Whatever Happened to Asylum in Britain?: A Tale of Two Walls 9781782388838

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Whatever Happened to Asylum in Britain?

STUDIES IN FORCED MIGRATION General Editors: Dawn Chatty, Refugee Studies Programme, International Development Centre, University of Oxford and Chaloka Beyani, Law Department, London School of Economics Volume 1 A Tamil Asylum Diaspora. Sri Lankan Migration, Settlement and Politics in Switzerland Christopher McDowell Volume 2 Understanding Impoverishment. The Consequences of Development Induced Displacement Edited by Christopher McDowell Volume 3 Losing Place. Refugee Populations and Rural Transformations in East Africa Johnathan Bascom Volume 4 The End of the Refugee Cycle Edited by Richard Black and Khalid Koser Volume 5 Engendering Forced Migration. Theory and Practice Doreen Indra Volume 6 Refugee Policy in Sudan, 1967–1984 Ahmed Karadawi Volume 7 Psychosocial Wellness of Refugees. Issues in Qualitative and Quantitative Research Edited by Frederick L. Ahearn, Jr. Volume 8 Fear in Bongoland. Burundi Refugees in Urban Tanzania Marc Sommers Volume 9 Whatever Happened to Asylum in Britain? A Tale of Two Walls Louise Pirouet

WHATEVER HAPPENED TO ASYLUM IN B RITAIN? A Tale of Two Walls

By

M. Louise Pirouet

Berghahn Books New York • Oxford

First published in 2001 by Berghahn Books www.berghahnbooks.com Editorial offices: 604 West 115th Street, New York NY 10025, USA 3 NewTec Place, Magdalen Road, Oxford OX4 1RE, UK © 2001 M. Louise Pirouet All rights reserved. No part of this publication may be reproduced in any form or by any means without the written permission of Berghahn Books. Library of Congress Cataloging-in-Publication Data W

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. Printed in the United States on acid-free paper ISBN 1-57181-991-6 hardback ISBN 1-57181-468-X paperback

Contents

List of Abbreviations

vi

Foreword

vii

Introduction A matter of National Pride

1

Chapter 1

Setting the Scene

9

Chapter 2

The Tamils and the 1987 Watershed

28

Chapter 3

Making Decisions

45

Chapter 4

A Right of Appeal

65

Chapter 5

Without Charge or Trial

81

Chapter 6

Protecting Women and Children

108

Chapter 7

Building Walls Round Fortress Europe

124

Chapter 8

Keeping Them Out: A Wall Round the UK

143

Chapter 9

Supporting Asylum Seekers

166

Chapter 10

Afterword: What of the Future?

187

Bibliography

193

Index

201

List of Abbreviations

AI AIBS ARC AVID CAB CIO CIREA

Amnesty International Amnesty International, British Section Asylum Rights Campaign Association of Visitors to Immigration Detainees Citizens’ Advice Bureau Chief Immigration Officer Centre d’Information de Réflexion et d’Échange en Matière d’Asile ECHR European Convention on Human Rights ECOSOC Economic and Social Council ECRE European Council on Refugees and Exile ELR Exceptional Leave to Remain EU European Union IAA Immigration Appellate Authority IAT Immigration Appeals Tribunal IND Immigration and Nationality Department IO Immigration Officer IPPR Institute for Public Policy Research JCWI Joint Council for the Welfare of Immigrants JHA Justice and Home Affairs JRS Jesuit Refugee Service MRG Minority Rights Group NGO Non-Governmental Organisation RAP Refugee Arrivals Project RSP Refugee Studies Programme TP Temporary Protection UKIAS United Kingdom Immigrants’ Advisory Service UNCAT United Nations Convention Against Torture UNHCR United Nations High Commissioner for Refugees

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Foreword

This study has grown out of a personal involvement in the refugee scene over a number of years. As a researcher and lecturer at Makerere University, Kampala, Uganda in the 1960s and early 1970s I met Rwandaise and Sudanese refugees, and gained my first insights into what it means to be a refugee, separated from one’s homeland and often from family members, and dependent on others for protection. In the late 1970s, when teaching at Nairobi University, I found myself immersed in the plight of former colleagues from Uganda who had been forced to flee from Amin’s terror. Back in Britain in the 1980s I was asked to represent Amnesty International on the Refugee Council’s Africa Committee where, several times a year, representatives of many of the major aid agencies met to consider the refugee situation in that continent. That committee eventually came to an end in the late 1990s when electronic communication rendered it obsolete. Out of these experiences, and contacts with Helen Bamber and the newly established Medical Foundation for the Care of Victims of Torture, Antonia Hunt and I became aware that refugees seeking asylum in the UK were facing increasing difficulties. Charter ’87 for Refugees was the result of that concern. This set out minimum standards for those seeking asylum in the UK under six heads. It urged that they should be treated with dignity and generosity in accordance with international standards; that there should be just and humane entry procedures with a right to legal representation; that there should be an in-country right of appeal for all those initially refused asylum; that only in the most exceptional circumstances should those seeking asylum be detained and that detention should be brought under judicial supervision; that asylum-seekers should be adequately provided with the necessities of life and that children should be given special protection. – vii –

viii | Foreword

Antonia Hunt and I found ourselves involved in an ongoing campaign. Charter ’87 was signed by around ten thousand people, including several hundred of the great and the good, and nearly a hundred MPs from all political shades of opinion. We were able to help a number of individuals, and to contribute a little towards a better understanding of the plight of refugees, but it quickly became clear that the government of the day was reluctant to take notice of a campaigning group. However, whether or not government would listen, an ethical stand had to be made over the increasingly narrow interpretation of the UN Convention on Refugees, and the growing problems facing those who sought refuge from oppression. Ten years later, in 1997, it was felt that Charter ’87 was becoming redundant. Other organisations, with far better facilities than we had, were campaigning more effectively than we could do. The Steering Group which had guided us, and to which Charter ’87 owed so much, agreed that this was so. Antonia wanted to move on to an increased commitment to the Medical Foundation, I to researching and writing up this study of asylum. So we held a final ceremony in the Jerusalem Chamber of Westminster Abbey in the autumn of 1997, just a decade after we had launched our campaign. My involvement with the refugee scene has continued. I have frequently been asked by solicitors to provide expert witness reports for asylum-seekers from Kenya and Uganda who were appealing against refusal of asylum, and in 1999 I found myself involved in campaigning for the rights of asylum-seekers once again when a new reception/detention centre was opened near Cambridge. I want to express my gratitude to the many people who have helped me with this study, including the members of the refugee organisations that I have got to know and with whom I have worked over the years. First must come my gratitude to the members of Charter ’87’s Steering Group who guided us so ably and from whom I learnt so much, and especially to Antonia Hunt, Joint Co-ordinator of Charter ’87. The experience of being a member of the Co-ordinating Committee of the Asylum Rights’ Campaign made this overview possible in the first place, and I owe a special debt to all the members of that group and of ARC’s Consortium representing refugee community groups and refugee agencies, as I do also to present colleagues on the Board of Asylum Aid. Picking out individual names is always invidious, but particular thanks for help with this research are due to Sherman Carroll and Alison Harvey at the Medical Foundation, Natalia Berkowitz, Richard Dunstan, Liz Hales, Barbara Harrell-Bond, Jan Shaw, Peter van der Vaart, and many others who have answered questions and sent me material. Particular

Foreword | ix

thanks, too, to those who have read the whole or part of the typescript for me, whose help and criticism I have valued enormously: Antonia Hunt, Peter Hunt, Michael Mayne, Candis Roberts, John Roberts, Nicholas Sagovsky, Mary Salinsky and Prakash Shah. Any remaining imperfections are mine alone. Louise Pirouet Cambridge July 2000

Introduction A Matter of National Pride

The United Kingdom has a long-standing tradition of giving shelter to those fleeing persecution. We are determined to uphold that tradition.

his comes from a briefing for Labour Party MPs before the Report and Third Reading Stages of the 1999 Immigration and Asylum Bill, but something very like it has been repeated like a mantra by ministers of both Conservative and Labour governments throughout the years 1987 to 1999, the period which this study surveys. It is indeed a matter of national pride that persecuted people have been able to find a refuge in this country. National pride comprises various elements: aspects of the national character, real or imagined (sympathy for the underdog, a sense of fairness, doggedness in adversity), battles won, great figures of the nation’s history, achievements in the arts, economic success, the nation’s standing in the world, the country’s assets of scenery and natural products. A sense of pride in giving shelter to the persecuted – perhaps one aspect of sympathy for the underdog – reflects a moral achievement, and constant reference to it by government ministers shows how important it is felt to be. Generosity to one’s own people is to be expected and is not particularly praiseworthy. Generosity to those outside one’s own community is widely accepted as a virtue. Cardinal Basil Hume once said, ‘It seems to me that the reception given to those applying for asylum is an illuminating indicator of the state of a society’s health.’1

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1. Quoted in the Refugee Council, Credit to the Nation: A Study of Refugees in the United Kingdom, London, 1997, 8.

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2 | Whatever Happened to Asylum in Britain?

The British people have also, of course, defined themselves by what they are not as well as by what they are. Traditionally the British have seen themselves as free not oppressed, an island people not Continental Europeans, since the Reformation as Protestant not Catholic, not black or brown. But all these categories have been eroded. The Cold War is over so we cannot define ourselves over against the Eastern Bloc; we do now in some sense belong to Continental Europe though part of our national malaise stems from our uncertainty about what this should mean; Roman Catholics are now recognised as no less British than anyone else, and part of the British mainstream; black and brown people now form a permanent part of the population. Moreover we have lost an empire, and for many in the older generations this loss is of some significance. Hence there is something of a national identity crisis, and this fuels people’s uneasiness about newcomers and further diversification of our society. Have we, as a nation, a continuing right to the sense of moral worth we have assumed about welcoming those in need of safety and a refuge? Who is meant by ‘we’? The government? Or the people as a whole? The government is less and less willing to give shelter to those seeking asylum, most of whom are branded as ‘economic migrants’. There is much talk of ‘bogus’ or ‘abusive’ asylum claims, with Home Office ministers giving a lead in this. A recent publication cites the following headlines in large-circulation newspapers in late 1998: ‘Why do we let in this army of scroungers?’ (Daily Mail, 26 September) ‘The Good Life on Asylum Alley’ (Daily Mail, 6 October) ‘When “asylum” means a free pass to paradise’ (Evening Standard, 15 October) ‘Refugee Crime Wave in London’ (Evening Standard, 17 September) ‘Asylum law buckling as false claims grow’ (Daily Telegraph, 28 September) ‘Brutal Crimes of the Asylum-seekers’ (Daily Mail, 30 November)2

In the run-up to the local elections of May 2000 attacks on asylum seekers increased in the right-wing press to such an extent that the Asylum Rights Campaign complained to the Press Complaints Commission about the Sun’s and the Daily Mail ’s hostile reporting. Although the complaint was rejected, the Commission members concluded their adjudication by warning that ‘in covering such topics there is a danger that inaccurate or misleading reporting may 2. Quoted in Amnesty International, Most Vulnerable of All: The Treatment of Unaccompanied Refugee Children in the UK, London 1999, 19.

Introduction: A Matter of National Pride | 3

generate an atmosphere of fear and hostility,’ and editors were reminded of their responsibilities to avoid discriminatory reporting. The Commission underlined their oft-repeated concern about racist reporting.3 The Refugee Council believed that racist attacks and attacks on asylum seekers increased as a result of this hostility.4 The legislation passed in the last decade has made it progressively more difficult for anyone seeking asylum to find refuge in the UK, and life progressively more uncomfortable and uncertain for those who, against all the odds, manage to reach this country. In 1996 legislation was passed which deprived the majority of asylum-seekers of social security benefits of any kind, and left them without food or shelter. Mercifully the 1948 National Assistance Act was invoked, and under it asylum-seekers had to be provided with food and shelter. English law did not allow people to be left starving on the streets. In 1999 a Labour government recognised that its predecessors had gone too far and that a significant section of the population was shocked by what had been done. So the new government accepted that the UK had an obligation to continue to provide at least minimal food, warmth and shelter for asylum-seekers. But, arguing that cash was an inducement to economic migrants, the new government was prepared to subject ‘genuine’ asylum-seekers, as well as those it claimed were making ‘abusive’ claims, to a humiliating system of food vouchers to satisfy the anti-immigrant feeling reflected in, and whipped up by, sections of the press. Vouchers are humiliating because their users are instantly identifiable as asylum-seekers and hence targets for those who label all such as ‘scroungers’. Some asylum-seekers seen shopping with vouchers have been abused and even spat at, whilst some supermarket check-out staff have treated them with contempt. Are the British people being robbed of a cause for pride with regard to those who seek refuge here? Is what is happening really the fault of ‘bogus’ asylum-seekers who have abused our hospitality, or has our welcome worn thin? Sixty years ago, on 14 June 1938, the government of the day responded to the plight of Jews in Germany, Austria and Czechoslovakia by offering to accept ten thousand Jewish children into the country. This became known as the Kindertransport, and it saved the lives of those ten thousand children, most of whom never saw their parents again: they died in the Holocaust, as their children would also have done had they not been rescued by the Kindertransport. Sixty years later on 14 June 1999 the Chief Rabbi, Professor 3. Adjudication delivered to complainants in May 2000, published 26 July 2000. 4. ‘Nailing press myths about refugees’, Briefing April 2000; iNexile, June 2000, 9.

4 | Whatever Happened to Asylum in Britain?

Jonathan Sacks, unveiled a plaque in the House of Commons to commemorate that act of humanity. Speaking on Radio 4’s Today programme in the ‘Thought for the Day’ slot, the Chief Rabbi insisted that the spirit of compassion still lived. He told of how the head of the Refugee Council, visiting the Midlands to meet refugees from Kosovo, had become alarmed when someone told him there was a demonstration outside. Fearing the worst, he had gone to the window. There was indeed a crowd and a banner. On the banner was written just one word, ‘Welcome’. ‘And when those refugees return home’, said the Chief Rabbi, ‘they’ll carry with them the memory of that moment – the knowledge that there is another way of treating strangers, not with hostility but hospitality.’5 That same day Amnesty International published a report on the organisation’s concerns about the treatment of unaccompanied refugee children in the UK. It made uncomfortable reading. In an article in the Independent which linked together the unveiling of the Kindertransport memorial, and Amnesty’s report on the treatment of child refugees in the UK, Natasha Walter noted that the very next day Members of Parliament would be debating yet another illiberal Asylum and Immigration Bill. She concluded her article by asking: When members of Parliament see the plaque commemorating the Kindertransport unveiled in the House of Commons today, will they feel a warm glow that Britain once did its duty by 10,000 children who needed their protection? Or will they look into their hearts and wonder how they can bear to pass a Bill that will do nothing to help the children who are fleeing persecution and genocide today?6

It seems that when the British public understand the need for refuge of some individual or group, then the spirit of hospitality is still alive and well. But too often the public has been misled about those who seek asylum, and then xenophobia has triumphed, fuelled by illiberal legislation which seems to lend substance to racist fears. A clearer and more principled lead is needed from government. There is no denying that there is a refugee crisis in the world at the end of this second millennium. ‘The problem of forced displacement is one of the most pressing challenged now confronting the United Nations’, wrote UN Secretary-General Kofi Annan in his Preface to The State of the World’s Refugees 1997–98: A Humanitarian Agenda.7 This survey gave the total number of refugees worldwide as 5. Transcript of the Chief Rabbi’s message, courtesy of the Office of the Chief Rabbi. 6. Independent, 14 June 1999. 7. Published by Oxford University Press NY for UNHCR, 1998.

Introduction: A Matter of National Pride | 5

13.2 million, up from just 2.5 million in 1978.8 An even larger number of people, 21.5 million, were internally displaced, driven from their homes by war and civil unrest and persecution to take refuge in some other part of their own country.9 A happier side of the picture is that 3.3 million refugees have recently returned to their home countries. They also fall within the mandate of the UNHCR.10 These figures are a measure of the conflict and poverty which has overtaken large tracts of the world at the end of the millennium: some 35 million people whose lives are broken and disrupted. The brunt of the refugee crisis is borne by the poorer countries of the South, not by the rich, industrialised countries of the North. In 1998 the EU, with its population of around 300 million of some of the world’s richest people, received some 300,000 asylum applications. Switzerland, by far the richest European country, received a further 42,000.11 By contrast Malawi, one of the world’s poorest countries with a population of around 9 million, for years hosted a million Mozambican refugees. By no stretch of the imagination can Europe be described as overwhelmed by the numbers of people seeking asylum. Home Secretary Jack Straw has pointed out that Britain does not receive an undue share of those who seek asylum in Europe. In 1998, Germany, the Netherlands and Switzerland all received a greater number of applications, and when the ratio of asylum-seekers to population size is taken into account, the UK drops further down the list to eleventh place in the European league table. On this count Switzerland, Luxembourg, Belgium and the Netherlands top the European list by far, though some of these countries are more densely populated than the UK. Nevertheless the numbers of people seeking asylum in Europe are some ten times higher than they were fifteen years ago, but so are refugee statistics worldwide. Sometimes we know about the crises which force people into flight. Bosnia and Kosovo have become household names. But people know far less about the oppression in Sudan and Congo Brazzaville, for instance, and find it difficult to understand why people from those countries should need to find a place of refuge. Over the years asylum applications in the UK, in the EU and worldwide have fluctuated. Crises such as those in Rwanda, Bosnia and Kosovo have led to huge displacements of population. But 8. UNHCR, State of the World’s Refugees, 1998, 54. 9. Janie Hampton (ed), Internally Displaced People: A Global Survey (for the Norwegian Refugee Council, and Global IDP Survey), London, 1998, xiv. 10. UNHCR, State of the World’s Refugees, 1998, 288–9. 11. Tables attached to Jack Straw’s letter to the Daily Telegraph, 21 January 1999, but not published.

6 | Whatever Happened to Asylum in Britain?

crises do not always lead to people becoming permanently displaced. Refugees usually want to go home, even when home is far poorer and less privileged than their place of refuge. People have returned from the UK to, for instance, Zimbabwe, South Africa, Namibia, Uganda, Chile and Argentina in the last two decades, and some are among those mentioned above for whom the UNHCR has a continuing responsibility to see that they are satisfactorily resettled. But not all who found asylum in the UK have returned home. For some, their home country remained unsafe. Sometimes a whole generation has grown up in the UK and become integrated into British life. The children of refugee parents who have grown up in the UK may have known no other home, and been educated and then married and found employment in the UK. The parents themselves are likely to have been naturalised as British citizens. Some refugees who try to return home discover that so much has changed that it is their home no longer, and they cannot readapt. Some of those who stay in the UK are high achievers in spite of what they have been through. The Hungarian, Arthur Koestler, made his name as a writer in Britain in spite of spending six weeks in prison because he entered the country illegally. The Refugee Council’s publication, Credit to the Nation, is a celebration of the contribution made by refugees to national life. Scientists, artists, philosophers, entrepreneurs and businessmen and women, religious leaders, poets, doctors, and entertainers are among those named in this impressive survey.12 Dr Max Perutz OM, FRS, is just one of seventeen Nobel Laureates who came to the UK as refugees; Michael Marks of Marks and Spencer is the best known refugee entrepreneur; Manubhai Madhvani, one of Uganda’s leading industrialists expelled by Idi Amin in 1972 is now a leading industrialist in this country; Minh To from Vietnam is a successful entrepreneur and manufacturer; musicians have included the members of the Chilingiriyan String Quartet who came from Armenia as well as Siegmund Nissel and Peter Schidlof, co-founders of the Amadeus String Quartet; Wole Soyinka, the Nigerian novelist who won the Nobel Prize for Literature in 1986, lived in Britain for a while; and many more have become part of mainstream British society, playing a useful and productive role in their adopted country. This is in spite of the fact that the UK does almost nothing to help people settle once they have been recognised as Convention refugees or been given exceptional leave to remain for humanitarian 12. Refugee Council, Credit to the Nation: A Study of Refugees in the United Kingdom, London, 1997.

Introduction: A Matter of National Pride | 7

reasons. There are no resettlement grants, little in the way of English language classes to assist newcomers, no special programmes through which people with professional qualifications can update them so as to be able to practise in the UK. People mostly have to struggle through on their own, or with the help of voluntary agencies who do their best, but find it difficult to make up for properly planned and funded programmes. Some refugees have suffered too much and found the strain of waiting for years to know whether or not they will be recognised as refugees too great to be able to adapt properly. If they are Black or Asian, then they may also have experienced discrimination in seeking employment.13 So it is a strange and patchy picture. On the one hand people seeking to find refuge in the UK may encounter blatant and often racist hostility fostered by sections of the media, as well as the cold, legal nit-picking of the Home Office as it examines their claims. On the other hand there is a large section of the population where genuine goodwill is found, though successive governments have done little to harness it except when it became politically necessary to admit some special group: Vietnamese or Bosnians, for instance. Because of restrictive legislation and the walls being built around ‘Fortress Europe’, Britain’s tradition of granting sanctuary to refugees is under serious threat, and its people are apparently being encouraged to define themselves over against those they wish to exclude, instead of as possessing a spirit of generosity which welcomes and protects those in need of refuge. A mixed message is coming across from government when on the one hand it seeks to promote better race relations in the wake of the report into the murder of the Black teenager, Stephen Lawrence, and on the other hand it passes legislation which is likely to damage race relations.14 Racist crimes rose alarmingly in early 2000 at a time when hostility towards asylum seekers was being whipped up as local elections approached. Britain is now irreversibly a multicultural nation, and the only healthy kind of self-definition must take that into account. Rwanda, Bosnia and Kosovo are horrifying and extreme examples of what can happen when a people try to define themselves over against a section of their own population.15 13. Jenny Carey-Wood et al., The Settlement of Refugees in Britain (for the Home Office Research and Planning Unit), London, 1995. 14. Commission for Racial Equality, Connections, Winter 1998/9, 8–9; Yasmin Alibhai-Brown, True Colours: Public Attitudes to Multiculturalism and the Role of Government (for IPPR), London, 1999. 15. For a discussion of multiethnic nations see Adrian Hastings, The Construction of Nationhood: Ethnicity, Religion and Nationalism, Cambridge, 1997, especially Chapter 7, 167–84.

