detected as having a false passport. She was
charged with travelling on a false passport. She was detained
with her two children in Heathrow Police Station over-night
and taken to Court the next morning, where she was convicted
and sentenced to three months imprisonment. She had no
opportunity to say good-bye to her children and had no
understanding of why she was being treated as a criminal. Her
children were both abused by their foster carers whilst she
was in prison and her daughter attempted suicide. She was
awarded a substantial amount of damages for the trauma she
suffered as a result of her imprisonment under the ex gratia
compensation scheme. She was also subsequently granted
exceptional leave to remain on asylum / statelessness grounds.
She and her daughter have on-going trauma as a result of her
conviction and imprisonment.
Example
2, 2003
In
September 2003, a Nigerian woman and her two children fled
Nigeria on false documents arriving at Heathrow. The family
was en route to Canada to seek protection with family members
there following serious threats to the woman concerning a
forced marriage. She was arrested trying to leave the UK a
day after arrival, she was interviewed and from papers
disclosed during prosecution she had clearly satisfied the
immigration officer that she came to the UK directly and had
stated very clear claims on the record of fear and need for
protection. Despite the defences of s31 IAA 1999 and supposed
procedural safeguards she was charged and prosecuted. Only 2
days later she appeared in court, admitted guilt to get
credit for an early plea and to reduce the risk of a higher
sentence if found guilty. She received a 6 month custodial
jail term for a first offence without any pre-sentence
reports. Her 2 children aged 3 and 11 were taken into the
care of social services and fostered. She did not get a
prison visit for 8 weeks from her children. Because of the
lack of genuine documentation social services are now
refusing to hand the children back to their mother at the end
of her sentence until she can provide evidence that they are
her children. The distress and anxiety of the mother is
profound.
It is clear
from these cases, one before s31 IAA 1999 became law and one
afterwards that little has changed by way of prosecution
practice and the assurances offered by way of statutory
defence and procedural checks and safeguards continue to fail
asylum seekers. These new measures will only serve to
increase that risk.
WHAT WOULD
BE THE EFFECT OF THE NEW PROPOSALS?
Breach
of Refugee Convention obligations under Article 31(1)
Procedural
unfairness in the criminal courts without adequate statutory
safeguards
Procedural
unfairness in the asylum appeal process by weighing
convictions against credibility (see clause 6)
Increases
in prison populations especially proportions of foreign
nationals
Community/police
relations undermined under new “suss” laws
Large
miscarriage of justice compensation claims to continue
Children,
especially unaccompanied minors, open to prosecution.
Trafficking
victims prosecuted but not their traffickers.
Exclusion
from protection
ILPA
Proposals
Clause 2 of
this Bill should be omitted completely.
If it is not,
the minimum amendments as follows should be made to Clause 2
of the Bill:-
Clause 2 (1)
If an immigration officer is not satisfied by the person
questioned then there should be a first substantive interview
conducted under Police and Criminal Evidence Act 1984
procedures, under appropriate cautions and with a properly
accredited legal representative present throughout. This
interview and evidence provided within that interview, not
any preliminary/initial questioning should be the basis of
any decision to refer a case to the Crown Prosecution Service.
It should be
a defence under clause 2(1) to provide when
questioned, any satisfactory identifying document and
not restrict this to a passport or similar as currently
defined in clause 2 (10)
Reasonable
cause/excuse MUST include a claim for asylum and
protection under the Refugee Convention or any other human
rights claim.
To minimise
the risk of unlawful prosecution/imprisonment and violation
of Article 31 of the Refugee Convention:-Section 31 of the
Immigration Act 1999 should be amended by this
clause to insert all new offences created by this clause into
the list of offences to which the Article 31 (1) Refugee
Convention statutory defence is available.