8 | Whatever Happened to Asylum in Britain?

The reason for starting this account with the year 1987 will quickly emerge. In 1987 there was a somewhat muddly ad hoc system for dealing with asylum claims which had emerged over the years. The numbers applying for asylum were around 4,500 per year in the mid 1980s. The procedures were slow and somewhat amateur, and sometimes went badly wrong, but they were relatively generous in that two thirds to three quarters of those who applied for asylum were either recognised as refugees or given exceptional leave to remain for humanitarian reasons outside the immigration rules. European governments had begun to harden their attitudes towards refugees other than those from Communist countries in 1985. 1987 was the year when things started to change in the UK, and a harsher wind began to blow in this country and throughout the rest of Europe.

1 Setting the Scene

he decade 1987 to 1997 saw great changes, both in the pattern of asylum-seeking and in the procedures adopted by the Home Office, to deal with people who came to Britain as refugees. A shaping event was the fall of the Berlin Wall in 1989. Erected to keep people inside the former Eastern Bloc and prevent them from reaching the West, the Berlin Wall is the first of the two walls of the subtitle. Its demolition had global repercussions, and one of its long-term results was a large increase in the numbers of people seeking asylum in Western Europe. That in turn led to the heightening of another wall, the second of our ‘two walls’, an invisible wall round Western Europe, designed to keep people out. Neither wall has been impregnable, although it is somewhat easier to breach the second, invisible wall than it was to escape through no man’s land, past the borderguards’ field of fire and over the barbed wire of the Berlin Wall. As a row of graves demonstrates, many died in trying to escape over that wall. The invisible wall around what is often referred to as ‘Fortress Europe’ has its casualties too. Refugees first became a matter of international concern and legislation in the years between the two world wars. In 1922, the League of Nations appointed the Norwegian scientist, explorer and statesman, Fridtjof Nansen, as a High Commissioner for Refugees.1 The special passport introduced to allow refugees to travel is still often referred to as a Nansen passport. After World War II, the League of Nations was superseded by the United Nations. The UN Universal Declaration of Human Rights was drawn up in 1948 in the immediate aftermath of the war to try to prevent any recurrence of the appalling violations of human rights that had characterised the

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1. UNHCR, Quaderni, An Instrument of Peace, Rome, 1991, 87–88.

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Nazi regime. Article 14.1 of the Declaration runs: ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’. What the Universal Declaration does not grant is the right to find asylum; that is the prerogative of the host country. Since 1951 the United Nations Convention Relating to the Status of Refugees, to which Britain is a signatory, has governed the treatment of those seeking asylum in all countries that have signed the Convention (the ‘Contracting States’). This Convention was originally framed to deal with the thousands of people displaced by World War II who had still not been satisfactorily resettled. Most of its clauses set out the standards of treatment to which such people should be entitled in the countries that accepted them. These would protect them against unfair and discriminatory treatment, give them a guarantee of equality before the law, enable them to travel, and encourage countries to grant them naturalisation. The Convention was intended to clear up the problem of refugees once for all, and its provisions applied only to those displaced before the date of its enactment. By 1966 it was clear that newer refugees in other parts of the world also needed protection and that the UNHCR should be enabled to offer that help. The Asian-African Legal Consultative Committee, recognising an ongoing refugee problem in its areas of the world, drew up a document entitled ‘Principles Concerning Treatment of Refugees’ which effectively extended the 1951 Convention to meet their situation. In 1967, a United Nations Protocol was enacted to extend the provisions of the Convention indefinitely. With the new Protocol in mind, ministers of the member states of the Council of Europe minuted a resolution stating that governments should ‘act in a particularly liberal and humanitarian spirit in relation to persons who seek asylum on their territory’.2 By this time Uganda, for instance, was host to some 130,000 refugees from Rwanda, 33,000 from Congo/Zaire and a growing number from the war in the Southern Sudan.3 The Organisation of African Unity decided that a further initiative was required, and in 1969 drew up its ‘OAU Convention Governing the Specific Aspects of Refugee Problems in Africa’. This accepted the 1951 definition of a refugee but added the following: The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nation2. Resolution 14 (1967) on Asylum to Persons in Danger of Persecution. 3. M. Louise Pirouet, Uganda Historical Dictionary, Metuchen NJ, 316–7.

Setting the Scene | 11

ality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.4

Because the 1951 Convention is about the status of refugees, that is, of those people who are recognised as needing international protection from persecution, it does not set out procedures for dealing with people seeking asylum. Only three articles of the Convention relate to the asylum-seeking process. The first of these is Article 1, which defines a refugee as being a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country.

Article 31.1 is also of great importance to people seeking asylum. It reads: The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Finally, there is Article 33, and both subsections need to be quoted: 1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

There are other international conventions that have relevance to decision-making in asylum cases, the most important of which are the United Nations Convention against Torture and, in Europe, the 4. Africans seeking refuge in the West who are often accused of being ‘bogus’ may simply not realise that the West does not accept this more realistic definition of a refugee.

12 | Whatever Happened to Asylum in Britain?

European Convention on Human Rights.5 The ECHR is nothing to do with the European Union; it is a Convention of the Council of Europe, a body that came into existence long before the European Economic Community or the European Union had been thought of, and has a much wider membership. The ECHR was drawn up in 1950, and it is of great importance in all its member states because cases concerning possible breaches of the Convention can be taken to the European Court of Human Rights after all other remedies have been exhausted. Article 3: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, is often relevant to asylum-seekers and has been resorted to in a number of test cases. The Convention Against Torture spells out in far greater detail what is involved in protecting people from torture, and the UN Committee Against Torture also provides a court of last resort provided the state concerned has signed a protocol allowing individual cases to be brought before it. The UK has not yet done so. International law nowhere defines many of the terms used in the definition in Article 1 of the 1951 Convention. What is a ‘wellfounded fear’, and who is to decide? What is meant by each of the terms ‘race, religion, nationality, membership of a particular social group or political opinion’? With regard to Article 31 of the 1951 Convention, how are ‘coming directly’ and ‘without delay’ to be defined? There is enormous scope for legal argument, and a body of British case law has been built up regarding asylum cases helping to define many of these terms. In addition, the UNHCR provides Guidelines that have been drawn up by agreement among the Contracting States. These set out standards to assist states in dealing with asylum and in drawing up procedures for determining asylum applications, but they are only guidelines, and are not binding. Resolutions passed at the annual meetings of the Executive Committee of the UNHCR also provide guidance. In spite of the 1951 Convention, politics, compassion and sensible management often come into conflict when states have to respond to desperate people seeking sanctuary. Accepting people who are fleeing regimes which are seen as one’s own natural enemies is one thing; those who flee oppression in states considered to be allies or trading partners may not find a ready welcome because of the possible consequences. Small numbers of individuals who flee are fairly 5. UNHCR, Collection of International Instruments, Geneva, 1976, prints in full all the relevant instruments operative at that date. The UN Convention on Torture and the UN Convention on the Rights of the Child are among the Conventions that have come into force since.

Setting the Scene | 13

easily accepted; a rise in numbers, or anything that looks like a mass exodus, will seem to pose a threat. A well-organised group of those whom a government has decided to accept and whose arrival can therefore be properly prepared for (‘quota refugees’) can be managed much better than a sudden unexpected surge. Even the most compassionate have come to believe that it is not usually wise to accept groups of children unaccompanied by their parents because of the long-term problems that this may cause. Host governments and humanitarian groups often find themselves at odds because of their different priorities and differently perceived scenarios. The 1951 United Nations Convention Relating to the Status of Refugees does not relieve states of these tensions. The tensions are amply illustrated in the decade under review as also in the half-century leading up to the introduction of the Convention. Successive British governments have insisted that they comply strictly with the Convention, and the British people have usually felt that they have something to be proud of in the way that this country has offered a safe haven for people who have been persecuted. The UK has a good record with regard to those it recognises as refugees under the Convention. A tradition of providing refuge for those seeking sanctuary on our shores goes back centuries, of course, before the UN Convention was drawn up. As Bernard Levin, himself the descendant of refugees, has put it: There have been moments in the long story when compassion has failed … There has been, and still is, a varying amount of racial antagonism from the indigenous towards the incomers. And, of course, there have been anomalies and injustices in the framing and execution of the laws, themselves certainly necessary, to restrict mass immigration. But on the whole, no citizen of this country, whether his ancestors came here last year or last millennium, has great cause for shame at Britain’s policy in these matters, and most have much cause for pride.6

That record needs to be examined briefly before the most recent decade of our history is discussed.7 Most people could name at least some of those who have been given sanctuary in this country. Among the best known are the 6. The Times, 6 April 1987, in an article deploring the Carrier’s Liability Act of that year. 7. Accounts of asylum in Britain may be found in Ann Dummett and Andrew Nicol, Subjects, Citizens Aliens and Others: Nationality and Immigration Law, London 1990 and Tony Kushner and Katharine Knox, Refugees in an Age of Genocide: Global, National and Local Perspectives during the Twentieth Century, London, 1999.

14 | Whatever Happened to Asylum in Britain?

Huguenots, Protestant Christians who fled from persecution in France after the privileges that they had been granted by Henry of Navarre in 1598 were rescinded by the Revocation of the Edict of Nantes a century later. They brought with them skills in silk-weaving and silver-smithing, examples of which are on display in the Victoria and Albert Museum and the Museum of London. The next group of refugees also came from France. These were émigrés, including Catholic priests, who fled the violence of the French Revolution. Catholic emancipation had not yet occurred and Catholic worship was still illegal, but they were received with sympathy by a population horrified by the events of the Terror. Jewish refugees arrived at the end of the last century and in the early twentieth century from persecution in Poland and Tsarist Russia. They joined a considerable Jewish community already settled here. In 1290, Edward I had expelled all the Jews, but they were allowed back under the Commonwealth, and by 1880 there were around 60,000. By 1905, another 100,000 who had fled from pogroms and persecution in Russia and Poland had swelled their number. They crowded into the East End, and the size of the influx caused social tensions, which quickly translated into displays of antiSemitism.8 The government of the day responded in 1905 by passing the Aliens Law, which gave immigration officers at designated ports the power to refuse impecunious steerage passengers for a variety of reasons such as insufficient means to live, disease and lunacy. Those able to afford better shipboard accommodation were still welcome. A loophole was left, however, for political refugees.9 A few Roma (gypsies) also arrived from Eastern Europe. The arrival of 4,000 Basque children from the civil war in Spain in 1937 is an almost forgotten chapter of British history. A much larger number of children went to France whilst smaller numbers were sent further afield; to Belgium, Switzerland, the USSR and even Mexico. Some 200,000 children were involved altogether. If ever there was a conflict between compassion, politics and wise management, it was over the 4,000 children who came to this country. The Spanish Civil War divided British opinion. Whilst several thousand volunteers went to fight on the side of the Republicans against General Franco and his military junta, Britain and France signed a non-intervention agreement, fearful that the Spanish conflict might 8. Stephen Brook, The Club: The Jews of Modern Britain, London, 1989, 21–24; Alan Palmer, The East End: Four Centuries of London Life, London, 1988, 2000, 100–112. 9. Colin Holmes, A Tolerant Country: Immigrants, Refugees and Minorities in Britain, London, 1991, 22–23.

Setting the Scene | 15

spiral out of control and engulf the whole of Europe. Germany and Italy, however, were interventionist and sent troops to Franco’s aid. Neither Britain nor France wanted to host refugees, an act which might be understood as interventionist. The British government was extremely reluctant to admit any Spanish children, but after the bombing of Guernica, an act which horrified public opinion, grudging permission was given to admit a limited number for three months provided they received no public funding at all. They were to be entirely the responsibility of the Basque Children’s Committee. The government wanted the children returned as quickly as possible, and sections of the press and many MPs became hostile to their continued presence; the Basque Children’s Committee was determined the children should stay until the danger was over. Some were returned against the will of the Basque Children’s Committee and some of them inevitably perished. Others wished to return, preferring to suffer with their families than to be separated from them. After the end of World War II, there were some emotional family reunions, often accompanied by bewilderment and dismay at how far apart children and parents had grown. As we now know from the experiences of children evacuated from London to escape air-raids during World War II, removing children from their parents, however well-intentioned, often produces trauma and may not be the best thing for them. The Basque Children’s Committee remained in being until 1951, and some of the children who were brought to Britain in 1937 have remained here all their lives. For most, it was an alienating experience, but in 1937, people were faced with a no-win situation: not only parents but also those who wished to intervene to help were faced with intolerable choices and the government of the day evaded all responsibility.10 The 1930s also saw an influx of people fleeing Nazism in Germany and Austria; 50,000 arrived between 1933 and 1939.11 These refugees were mostly Jews. Those who arrived after World War I faced a hurdle that none who had fled earlier had met, namely border controls and the need for passports. Not all who tried to reach Britain were admitted. As at the time of the Aliens Act, immigration officials were more prepared to admit those with plenty of money than the poor and needy. In the 1930s, the British Medical Associa10. A recent account of these events is given in Adrian Bell, Only for Three Months, Norwich, 1996. 11. Wasserstein, Vanishing Diaspora: The Jews in Europe Since 1945, London, 1996, 13; Louise London, Whitehall and the Jews 1933–1948; British Immigration Policy and the Holocaust, Cambridge, 2000 is an authoritative study of Jewish refugee immigration in these years.

16 | Whatever Happened to Asylum in Britain?

tion blocked the admission of doctors whom the government was prepared to admit.12 Large sections of the press were hostile to them as Jews, and Oswald Moseley and his followers attacked those who had settled in the East End of London.13 Once again, there were arrivals of unaccompanied children. The Kindertransport brought 10,000 Jewish children to Britain who would almost certainly have perished had they not been rescued in this way, but like the Basque children, they suffered from much misunderstanding. Some experienced discrimination and mistreatment, and at the end of the war, the vast majority of them discovered that their parents had died in the Holocaust.14 The adult Jews also spent an uneasy war: 600 were classified as Category C security risks and were interned at the beginning of the war. Others were classified as Category B risks and were subjected to various restrictions. A further 11,000 people of German origin were interned after June 1940 in spite of their opposition to the Nazi regime – sections of the press accused them of being fifth columnists. Later in the year, many of these were released, and thousands joined the British forces. At the end of the war, Prime Minister Winston Churchill had to stand out against the urgings of some, including at least one Member of Parliament, that they should all be repatriated immediately.15 Because of British anti-Semitism, few Jewish displaced persons were accepted for resettlement in Britain after the war had ended. However, in spite of all the difficulties, 50,000 people found sanctuary in this country from the Holocaust and were steadily integrated into British life after the war.16 Today it is a matter of pride that so many Jews were given sanctuary in this country, mingled with shame and regret that others who should have been given sanctuary were turned away and consequently perished. There is a general recognition of how much British cultural and economic life has benefited from its Jewish community.17 The imposition of Communist rule throughout Eastern Europe brought others to the West or prevented them from returning home, among them Poles who had fought with the British forces. In 1956, 12. Brook, The Club, 30–31. 13. Holmes, A Tolerant Country, 32–34. 14. Among the autobiographical accounts of those who came to Britain on the Kindertransport is Charles Hannam, A Boy in Your Situation, London, 1977. 15. Wasserstein, Vanishing Diaspora, 13. 16. Brook, The Club, 33. Too well integrated, some would say. Brook documents their gradual absorption and loss of separate Jewish identity. 17. Louise London, Whitehall and the Jews: British Immigration Policy and the Holocaust 1933–1948, Cambridge, 2000 is a major re-examination of policy during this period.

Setting the Scene | 17

an uprising against the communist government in Hungary was crushed, and in 1968, the Prague Spring was ended equally brutally when Russian tanks rolled into the city. Some 20,000 Hungarians and 2,000 Czechs became refugees in the UK as a result. Other refugees have arrived in ones and twos since the end of World War II from the USSR and the Eastern Bloc countries. They have been welcomed by government, not least because of their usefulness in demonstrating to those on the political far left the true nature of the regimes they fled. They have been integrated comparatively easily into British society: the fact that they are white-skinned Europeans makes them invisible. A small number of others sought asylum here: from South Africa, from Ian Smith’s Rhodesia, and from Amin’s Uganda for instance. Those from Commonwealth countries were usually given exceptional leave to remain rather than refugee status because the UK Government did not want to antagonise Commonwealth member states. In 1972 the dictator Idi Amin, who had come to power in Uganda through a coup the year before, expelled his country’s Asian population, some 27,000 of whom had British passports.18 This was an unprecedented event, and it created a crisis. These Asians were not, of course, refugees in the normal sense of the word, though they were forced into a position little better than that of refugees. Britain’s extremely complex nationality laws fed into the expulsions of 1972. When the three East African territories, Kenya, Uganda and Tanzania, became independent in the early 1960s, their African populations ceased to be British subjects, and became instead citizens of the newly independent states. White Britons were able to retain their British nationality unless they opted to take local nationality, and the UK gave the Asian population the same choice. This had two results: in the first place, it undermined Asian confidence in the stability of the newly independent states, and substantial numbers opted to retain their British status and acquire British passports as a kind of insurance policy. Secondly, under the British Immigration Act of 1962, those Asians who acquired British passports became, for the first time, free of entry controls to Britain, and might not only come 18. I am grateful to Jagdish Gundara, Michael Twaddle and others for comments they made on a paper, ‘Welcoming the Uganda Asians, 1972?’, given to a seminar at the Institute of Commonwealth Studies on 10 February 1998. The literature dealing with the expulsion of the Uganda Asians includes Mahmood Mamdani, From Citizen to Refugee, London, 1973; Derek Humphrey and Michael Ward, Passports and Politics, Harmondsworth, 1974; James Read, ‘Some Legal Aspects of the Expulsion’, in Expulsion of a Minority, ed. Michael Twaddle, London, 1975, 193–209.

18 | Whatever Happened to Asylum in Britain?

and go, but also settle here.19 Duncan Sandys, who, as Secretary of State for the Colonies, was responsible for this legislation, was warned at the time that it might have dangerous consequences, but he brushed off the warning.20 A growing influx of Asians from Kenya was stemmed by the Commonwealth Immigrants Act of 1968, which was rushed through Parliament. It established a muchresented quota system under which a limited number of vouchers were issued each year to British passport holders wishing to settle in Britain, and only those with vouchers were admitted for settlement.21 It was at this point that Conservative MP Enoch Powell made his infamous ‘rivers of blood’ speech. Powell had formerly held fairly moderate views about immigrants and had spoken of those in his Wolverhampton constituency as ‘part of the community’, but he changed his rhetoric in the late 1960s and began to speak of them as ‘alien’ and to demand the establishment of a Ministry of Repatriation. In April 1968, just after the passing of the Commonwealth Immigrants Act, he suggested that unless something was done about the Black and Asian people in this country, there would be violent racial strife, and claimed that he could see ‘the River Tiber foaming with much blood’. This gave encouragement to the racist National Front, but, worse, it made overt racism thinkable among people who would not have dreamed of associating with an organisation such as the National Front. In this atmosphere the 1968 Act, far from contributing to good race relations by reducing the numbers of Asians entering the country, contributed to increased racial tension.22 Uganda wished to speed up the departure of Asians with British passports and asked that a larger number of vouchers be issued each year. At the same time, business opportunities available to Asians were steadily reduced. Talks between the two governments stalled, and when Amin seized power in January 1971, the issue remained unresolved.23 At the beginning of August, Amin announced first that Asians holding British passports must leave the country within ninety days, and then that all Asians must leave within that period. 19. The situation was far more complex than can be gone into here. See Read, ‘Some Legal Aspects’, 194. 20. Patrick Keatley in an editorial in the Guardian, 14 August 1972; Humphrey and Ward, Passports and Politics, 14–15. 21. ‘Justin O’Brien’ (Yash Tandon), Brown Britons: The Crises of the Uganda Asians, London, 1972, 17–18; 19, footnote 3. 22. Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law, London, 1990, 195–204; Holmes, A Tolerant Country, 58–59. 23. ‘Justin O’Brien’, Brown Britons, 9, 15–16.