Clause 2 5)
b) i, ii and iii) deprives a person of a defence of
reasonable cause where it is alleged that the reason is to
delay resolution of a claim, increase the chances of success
or in compliance with an agents instructions or advice. These
sections should all be omitted. They are incapable of
sufficiently precise definition to be consistently and
objectively applied and will be evidentially difficult to
prove. They do not reflect the reasons why asylum claimants
arrive without documents. They are based on unproven and
unsubstantiated assumptions.
A new
section to clause 2 should be added to provide that
“where a defence is raised under Clause 2, no
prosecution should be brought until after the final
resolution of an asylum or any other protection claim”.
This way, appropriate time can be given to the proper
consideration of law, procedures and the evidence in the case
itself, in the context of the claim for protection.
Clause 2 (7)
allows for a maximum sentence of 2 years imprisonment for
these offences. If a maximum sentence is passed by the
criminal court before determination of an asylum claim,
section 72 of the Nationality Immigration and Asylum Act 2002[7] provides that a
person convicted of a serious offence can be excluded from
Refugee Convention protection. It is inappropriate that an
offence of this type should be self-serving and in any way
used to classify an asylum seeker as a serious criminal to
justify exclusion from protection.
Clause 2 (7)
of this Bill should be amended to provide that offences under
this section should not be considered as ones to which s72 of
the NIA 2002 applies.
Our prisons
are full and overflowing. The proportion of foreign nationals
in our jails is increasing dramatically. The Home Office’s
own statistics [8]show
that
- by
March 2003 the prison population had increased by 5%
from 2002
- The
Certified Normal Accommodation capacity of our
prisons was exceeded by 11%
- By
February 2003 foreign nationals accounted for 37% of
all ethnic minority prisoners and around 9% of the
overall prison population.
Do we really want to create a system
where the welcome mat for refugees is laid at the door of an
already overcrowded prison?
ASYLUM
AND IMMIGRATION (TREATMENT OF CLAIMANTS, ETC) BILL 2003
CLAUSES
4 and 5
BRIEFING
FOR SECOND READING
17
DECEMBER 2003
ILPA has
worked consistently to improve awareness of the seriousness
of the crime of trafficking and to address the particular
protection needs of its victims. ILPA therefore welcomes
these new measures to deal with the trafficking and
exploitation of highly vulnerable people especially children
into all forms of servitude and illegal economic penury.
In addition
to the clauses as framed ILPA would like to see clause 4
extended to include offences of psychological coercion and
deception and the abuse of a position of authority in
relation to a trafficking victim.
ILPA is
concerned that whilst these new measures are appropriately
targeted at the traffickers, the Bill as a whole should not
work against the victims and that the effect of other
clauses, in particular the undocumented arrival offences in
Clause 2, the credibility provisions of Clause 6, the
restrictions on appeal rights under the ouster of Clause 10
and failure to cooperate offences of clause 14 will deny the
victims a fair opportunity to articulate their claims for
protection and expose them to the risk of return to be re-trafficked
and harmed by their traffickers.
ILPA supports
the position on this Bill more fully set out by Anti Slavery
International and the Refugee Children’s Consortium.
For
further information, please contact ILPA's representative
Syd
Bolton on 020 7697 1488 or 07966 519 588
ASYLUM
AND IMMIGRATION (TREATMENT OF CLAIMANTS, ETC) BILL 2003
CLAUSES
14
BRIEFING
FOR SECOND READING
17
DECEMBER 2003
Removal
and non-cooperation
Why is
clause 14 important?
Ø
Clause 14 creates not only a new criminal offence of failure
to cooperate with the process of facilitating ones own
removal from the UK but an unacceptably wide range of vague
and dangerous powers of coercion, detailed but at the same
time unspecified, vested in the Secretary of State for the
Home Department which, whilst purporting to speed up the
removal process will if implemented:-
Ø
detain “uncooperative” failed claimants in criminal
custody rather than immigration detention pending removal,
adding to the burden and cost to the prison system.
Ø
slow down rather than speed up the removal process
Ø
use fear and coercion rather than counselling and managed
return programmes as a means of meeting removals targets.