Setting the Scene | 19

Fearful of hostility to these ‘immigrants’, the government insisted that it would honour its obligations to those with British passports, and at the same time went about whittling down the number to be accepted by any means it could. The huge airlift needed to move so many people from Uganda was not started until dangerously late. Until the last minute British Asian women married to men of other nationalities or none were refused entry on the grounds that they were the responsibility of the state whose nationality was held by the husband. Only two years later and after a change of government were some anomalies finally sorted out and family reunion achieved for this group. Since then many of the British Asians have prospered in business, in education and in the arts, and have begun to feel that they belong. Like the Huguenots, French Catholics and Jews before them, they have made a significant contribution to British society. At about the same time Chileans arrived, fleeing the right-wing oppression of Pinochet’s dictatorship in Chile. Many refugees from the military dictatorships of Latin America went to the US, but some 3,000 Chileans, a number of Argentinians and a few from elsewhere found refuge in the UK. Their arrival raised no problems of race, though when the government in power was Conservative it was unhappy about admitting refugees from right-wing, capitalist countries. Refugees from Allende’s Chile were more welcome to Conservatives, less so to a Labour government, and vice versa. More recently, in 1979, the government felt obliged to take in some 20,000 of the Vietnamese boat people. TV sequences showing boatloads of thin and desperate people dangerously afloat in rickety craft had already predisposed people to feel sympathy for them – rescues at sea are part of British folk-history – besides which, they were fleeing from a communist regime. Nevertheless, there were fears of a racist backlash. Under Prime Minister Margaret Thatcher, therefore, a propaganda campaign was mounted to persuade people to accept them willingly, and strong political leadership ensured that this was a success. Housing, furniture and cash grants were provided to ease their arrival. The government was successful in persuading people to accept the Vietnamese, but it gave no long-term help for language teaching or settlement. In typical British fashion, this was left to the churches and other voluntary groups, who did what they could to help, but their efforts were somewhat piecemeal, and the Vietnamese found adjustment far more difficult than had preceding groups. Some of the older generation in particular found adjustment and the acquisition of a new and utterly alien language impossible, but for the next generation adjustment has been easier. Most of the refugees who had arrived before the Vietnamese were either Euro-

20 | Whatever Happened to Asylum in Britain?

peans who shared cultural affinities with the British, or people from Commonwealth countries who were English-speaking, and had a wide experience of British norms. Although the numbers of unplanned refugee arrivals were small, concerns were expressed by the United Kingdom Immigrants’ Advisory Service’s Refugee Unit about unnecessary delays in processing asylum claims, and about people being kept in detention for overlong periods.24 The system for dealing with asylum applications had grown up piecemeal, and was fairly informal. For instance, if it was feared that someone had been wrongly refused asylum, the MP of the constituency in which he or she was staying might take up the case and ask for a re-examination of the asylum claim. It was understood that the asylum-seeker would not be removed from the country before this re-examination had been completed. This frequently resulted in the person being given some kind of status, either recognition as a Convention refugee or with exceptional leave to remain for humanitarian reasons. People were often helped by the Joint Council for the Welfare of Immigrants or Amnesty International in making their asylum applications, but there were no procedures laid down in law. By this time, readjustments were taking place in UK foreign policy. Whereas for some centuries this had been focused on the Empire, the virtual ending of colonialism meant a realignment of the country’s trading interests from the former Empire/Commonwealth to the European Economic Community. Prime Minister Thatcher was openly sceptical of the value of the remaining Commonwealth ties. She was also violently opposed to socialism in any form whatsoever, and this was one reason for her lack of sympathy with opponents of the white racist regimes of Southern Africa, believing them to be bastions of freedom and Christianity against a tide of communism. This helps to explain why her government felt able to mount a successful propaganda campaign to ensure the smooth reception of 20,000 Vietnamese boat people fleeing communism, but was reluctant to recognise Africans from South Africa and from Ian Smith’s Rhodesia as refugees under the Convention – although they were given exceptional leave to remain. These new asylum-seekers did not seem to her government to be the sort of refugees for whom the Convention had been devised, though many of them fled from worse persecution than some of those who were welcomed from Eastern Europe. Although the number of people seeking asylum was creeping up, the number applying in the UK was lower than that in most other 24. Paper from the Refugee Unit, United Kingdom Immigrants’ Advisory Service, African Studies Association of the UK, day conference, 1980.

Setting the Scene | 21

West European countries. Sweden, Denmark, Switzerland, West Germany, Austria, Belgium, France and the Netherlands all received a greater number of asylum applications than the UK in the 1980s, both in absolute terms, and in relation to the size of their populations. Moreover, the rate of emigration was then, as it has been throughout recent decades, higher than the rate of immigration. In the six years between 1980 and 1986, 388,500 people immigrated into the UK and 1.2 million emigrated.25 In 1987, a sea change occurred in Britain’s reception of people fleeing persecution. Sri Lankan Tamils trying to escape intercommunal violence had arrived in Britain in ones and twos following the riots of 1983, but the arrival in February of a single group of fifty-eight rang alarm bells for the government. By this time the overall number of asylum applications had risen to between 4,000 and 5,000 per year, and a substantial proportion of these were Black and Asian people fleeing persecution in the poor countries of the South; persecution of a different kind from that practised in the USSR and its satellites. The Home Secretary, Douglas Hurd, found himself prevented by the courts from promptly returning the Tamils to Sri Lanka, and there followed what one senior Conservative backbencher described as ‘a typical government overreaction’. In response to this episode the ‘safety net’ that had protected asylum-seekers from arbitrary action, was cut away. Fines for airlines bringing incorrectly documented passengers to Britain were introduced. A disused car-ferry was hired to act as a prison for asylum-seekers while their applications were being processed. In addition, the government set out on a course of defining the Convention increasingly narrowly, of trying to deter people from coming to this country to seek sanctuary and of trying to speed up asylum procedures to get rid of unsuccessful applicants quickly before they lost themselves in the population of the inner cities.26 Why was there such a strong reaction to this group of people, many of whom were subsequently recognised as refugees or given exceptional leave to remain? The reasons can only be guessed at, however, it seems that the Home Secretary was genuinely taken aback at finding himself frustrated by the courts when he tried to summarily return the Tamils. He thought he had powers that the courts (who have acted on a number of occasions during the last decade to limit and define the powers of the Home Secretary with regard to asylum) decided he did not have. 25. Law Society, ‘Briefing Paper and Recommendations Concerning Refugees in the United Kingdom’, 4. 26. The Times, 3 March 1987. Parliamentary Report.

22 | Whatever Happened to Asylum in Britain?

The arrival of a group of people, rather than individuals, seemed to the government to be a threat, and British governments have continued to suspect group arrivals despite the fact that most refugee flows are of large groups rather than of individuals. The government was more accustomed to dealing with quotas of people whom it had agreed to accept such as the Chileans or Vietnamese, or with applications for asylum from people already in Britain who, when a coup or other violent political change occurred in their country, found that they could not return safely. Occasionally, applications were made on arrival at a port of entry, but these were the exception rather than the rule. At worst, the Tamils were believed to be economic migrants whom some unscrupulous middleman had inveigled into paying large sums of money to be guaranteed a trip to a far higher standard of living than was available at home.27 At best, they were seen as victims of a civil war rather than as political refugees. The possibility that they had suffered political persecution in the course of the conflict was not properly considered. Then there was the behaviour of the Tamils themselves. At Heathrow they stripped to their underpants in front of the press and created such an uproar that the plane was delayed until the arrival of a court injunction that prevented their removal, all of which gave the press a field day. There was already understandable anxiety throughout Europe about the rise in the numbers of those seeking asylum and a Europe wide policy on asylum was being sought. Only a few days before the arrival of the Tamils, British officials had attended a secret conference in Switzerland, which had already begun to work out such a common European policy.28 The fact that an increasing number of those seeking asylum were non-Europeans must be considered. Hungarians, Poles, Czechs and Russians were not visible on the streets whereas Tamils and Nigerians were highly visible, and it was feared that any increase in their numbers might cause a racist backlash. Thus, asylum became entangled with immigration policy.29 Enoch Powell was not alone on the extreme right wing of the Conservative Party. A vocal anti-immigration lobby frightened those in the government who held more moderate views. The Conservative government of the time had, in any case, ‘a populist dimension which stressed the need to put Britain first … which could easily be 27. Douglas Hurd, writing in the Independent on 26 July 1989. The article was entitled ‘Firm but Fair Controls on Asylum Builds Harmony in our Cities’, and it is as good an exposition of the government’s position as may be found. 28. Independent, 15, 18 February 1987. This was still pending ten years later. 29. As it does in Hurd’s article for the Independent mentioned above.

Setting the Scene | 23

interpreted as “white Britain first”.’30 The result was the beginning of a process by which asylum-seekers had less and less chance of finding refuge in Britain. In 1987, when the arrival of the Tamils created such a furore, the number of refugees in the world at large had reached nine million, with an increasing (but still relatively small) number reaching the West. The next decade saw three major pieces of legislation directed at deterring or preventing people from seeking refuge in Britain and speeding up decision-making, as well as far-reaching procedural changes. This was accompanied by an increasingly narrow interpretation of the Convention, whilst fewer and fewer people were given exceptional leave to remain for humanitarian reasons. Did all this legislation succeed in reducing the number of people applying for asylum in the UK? The answer is no. During the decade 1987 to 1997 the number of refugees worldwide rose by over 50 per cent to 15 million, the vast majority being in the poorer countries of the South, with an equal number of people displaced within their own countries. During the same period the number of people seeking refuge in Western Europe continued to rise, peaking at times of crisis in the Balkans. The UK began to catch up with her EU neighbours with regard to the number of asylum-seekers. The number applying in 1997 was 32,495, up from under 5,000 in 1987. Despite the deterrent action taken in the UK and the West generally, the numbers of asylum-seekers increased in line with worldwide trends. This in turn reflected an increase in conflicts and violations of human rights by repressive regimes. The fall of the Berlin Wall and the increasingly global demand for democracy raised many people’s expectations. These hopes were dashed when people-power was crushed and oppression renewed, contributing to the increased numbers coming to the West. There is no way of discovering how many peoplewere deterred by the barriers that were erected. Many who arrived knew little or nothing about the deterrent measures that had been put in place, so could not have been deterred by them. Successive Home Secretaries, however, have not explained the increase of asylum-seekers in terms of increased conflict and human rights violations. Mr Hurd, addressing the House of Commons as Home Secretary in 1987, used formulas that were still being repeated ten years later: Many Western countries have become increasingly concerned in recent years at the large number of people who seek entry with forged or fabri30. Holmes, A Tolerant Country, 5.

24 | Whatever Happened to Asylum in Britain?

cated passports, or visas, or without any documents at all. Very often, they, or the organisers of their journeys, know that they have no legitimate claim to entry, but hope the absence of documents will hinder the immigration authorities in securing their return. At the same time large numbers of people who aim to find a more secure or prosperous life in Western countries have been abusing asylum procedures as a means of evading immigration controls.31

Yet, at the time when these words were spoken, the UK was recognising that at least three-quarters of those who applied for asylum were in need of some kind of protection. In the UK government’s judgement, it was the asylum-seekers, and those who facilitated their journeys, who were the villains rather than the oppressive governments that drove them to seek refuge. Only the words ‘more secure’ in the extract quoted above give any hint that Mr Hurd recognised that there might be an element of safety-seeking in their journeys.32 There is little evidence that British officials have seriously considered the relationship between the numbers of people seeking asylum on the one hand and the repressive regimes and conflicts from which they flee on the other. The discrepancy between the reasons for an increase in asylumseeking and British ministerial perceptions needs explaining. Diplomatic alliances and trade relations, and especially Cold War considerations as long as that lasted, have usually weighed more heavily with government than abuses of human rights in the countries from which people sought asylum, thus foreign policy has seldom been directed to the root causes of why people become refugees.33 How to deal with asylum-seeking, which ought to be a matter primarily for foreign policy, has therefore been seen as an internal affair and left to the Home Office. If governments wish to keep numbers down, but are unwilling or unable to act through their foreign policy, then all they can do is try to reduce the numbers admitted, and refuse as many of those who apply for asylum as they dare. Hence the sort of statements which successive Home Secretaries have been wont to make about ‘bogus’ asylum-seekers, ‘economic migrants’, and ‘abuse of the asylum procedures’. Cynics might point out that there is an advantage to government in this 31. The Times, 3 March 1987. Parliamentary Report. 32. Given that Douglas Hurd was a liberal with regard to prison policies, he took a surprisingly hard line on asylum and immigration issues. However, the Conservative Party is traditionally anti-immigration. 33. The exception to this general rule was the treatment of refugees from communist countries during the Cold War. These served a political purpose.

Setting the Scene | 25

stance, in that it wins the approval of the anti-immigration lobby, which governments greatly fear, and that confusing asylum and immigration, which all governments have done, is a successful way of playing the ‘race card’. A major reason why these policies of deterrence have not worked is, then, that they have not addressed the root causes of the problem. The group of Sri Lankan Tamils whose story we have looked at came from a country where intercommunal strife was escalating. Innocent Tamils were likely to find themselves caught in the crossfire, constantly at risk of either being suspected by the Sri Lankan military of having information about, or of assisting the insurgents, or suspected by the insurgents of being informers. Methods of interrogation and punishment used by both sides were brutal and often included beatings or more sophisticated torture. Detention without charge or trial was often resorted to, and many people fled into exile. Nowhere in India seemed safe and the former colonial power, which had claimed to be a champion of justice and respect for human rights, seemed an obvious haven to seek. British efforts were, however, concentrated on deterring asylum-seekers rather than on dealing with the injustices that had led to the conflict.34 In other respects, too, the changes which legislators sought to bring about have not worked. If root causes were not to be addressed, at least the logjams in the Home Office could have been cleared, applications dealt with quickly, and those who had been refused asylum removed. Instead, the whole process often takes years, and the Home Office may even lose track of people. Two major Acts have had as a main purpose the acceleration of the asylum procedures. Had this been achieved it would have benefited everyone, those seeking asylum, those advising and representing them, and the Home Office itself. But it would appear that a major reason for the logjams is the very inefficiency and lack of training in the Home Office that created the log jams in the first place. Lack of computerisation may be partly to blame here, but computers are only as good as those who install and operate them. In 1992, the group set up by the Home Office to look into the provision of advice for asylum-seekers reported that an amnesty was needed for at least a part of this backlog if new proposals for a speedier system were to work. Ministers rejected this, but clandestinely amnestied 15,000 people by giving them exceptional leave to remain.35 The amnesty 34. E Valentine Daniel, Charred Lullabies: Chapters in an Anthropography of Violence, Princeton NJ, 1996, passim. 35. Independent, 21 October 1992.

26 | Whatever Happened to Asylum in Britain?

was not sufficiently comprehensive, and at the same time procedures were brought in that stood no chance of working. At the time of writing, the backlog has risen far beyond what it was when the new legislation was introduced, and the number of undecided cases and appeals against refusal continues to grow. At the same time that asylum-seekers have increasingly been branded as economic migrants, the amount given in overseas aid to underdeveloped countries has been steadily reduced,36 and only in 1998 did it begin to rise fractionally. On the one hand, people are accused of economic migrancy; on the other, the aid that might help some of the poorest countries has been steadily eroded and thus the causes of both economic migrancy and asylum-seeking allowed to increase. Poverty is often related to repression and the violation of human rights, as ruling cliques resort to illegal and violent means to keep what wealth there is in their own hands.37 It was when the Carrier’s Liability Bill came before Parliament in 1987 that Bernard Levin’s remarks, quoted at the beginning of this chapter, were made about Britain’s proud record of giving sanctuary to refugees. They occurred in the course of a very strongly worded attack on the Bill and on the Home Office’s handling of asylum. He described the measures in the Bill as: dishonest and cowardly … a shambles, displaying the haste and indifference with which it was cobbled into being … I said that the wider the opening of admission to refugees the more civilized the nation admitting them. This bill would narrow refugee rights, diminish their chances of finding safety, damage our standing in the world and cast a shadow on a policy that has endured for centuries, to decency’s gain and ours.38

His words had no effect on government at all, nor did the many other outspoken criticisms of the proposed legislation. The imperviousness of government to criticism, no matter where it came from, has been a feature of most of the period under consideration, with a hint of more openness only beginning to appear with the change of government in May 1997. The great and the good who have pleaded for a measure of humanity and flexibility in asylum policy have, for the most part, been ignored. Many of them have gone public, as did Bernard Levin, to plead that Britain’s reputation as a refuge from persecution might be preserved, but their words have cut no ice and have sometimes even been rubbished. Almost the only exception to 36. And sometimes misused, as in the case of the Pergau Dam. 37. Oliver Furley (ed), Conflict in Africa, London, 1995, Editor’s Introduction, 4–5. 38. The Times, 6 April 1987.

Setting the Scene | 27

this has been when the Archbishop of Canterbury, the Cardinal Archbishop of Westminster and the Chief Rabbi have spoken out against the asylum policy with one voice, but they have done so extremely rarely. If the great and the good were ignored by the Conservative government, which held power for most of the period being surveyed, so too were the refugee agencies and support groups whose numbers multiplied during this decade. Many of these had specialist knowledge that could have been useful to those trying to devise faster procedures, but even when this was offered, it was ignored, and it was never actively sought. The New Labour government, by contrast, did seek their opinion before introducing new legislation in 1999, although the refugee organisations have been disappointed that what they had to say seems to have had only a minimal effect on government thinking. Public hostility towards refugees and asylum-seekers has been allowed to grow and policies of exclusion operate throughout the European Union.

2 The Tamils and the 1987 Watershed

he Tamils, whose arrival was noted in Chapter 1, did not travel directly from Sri Lanka. One of them told his story to an Independent reporter: after his neighbour had been killed by shellfire and other neighbours injured he had fled because he feared that he too was in personal danger. He made his way to Colombo but found that it was impossible to get a visa to come to the UK. However, he was told of an agent who said he could help him and his family at a cost of £1,300 per person if they first flew to Malaysia as tourists. The agent would meet them there and provide them with tickets and visas for the UK. They spent ten days in Kuala Lumpur whilst arrangements were made, and then flew to Dhaka in Bangladesh on the first leg of their journey. ‘George’, the agent, travelled with them. At Dhaka, George got them boarding passes for the journey to London, but refused to give them their tickets. Later they discovered that George had removed the visa page from their passports.1 This man and his family were just part of the group of fifty-eight Tamils who arrived at Heathrow on Friday 13 February.2 Among the reasons for the strong reaction against them was the fact that an agent had facilitated their travel, they had arrived without tickets and with damaged passports and they had not come directly from Sri Lanka but had travelled through Malaysia and Bangladesh. It was to Dhaka, their last stopover, that it was intended to remove them. This the Tamils objected to on the grounds that Dhaka would be likely to

T

1. For an account of such journeys and the exploitation involved, see Daniel, Charred Lullabies, 176–80. The story of another Tamil who fled is told in the New Internationalist, September 1991, 17. 2. Independent, 20 February 1987.

– 28 –

The Tamils and the 1987 Watershed | 29

send them back to Malaysia, a country which had recently returned other Sri Lankans to Colombo against their will.3 On arrival at Heathrow, the Tamils were all detained and interviewed for twenty minutes or so each (asylum interviews normally last for much longer than this). The attempt to remove them occurred four days later. They were given no opportunity to question the refusal of asylum, and the normal procedure of referring asylum-seekers to the refugee unit of the UK Immigrants’ Advisory Service was not carried out. Solicitors acting for them therefore went to the High Court on the afternoon of 17 February to obtain an emergency stay order to prevent their removal until their cases had been fully examined. Because of the pressure of time, the solicitors initially applied on behalf of just one representative family. Just that one family was removed from the plane, and a further stay order had to be obtained in respect of the others. The second order did not arrive at Heathrow until after the scheduled departure time of the plane on which the Tamils were to travel. They would have been removed had they not mounted the spectacular protest we noted in Chapter 1. A dozen of them stripped to their underpants in the full view of press photographers before being dragged shouting and screaming out onto the tarmac where they stood until some 30 police officers forced them up the steps into the plane. That was not the end of their protest, however. They then stood on their seats and refused to fasten their seat-belts, by which time the second stay order had arrived, some forty-five minutes after the plane was due to leave.4 Even had it not arrived, no pilot would have taken off until or unless they had calmed down. Pilots will not normally fly with more than two forced passengers on board, and they have the same rights as a ship’s captain to refuse to carry passengers who might endanger others. The Tamils’ behaviour at Heathrow inevitably made good copy for the media which published detailed accounts and pictures of short-statured Tamils in their underpants gesturing excitedly, surrounded by tall, impassive bobbies. The Home Secretary applied to the courts in an attempt to obtain an immediate hearing to try to get the injunction withdrawn. At the 3. Letter signed by the Directors of Amnesty International (British Section), the British Refugee Council and the Joint Council for the Welfare of Immigrants published in the Independent, 19 February 1987. 4. Independent, 18 February 1987. Briefing paper, ‘Sivakumaran and Others – Factual History’ prepared by the lawyers, Winstanley Burgess, following the publication of the Adjudicator’s determination in their favour of 13 March 1989. The briefing paper is undated, but was written prior to the hearing before the European Court of Human Rights.

30 | Whatever Happened to Asylum in Britain?

same time, lawyers for the Tamils applied for leave to move for a judicial review of the Home Secretary’s decision to send the Tamils back to Bangladesh, on the grounds that he had failed to follow the correct procedures.5 On 19 February, and before any further court hearings in the Tamils’ case, a House of Lords judgement was given in the case of a Ugandan asylum-seeker who was to be removed to Kenya in spite of evidence that Kenya would simply return him to Uganda. The judgement strengthened the Tamils’ case – they too were claiming that the country to which they were to be removed would send them home.6 On 24 February, hearings were held in the High Court when lawyers acting for the Tamils applied for leave to move for judicial review. During these hearings, the Tamils were held in buses at Heathrow, apparently so that they could be flown out quickly had the hearings failed, before their lawyers had any opportunity to go to the Court of Appeal. However, leave for judicial review was successfully obtained. On 3 March, the Home Office backed down rather than let the judicial review go ahead, seemingly because of advice that they would be likely to lose. Losing would have resulted in a precedent being set, and this the Home Office did not want. They therefore agreed to allow all the Tamils to receive advice from UKIAS, and to have their applications fully considered. Much of what went wrong on this occasion happened because there were no properly laid down procedures for dealing with asylum cases. Two classes of asylum-seeker existed. First, there were those who were already in the UK when they made an asylum claim (incountry applicants), and who, if refused, had a right of appeal and could not be removed until all appeal procedures had been exhausted. Secondly, there were those who had claimed asylum immediately on arrival (port applicants). This second category had no right of appeal until after they had been removed from the country. If they were removed to a safe third country from which they were able to mount an appeal, it would, of course, fail, because they had reached a place of safety. If, when returned to their own country they suffered renewed persecution, there would normally be no chance to appeal. Because the asylum procedures were not laid down in law, the Home Secretary was able to scrap such safeguards as there were simply by fiat. Not all MPs thought this was a satisfactory state of affairs. In 1984–5 the Commons Home Affairs Select Committee had enquired into, and drawn up a report: Refugees and Asylum.7 They had rec5. Independent, 19 February 1987. 6. Independent, Law Report, 20 February 1987. 7. Session 1984–5, HC 72–I.

The Tamils and the 1987 Watershed | 31

ommended that those who applied for asylum at a port of entry should have the same rights of appeal against refusal as in-country applicants. The government rejected this suggestion: ‘for this category of applicants there are other safeguards: representations by MPs, judicial review and the UKIAS referral procedure … the referral system is providing an effective safeguard and a satisfactory substitute for formal appeal rights … in practice therefore the referral procedure is providing a broader safeguard than a formal appeal to the immigration appellate authorities.’8 UKIAS, in the briefing paper from which the above quotations are taken, pointed out that it was precisely these safeguards which were now being abandoned, leaving port applicants unprotected from wrong decisions.9 From the Home Secretary’s point of view, it was highly unsatisfactory that his powers were not clearly defined. He told Parliament on 2 March that procedures had to be changed in order to ensure that the UK was properly protected against immigration rackets, which might take advantage of the country’s ‘generous asylum procedures’.10 As it was, a Home Secretary could be humiliated by the courts, ‘angered and embarrassed’, as the Independent put it on 21 February. From the Tamils’ point of view, matters were even more unsatisfactory. Even though their removal from the UK was prevented by court injunctions on 17 February, they were to spend months in detention. When they were eventually refused asylum, they were sent away before they could exercise any right of appeal. As a leading article in the Independent pointed out, people seeking asylum who arrived without proper documentation had ‘no automatic right of appeal against the arbitrary and secret rulings of the Home Office – rulings which are often made at a relatively low level of expertise and an even lower level of political sensibility’.11 A leading expert in immigration and asylum law concurred, pointing out that a visitor who wished to remain for an extra fortnight had the right to appeal to an Adjudicator, and if refused, might obtain leave to appeal to the Immigration Appeals Tribunal, and even to take his case right through the courts to the House of Lords. An asylum-seeker who claimed to be in danger of persecution and death if returned to his own country, might have no right of appeal at all if his claim to asylum was refused. At best, all he could rely on was a process of consultation.12 8. 9. 10. 11. 12.

The government reply was published as Cmnd 9626. UKIAS briefing on the Immigration (Carrier’s Liability) Bill, 11 March 1987. The Times, 3 March 1987. Independent, 19 February 1987 Richard Plender, a barrister and reader in Law at King’s College, London (now a QC) writing in The Times, 4 March 1987.

32 | Whatever Happened to Asylum in Britain?

The Tamils13 became an exceptional case because they had unusually persistent lawyers, Winstanley Burgess, who took out an injunction so that the Tamils came within the jurisdiction of the courts. Rather than have the case brought to court, the Home Secretary backed down.14 The lawyers then followed this up by further action at every opportunity. In the meantime, the Tamils remained in detention, and in May they and some other asylum-seekers were put aboard the Earl William, a disused car-ferry moored at Harwich, which was leased to act as a detention centre, the use and situation of which was extremely unpopular with Harwich workers.15 When the possibility of hiring the ship was first mooted, Max Madden, Labour MP for Bradford West, promptly christened it a ‘hulk’, and this designation, with its reference to criminals facing transportation to Australia, in a process of which the UK had become ashamed, stuck.16 By 1 August the detainees were on hunger strike, which was widely reported in the media. The few women, one of whom was only eighteen, were distressed at being held along with the men, and the Home Office responded to the publicity to the extent of promising that the women detainees would be given a separate lounge – and would be provided with sanitary towels. Nevertheless, it was officially insisted that the conditions on the ferry were better than those in other detention centres. The detainees for their part found the cramped cabins and permanently locked portholes claustrophobic.17 The hunger strike became a lie-in, which the press managed to photograph. Amid growing concern, MPs arranged visits, and first a doctor and then a nurse had to be employed to monitor the hunger strikers’ condition. Meanwhile two of the Tamils managed to escape by climbing through a carport and sliding down a mooring rope on to the harbour side, and others escaped later.18 Journalists who succeeded in getting permission to visit the Earl William and talk to the detainees started to mock the whole arrangement.19 Martin Barber, Director of the British Refugee Council,20 helped bring the hunger strike to an end on 10 August, by which time one hunger striker had had to be taken ashore to hospital 13. A chronology and outline of the Tamil legal cases is contained in the briefing paper by Winstanley Burgess mentioned above. 14. It is not uncommon for the Home Office, when they think they may lose, to concede a case rather than have it brought to court lest a precedent is set. 15. Independent, 12 May 1987. 16. Independent, 17 March 1987. 17. Independent, 1 August 1987. 18. Independent, Guardian, 4, 5, 6, 7 August 1987. 19. Guardian, 8 August 1987. 20. The title of the organisation was changed to ‘Refugee Council’ in 1990.

The Tamils and the 1987 Watershed | 33

in a serious condition. The detainees said they had succeeded in one of their aims: that of drawing attention to their plight.21 Government reaction to the Tamils had been three-pronged. First, there was the removal of the safety net of measures which had ensured that asylum-seekers who had been refused and were facing removal had the possibility of a re-examination of their claims. This left asylum-seekers in considerable danger as someone whose case was not referred to UKIAS might be slipped out of the country after only the most cursory examination of their claims. Secondly, the right of MPs to make representations and have deportation halted whilst the case was re-examined was removed. MPs were assured that they might, of course, continue to make representations about asylum-seekers, but these would no longer weigh when decisions were being made. A warning was given that even someone who was awaiting a judicial review of a decision to refuse asylum and remove him or her from the country might, in future, be removed before the judicial review took place. The refugee agencies, in particular the British Refugee Council, Amnesty International, UKIAS and the Joint Council for the Welfare of Immigrants, all cried foul. They pressed for asylum-seekers who applied at a port of entry to have a right of appeal before removal, as in-country applicants had, and as the Home Affairs Select Committee of Parliament had recommended.22 The third part of the Home Secretary’s response was to introduce fines for airlines that carried passengers without full documentation; ‘carrier’s liability’ was the term used for this legislation. The measure was disliked equally, though for different reasons, by both the airlines and the humanitarian agencies. The former objected to being asked to act as unpaid immigration officers and to face fines if they failed at that task; the latter believed that this move called into question the country’s very commitment to the UN Convention on Refugees and would prevent many people from finding safety. Michel Moussalli, former Director of International Protection at the UNHCR in Geneva, likened it to closing the border.23 Moreover, Article 31 of the Convention allows for the possibility of refugees being on the territory of a state without proper authorisation. The removal of the safety net and the imposition of carrier’s liability was not a carefully considered move. The government, smarting from being forced into a climb-down by the threat of court action, put the legislation together with undue haste. 21. Guardian, Independent, 11 August 1987. 22. Session 1984–85, HC 72–I. 23. Observer, 9 August 1987.

34 | Whatever Happened to Asylum in Britain?

These measures were popular with members of the Monday Club, whose members represent the right wing of the Conservative Party, and with readers of the tabloids, but more thoughtful sections of the population were shocked.24 People fleeing persecution cannot always safely go to the authorities in their own countries to acquire passports, nor, if they have passports, can they acquire visas from an embassy or High Commission for the purpose of seeking asylum. The Home Secretary suggested in the Commons on 3 March that it was open to asylum-seekers to do so, but as UKIAS pointed out, it might be very risky for an endangered person to be seen entering a foreign embassy, and the fact that they had been able to do so without endangering themselves might later be held to show that they were not, in fact, in danger. Moreover, there is no provision in the Immigration Rules for such visas. Asylum applications can only be decided once people are outside their own countries. What the Carrier’s Liability Act did was to criminalize people seeking asylum in the West. Either one had to obtain a visa by deception or one had to bribe one’s way on to a plane without one. The near-impossibility of obtaining a visa in order to seek asylum leaves people with three main options, all of which involve deceit. They may be able to obtain passports (if they do not already possess them) by means of bribery or through kinship networks, possibly in false names, and then obtain visas by deceiving the embassy or High Commission of the country to which they intend to flee. Secondly they may obtain false documents or succeed in being allowed aboard a flight through the payment of a bribe. Thirdly, they may go for assistance to an agent, a ‘racketeer’ or ‘people trafficker’ as they have come to be called. It is now recognised that this type of legislation encouraged the growth of people trafficking, and the market in stolen passports and forgeries grew apace. In spite of passing the Carrier’s Liability Act, the government continued to insist on its commitment to the 1951 Convention: Our commitment to the 1951 UN Convention on Refugees remains a real one. Recent initiatives [Carrier’s Liability legislation] have been designed to deter those who would abuse the system to the detriment of genuine asylum-seekers and in contravention of our wider immigration policy. Genuine refugees for whom the United Kingdom is the appropriate country of refuge are always given asylum from persecution and enjoy the right to family reunion. The UK has a viable appeals system and full provision is 24. See, for instance, letters from Philip Morgan on behalf of the British Council of Churches, Guardian, 6 March 1987 and from Helen Bamber, Director of the Medical Foundation for the Care of Victims of Torture, The Times, 8 April 1987.

The Tamils and the 1987 Watershed | 35

made for access to advice and representation [emphasis added to point up the limits of commitment to the 1951 Convention].25

It is difficult to understand what was meant by this last sentence in light of the attempt to remove the Tamils without allowing them access to UKIAS, and given that many asylum-seekers had no incountry right of appeal. One reaction to the arrival of this group of Sri Lankans and to the Home Secretary’s failure to deport them immediately was to hire a prison ship and put asylum-seekers aboard it. Max Madden’s nickname for it – ‘hulk’ – caught on, but there were other overtones as well. Putting them on to a ferry moored alongside the quay at Harwich pointed up their outsider status and added to their insecurity. The move backfired and only gained the government bad publicity. Protests, hunger-strikes, further escapes, renewed bloodshed in Sri Lanka, the psychiatric illness of a detainee, unfavourable press coverage and the high costs involved in hiring the ferry26 meant that when the final debacle came, no attempt was made to repeat the experiment of a floating detention centre for asylum-seekers.27 Nineteen eighty-seven was not only the year of the Tamils, but also the year of the hurricane. In the early hours of Thursday 15 October, the Earl William was damaged in the storm and broke its moorings. At dawn the thirty-seven Tamil detainees and thirty-one others all had to be taken off, and instead of being detained elsewhere, they were set free and left to find their own accommodation. Martin Barber of the British Refugee Council commented, ‘it does make you wonder why they cannot release others held elsewhere for similar reasons’. At the same time, battles were being waged in the courts over the Tamils. Lawyers acting for the Tamils repeatedly applied for judicial review of Home Office decisions. The only way of going to the courts was through applications for the Home Secretary’s decisions to be judicially reviewed, although a judicial review can only determine whether procedures have been correctly followed, it cannot review the merits of the case. Between the time of arrival of the first group of Tamils and October 1987 a total of thirteen legal moves was made, the last going right up to the House of Lords before being 25. Letter to Charter ’87 for Refugees by Jane Harrison, Private Secretary to Home Office Minister Timothy Renton MP, 6 February 1989, emphasis added. 26. BBC ‘Look East, 21 October 1987 gave the total cost as £650,000. Written Replies to Parliamentary Questions, The Times, 22 October 1987 gave the cost as £65 per night per detainee. 27. The Times, 11 December 1987.

36 | Whatever Happened to Asylum in Britain?

finally lost.28 The UNHCR, Amnesty International and the newly founded Charter ’87 for Refugees then all urged the Home Secretary not to return the failed asylum-seekers to Sri Lanka, saying it would not be safe to do so. These requests were unsuccessful and five Tamils were returned in February 1988. Once removed, the Tamils had a right of appeal, which, in the normal course of events, they would not have been able to exercise. In this case appeals were immediately lodged on their behalf by Winstanley Burgess, and a representative of the firm travelled to Sri Lanka and tracked them down in order to gather evidence about what had happened to them since their return. He found that several of them had suffered further persecution, including torture, and that they had been forced to go into hiding. When at last their case came before an immigration Adjudicator in March 1989, it was found that all five had been entitled to political asylum at the time of their asylum applications, that the circumstances that had led to these decisions had not changed, that the decisions to refuse them asylum had not been in accordance with the law, and that each appellant should be returned to the UK with the minimum of delay.29 However, the Home Office succeeded in delaying their return until 9 August 1989 after a series of strenuously fought court actions.30 What were the legal points raised when the Tamils’ case finally came before the Adjudicator? It could not be seriously disputed that they had suffered persecution both before and after being forcibly returned to Sri Lanka in view of the evidence their solicitors had gathered. The Home Office’s argument was that they had not suffered for the reasons set out in Article 1 of the Convention (‘reasons of race, religion, nationality, membership of a particular social group or political opinion’). It was contended that the government of Sri Lanka was engaged in antiterrorist activity: if they were persecuting Tamils, it was in this context, not for reasons that would make them eligible for asylum under the Convention. This position was maintained when they were granted exceptional leave to remain rather than Convention status.31 Others, 28. Details taken from the briefing on the Tamils prepared by Winstanley Burgess. 29. ‘Legal Note on the Immigration Appeal Adjudicator’s Determination of 13 March 1989’ attached to the briefing on the Tamils. 30. The Times, 18 May, 1989; Guardian, 28 July 1989; The Times, Law Report, 10 August, 1989 31. ‘It is noted that the experiences to which you refer were the result of civil disorder in Sri Lanka rather than persecution within the terms of the United Nations Convention Relating to the Status of Refugees; and that your arrests were part of the army’s general activities directed at discovering and dealing with Tamil extremists.’ Refusal letter from the Home Office quoted in the Determination given on 13 March 1989 at Thanet House, then headquarters of the IAA.

The Tamils and the 1987 Watershed | 37

including the Adjudicator, accepted that in Sri Lanka, Tamils were persecuted whether there was any proof of their involvement in terrorism or not, and that Tamils formed a particular social group and were vulnerable because of their membership of it. This part of the Convention definition of a refugee has always proved particularly difficult. Other legal points became involved. One concerned the definition of ‘a well-founded fear’ and whether this was to be assessed subjectively or objectively. The Court of Appeal, which included Sir John Donaldson, Master of the Rolls, as one of the judges at the hearing, stated that, ‘Authority apart, the court would accept that well-founded fear was demonstrated by proving actual fear and good reason for that fear, looking at the situation from the point of view of one of reasonable courage in like circumstances as the applicant for refugee status.’32 The government was alarmed. They feared that anyone would be able to claim asylum if this definition of a well-founded fear were allowed to stand. The Home Secretary talked darkly of 100,000 people a year flocking to seek asylum in the UK.33 If that definition of a well-founded fear were upheld in the Lords, then the government would have to consider changing the law, he suggested,34 but the Lords reversed the findings of the Court of Appeal and held that there must be an objective test of the fear. However, they did set out a standard for testing that fear to which Adjudicators still regularly refer (the case is referred to as ‘Sivakumaran’): the requirement that an applicant’s fear should be well-founded meant that there had to be demonstrated a reasonable likelihood that he would be persecuted for a Convention reason if returned to his own country … ‘a reasonable chance’, ‘substantial grounds for thinking’, ‘a serious possibility’.35

An appeal had been made to the European Court of Human Rights by this group of Tamils, but the court’s ruling was not given until after they had returned to the UK and been granted exceptional leave to remain. Here the points at issue were under Article 3 which forbids torture, inhuman and degrading treatment, and Article 13: ‘Everyone whose rights and freedoms as set out in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by 32. 33. 34. 35.

The Times, Law Report, 13 October 1987. The Times, leading article, 15 October 1987. Independent, 15 October 1987. The Times, Law Report, 17 December 1987.

38 | Whatever Happened to Asylum in Britain?

a person acting in an official capacity’. A major point, which the lawyers wished to establish through this action, was that the lack of an in-country right of appeal for some asylum-seekers was contrary to the Convention. Surprisingly the European Court reversed the Commission’s finding and ruled that judicial review provided an effective remedy, in spite of the fact that it could not deal with the merits of the asylum claim. By the time that they gave their judgement in this case, the UK Government had decided that they would probably lose before the European Court, and were planning to bring in a limited right of appeal.36 Adventures of this sort with the law were too costly, too time-consuming and too likely to leave the Home Secretary with egg on his face when the court ruled against him. The Tamils were allowed to remain in the UK in spite of this ruling: they had not been ‘banned’ by the European Court as a Mail headline proclaimed. The government saw the issue as one of immigration. Having put an end to all primary immigration from the Indian subcontinent and the West Indies, it was perturbed to find that immigration seemed to be continuing in the shape of people seeking asylum. It alarmed government that most of those who came deserved protection, either under the Convention, or else because they faced forms of persecution other than those provided for by the Convention, but real enough to require sanctuary. Other European countries, which were mostly receiving far more asylum applications in relation to the size of their populations than was the UK, were experiencing the same phenomenon. Quiet talks were going on at an intergovernmental level to find ways of dealing with the growing influx of asylum-seekers. As these were held in secret, it is impossible to find out just what point they had reached by 1987. The arrival of the Tamils was not the only refugee event of 1987. On 22 March, a young Ugandan asylum-seeker, Ahmed Katongole, was found hanged in Pentonville Prison. He had been detained pending removal from the country, not because he had committed any crime. The inquest was held at St Pancras Coroner’s Court on 1 July 1987, and the jury brought in an unprecedented verdict of suicide ‘aggravated by official indifference and lack of care’.37 What had happened was this: in March 1987 Katongole, who had been given temporary admission, was called to Gatwick to attend an 36. Guardian, 31 October 1991. 37. This case is dealt with in some detail in M. Louise Pirouet, ‘Suicide and Attempted Suicide by Asylum Seekers Detained in the U.K.’ in Deaths in Custody: International Perspectives, eds. A. Liebling and T. Ward, 1994, 151–2. A simple ‘lack of care’ verdict is not uncommon.

The Tamils and the 1987 Watershed | 39

interview, which, he was told, was purely routine. However, at the interview he was told he was to be returned to Uganda on the next flight out. He had some paracetamol tablets in his pocket, and took an overdose of them. When it was realised what he had done, he was sent first to Crawley Hospital, then to the Beehive Detention Centre at Gatwick Airport to be put on a flight as soon as possible. Because his medical condition gave cause for concern, and the Beehive Centre had no medical facilities, he was then sent first to Latchmere House detention centre, and finally to Pentonville, because by this time he had been recognised as an on-going suicide risk. Mr Musoke of the Uganda Refugees’ Welfare Association tried to trace him, but was refused any information until too late, so Katongole was not told that an MP, Ron Leighton, had taken up his case (this was just before this piece of the safety net was removed). Although he was known to be a suicide risk, the prison staff failed to carry out the fifteen-minute observation schedule as required, and he succeeded in hanging himself. The Home Office would say nothing apart from disclaiming any responsibility and stating that it would be ‘inappropriate’ for Ministers to comment further.38 Deaths in police and prison custody were to become a matter of serious concern during the next few years. The refugee organisations were particularly concerned about detained asylum-seekers who were suicide risks. The agencies that worked for refugees had not always found it easy to act together, but faced with this new situation they more readily did so. They came together again in November 1987 to support the launch of Charter ’87 for Refugees which was drawn up in order to try to set standards for the fair treatment of asylum-seekers, one of a long sequence of standard-setting efforts. At the end of January 1988, Amnesty International’s British Section drew up a brief set of suggestions for fair practice which won wide support. The UK, said Amnesty, had lost its reputation as a safe haven for refugees and for those who had suffered torture, and they accused the government of operating an increasingly unjust and arbitrary policy towards asylum-seekers. In a document entitled Exiled: Asylum-seekers in the UK Amnesty called for a uniform code of practice for examining all asylum applications made by people arriving by air or sea; for an end to unnecessary and arbitrary detention; for a seven-day limit on the detention of those held whilst their identity was verified; for the right of all asylum-seekers to independent legal advice and representation; for an in-country right of appeal, and for special training to be given 38. Pirouet, ‘Suicide’, 159 note 8. This was one of the precipitating events that led to the formation of Charter ’87 for Refugees, launched in November 1987.

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to immigration officials who dealt with people seeking asylum.39 Like every other suggestion made at the time, those of Charter ’87 for Refugees and Amnesty International were ignored by government. Nineteen eighty-seven was either a good year or a bad year depending on one’s point of view. The Home Office no doubt thought it had been a good year. They had succeeded in deporting the Tamils, a victory not easily won (it would be the following year before the victory was reversed and the Tamils were able to return and find safety). Procedures which had previously enabled asylumseekers to win a re-examination of their cases and so delay their departure had been eliminated. This should have enabled the removal of failed asylum-seekers to be effected more easily. For people seeking asylum from persecution it had been a bad year. The removal of the safety net had left them extremely vulnerable. From the point of view of the refugee agencies, it had also been a bad year. They had offered advice and protested at what was being done, and no notice had been taken. Even the UNHCR had been ignored. It was beginning to become clear that the only thing that would restrain the government from a course of action they had decided on was successful legal action – an appeal on humanitarian grounds would get nowhere at all. Yet such appeals continued. The refugee organisations believed that the ethical case must continue to be made, even if it were ignored. They considered that it had been a bad year for the UK’s reputation for fairness and respect for human rights. Two years later, there was something of a rerun of 1987, and for that reason the following events will be dealt with in this chapter, although they take us well beyond the end of 1987. In 1989, the Home Office again found itself faced with group arrivals, this time of Kurds from Eastern Turkey. By the time a thousand Kurds had arrived, many of them Alevis, not orthodox Muslims,40 fleeing renewed persecution in the Maras Region of Eastern Turkey. The British government was talking of detaining or even imprisoning them all whilst decisions were made on their asylum claims and visa restrictions were imposed on Turkish nationals.41 Because of the way in which they had been thwarted over the Tamils, the Immigration Service seems to have decided that the best way of dealing with these new arrivals was to refuse to allow them off the planes. Once a person reached the immigration control points and 39. Independent, 21 January 1988. 40. McDowell, The Kurds, London, 1985; The Alevi Kurds, London, 1989. The arrival of the Kurds generated a huge number of ephemeral publications by Kurdish groups and refugee support groups as well as discussion in the regular media. 41. Telegraph, 18 May 1989; Independent, 24 May 1989.