There is no
legal need to impose criminal sanctions backed with lengthy
custodial sentences at the removal stage of a failed claim to
remain in the UK.
Existing
immigration detention powers are sufficient to ensure a
person’s compliance with removal, however reluctant. A
custodial sentence or threat of it will not in ILPA’s
view accelerate removals but instead cause delay and clog the
courts with evidentially difficult cases to prove to the
criminal standard of proof.
Simply
because a person’s claim fails to satisfy the strict
legal tests of immigration , refugee and human rights laws
does not therefore mean that the claimant must no longer have
any fear of return to their country of origin or that their
fears for their family members are unwarranted.
Irrespective
of the merits of an underlying claim it is well known that
some countries will use the very act of claiming asylum/protection
as a reason to persecute the returnee and actively seek out
the names of those being returned either to harm the returnee
or their family. Sri Lanka and Zimbabwe are just two accepted
examples of this practice. The anonymising of published
immigration appeal decisions was in large part due to the
observation of our court lists by states interested in
cataloguing potential returnees.
Family
members often remain at risk in the home country. Instability
in a region declared prematurely safe in Home Office Country
Assessments, economic vicissitudes occasioned by war, lack of
health care, fear for children’s welfare and many other
factors play their part. At the very least one would expect a
degree of trepidation, upset and anxiety.
Without
positive and appropriate counselling about return and on
coming to terms with the prospect of being removed it is
natural that a person will feel fear and be naturally
reluctant to assist in an act against themselves.
The levels of
cooperation to avoid committing this new offence demand no
less than complete acceptance of and active and
positive involvement in one’s own removal under threat
of prosecution and imprisonment and separation from family
members.
The
circumstances and reasons for natural reluctance should not
be confused with non-cooperation nor should they be
criminalized.
ILPA’s
position is that this clause should be omitted from the
Bill.
Ø
What does clause 14 say?
Clause 14
allows the Home Secretary, to require of a person, at an
undetermined stage in their claim to remain in the UK,
to assist with and cooperate in any “specified”
action designed to obtain a travel document to facilitate his
own removal from the UK
Cooperation
is required
with
any other person
with “a process”
with the government of another state
for the completion of “a form”
for
the attendance at “an interview”
to
answer questions “accurately and completely”
to
attend “an appointment.
Failure to do
any of these things is a criminal offence carrying up to 2
years imprisonment.
The only
defence to charges under this clause are contained in clause
14 (3). That is, where the person has a “reasonable
excuse” not to comply.
There is no
provision in this clause as to what constitutes a reasonable
excuse, when it can be used and how an immigration officer or
police constable can construe what is or is not reasonable.
If this
clause remains in the Bill it is essential that the stage at
which the Secretary of State can reasonably require
cooperation should be completely barred until after the final
resolution of all proceedings challenging removal.
Clause 14(3)
provides the defence of a reasonable excuse to comply.
Outstanding proceedings or legal challenges to removal should
be included in the definition of a reasonable excuse. A
failure to make out a claim to remain in the UK should not of
itself suppose that there is no reasonable fear/anxiety about
return. All the circumstances of a case and reasons for
reluctance should be very carefully considered.
The burden of
proof should rest on the SSHD to be satisfied to a criminal
standard of proof that an offence has been committed.
ILPA agrees
that for the immigration and asylum determination system to
work properly, the removal stage of the process should be
effectively managed.
This however
must be based upon a system which affords the fullest
opportunity to the claimant to put their case, with full
access to justice through publicly funded, effective
representation and appropriate judicial scrutiny on
appeal.
Removal
actions which use coercive measures to redocument, instigated
prematurely, in the absence of basic legal safeguards and
which fail to take into account the complete circumstances of
the returnee are unacceptable.
As a piece of
criminal legislation this truly is a clause where the powers
of The Home Secretary are completely out of control.
For
further information, please contact ILPA's representative
Syd
Bolton on 020 7697 1488 or 07966 519 588
ASYLUM
AND IMMIGRATION (TREATMENT OF CLAIMANTS, ETC) BILL 2003
CLAUSE
15
BRIEFING
FOR SECOND READING
17
DECEMBER 2003
Clause 15
heralds another radical departure by the Secretary of State.
For the first time asylum seekers may, if these powers are
implemented as written, be required to wear an identifying
device at all times, be subject to onerous monitoring
conditions and face effective house arrest for long periods
of the day.
Racists who
wish to do so will easily be able to force the wearer to
reveal their “asylum-seeker tag”, marking them out
as easy victims of race hatred and abuse. Such a scheme could
very easily become a racists charter.
This clause
provides the opportunity not just to release immigration
detainees from detention as an additional option within bail
conditions (clause 15 (4) ) but as a condition of temporary
admission in addition to or as a replacement for reporting
requirements. (clause 15 (3) ).
Clause 15 (1)
sets out wide powers to impose restrictions on residence, e.g
curfew, upon employment and cooperation with not only the
Secretary of State but agents contracted to provide
monitoring services (clause 15 (6) (f) and (9) ).
ILPA is very
concerned that Clause 15 7), allows for a person to be tagged
who merely “appears to be over 18”. This clause
possesses insufficient safeguards to protect children from
becoming tagged.
Whilst
ILPA strongly encourages alternatives to immigration
detention, this clause as a whole is drawn far too widely to
give assurance that the primary purpose will be to reduce
reliance on detention measures and to enable immigration
detainees to be released from custody.
The use of
electronic monitoring or “tagging” is in its
relative infancy in the UK. The technology and management
needed to implement the system is still in a period of
development and change.
Tagging in
the criminal jurisdiction is part of a range of sentencing
tools and combines with Home Detention Curfew restrictions.
Eligibility is dependant upon risk assessments and the
suitability of detained persons for early release.
There is as
yet only limited published Home Office research into the
efficacy of the current criminal tagging scheme[9] and none that ILPA is
aware of on its use outside the criminal jurisdiction.
The
consultation exercise leading to this Bill did not propose
such a system in terms and it has therefore entered the
legislative process unseen and undebated in or outside of
Parliament.
Its
restrictions on residence 15(1)(a), reporting 15(1)(b),
employment, 15(1)(c), and curfew 15(5) empower the Secretary
of State to use tagging well beyond genuine alternatives to
detention and to use the device simply as an expedient
tracking and control mechanism.
Research
shows that the effects of tagging on the wearer revealed
severe levels of humiliation which could in some
circumstances lead to the breakdown of family life.[10]
The European
Court of Human Rights in the case of Tyrer v UK[11]
considered that of central importance to breach of Article 3
European Convention on Human Rights (prohibition of inhuman
or degrading treatment), was treating a person as “an
object in the power of the authorities”, degradation of
the individual and the psychological repercussions of the
punishment.
Whether the
scheme is a properly considered alternative to detention, or
a sophisticated tracking scheme, Article 31(1) of the Refugee
Convention prevents the penalization of refugees. The ECHR
particularly Article 8, (private life) and Article 3 need to
be respected in the purpose and manner in which electronic
monitoring is operated.
Before any
such scheme is contemplated, let alone finds its way into the
statute books, far more research is required and a full
understanding of the likely effects on refugees for whom
tagging and its inherent personal restrictions may have
extremely traumatic consequences compounding their own
experiences.
For
further information, please contact ILPA's representative
Syd
Bolton on 020 7697 1488 or 07966 519 588
[1] Article 31(1)
of the Refugee Convention prohibits the penalization of
refugees seeking our protection who come here directly,
present themselves without delay and show good cause for use
of false documents to obtain entry or remain in the UK to
claim asylum.
[8] Home Office Research and Development
Statistics - Prison Population Brief March 2003