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asked for asylum, he or she was protected under the Convention and could not be removed until a decision was reached on the claim. Immigration officers were therefore sent on to the planes to question all the passengers before disembarkation began, and many were flown back to Turkey without being allowed off the plane. There were allegations that anyone who said they wished to apply for asylum was refused permission to land. This would have been a breach of the 1951 Convention, and it was categorically denied by Home Office Minister Timothy Renton, who said that only those who had said they wished to find work in the UK were refused entry and returned.42 On 23 June, the practice of sending immigration officials on to planes was stopped after a legal challenge had been mounted by a Kurd who had been returned to Turkey without being allowed to disembark. He succeeded in entering the UK to claim asylum on a second attempt. He had been detained and beaten up when he arrived back in Turkey after his first attempt to find asylum, and it was reported that he would give evidence in the High Court about what had happened on the plane when first he arrived.43 This was followed by other reports of asylum-seekers being prevented from disembarking and returned to Turkey, and thirteen were eventually given leave to put their case in the High Court. Mr Justice Popplewell, in granting leave, noted that ‘something had gone woefully wrong’.44 In October, the plight of Kurdish refugees from Turkey exploded into a crisis. Two men, Siho Iyiguven and Dogan Arslan, detained in Harmondsworth Detention Centre, and awaiting removal after being refused asylum, piled bedding in the doorway of their room and set it and themselves alight. They were known to be suicide risks. Dogan Arslan, who suffered 30 percent burns, was taken to Stoke Mandeville Hospital in a serious condition but eventually recovered; Siho Iyiguven suffered 60 percent burns and died in Mount Vernon Hospital on the afternoon of Sunday 8 October.45 The Home Office appears to have panicked, and a large number of other detained Kurds were hastily freed.46 Siho was claimed as a martyr by other Kurdish asylum-seekers, and his funeral became a demonstration against the Home Office by over two thousand people.47 42. Independent, 8 June, 23 June 1989; Observer, 25 June 1989. 43. Independent, 23 June 1989; Telegraph, 24 June 1989. 44. New Statesman, 14 July 1989; Independent, 31August 1989; Guardian, 31 August 1989. 45. See John Merritt, ‘Scandal of the forgotten Refugees’, Observer, 8 October 1989 and Pirouet, ‘Suicide’, 143–60. 46. Guardian, The Times, Independent, 10 October 1989. 47. Independent, 30 October 1989.

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The crisis over the Kurds worsened later in the week when only a last minute move by the UNHCR in Geneva prevented the deportation of another Kurd, Selahattin Ozberk. He had been refused asylum although his case appeared to be very similar to that of a Kurd who had been recognised as a Convention refugee. No amount of pleading or media publicity, not even the intervention of the UNHCR in London, who said they believed him to be a mandate refugee, moved the Home Office, and Mr Justice McCullough supported the Home Office position at a hearing in the High Court.48 At the very last minute, the Refugee Officer of the World Council of Churches in Geneva was contacted, and he approached senior officials in the UNHCR. The UNHCR Representative in London, Anne Marie Demmer, responded to Geneva’s enquiries by agreeing on a high level intervention by Geneva.49 For such an intervention to occur is humiliating for a country that prides itself on its human rights record. The Home Secretary agreed to allow Mr Ozberk to remain for five days during which he might try to find another country willing to accept him. The time had to be extended whilst arrangements were finalised.50 Italy eventually agreed to accept him, the Jesuit Refugee Service playing a crucial role in arranging this.51 Mrs Demmer was reproved by the Home Office and had to make something of a climb-down.52 The UK, like other Western countries, funds the UNHCR generously, and for some time the UNHCR seems to have felt it had to tread warily. Meanwhile the case of those Kurds refused permission to land to claim asylum dragged on. The Home Office stated categorically: The allegation that some Kurd asylum-seekers have been ‘summarily deported’ is unfounded. Immigration officers boarded planes to identify those passengers who seemed likely to require lengthy examination, including asylum-seekers, in order to reduce the delays to other passen48. Independent, Guardian, 11, 12, 13 October 1989. 49. Independent, 13 October 1989. This came from the level of authority immediately below the UN High Commissioner himself, and therefore had to be taken seriously. 50. Independent, Guardian, 13 October; Observer, 15 October; Guardian, 18 October 1989. 51. Personal communication, JRS. 52. Personal communication, UNHCR staff. The affair generated a great deal of press publicity sympathetic to the plight of the Kurds, e.g. Guardian, 20 October (‘Let Kurds Stay, say Bishops’); New Statesman, 20 October (‘Torch of Freedom’ on Siho Iyiguven’s death); Independent, 30 October (‘Cast adrift in alien world of squalor’); Guardian, 22 November 1989 (‘Makes You Sick to be British’); Suddenly Last Summer, BBC2, 23 January 1990.

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gers in the control area. The interviews and procedures were exactly the same as if the passengers had been seen in the main control areas. Any passenger claiming asylum or expressing a fear of return to Turkey was referred to the Home Office for decision. Where there was no claim for asylum, any refusal of leave to enter was authorised by a Chief Immigration Officer or more Senior Officer.53

At last, in January 1990, it had to be admitted, as the result of a court case, that some Kurds had been returned to Turkey unlawfully and that the Immigration Service had acted in contravention of its own immigration rules. The admission came in the course of a judicial review in the case of four Kurds who had claimed asylum at Manchester Airport on 20 June 1989, been refused immediately and returned to Turkey the same day. The rules say that all asylum cases must be referred for decision to the Home Office and this had not been done. Compensation was paid in an out of court settlement.54 However, there was more to come. In January 1991, Home Secretary Kenneth Baker was forced to concede that nineteen more Kurds had been unlawfully prevented from entering the UK, and over the next few years, a number more were able to bring successful challenges against their unlawful treatment after being returned to the UK at government expense.55 The amounts of compensation paid in out of court settlements are said to have varied between £2,000 and £19,000, but a condition of compensation being paid was that the terms should not be disclosed. It is believed that some £250,000 was eventually paid out in compensation. When the Kurds were readmitted to the UK, their asylum applications were put at the end of the queue. They felt that they should be dealt with as though they had been allowed to apply in 1989 when they had been unlawfully removed from the country. They foresaw long delays before there was any possibility of their being reunited with their families, and realised that by the time their applications were dealt with, some of their children would have reached the age of eighteen, and so be ineligible for admission as dependants. Consequently, a number of them went on hunger strike outside the Home Office, opposite the entrance to St James’ Park tube station, in Janu53. Letter to Charter ‘87 for Refugees from Jane Harrison, Private Secretary to Douglas Hurd, Home Secretary, dated 21 July 1989. 54. Observer, 21 January; Independent, 22 January; Independent, Letters, 23 January 1990. Tony Kushner and Katharine Knox, Refugees in an Age of Genocide: Global, National and Local Perspectives During the Twentieth Century, London 1999, 345–6. 55. Guardian, 25 January 1991. In this case, as in the previous one, the solicitors were Winstanley Burgess.

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ary 1993.56 At one point, unsympathetic police were reported to be trying to make the strikers stand up all night instead of letting them sit on the pavement, but enquiries from a Guardian reporter put a stop to that. The standard response to the hunger strike was issued: ‘[The Minister] remains firmly of the opinion that hunger strikes are not an appropriate method for asylum-seekers to draw attention to their cases’.57 When the strike had gone on for long enough to be causing serious alarm over the men’s condition, all the men involved were given dates in the very near future for their asylum interviews, whilst at the same time it was officially insisted that the dates had not been advanced in response to the strike. It was during this period that the rhetoric about racketeers and economic migrancy was first developed. This became part of the standard repertoire of stock responses when concerns were raised about asylum-seekers. Legislation (to be discussed in a later chapter) contained clauses specifically directed against those who arrived as part of a group, though why this should have made them suspect was never explained.

56. Independent, 5 February; Observer, 7 February; Guardian, 8, 9 February 1993. 57. Letter to Charter ’87 for Refugees, 16 March 1993. When asked to say what methods they considered appropriate, the Home Office failed to respond.

3 Making Decisions

he most important part of the whole asylum procedure is the Home Office’s initial decision as to whether or not a person is a Convention refugee. The process by which that decision is reached is therefore crucial. These initial decisions are made on the basis of interviews with the asylum-seeker and information about the human rights record of the country from which the asylum-seeker has fled. No one would suggest that these decisions are easy to make, and no system can be completely foolproof. This chapter will examine the process, and the following chapter will look at the system that enables unsuccessful asylum-seekers to appeal against refusal. Whilst the Universal Declaration of Human Rights establishes a right to seek asylum, the countries to which people flee have the right to determine asylum claims, and the onus of proving a need for protection rests upon the asylum-seeker. Settlement in the West is virtually impossible for anyone from the developing world, and some people try to claim asylum as a way of circumventing immigration controls – as Western governments frequently point out. Everyone who knows the refugee communities in the UK is aware of a few such people who have, nevertheless, been recognised under the Convention. Much more disturbing are those individuals who should be recognised as refugees but who are refused. The self-confident con-man who consistently tells a good story carefully manufactured to accord with known facts may find it easier to gain acceptance than the person who has escaped from severe and humiliating torture and death threats, and is too confused and traumatised to present his or her story coherently. So some people are recognised as refugees who should not be, and some people genuinely in need of protection are refused it. It is far more important to guard against

T

– 45 –

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the second possibility than the first, and to ensure that there is a proper appeals mechanism through which mistakes can be rectified. A tiny minority of people who get through the process without the truth about them being discovered are criminals. One such, who was given exceptional leave to remain, was Ladit Bulgara, alias Powell Onen P’Ojwang, said to have been the external chairman of the Lord’s Resistance Army. This is an atavistic rebel organisation backed by Sudan which has terrorised parts of Northern Uganda for years and which is responsible for gross violations of human rights. Among these is counted the abduction of thousands of children. P’Ojwang is believed to have been the link between Sudan and two rebel groups attacking Uganda. He was granted exceptional leave to remain in the UK and at one time owned a ten-bedroom house in Banstead, Surrey, said to be worth £475,000, and a 1997 model Mercedes Benz car. In August 1998, extradition proceedings were instituted against him by the US, where he was wanted on charges of defrauding a New Mexico bank of $4 million, together with one Ian Burns, P’Ojwang posing as an ex-World Bank employee and Burns as a former Barclays Bank employee. It is not known on what grounds he was given exceptional leave to remain in the UK.1 Part of the stolen money is thought to have paid for arms for the Lord’s Resistance Army. However, many of those who do not qualify for asylum are not rogues at all; they simply have not suffered quite sufficiently. They should not be labelled ‘bogus’ or even accused of abusing the asylum procedures. It would be better to say that they do not qualify for asylum or that they are ineligible.2 Sheer weariness with years of lowlevel harassment and economic deprivation do not entitle one to protection under the Convention, nor does being caught between warring factions in civil conflicts. Such people do not intend to deceive; they fail to understand how asylum is defined. Of greater concern are those who ought to be given protection, but are not recognised as needing it. Before the 1993 Act was brought in, about three quarters of those who sought asylum were either recognised as refugees under the Convention or were given exceptional leave to remain for humanitarian reasons. Even then, the refugee agencies worried about some whose applications were refused. In 1993, the proportions were quite suddenly reversed; 1. New Vision, Kampala, 28 July, 12, 13 August 1998. The UNHCR was making enquiries about his status in the U.K.. 2. Alibhai-Brown, True Colours: Public Attitudes to Multiculturalism and the Role of the Government, London, 1999, 84. The suggestion was made by the Black Jewish Forum.

Making Decisions | 47

three-quarters of all asylum applicants were refused, and the refusal rate continued to grow. This must have been the result of an administrative decision rather than a sudden change in the quality of the applicants.3 It became increasingly difficult for asylum-seekers to persuade the Home Office of their need for protection. In the UK, the first stage in the asylum process for those who apply on entry is now an interview conducted by an immigration officer, often very shortly after arrival. A recent study conducted with the co-operation of the Immigration Service raises the question of whether or not this is the best time to interview. Newly arrived asylum-seekers are often exhausted, frightened and confused, and fail to present their claims fully or coherently. Later, when they present a fuller, less confused account, discrepancies are likely to arise which may be held against them.4 Among the recommendations made by the business consultants, Vantagepoint, in late 1999, was that interviewing should be deferred for at least five days, but the Home Office did not accept this.5 Moreover, the structure of the interview may not be conducive to eliciting the asylum-seeker’s story in the most appropriate way. The immigration officer has to discover if the person can be sent back to some other country for the claim to be heard there rather than in the UK, by what means the person arrived in the UK, and other administrative matters.6 This occupies much time at the beginning of the interview, wearying asylum-seekers with questions that seem to them irrelevant, before getting down to the nub of the matter, namely, the reason for seeking asylum.7 Immigration officers are not satisfied that they receive adequate training for this task. Some Chief Immigration Officers, who had been given a wider experience of asylum procedures, found this helpful, giving them a more balanced understanding of what was involved in assessing asylum claims.8 The stereotypes with which some immigration officers operated suggest that their own concerns about insufficient training are justified. Some Immigration Officers’ responses to a researcher’s questions suggest that they look on asylum-seeking sim3. Although the Home Office insisted otherwise. 4. Heaven Crawley, Breaking Down the Barriers: A Report on the Conduct of Asylum Interviews at Ports (for the Immigration Law Practitioners’ Association), 1999, 12–15, 51, 83. 5. Vantagepoint, Home Office Immigration and Nationality Division, Report on the Asylum Decision Process, Consultancy Ref:IMO/99 215/13. 6. Crawley, Breaking Down the Barriers, 18, 50. 7. Ibid., 47–57. 8. Ibid., 23.

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ply as a way of cheating: ‘They know that British IOs [Immigration Officers] are good and that they find people out … but if you say the magic word “asylum” then you are in’.9 Others seem to think that they can immediately spot ‘genuine’ asylum-seekers, though the evidence shows that they cannot: ‘You can tell the legitimate ones, the cases where there are real problems … immediately you can tell from the way they express themselves and the details they give.’10 ‘The odd genuinely traumatised refugee shines out like a beacon.’11 The report showed up the value of efficient interpretation and of asylum-seekers being legally represented at interviews, something the Immigration Service has not always properly appreciated. Most people who seek asylum cannot prove beyond reasonable doubt that they stand in need of international protection. The UNHCR recognises this and advises that a lower standard of proof than would be required in a court of law must be considered sufficient, and this has been accepted by the UK courts.12 People who have been detained without charge or trial by an authoritarian state, tortured or received death threats, seldom have any documentation to back up their claims. Most states that abuse the human rights of their subjects deny that they do so, and manipulate the media to support this position. A claim for asylum must be matched against what is known of the situation in the country in question, against the reports of international human rights organisations such as Amnesty International or Human Rights Watch, against the country reports produced by the US State Department, and so on. A detailed knowledge of the culture and conditions of a country, as well as of political events, is essential if correct decisions are to be reached. In the end, a decision must be made on the balance of probabilities and on the perceived credibility of the person seeking asylum. This is where matters can easily go wrong, as they seem to have done in the case of K.L. from Zaire. K.L. was an active opposition party member involved in demonstrations against the government of President Mobutu. He escaped to the UK in September 1991 claiming to have been detained, very badly beaten up and in fear of his life. A refusal letter sent shortly after he had been interviewed a second time said there were inconsistencies in his story and that he had altered it in order to strengthen his case. The discrepancies in his evidence damaged his case, and his appeal was refused. K.L. was detained, first at Campsfield 9. 10. 11. 12.

Ibid., 23. Ibid., 51. Ibid., 27. R. v the Secretary of State for the Home Department ex parte Sivakumaran [1988] Imm AR 147.

Making Decisions | 49

House detention centre, and then in Pentonville Prison and finally Rochester prior to removal. He and his story became increasingly confused as his health deteriorated and his anxiety grew. Whilst in Pentonville he was recognised as suffering from depression with suicidal tendencies. He began refusing both food and water, as well as medical care, wanting only to die. Not until he finally agreed to see a doctor did it become apparent that he had striated scarring on his back consistent with his account of having been beaten up. The fact that the scars were still visible after such a long time had elapsed suggested that the beating had been very severe, but he could not prove how he had come by the scars. A report was submitted by the Medical Foundation for the Care of Victims of Torture. The Home Office could not understand why he had not referred to the scars earlier. He said he did not know they were still there. Hand-mirrors, which might have enabled him to examine his back, are not provided in prisons. His fate now rested with the Minister, but he was unmoved by the new evidence: it had been submitted too late, and there was no proof of what had caused the scarring. The Home Office insisted that persecution was not systematic in Zaire, and that returned asylum-seekers were in no particular danger. Prison staff who knew K.L. believed that his fear was genuine and there was considerable concern about him. One chaplain had to leave the Prison Service after being openly critical of the decision to deport him. When the first attempt was made to remove K.L., he became so agitated that the pilot refused to have him as a passenger. He was deported a week later. He apparently passed through the airport in Zaire safely, but there were reports that he was then shot, and nothing has been heard of him since, despite extensive enquiries.13 There are considerable difficulties with K.L.’s evidence. Did he alter and expand his story, and if so, why? His first, hand-written submission is brief to the point of being laconic. For instance, ‘Ils m’ont frappé à mort et ils m’ont emmené au camp TSHATSHI ou je fus emprisonné. Je me suis caché au Kasangulu pendant que ma famille préparait ma fuite.’14 This brief, unemotional statement is 13. At this time the Home Office was refusing asylum to almost all Zaireans in spite of Amnesty International’s reports of continuing human rights abuse there in its Annual Reports for 1989 and 1990. Since then the reporting of abuse in Zaire has increased steadily. 14. ‘They beat me to death and then they took me to Tshatshi camp [this was the camp of the Division Spéciale Présidentielle who were particularly feared]. I hid at Kasangulu while my family prepared my escape’. Tshatshi Prison is shown on a map of places of detention in Kinshasa in Cécile Porta, Zaire: A Torture State, London, 1998 (report prepared for the Medical Foundation for the Care of Victims of Torture).

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typical of a newly-arrived, deeply traumatised person. The phrase ‘Ils m’ont frappé à mort’ gives the only indication that what is being described was in any way horrifying. In the first full interview, far more detail is given, and as K.L. was further interviewed, he expanded his story still further and discrepancies crept in. In prison, he became more confused still. An experienced Prison Visitor who met him said that was unsurprising; the longer he was detained the more confused he would become. Many people who seek asylum give little thought at first to telling their story fully because their need for asylum seems to them self-evident. They come from a country whose population has suffered repression for years, and they are bewildered when interviewers are hostile and their stories are disbelieved. Refugees and asylum-seekers from the same country often have nothing better to do than mull over their experiences again and again, until their stories may seem to merge. The temptation, only half recognised as such, is to embroider one’s experiences in the hope that the authorities can be convinced of how dreadful were the circumstances from which one had been forced to flee were. Absolute accuracy over dates is demanded, and when people cannot remember clearly, the temptation is to invent a date. That statements will be weighed against each other, and sifted through in the way they are for discrepancies, is something they never dreamed of. In Africa and Asia huge populations move across borders and no one ever sifts through their stories. Besides, the Organisation of African Unity defines a refugee more generously – more realistically, perhaps – than does the Convention. Someone like K.L., who muddles himself and becomes increasingly confused, unwittingly weaves a net for himself in which he is trapped. The Home Office’s procedures for making initial decisions, which concentrate on looking for possible discrepancies, together with interviewing procedures that may act as traps, sometimes catch out people who deserve protection. The glib liar with a good story who sticks to it may have an easier ride than a traumatised person who is inarticulate and so easily tripped up. The inarticulate and muddled always find bureaucracies difficult to deal with. K.L.’s case was very expensive for the Home Office. He spent about eighteen months in detention at a cost of some £500 per week. That alone ran up a bill of £39,000. To that must be added the cost of the appeal, and the cost of six air fares to Zaire: a forced deportation involves two escorts needing return fares as well as a single fare for the person being deported, and the first effort to deport K.L. was a failure, so the fares had to be paid a second time. If K.L. had had good advice at an early stage, all this expenditure might

Making Decisions | 51

have been avoided. A good advisor would have helped him to prepare a witness statement, which told his story fully, and would have arranged for a medical examination to check on his allegations of torture. Those deciding asylum cases also have to consider how the applicants’ accounts of their experiences fit into what is known of conditions in the country from which they have fled. This requires good, up to date and unbiased country information. In April 1995, the Home Office produced an assessment of the situation in Nigeria to guide caseworkers in the Asylum Division. In spite of the elections of 1993, when Abacha seized power, imprisoned Chief Abiola, and dissolved all democratic institutions, this assessment found little wrong with Abacha’s rule. It stated that a new constitution had been drafted and would be submitted to the Provisional Ruling Council, and although Abacha was not bound by its findings, he had promised to accept them. This was the leitmotif of the whole assessment: the situation in Nigeria was actually all right in spite of repression. For example: Although political activity was proscribed by the PRC on 18 November 1993 the government have in practice defined this narrowly, and enforced only the proscription of political parties. Indeed, political debate has been sanctioned in the form of the elected NCC [National Constitutional Conference] and political associations have been identifiable amongst groups of its delegates.

The same sort of assessment was made of the trouble in Ogoniland where the people were bitterly opposed to the rape and pollution caused by the Shell oil company. Shell has subsequently been forced to apologise and announce changes to its policies because of protests at the way the countryside has been despoiled, although, as yet, these have borne little fruit for the Ogonis. This assessment saw the troubles in Ogoni country solely in terms of ‘tribal disputes’ from which Ogonis could easily escape by fleeing to other parts of Nigeria. The Home Office believed that ‘rights enshrined in the Constitution are generally respected and include a presumption of innocence, the right to be present at trial, to present evidence and witnesses, and to be represented by legal counsel’. The overall conclusion seemed to be that it was perfectly safe to send asylum-seekers back to Nigeria. Just a few months later, following the execution of Ken Saro Wiwa, Nigeria was suspended from the Commonwealth for gross human rights abuse. Meanwhile, in October 1995, the Refugee Council responded to the Home Office’s assessment by producing Beyond Belief: The Home

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Office and Nigeria, a detailed critique, fully referenced, of the Home Office’s position on Nigeria, forty-one carefully documented pages in contrast to the Home Office’s nine unreferenced pages. It highlighted what it described as ‘major distortions’ in the Home Office assessment, and called for that assessment to be radically reviewed. Home Office practice since then suggests that Beyond Belief was ignored: there has been no increase in the recognition rate of Nigerian asylum-seekers. In early 1998, after a new Labour government had taken power, the Home Office agreed that country assessments issued by the newly-established Country Information and Policy Unit (CIPU) would not contain unsourced statements, and a Consultation Group was set up of major NGOs, professional bodies and refugee organisations. As a result, the standard of reports is slowly improving. The first reports that CIPU produced were little better than the Nigeria report discussed above. The draft report on Turkey contained a wholly inadequate account of human rights violations, and the Medical Foundation for the Care of Victims of Torture and Amnesty International protested so strongly that it was withdrawn. Reports on Kenya and Uganda started by giving wrong historical and geographical facts, and bias was seen throughout. The Medical Foundation wrote to the Home Office setting out its objections to the way in which, in the assessment of Kenya, some sources had been so selectively quoted as to reverse the meaning of the original.15 In late August, after serious critiques of other country assessments had been received by the Home Office, it was agreed that many would have to be redrafted, that human rights must be given prominence, and that draft reports ought to be given some sort of independent academic scrutiny, but this last does not seem to have happened yet. The revised versions of the country assessments, which appeared at the end of 1998, show some improvement on the earlier versions, and some Home Office staff began to seek professional advice about these documents. Others in the Home Office have been fiercely defensive when errors are pointed out, going to extraordinary lengths to defend what has been written, even when it is clearly misleading. Take the case of Patrick Wangamati, leader of a dissident Kenyan group who had lived for some time as a Convention refugee in Ghana. He returned to Kenya on 6 October 1997 prior to the Kenyan elections to be held later that year. He was arrested and 15. ‘Comments of the Medical Foundation for the Care of Victims of Torture on the Turkey Country Assessment Version .03 March 1999’, researched by Thomas Carroll, June 1999.

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interrogated on arrival and detained illegally until 3 December. His illegal detention, when he was held incommunicado, was the subject of an appeal for Urgent Action by Amnesty International. On his release he held a press conference and announced that the group he had led had been officially dissolved, that he had been interrogated but well-treated, and that he had now been pardoned by President Moi. One of his relatives expressed their gratitude to Amnesty for its intervention on his behalf. The Home Office country assessment of Kenya noted Wangamati’s return and the statement he had made on release, but omitted to say that he had been illegally detained and held incommunicado for two months on arrival. When challenged about this omission, CIPU argued that as the report said he had been interrogated, it was obvious that he must have been detained. A revised version of the country assessment of Kenya noted his detention but still omitted to say that this was illegal. The way in which a returning refugee is treated is of importance in assessing asylum applications of people from that country, and needs to be reported fully and correctly. The full facts about Wangamati might have made case-workers more cautious about returning to Kenya some opponents of the government. In March 1999, further revisions of the country assessments began to appear. A third version of the report on Turkey was published which, despite still downplaying the extent of discrimination against the Kurds, and not dealing satisfactorily with torture in Turkey, was a marked improvement on earlier versions. Reports on other countries, too, are improving as a result of consultation. If case workers are trained to use these improved country reports properly, together with supporting material on human rights to which the reports refer, then a better standard of initial decision-making ought to result, with a consequent reduction in appeals. There is some evidence, however, that they do not use them. Lawyers report winning appeal cases simply on the basis of the Home Office’s own country assessments which, had they been used, should have led to the person being recognised as a Convention refugee.16 Because of an enormous backlog of asylum applications, it is sometimes years before people hear whether they are granted asylum or not. The relief of hearing that one has been accepted and is safe is immense. The burden of fear and anxiety that is lifted is difficult for anyone who has not shared the experience to understand. 16. HO failure to use their own country assessments is discussed in Medical Foundation for the Care of Victims of Torture, Caught in the Middle: A Study of Tamil Torture Survivors Coming to the UK from Sri Lanka, London: 2000, 47–52, 77–8.

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Blaise, a refugee from French-speaking Africa, was so overcome by the good news that he had been recognised as a Convention refugee, that he was speechless and could only shout his delight when phoned by a friend who wanted to congratulate him. Not until the following day could he express himself coherently and thank those who had helped him. Another refugee, James, suffered horrific torture in Uganda in the 1970s, which has left him permanently scarred. He was brought to the UK by Amnesty International who also arranged medical treatment and counselling for him. Twenty-five years later, at a ceremony where the Home Office Minister with responsibility for refugees and immigration was present, he expressed in moving terms his gratitude to Britain for the security and help he had found. If there ever was a loyal UK citizen (for he now has citizenship), it is James and others like him. Being granted Exceptional Leave to Remain also brings great relief, but this is tempered by the fact that it does not bring all the privileges that Convention status does. ELR must be renewed at intervals before one can apply for it to be made permanent, with the worry that it might not be extended (though it usually is). There will be a wait of four years before family reunion can be applied for, and this is particularly hard. Wives sometimes simply cannot understand what has happened, and think their husbands are being unfaithful. Children may reach the age of eighteen, when they lose the right to join their parents. There is no immediate access to further and higher education grants. Nevertheless, the relief from personal anxiety is immense, and some people with ELR are able to appeal and upgrade their status to that of a Convention refugee. Many others receive refusal letters, and this is a shattering experience. Rejected asylum-seekers are sometimes so stunned that they do nothing for days, risking losing the opportunity of appealing: there are strict time limits on this, made even stricter by the 1999 legislation. Often refused asylum-seekers simply cannot understand why they have been refused. Their need for asylum seemed to them so self-evident that perhaps they failed to present their case as fully as they could have done. The best hope for ‘genuine’ asylum-seekers who find themselves in this position is a good lawyer who may be able to help them to win an appeal. Before 1989, asylum-seekers who were refused were not given written reasons for their rejection. As a result of a court case that year, the Home Office, to use the words of one of its officials, ‘modified their practices to accord with dicta expressed by the courts in the case of Thirukumar and Others as to what constitutes a fair and just

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manner for dealing with asylum applications’.17 In other words, the courts ordered the Home Office to provide refused asylum-seekers with written reasons for refusal so that they had a chance to explain themselves, even though many still had no in-country right of appeal against refusal.18 So pro forma letters were sent out giving the reasons why the Secretary of State was minded to refuse an application, with the reasons hand-written into a space in the middle. The reasons were sometimes difficult to make sense of, sometimes the space left was not large enough and extra sheets had to be added. Later a computerised format was introduced, and letters included standard paragraphs. In one respect a measure of computerisation improved refusal letters: they were typed throughout, correctly spelled, and free of most grammatical faults except, perhaps, where an official found difficulty in marrying the computerised paragraph to the rest of the letter or when no computerised paragraph fitted the particular case. The hand-written sections of the previous type of letter had not always inspired confidence in the competence of those who were making the decisions; computerisation may sometimes mask incompetence.19 Refusal letters sometimes invite appeal. They may, for instance, contain errors in law. Not infrequently, they state that there is no evidence that the person has been ‘singled out for persecution’. International refugee law, however, does not require that a person should be singled out for persecution, and English case law has made this plain.20 Refusal letters may rely on unsupported assertions or out of date evidence. Sometimes a caseworker has failed to check up with readily available country information and has made assertions that are simply wrong.21 Occasionally an asylum-seeker’s written submission has been misread or misunderstood. Dates may have been copied wrongly.22 An asylum-seeker who makes comparable mistakes will be penalised for them, particularly for discrepancies over dates. Asylum Aid noted the following in a refusal letter: 17. Letter from Kate Collins, Deputy Principal Immigration Officer, to Charter ’87 for Refugees, 14 August 1990. The case referred to is Secretary of State for the Home Department v. Thirukumar and Others (1989) Imm. AR 402. 18. Those who had entered the country legally had extensive rights of appeal; those who applied for asylum at a port of entry had no right of appeal before removal. 19. Asylum Aid, Still No Reason at All: Home Office Decisions on Asylum Claims, London 1999, 53 quotes a letter with the blanks in the computerised paragraph not filled in and another which reads: ‘Standard Para: Ahmadi 2’, and then fails to paste in the paragraph referred to. 20. Asylum Rights Campaign, ‘The Risks of Getting it Wrong’: The Asylum and Immigration Bill Session 1995/6 and the Determinations of Special Adjudicators, London, 1996, 48. 21. Refusal letter dated May 1996. 22. Refusal letter dated February 1994.

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You then stated that you remained at a friend’s house until 30 October 1995 when your parents telephoned to let you know that sentence had been passed on Ken Saro Wiwa … [The Secretary of State] is also aware that sentence was passed on Ken Saro Wiwa on 31 October 1995. [He] is of the opinion that these discrepancies must cast doubt on the credibility of your claim to be a MOSOP leader.

Asylum Aid pointed out that in fact some of Ken Saro Wiwa’s codefendants were sentenced on 30 October, and that such a minor discrepancy was inconsequential.23 Other refusal letters summarise the asylum-seeker’s story and then go on to print out all the information about the country in question which is held on computer, whether it is relevant to the case or not, with the applicant’s own story being barely touched on.24 A letter of refusal to a Kenyan asylum-seeker contained the following sentence: The Secretary of State is satisfied that no coherent government policy of persecution or harassment of a particular ethnic or social group exists in Kenya … Furthermore, he does not accept that individuals in Kenya are subject to persecution, harassment or victimisation due to their political opinion, ethnic background or for any other reason detailed under the 1951 United Nations Convention.

Apart from the misuse of the word ‘coherent’, the Home Office had recognised a number of Kenyans as Convention refugees and continues to do so.25 Mr Philippe Lavanchy, Representative in the UK of the UNHCR, called for improvements in the quality of Home Office decision-making in his farewell speech to the All Party Parliamentary Group on Refugees in 1997.26 Before asylum is granted, the Home Office considers whether the asylum-seeker could have fled to a safe part of their own country rather than fleeing abroad. If someone is being actively sought by a military regime, internal flight is not an option. In some parts of the 23. Asylum Aid, Still No Reason at All, 28. 24. Eg. Refusal letter dated January 1998. 25. Refusal letter dated 15 December 1997, quoted by the Medical Foundation for the Care of Victims of Torture; ‘Recent Medical Evidence of Torture in Kenya (with special reference to the Kenya Country Assessment prepared by the Home Office’s Country Information and Policy Unit)’, 1998, Introduction, 2. The Home Office frequently makes selective use of the U.S. Department of State country reports. The U.S. report on Kenya for 1997 makes a very different assessment from that made by the Home Office. 26. Speech given at the Annual General Meeting of the Group in the House of Commons, 17 July 1997.

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world internal flight is not possible for other reasons. In a country where most of the population earn their livelihoods by subsistence farming, people cannot live in a rural area unless they have access to land, and this can only be obtained through family ties with those already living there, or through land purchase. However, in large parts of sub-Saharan Africa, land held in freehold does not exist, so purchase is impossible. In many African countries each area has its own language, and a stranger is at a further disadvantage for this reason. The only alternative for someone who could not safely live in their own home area would be to live in one of the few large cities. In countries which are too poor to have any social security provision, a destitute person in a city might face unduly harsh conditions: a woman might quickly fall into prostitution as the only way of keeping herself from starving. Behind the assumption that a persecuted person may be able to flee and find security through internal flight there often lies a failure to understand how different much of the rest of the world is from the West. Often specialist knowledge of the customs of a country is required in order that a correct decision can be reached. The Home Office rejected as a forgery a letter that an African asylum-seeker said came from his father on the grounds that if it had indeed come from his father, personal names would have been used rather than kinship terms such as ‘your wife’, ‘your son’, but in African custom the use of kinship terms rather than personal names is perfectly normal.27 Discrepancies in the spelling of a name involving ‘l’ and ‘r’ have been used to discredit an asylum-seeker, yet in the African language concerned ‘l’ and ‘r’ are frequently interchanged, as they are in several other African languages, both in pronunciation and in writing.28 A Pakistani woman did not give details of rape and sexual abuse at her initial interview because she could not bring herself to reveal them in front of the interviewer and interpreter, both of whom were Muslim men. The Home Office refused her asylum application, arguing that her failure to mention the rape at her first interview meant that she was not a credible witness. On appeal, the Adjudicator agreed with the Home Office.29 British rape victims are dealt with by women police officers precisely because of the difficulty of talking about such an intimate and humiliating experience to men. Each of these cases was sorted out when an expert witness was called in by a lawyer. 27. Letter from the Asylum Directorate, 2 May 1997. 28. Home Office refusal letter dated October 1997. 29. Case cited in a Briefing Paper, ‘On why the U.K.’s asylum determination process needs gender guidelines’, May 1998.

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In 1995 Asylum Aid, a charity which advises asylum-seekers and provides some representation at appeals, issued a report entitled ‘No Reason at All’: Home Office Decisions on Asylum Claims, and a revised version, Still No Reason at All, was published in 1999. The introduction quoted Lord Bridge who had stated in the High Court that reasons for any administrative decision have to be ‘proper, intelligible and adequate. If the reasons given are unintelligible, this will be equivalent to giving no reason at all’ (emphasis added). The Asylum Aid reports argue that, in many cases, asylum-seekers were being refused for ‘no reason at all’, and they cite numerous examples of what they believe to be unintelligible decisions.30 The very fact that those seeking asylum were alive seemed to count against them: ‘You claim that you received death threats. However, the Secretary of State notes that these were not carried out and there is no proof that they came from official sources’.31 ‘If they had wanted to get you, why did they shoot you in the leg, and not the head?’32 Another ‘Catch 22’ concerned people’s ability to escape from their country: ‘The Secretary of State notes that you were able to pass through the airport unmolested, and depart using your own passport. He therefore considers that the authorities have no further interest in you.’33 Are we to understand from this that if someone succeeds in leaving their country, they do not need asylum? The same type of ‘Catch 22’ occurs when people claim that they have succeeded in escaping from or bribing their way out of prison: ‘The Secretary of State notes that you claim to have bribed your way out of prison/escaped from prison. However, he believes that had you done so, there would have been a hue and cry/a search would have been laid on by the authorities’, the assumption being that as a result of the hue and cry the escapee would either have been recaptured or prevented from leaving the country. There might well have been a hue and cry, but that does not mean that the escapee would necessarily have been caught either then or when they later tried to leave the country. In the period 1 June 1988 to 31 May 1997, 2,665 prisoners escaped from UK jails in spite of far more sophisticated security measures than in most of the countries from which asylumseekers come. At the end of that period, six of those who escaped had died whilst still at liberty and 154 remained unaccounted for in 30. The report was rejected out of hand by the Home Office, which continued to use much of the flawed argumentation. 31. Asylum Aid, ‘No Reason at All’: Home Office Decisions on Asylum Claims, London, April 1995, 13. Similar wording has occurred in many refusal letters. 32. Asylum Aid, Still No Reason at All, London, 37. 33. Asylum Aid, ‘No Reason at All’, 32–33.

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spite of intensive searches. Some are known to have fled abroad.34 But an asylum-seeker who succeeds in escaping is thereby considered to be in no need of protection, which is a nonsense in itself and makes a nonsense of the Convention. Other strange objections that occur in refusal letters include the following: ‘You claim that you paid a bribe of … to someone at the Ministry of the Interior in order to be issued with an exit visa. The Secretary of State does not consider that such a small amount of money constitutes a bribe.’35 It is difficult to know what this is meant to show: that the asylum applicant was more honest than he claimed to be because he had not actually offered a bribe, although he said he had done so, or that he was dishonest for claiming to have offered a bribe when the sum was so small that it did not count as one. What it may demonstrate is that the Home Office did not fully appreciate the depressed state of the economy in the country in question where the cost of a few meals was sufficient to buy an exit visa. A further formula runs as follows: ‘[The Secretary of State considers that it is] unlikely that your friend … could make the arrangements for your departure from Zaire without receiving any payment, whether out of sympathy or bribery [sic].’36 A variant read: ‘The Secretary of State … was not prepared to accept your assertion that members of a church who were complete strangers to you would have been prepared to take the potentially considerable risk of harbouring and arranging/supervising your passage … to the United Kingdom.’37 The response of the missionary society in question was to ask, ‘Does the Home Office not understand the vocation of a missionary priest, or the state of the country concerned?’ Fortunately for humanity, many people, not only missionary priests, are sometimes willing to act as Good Samaritans and help strangers who are in danger.38 A particularly worrying issue concerns evidence of torture. Torture, especially in its more sophisticated forms, may leave no physical scars. Sometimes, however, an examining doctor is able to note scarring that is consistent with the victim’s claims to have suffered particular forms of torture. The scarring cannot prove that the injuries are the result of torture (although it may be very suggestive); how34. Information from Prison Service Headquarters. 35. Quoted from a refusal letter to a Sudanese asylum-seeker. 36. Asylum Aid, ‘No Reason at All’, 1995, 12. Cf. St Luke 9: 29–37, the parable of the Good Samaritan. 37. Refusal letter dated May 1996. 38. Cf. The Tablet, 26 March 1998: ‘A Jakarta court has decided to release an Indonesian Catholic priest and his brother, both charged with harbouring political fugitives, on the grounds that his vocation as a priest obliged him to help people in need.’

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ever, it does not have to do so: conclusive proof is specifically not required in asylum cases. Yet we find the following in a refusal letter: ‘[The Secretary of State has] considered the medical … report … submitted in support of your claim, but he does not consider that this provides conclusive evidence that you were tortured’ (emphasis added).39 Sometimes it is quite clear that the scarring noted by a doctor cannot be self-inflicted and must be the result of deliberate assault, that it is ‘non-accidental injury’, and the Home Office may accept that this is so, but still refuse to accept that it is the result of torture. In a not untypical case it was accepted that: the scarring on your back shows evidence of injury, but the Secretary of State is of the opinion that this does not show the cause or reasons. Therefore he is not prepared to accept the medical report as evidence to the fact you were arrested, detained and beaten as you have claimed, nor does he believe that this is covered by the 1951 United Nations Convention [sic].’40

The Medical Foundation for the Care of Victims of Torture analysed thirty-one refusal letters sent to a sample of their Kurdish clients.41 Twenty-three of those were known to have told the Home Office, either in written statements or in interviews, that they had been tortured, but only three refusal letters even mentioned the claims of torture. In only one letter was the issue of torture substantively addressed, yet the Asylum Directorate instructions, Chapter 11, Section 1, say that refusal letters must be comprehensive and address all relevant matters. The Medical Foundation point out that there is a huge volume of evidence on human rights abuse in Turkey from governments, from the UN Committee for the Prevention of Torture, and from human rights organisations. The EU is reluctant to admit Turkey to membership in part because of its human rights record; however, no attention was paid to claims of torture in these people’s statements. In June 2000, a study of Sri Lankan torture survivors showed that they had been treated in much the same way.42 During the debate on the Immigration and Asylum Appeals Bill in 1996, Liberal Democrat MP David Alton raised the case of a man 39. Asylum Aid, ‘No Reason at All’, 1995, 5. 40. Asylum Aid, ‘No Reason at All’, 1995, 6. Torture most certainly is covered by Article 3 of the European Convention on Human Rights. There is great concern among the refugee organisations about the inadequate level of protection given by the U.K. to those who are in danger of torture if returned to their countries of origin. 41. See Medical Foundation, Staying Alive by Accident: Torture Survivors from Turkey in the U.K., London, 1999, Section 8. 42. Medical Foundation, Caught in the Middle, passim.

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who was so badly scarred when he arrived at Gatwick Airport that the Port Medical Officer was called. The injuries were photographed and the pictures sent to the Home Office. The man had arrived in Britain to make a second attempt to find asylum after being refused and returned earlier. In spite of the evidence of torture, he was again refused asylum. The refusal letter said: ‘Taking into account your appalling lack of credibility the Secretary of State considers that … these wounds were inflicted at your request in an attempt to strengthen your claim.’43 This letter could only have been written from within the context of a well-established, officially sanctioned culture of disbelief. Ann Widdecombe, then the Minister with responsibility for refugees, admitted to David (now Lord) Alton that this letter should never have been written. Eventually, nearly two years later, after special interventions had been made, the Home Office admitted that the medical evidence was ‘irrefutable’, though they continued to disbelieve the asylum-seeker’s account of how these injuries had been sustained. They did, however, grant him exceptional leave to remain.44 In non-asylum cases before the courts and before other kinds of tribunals involving medical evidence, both sides will usually call medical experts of equal standing. In asylum cases the Home Office virtually never calls its own medical opinion. The assessments made by doctors who work with the Medical Foundation for the Care of Victims of Torture, and who have years of experience in diagnosing torture cases and so have acquired great expertise, are sometimes queried by civil servants with no medical knowledge at all. They may describe the Medical Foundation’s evidence as ‘not persuasive’, though why it is not persuasive is not always spelled out. At other times, torture is simply not taken seriously. A Turkish woman fled to the UK after arrest and torture because of her membership of two banned political organisations. She had been sexually abused and given electric shocks through electrodes attached to her breasts. The Home Office refused her asylum application, arguing that ‘although Turkish authorities have a tendency to roughly handle people, it is not directed at anyone in particular … it is their style’.45 Complaints have been made by refugee organisations to the UN Committee 43. Hansard, 21 February 1996, 411–2. 44. Letter from Alan Underwood, Director of Casework in the Asylum Division dated 13 January 1998. Both the Medical Foundation for the Care of Victims of Torture and Charter ’87 for Refugees mentioned this case in their submissions to the United Nations Committee Against Torture in early 1998. 45. Case cited in a Briefing Paper, ‘On why the U.K.’s asylum determination process needs gender guidelines’, May 1998.

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Against Torture (UNCAT) about the UK’s failure to provide adequate protection for torture victims or to take allegations of torture sufficiently seriously.46 Individuals in the UK cannot take their cases direct to UNCAT because the UK has not signed the protocol that would allow them to do so. Refugee organisations all agree that the climate of disbelief referred to above exists in the Home Office, and that since 1993, those who scrutinise applications seem to have done little more than try to find inconsistencies so that the claims could be rejected. It is believed that under the Conservative governments of 1989 to 1997, instructions were given progressively to reduce the number of applicants recognised as refugees. Scrutiny of refusal letters supports this contention. The examples given throughout this section are not exceptional: they are chosen because they are typical. An earlier draft of Asylum Aid’s Still No Reason at All was shown to the Immigration Minister, Mike O’Brien, but he would not accept that the quality of decision-making by the Home Office is poor, and once again supported this assertion by pointing to the small number of cases that are won on appeal. This line of argument does not hold up. In the vast majority of appeals the appellant is unrepresented, and hardly any unrepresented appeals are successful. When asylumseekers are competently represented by the Refugee Legal Centre, Asylum Aid or a good solicitor, then around a quarter are successful. It is against appeals where the appellant is competently represented that initial decision-making needs to be measured. As a result of the targets set by the 1999 legislation to make all initial decisions within two months, and completing the appeals process within six months, the Home Office is to employ a large number of new staff to process asylum applications. Refugee agencies fear a further reduction in the quality of initial decision-making, and an even longer backlog of appeal cases. In 1998, a study carried out by the MaST Consultancy Service demonstrated the existence of racism in the Home Office.47 The report dealt with racism shown towards Black and Asian staff within the Home Office, although it did not suggest to this writer that the level of racism was much greater than was likely in some other large organisations in which no steps had been taken to reduce it. However, racism among Home Office staff cannot but spill over into 46. Charter ’87 for Refugees, October, 6 February 1998; Medical Foundation for the Care of Victims of Torture, February 1998. 47. Guardian, 24 August 1998. A copy of the report was supplied to the author by the Home Office.

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their dealings with Black and Asian immigrants and asylum-seekers, as indeed was pointed out to the researchers by some Home Office staff interviewed.48 Racism in this context may have disastrous results if it leads to asylum-seekers being wrongly disbelieved. As a result of the judicial enquiry into the murder of Stephen Lawrence, which was critical of the failure of the Metropolitan Police to bring his murderers to book and found institutional racism in the police, all public services, not only the police, were brought under the Race Relations Act, though the Immigration Service succeeded in obtaining a partial exemption, and the government plans to strengthen that Act further. Whilst most asylum-seekers are far too vulnerable to bring charges under the Act, its extension to the Immigration Service should eventually have some effect, as staff undergo race awareness training. A wider, cultural racism and prejudice against foreigners in general may be as important as racism based on colour alone. Welcome changes began to be noticed in Home Office decisionmaking in 1998. From recognising a mere 4 percent of asylum-seekers as Convention refugees in 1997, the rate began to creep up as caseworkers were apparently told to be more attentive to human rights: the New Labour government was planning to incorporate the European Convention on Human Rights into British law. In the months January to July 16,540 decisions were made. The Home Office recognised 3,275 people (20 per cent) as Convention refugees and a further 2,360 (14 per cent) were given ELR. The remaining 10,905 (66 per cent) were refused.49 Of the substantive decisions made in January to April 1999, 22 per cent were to grant refugee status, and in a further 24 per cent of cases, exceptional leave to remain was given50. Apparently, case workers had been reminded of the lower standard of proof required in asylum cases, and had been instructed to consider human rights issues. No legislation was required to effect this change. It simply required a change of direction from seeking to rule people out to beginning to consider who needed to be ruled in. However, most lawyers and refugee agencies believe that there is still a long way to go in regard to this. In the second quarter of 2000, the Home Office called in a team of six barristers to assess refusal letters. They noted that often far too much was made of very minor discrepancies in asylum-seekers’ stories. For instance, pointless 48. MaST Consultancy Services for the Home Office Personnel Policy Unit, Report on the Provision of Facilitation for Focus Groups of Ethnic Minority Staff in the Home Office, London, March 1998, 21. 49. Refugee Council, iNexile, September 1998, 3, based on Home Office figures. 50. Refugee Council, iNexile, June 1999, 3, based on Home Office figures.

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conclusions drawn from people’s failure to apply for asylum in countries through which they had passed en route to the UK,51 or failure to apply immediately on arrival. They also highlighted the practice of printing out irrelevant general paragraphs of computerised information without dealing with what was specific to the claim. Appeal hearings will be discussed in the next chapter, but it should be noted here that in the first half of 2000, Home Office statistics on the results of appeal hearings show that that about one in five of the Home Office’s initial decisions are found by Adjudicators to be wrong, a frighteningly poor result for life and death decisions. This does not take account of an unknown number of cases where the Home Office concedes before they go to appeal. Better country assessments may have the effect of raising the proportion of asylumseekers who are recognised as being in need of protection higher still – if the caseworkers can be trained to use them properly. If there is any area in which improvement is needed, it is in the making of these all-important initial decisions.

51. Medical Foundation, Caught in the Middle, 57–8, where a number of the countries through which people had passed and where the HO said they should have sought asylum were not even signatories to the Convention, and were, therefore, unlikely to be ‘safe’ countries.

4 A Right of Appeal

t the end of Chapter 3 the importance of appeals against refusal of asylum was noted, but the right of all rejected asylum-seekers to remain in the UK whilst an appeal was heard was not won easily. The saga of the Tamil asylum-seekers might have turned out very differently had they had the right to remain in the UK whilst appealing against the decision to refuse them asylum. Until 1992 the government remained steadfastly opposed to extending to those who applied for asylum at a port of entry full rights of appeal, with the right to remain in the country while their appeals were being heard. In the 1960s and 1970s, when the number of unplanned refugee arrivals was low, assessing their claims was not too onerous, and many people who did not meet the 1951 Convention criteria, but who still needed protection, were given exceptional leave to remain. Even so, the refugee organisations believed that wrong decisions were sometimes made, and that some people were returned to further persecution. As the number of people seeking asylum rose, and they arrived from situations that were more varied and more difficult to assess, an increasing number of the refusals of asylum became contentious. All the refugee agencies could do, in the absence of an in-country right of appeal for all, was either to make representations to Home Office officials, or, in the last resort, seek to take a case to the European Court of Human Rights, a procedure which could take years. By 1987, a full right of appeal for all rejected asylum-seekers topped the refugee agencies’ agenda. The UNHCR had long recognised the need for full appeal rights for asylum-seekers:

A

– 65 –

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If the applicant is not recognised, he should be given a reasonable time to appeal for a formal reconsideration of the decision ... The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority [and] should be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending.1

They were supported by the Law Society, which issued a briefing paper on refugee procedures on 11 August 1988. This stated: ‘All asylum-seekers whose applications are refused should have the opportunity of appeal prior to removal from the United Kingdom. This should be notwithstanding any irregularity in their arrival at or entry into this country. The time for any such appeal should not run until notice has actually been served on the individual.’ Section III of Charter ’87 for Refugees, launched in November of that year to campaign for the human rights of refugees and asylum-seekers in the UK, made the same demand. Amnesty International, in its 1990 publication, United Kingdom: Deficient Policy and Practice for the Protection of Asylum-seekers, repeated this demand, adducing the case of the five Tamils as evidence of the dangers faced by asylum-seekers whose applications were wrongly rejected. The British Refugee Council, which acted as a clearing house on refugee issues, stated that admission procedures ‘must include the right of appeal to an independent tribunal’, and reiterated this demand repeatedly. In 1992 a Bill came before Parliament which at last contained a limited right of appeal, not because of any campaigning by Amnesty International or other refugee organisations, but for quite other reasons. One of these was that the number of judicial reviews in asylum cases had grown so large that it was becoming an embarrassment. In the four years 1987 to 1990, 32 per cent of the 6,467 applications to the High Court for leave to move for judicial review were immigration related.2 It was believed that judges would be far less ready to grant leave for judicial review if there were an appeals mechanism.3,4 1. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, 192. 2. Richard Dunstan, ‘Machiavellian Implementation: the Failure of the Asylum and Immigration Appeals Act 1993’, (MA diss., Queen Mary and Westfield College, University of London, 1998), 3–4. 3. Chris Randall, ‘An Asylum Policy for the UK’, in Strangers and Citizens, A Positive Approach to Migrants and Refugees, ed. Sarah Spencer, London, 1994, 221–2. 4. Dunstan, ‘Machiavellian Implementation’, 5, quotes the then Minister, Peter Lloyd, as saying that the lack of a right of appeal meant that ‘the judges would nitpick about process’ and ‘find a reason for getting [the Home Office] to think again’ because ‘they didn’t want to wake up six months later to find [that] somebody they had supported the Home Office in removing had been executed’.

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A second reason for the government’s decision to introduce an incountry right of appeal was that they had been advised that the UK would be likely to lose in the European Court of Human Rights when the Tamil case was finally heard.5 It had been argued before the Court that the Tamils’ human rights had been violated because the lack of appeal meant that they had no effective remedy against violation of their rights as is required by Article 13 of the European Convention.6 The Commission had, by a large majority, found the case admissible, but the Court made the surprise ruling that judicial review provided an effective remedy, although it can only rule on whether or not procedures have been correctly followed, and not on the merits of the case itself. By then plans to introduce a right of appeal were far advanced and the government decided to go ahead with them. The advantage of doing so, from their point of view, was that the final responsibility for decisions would now rest with the Immigration Appellate Authority (IAA), and there would be less hassle and odium for the Home Office over rejected cases. In the event the appeals procedure outlined in the 1991 Bill did not offer full appeal rights for all refused asylum-seekers, although Parliament had been promised that it would do so. It offered only the right to apply for an appeal hearing, and the time schedules were so tight as to make nonsense of even this. Under the provisions of this Bill, application for leave to appeal would have to be made not later than two days after refusal of asylum had been notified, and an asylum-seeker would be deemed to have received the notice of refusal the day after it had been posted. Quite apart from the vagaries of the first class post, this left a refused asylum-seeker with no time to seek advice or get translations made. The time limits for a decision to be reached by an Adjudicator were equally unrealistic and unworkable. The tightness of the schedules drew a protest from the Cardinal Archbishop of Westminster and the Archbishop of Canterbury, and the time limits were extended somewhat as a result of these and other protests.7 The bill also proposed removing the extensive appeal rights that in-country asylum-seekers had possessed up to this point. All asylum-seekers who had been refused would now share the very limited new rights set out in the Bill. What was gained on the roundabouts – less than had been hoped for – was 5. Randall, ‘An Asylum Policy’, 221. 6. Article 13 states that: ‘everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity’. 7. The Times, 12 November 1991.

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comprehensively lost on the swings. However, this Bill was lost because time ran out before a general election, and so need not be discussed further. A newly drafted Bill was introduced in 1992. This did at last offer full appeal rights for all failed asylum-seekers, but the time schedules were still very tight, and promises that procedures would be expedited by the new legislation were soon disappointed.8 The refugee organisations had impressed on the government that unless there were an amnesty for a large number of outstanding applications, the new system would simply become logjammed. Although the Home Office rejected any suggestion of an amnesty, it emerged long afterwards that they did, in fact, operate one: some 15,000 applicants who had been in the country for more than five years without an initial decision being reached were given exceptional leave to remain.9 Virtually everyone who was refused now appealed, so that as well as the backlog of undecided cases, there was soon a long waiting list for appeal hearings. Once an appeals procedure had been established, there was a steady build-up of facilities, and hearing centres were established in central London; at Hatton Cross near Heathrow, at Gravesend, and at a variety of centres outside London, although the majority of appeals have remained in London. Unlike the situation in Employment Tribunals, where a legally qualified chairperson sits with two lay members, Adjudicators sit alone. This leaves Special Adjudicators (SAs) – those able to hear asylum cases as well as general immigration cases – with the frightening responsibility of making life and death decisions entirely on their own. They are somewhat distanced from the immediacy of this by procedural rules, legal precedents and the legal gamesmanship which has developed. This legislation also gives an appellant the possibility of further appeal to the threeperson Immigration Appeals Tribunal (IAT) on points of law. Occasionally solicitors acting for people who lose an appeal before the IAT have applied successfully for judicial review, which has resulted in a rehearing of the case with criteria laid down by the Courts in consequence. Judicial reviews have not entirely disappeared in spite of the introduction of an appeals system. The Lord Chancellor’s Office took over the appointment of SAs from the Home Office, and His Honour Judge David Pearl was 8. Dunstan, ‘Machiavellian Implementation’, 12. The Chief Adjudicator and his deputy informed the Home Office that if appellants had to apply for leave to appeal, they anticipated allowing 80 per cent of such applications, which would have made a nonsense of the procedure. This may have been a decisive factor for the decision of the Home Office to allow a right of appeal to all. 9. Guardian, 12 May 1998, referenced to Hansard, 30 March 1998.

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appointed Chief Adjudicator, with the experienced Geoffrey Care as his deputy. Adjudicators who handle immigration and asylum appeals must be either barristers or solicitors of seven years standing, and their appointments may be either part- or full-time. In 1994, KPMG Peat Marwick, called in to report to the Lord Chancellor on the functioning of the IAT, recommended ‘more training courses and seminars for SAs, and more effective dissemination of information and good practice’.10 In 1998, they were given only two days’ initial training at a residential course, with an extra two days for those who will hear asylum cases. There is one further training day per year, and a two-day residential conference is held every two years.11 In 1998, the Deputy Chief Adjudicator had to explain that training by the Medical Foundation for the Care of Victims of Torture could no longer be afforded. Not all refused asylum applicants have full appeal rights. First, those who can be returned to ‘safe’ third countries could, until 1996, appeal against removal to countries certified as safe, and a significant proportion won their appeals. The result of removing the right of appeal in such cases was an increase in applications for judicial review of decisions to remove. In 1999, the possibility of judicial review was to have been removed by an amendment made to the Asylum and Immigration Bill at its Third Reading for those who had passed through other EU countries. However, on 23 July 1999 the Appeal Court ruled that three such removals could not take place. France and Germany would not entertain claims from those persecuted by non-state agents, even when the government was unwilling or unable to protect them. Thus, they were not ‘safe’ countries for the three asylum-seekers who had appealed to the Court of Appeal.12 Secondly, the 1996 legislation introduced a ‘White List’ of countries from which many people sought asylum but in which it was assumed that the risk of persecution was negligible. In 1997, the Labour Government announced that the White List would no longer operate, but this made little real difference. Asylum-seekers from most Eastern European countries, as well as India and Pakistan, were already being fast-tracked through accelerated procedures. Fast-track appeals have to be lodged within two working days, which makes it extremely difficult to lodge an effective appeal. If these asylum-seek10. KPMG Peat Marwick, Review of Asylum Appeals Procedure, Final Report, 15 December 1994, 4. 11. Hansard, Lords, Written Answers, 16 December 1998. 12. The Times, Law Report, 28 July 1999. Regina v. Secretary of State for the Home Department ex parte Adan; R. v. Same, ex parte Subaskaran; R. v. Same ex parte Aitseguer, judgement given 23 July 1999.

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ers lose their appeals, they have no recourse to the Tribunal. The Labour government said it would abolish the White List on coming to power, but in fact continues to operate it, and increasing numbers of asylum-seekers are being fast-tracked. Thirdly, those whose asylum claims are certified as being ‘manifestly unfounded’, those from countries considered ‘safe’, share with those from White List countries these more limited rights. Adjudicators have not always upheld the ‘manifestly unfounded’ certificates, and then the applications have to be dealt with substantively. These limitations on appeal rights are potentially serious: fast-tracking may mean that people who need protection from persecution are too easily refused asylum without their claim ever being fully considered. Decisions are being made, not on an individual basis, but on consideration of the place from which the asylum-seeker comes.13 In March 2000, a new reception/detention centre was opened in the disused Oakington barracks near Cambridge where manifestly unfounded cases are being fast-tracked, with an initial decision being given in seven days. Those who appeal against refusal are then either redetained elsewhere or dispersed while awaiting appeals, which are heard within a few weeks.14 A small but significant number of these have been recognised as needing protection. When a case is heard, a Home Office Presenting Officer (HOPO) presents the Secretary of State’s reasons for refusing asylum as spelled out in the refusal letter, and the appellant has a right to be present and to be heard, though not all take advantage of this.15 The appeal is their opportunity to respond to the reasons for refusal. A good representative will have got the appellant to prepare a witness statement beforehand on which the response can be based. Oral questioning may clarify matters further. KPMG Peat Marwick found that the HOPOs were usually thought to do their job well, although the use of executive grade staff posed problems because of the lengthy training they needed. They could not be expected to master material swiftly in the way that lawyers are trained to do. KPMG wondered if the Home Office might not be well advised to arrange for barristers’ chambers to take on some of the work. A researcher for the Asylum Rights Campaign noted that problems arose when HOPOs disobeyed their instructions and did not 13. Rachel Trost and Peter Billings, ‘The Designation of “Safe” Countries and Individual Assessment of Asylum Claims’, in Current Issues of UK Asylum Law and Policy, ed. Frances Nicholson and Patrick Twomey, 1998, 73–99. 14. Guardian, 22 October 1999; Cambridge Evening News, 21 March 2000. 15. Max Travers, The British Immigration Courts: A Study of Law and Politics, Bristol: The Policy Press, 1999, 99–129.

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stick to explaining the reasons for refusal set out in the refusal letter but instead raised further reasons for refusing asylum. Whilst some SAs rightly disallowed this, others accepted it, and joined in a cross examination of the appellant on grounds other than those identified by the Home Office in the refusal letter.16 Asylum Aid has campaigned for years to get this matter satisfactorily resolved, but to little avail.17 Appellants have the right to be represented by a barrister, solicitor or, in some cases, a member of an advice organisation. Although most appellants have received some legal advice en route to the appeal hearing, many are unrepresented on the hearing date, yet the burden of proof is on them to show that they need protection. They may be unrepresented for one of several reasons. Until recently there was no legal aid for representation and the appellant may be unable to pay, and have been unable to find anyone able to provide free representation (the Refugee Legal Centre and the Immigration Advisory Service are both swamped with applications for help). Alternatively, a solicitor may have failed to arrange representation, or a legal representative might not turn up in spite of undertaking to do so. There is great concern among SAs about those legal advisers who give poor service and let their clients down. Many appellants are represented free of charge by the Refugee Legal Centre (RLC) which is funded mainly by the Home Office but also has some token funding from the UNHCR to help overcome the suspicion, found among some asylum-seekers, that an organisation which is government-funded cannot be trusted to represent them fairly. The Immigration Advisory Service (IAS), also government-funded, is a further source of free representation and maintains a presence in most hearing centres in order to pick up unrepresented cases at the last minute. This latter is of some help in otherwise unrepresented cases but, because it has to be done at the last minute, there is no possibility of research and preparation unless a case can be adjourned. The charity Asylum Aid takes on a few cases and provides excellent, quality representation. A number of solicitors, many of them based in London, also provide high quality legal advice and managed to arrange representation in spite of the lack of legal aid. Overall, however, there is a severe shortage of good legal advice on asylum and immigration (it is not a field of law in which fortunes are to be made). Because of this, sharks have moved in, offering 16. Alison Harvey, “The Risks of Getting it Wrong”, The Asylum and Immigration Bill Sessions 1995/6 and the Determination of Special Adjudicators, (for the Asylum Rights Campaign), 1996, 47–48. 17. Asylum Aid, Still No Reason at All, 70.

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incorrect advice and charging exorbitant fees. At the same time they claim green form legal aid which covers the cost of a short period of legal advice, but not representation. They often fail to do the work adequately and do not turn up to appeal hearings. The problem has become so pronounced that the IAA has taken steps to bar some from representing clients. In 1994, KPMG Peat Marwick recommended setting up a list of accredited representatives, and this was finally acted on in January 1998 when the Lord Chancellor’s Department published a consultation document entitled Control of Unscrupulous Immigration Advisors. As a result of measures brought in following the consultation that followed, those advising refugees now have to be franchised. This move was welcomed by the refugee organisations, which had pressed for the regulation of advisors for a long time. Appellants do not learn the result of their appeals immediately. A written determination should follow within ten working days, but this timetable quickly proved unworkable, and by 1998 appellants were regularly waiting up to four months to hear whether or not they had been successful. The determination usually includes three elements. First, an outline of the Home Office’s reasons for refusing asylum is given, and the HOPO’s remarks in support of this are summarised. Secondly, there comes the appellant’s side of the story. The appellant’s response is recorded either as presented by their representative (should they have been fortunate enough to have one) or in their own oral evidence as well as, possibly, a written statement. Finally, the SA will set out their reasons for dismissing or allowing the appeal. This section will normally include an assessment of the appellant’s credibility. Quite frequently there will also be a fourth section at the beginning of the determination in which the SA instructs him or herself, sometimes at length, about the law to be applied; for instance that a lower standard of proof is required in asylum cases than would be required in a civil case. The Deputy Chief Adjudicator, Mr Jim Latter, told the Refugee Legal Group that he thought many determinations were both too long, reciting what everyone had said, and too defensive.18 One wonders why the Home Office refusal letter, and the appellant’s written witness statement where one exists, are not simply photocopied and clipped to the Adjudicator’s determination rather than being copied out at length. In order to meet the statutory time requirements, the ‘Megalist’ has been introduced. Adjudicators take lists of thirty to forty cases each day, an impossible total. Where appellants are properly represented, requests for adjournment will be filed and dates fixed for 18. Minutes of the Refugee Legal Group, 4 August 1998.

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future hearings. With unrepresented appellants, this does not happen. If they turn up, no interpreter is provided, and no assistance given, so they will be likely to lose the appeal. Many fail to turn up. They may not have received notice of the hearing because they have no fixed address; they may speak no English and so not have understood the notice to attend; they may be destitute and unable to attend. Because Megalist cases are listed as full hearings, such appellants may find they have lost their right to appeal, and that this may be very difficult to reinstate.19 Within a year of the IAA being established, delays had already built up to the point where the Home Office initiated an enquiry into difficulties experienced in operating the Asylum Appeals (Procedure) Rules of 1993.20 An appeal was expected to be determined within forty-two days, and a written determination issued within ten working days. Already by December 1994 the time SAs were taking to issue written determinations ranged from 18 to 175 days, with a mean time of 66 days;21 these times have lengthened since. The process is subject to further delays because of adjournments requested both by the appellants and by the Home Office. KPMG Peat Marwick made a whole raft of suggestions, pointing out that it did not help to impose unrealistic time limits. They concluded that more radical solutions might have to be sought, such as removing the right to an oral hearing in certain types of cases, publishing a ‘White List’ of countries ‘deemed not to put asylum-seekers at risk [sic]’ and increasing the number of countries from which travellers would need visas to enter the UK.22 The Conservative Government introduced the White List soon afterwards. The vast majority of appeals heard by SAs are rejected. In 1994, KPMG found that 80 per cent of a sample of 214 cases were dismissed, and only 3 per cent were successful. Of the rest, 5 per cent were withdrawn, 3 per cent were still undecided at the time of the report’s completion, and the remainder were referred back to the Secretary of State.24 The situation had changed to a degree by 1999 when 11 per cent of appeals were upheld. When leave was given to 19. Refugee Legal Centre, Reviewing the asylum Determination Procedure: A Casework Study. Part One: Initial Decision Making, 1997, 90–91. 20. This was the KPMG Peat Marwick enquiry. 21. KPMG, ‘Review of Asylum Appeals’, 14. 22. Ibid., 6, 44. 23. This was in line with EU asylum policy, see Chapter 8. 24. These were appeals which were certified by the Secretary of State as not deserving a full, substantive consideration for a variety of reasons, but which SAs referred back as warranting full, substantive consideration.

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appeal to the Tribunal, 55 per cent of cases were remitted to Adjudicators to be reheard.25 The Home Office regularly expresses satisfaction with the way the appeals system is working and sees no need for appellants to be represented. Whenever criticisms are voiced about the quality of initial decision-making, reference is made to the fact that almost all of those who appeal against refusal of asylum lose their cases. ‘Only 4 per cent of those claiming asylum are deemed by the Home Office to be genuine refugees and just 4 per cent of appeals are upheld by independent SAs’, was the stock answer for years, although, as we have seen, that percentage has now risen.26 The UNHCR describes this as a circular argument, based on the assumption that the procedures are reliable and effective.27 In 1998 the Refugee Legal Centre won some 24 per cent of their cases, insisting that they did not ‘cherry-pick’ cases, but took them on a first come, first served basis. Their success rate has risen since then. In spite of SAs having a duty to assist unrepresented appellants in putting their cases, those who are unrepresented appear to be seriously disadvantaged. In June 2000, the Home Office announced on their website that Adjudicators were increasingly upholding Home Office initial decisions. In January, only 78 per cent had been upheld; by June this had risen to 82 per cent. This rise is very small however, and if you turn the figures around, they suggest that one in five of these initial decisions was wrong. The cases of some who are refused on appeal are then taken up by solicitors who apply for leave to appeal to the IAT. If further evidence becomes known, and is submitted to the Home Office, the Home Office itself may withdraw a case from the appeals procedure and grant asylum. Very occasionally, further representations made to the Home Office after every other avenue of appeal has been lost and deportation is pending, have succeeded, and the asylum-seeker has been recognised as deserving of Convention status. It is not clear where such cases appear in the statistics. There is, therefore, reason to question whether the appeals procedure works as well as it should. A study for the Refugee Legal Centre, ‘The Risks of Getting it Wrong’, examined the determinations of SAs. A sophisticated statistical method was devised for the study, which was carried out by Alison Harvey, a barrister who is an expert in asylum law. She received specialist help with statistical analysis. 25. Asylum Aid, Still No Reason at All, 68. 26. Home Secretary Michael Howard, Hansard, 11 December 1995, column 699. 27. Quoted in Alison Harvey, ‘Researching “The Risks of Getting it Wrong”’, in Current Issues, Eds. Nicholson and Twomey, 177.

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This study found some worrying discrepancies. For instance, different SAs might reach very different conclusions about the general safety of certain countries, so that the success of an appeal might depend on which SA heard it. The report noted that SAs differed among themselves on the interpretation of the 1951 Convention; that findings on the crucial issue of credibility needed particular monitoring; and that some SAs disbelieved everything an appellant said if they found just one statement to be untrue, in spite of the UNHCR guidance on this matter. This last was of particular importance, and the report identified by code, not by name, a small number of SAs who seemed particularly prone to disbelieve appellants.28 This report also found that women were more likely to be believed than men were and that they won more appeals. It found that witnesses were not always believed: members of the appellant’s family and his or her friends had only a 50 per cent chance of being believed; other witnesses from the appellant’s country were much more likely to be believed than relatives and friends; and experts and UK citizens were always believed. Hearings before the IAT, successful applications for judicial review, and subsequent High Court and Court of Appeal judgements, showed up other substantial weaknesses where SAs, and even the IAT, had erred in law. Appeals to the IAT on points of law would only be made, of course, where a conscientious lawyer checked the determination carefully. If such errors were made in unrepresented cases or in cases where the lawyer was not sufficiently vigilant, they would go unnoticed. If no expert witness was called, an SA or the IAT might be misled on matters of fact. As we have seen, refusal letters may state that appellants do not qualify for asylum because they have not been ‘singled out’ for persecution.29 The UNHCR has constantly pointed out that an asylumseeker does not need to be singled out, and UK case law, binding on SAs, supports the UNHCR. One SA, faced with a HOPO who attempted to rely on the assertion in the refusal letter that the appellant had not been singled out, replied, ‘With respect, that is not the test I have to adopt’, but other SAs have failed to object to this criterion being used to refuse someone asylum.30 All this underlines the need for more training both for HOPOs and for SAs, as KPMG had suggested earlier. 28. Ibid., 34, Table Ten. 29. The Home Office continues to allege that asylum-seekers are not genuine because they have not been singled out. See, for example, refusal letter dated 6 August 1998. 30. ARC, “The Risks of Getting it Wrong”, 49.

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Other weaknesses picked up by KPMG had not been dealt with, among them the continuing tendency of HOPOs to introduce new objections to the granting of asylum instead of sticking to the reasons given in the refusal letter as they are instructed to do. At the time of writing, this remains as much of a problem as ever. The Refugee Legal Centre report gave examples of good practice, and suggested that a good practice guide was needed. In mid 1998 the Lord Chancellor’s Department issued a consultation document entitled Review of Appeals. This identified delay as the overriding matter of concern. It also identified other failings, in particular, that decisions were inconsistent, that they were too frequently overturned by the Courts above, and that there were too many remittals from the Tribunal to the Adjudicator. ‘A major problem with judicial review is the incidence of cases in which leave to move is sought following a refusal by the Immigration Appeal Tribunal to grant leave to appeal to itself following dismissal of an appeal by an Adjudicator.’31 As has been noted, important information about a case may not emerge until after the whole appeals process has been exhausted and someone is about to be removed. This occurred in 1998 in the case of a refugee from an African country who was being held in Rochester Prison pending removal. He was a client of the Medical Foundation for the Care of Victims of Torture. The SA had brushed aside his allegations of torture, perhaps because she did not understand his story correctly, and was therefore inclined to disbelieve everything he said: ‘Furthermore even if the appellant’s story were to be accepted he was only detained for 3 hours on the first occasion and for 48 on the second occasion [this is incorrect: he was held on more occasions, including three days in an unfurnished and flooded cell]. On both occasions he was released without further problems [this too is incorrect: he also received serious threats]. I note the appellant’s evidence that he was beaten whilst in detention. Such treatment is not of course to be condoned but the fact nevertheless remains that he was released and there is no evidence before me of any lasting harm having occurred to him’ (emphasis added).32

Medical evidence concerning the long-term trauma he was suffering from was given to the Home Office and on 2 February, further evidence was submitted on the political culture of his country, which 31. Lord Chancellor’s Department, Review of Appeals: A Consultation Paper, July 1998, 3, 7. 32. Adjudication of case heard 19 December 1995, issued 14 February 1996.

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was relevant to any decision in his case. Home Office officials apparently found the new evidence ‘fairly compelling’, but instead of reaching a conclusion themselves, submitted the new evidence to the IAA. The IAA eventually sent the case back to the Home Office saying that the appellant had already lost a series of appeals, and the Secretary of State should be the one to make the final decision. Not until mid May, when the Home Office was informed that a bail application was to be lodged, did they finally agree to release the man from prison and say they would grant him status. Shortly afterwards he was recognised as a Convention refugee.33 Accurate country information is a sine qua non for making reliable decisions in asylum cases. SAs have as much need of it as have caseworkers making initial decisions. Given compelling expert evidence that contradicts the Home Office’s reasons for refusal, SAs will usually allow appeals. One SA gave the Home Office something like a rap over the knuckles in a case which was allowed in March 1998. Expert evidence demonstrated that virtually everything the Home Office had said in a refusal letter was wrong: whoever wrote it had failed to look up the relevant country information, and had dismissed out of hand the possibility that a missionary priest might take risks to help a stranger.34 On the other hand, another SA questioned the credentials of an academic who was a leading authority on the appellant’s country, and whose written evidence was accompanied by a CV. Others are reported to be sceptical of Amnesty International’s reports. The Immigration Law Practitioners’ Association has a list of country experts, many of them being academics. They are usually called upon when a case is being prepared for appeal, occasionally when an application is being made to the Tribunal or for judicial review. It is not always possible for an expert witness to support a case. Sometimes there is no external evidence, and nothing useful that can be said. Sometimes an expert witness will detect matters that the Home Office has failed to notice but which seem to discredit the case, or allegations may have been made which the expert witness knows to be suspect, and about which a legal advisor needs to make further enquiries of the asylum-seeker. On other occasions, the reasons for refusal given by the Home Office may be flawed, and pointing out the flaws will form the substance of the statement made by the expert witness. In yet other cases, customs have to be explained, background information given or linguistic usage elucidated. It may have 33. Such a case presumably appears in the statistics as ‘appeal against refusal dismissed’. 34. Adjudication dated 2 February 1998, sent by post 30 March 1998.

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to be pointed out that something dismissed as not credible is actually perfectly credible, and reasons for this must then be given. Writing an expert witness statement can be time-consuming: a mass of papers may have to be read, material must be looked up and carefully referenced, and reasons must be given for opinions offered. An expert witness cannot decide that an asylum-seeker is or is not ‘genuine’ nor decide that someone should or should not be recognised as a Convention refugee: that is the task of the IAA. The expert’s task is to throw light on the evidence. It is a matter of concern that so often they find refusal letters are seriously flawed, with easily accessible material either not consulted or misapplied, and that the same flawed reasoning is repeated time and time again.35 As was noted earlier, a person who loses an appeal may be able to appeal to the IAT on a point of law, though only a tiny percentage of such applications are successful. KPMG found that 79 per cent of such applications were rejected in the sample they examined, whereas all three of the Home Secretary’s applications for leave to appeal were granted.36 The percentage of appeals to the IAT which are successful or which are remitted to be heard by an SA and are subsequently successful remains very small, but has increased with time. A few applications for judicial review are successful, and the courts have made important rulings in asylum cases. Among these is Sivakumaran which set the standard of proof required in asylum hearings as: ‘a reasonable chance’, ‘substantial grounds for thinking’, or ‘a serious possibility’, rather than ‘beyond reasonable doubt’ as in criminal cases, or ‘the balance of probabilities’ as in civil proceedings. Though the Lord Chancellor’s Department is always anxious to reduce the number of cases that go to judicial review, this will only happen when there is greater confidence in the appeals process.37 If the Tribunal is to become a court of record, as was suggested in the White Paper of 1998, this may help to ensure greater consistency in determinations. Some recent court rulings suggest that there is still a long way to go. In a deferred judgement given in June 1999, the Court of Appeal said that a Tribunal conclusion could not be sustained in a case brought by a Kurdish asylum-seeker. It was not in dispute that he had suffered prolonged and consistent persecution. He had been arrested several times, been subjected to prolonged beating on the soles of the feet (falaka), and on one occasion had his 35. The writer has written expert witness statements for appellants from several African countries, and has discussed the role of expert witnesses with a number of other people who are called on as expert witnesses. 36. KPMG, Review of Asylum Appeals, 13–14. 37. Lord Chancellor’s Department, Review of Appeals, 7.

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back sliced by a bayonet resulting in thirty-five two-inch long vertical scars. He had also been pushed out of a third floor window and then hung upside down and threatened with death. The Tribunal refused his asylum application. They accepted that, if returned, he would be interrogated by the police at the airport and after a short time released, and that he might even be insulted and perhaps beaten, but they did not take sufficient account of the severity of his previous treatment, which had been life-threatening. If the Tribunal thought that there had been a significant improvement in human rights in Turkey such as would justify the appellant’s return, they should have said so, and stated their grounds for thinking so. The Appeal Court found that, ‘In the absence of such explanation and reasoning, there might be a real risk that someone who, because of his suspected association with the PKK was subjected to such appalling treatment before he fled the country, would suffer more than transient ill-treatment on arrival at the airport and in the day or so thereafter that he was detained.’38 In other cases, rulings by higher courts may be necessary. The Convention definition of a refugee includes someone with a well-founded fear of persecution on account of his or her membership of ‘a particular social group’. In March 1999 the House of Lords gave an important ruling which turned on this in a case concerning the treatment of Muslim Pakistani women whose marriages broke up because of violence, and who might then be falsely accused by angry husbands of infidelity. They could then face charges under that country’s Islamic code that might result in their being stoned to death. There was no doubt that they were at risk of persecution. The Lords found that what they risked would be persecution as defined by the Convention, and that they risked persecution because of their membership of ‘a particular social group’. In this context ‘women in Pakistan’ formed ‘a particular social group’ such as was intended in the Convention definition of a refugee. This was a groundbreaking ruling. It did not, however, rule that ‘women’ formed a social group. This is the kind of case where a ruling from the highest court in the land was required to solve a difficult legal point. The Home Office had been granting exceptional leave to remain in similar cases in order to avoid a precedent being set.39 By mid-1999 the Home Office recognition rate had increased from around 4 per cent to nearly 20 per cent with a further tranche 38. The Times, Law Report, 29 June 1999. 39. Islam v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Another ex parte Shah, (conjoined appeals), heard 25 March 1999. This case will be referred to again in Chapter 6.

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being given exceptional leave to remain. As we noticed at the end of Chapter 3, the success rate of those appealing against refusal had also risen from 4 per cent to around 20 per cent, although it dipped slightly in early 2000. This means that the number of people being recognised as Convention refugees by the Home Office then exceeded the total percentage previously recognised plus the percentage recognised on appeal. What does this imply about how the appeals procedure had been functioning previously? One reading of this would be that not enough appeals have been successful, a conclusion with which all the refugee agencies would agree.

5 Without Charge or Trial

No one shall be subjected to arbitrary arrest, detention or exile. (Universal Declaration of Human Rights, 1948, Article 9) The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they show good cause for their illegal entry or presence. (UN Convention Relating to the Status of Refugees, 1951, Article 31,1) The Executive Committee [of the UNHCR], Recalling Article 31 of the 1951 Convention relating to the Status of Refugees. (a) Noted with deep concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reasons of their illegal entry or presence in search of asylum, pending resolution of their situation … (f) Stressed that conditions of refugees and asylum-seekers must be humane. In particular refugees and asylum-seekers shall, wherever possible, not be accommodated with persons detained as common criminals. (Executive Committee of the UNHCR, 37th Session, 1986)

In late September 1998, a delegation of the United Nations Working Party on Arbitrary Detention visited the United Kingdom, and met with a group of NGOs. These gave evidence about the use of detention without charge or trial in the UK, and explained their reasons for believing that the way in which asylum-seekers are detained is arbitrary and in breach of their basic human rights.1 1. The organisations which met the Working Group were the European Council on Refugees and Exile (which hosted the meeting), Amnesty International, Justice, the Law Society, the Refugee Council and the Refugee Legal Centre.

– 81 –

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About 10 per cent of those who arrive through Heathrow, Gatwick, Dover or other ports of entry and ask for asylum are immediately detained.2 Other asylum-seekers are detained at a later stage in the asylum procedures, or when their applications have finally failed, and they are awaiting removal. The majority are given temporary admission. Individuals granted temporary admission status are liable to be detained and are prohibited from either paid or unpaid work for six months after arrival – and then not until permission is given. They must reside at an address known to the Immigration Service, and their temporary admission form explicitly states: ‘You have NOT been given leave to enter the United Kingdom within the meaning of the Immigration Act 1971.’3 The UK is among the small number of states that regularly detain asylum-seekers on arrival, as well as immediately before they are due to be removed. The Home Office believes that ‘detention is necessary to safeguard immigration control’4 and insists that the way in which it is used is justifiable and does not breach Article 31.1 of the Convention. The power of immigration officers to detain asylum-seekers derives from the 1971 Immigration Act. Passengers may be detained pending a decision on whether or not they are subject to immigration control; pending a decision on whether they will be given or refused leave to enter; following a refusal of leave to enter, and pending their removal. Such detention is permitted under Article 5.1(f) of the ECHR. Each detention order must be authorised by a Chief Immigration Officer. There is no time limit on Immigration Act detention, and it is not subject to judicial oversight.5 Article 31 of the 1951 Refugees Convention, quoted at the top of this chapter, and Article 5.4 of the ECHR which states: ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be speedily decided by a court and his release ordered if the detention is not lawful’, would seem to offer some protection against arbitrary or lengthy detention of asylum-seekers, but in practice they do not do so in the UK. The introduction of bail hearings for all detainees under the 1999 Act 2. Refugee Council, ‘Statistical Analysis January 1997’ (source: Home Office). Between 1 July and 20 September 1996, 6,665 people applied for asylum at a port of entry. 642 of these were detained. 3. Quoted from the form entitled ‘Notification of temporary admission to a person who is liable to be detained’; emphasis in the original. 4. Title of Home Office News Release, Report by the Chief Inspector of Prisons of an Unannounced Inspection of Campsfield House Detention Centre, 16 April 1998. 5. Mark Ashford, Detained Without Trial: a Survey of Immigration Act Detention, London, Joint Council for the Welfare of Immigrants, 1993, 1.

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does not seem to meet the requirements of the ECHR because it does not provide an opportunity for the legality of the detention to be examined. Detention is one of the most contentious issues regarding the UK’s handling of those seeking asylum. About half the asylum-seekers who were detained in 1997–8 were held in prison service establishments. Haslar and two wings of Rochester have since 1997 been designated as detention centres and they held the majority of the detainees, but although they have been re-designated, prison regimes operate. The two wings which house immigration detainees at Rochester are within the prison perimeter walls and are old Victorian buildings no longer considered suitable for ordinary prisoners. Between them, these prison establishments held about half of the immigration act detainees held on 25 February 1998. A few others were held on the remand wings of 26 different prisons. The remaining 400 detained asylum-seekers were held in immigration detention centres. A rebuilding programme was under way by mid-2000, and an additional nine hundred detention places were to be added. The Home Office argues that because the detainees held in prisons are placed on the remand wings, with prisoners who are not yet convicted, the requirements of the UNHCR Guidelines are met. However, prisoners awaiting trial are generally refused bail and remanded for one of four reasons: they already have a string of convictions; they are charged with a particularly serious crime; they might endanger themselves or others; or they might interfere with witnesses. Criminals who have served their sentences and are awaiting removal may be held in immigration detention centres along with asylum-seekers. Many asylum-seekers are greatly distressed at being held together with criminals. There are three major detention centres. Harmondsworth is situated close to Heathrow airport, and Tinsley House is close to Gatwick. Campsfield House at Kidlington near Oxford holds some 200 detainees. There are also smaller units at other international airports.6 A few immigration officers who had, unusually, visited detention centres, found the accommodation ‘woefully inadequate’ and ‘Victorian’. Harmondsworth was described by one IO as ‘pretty appalling’, and a third who had read a Prisons’ Inspectorate report on Campsfield House had found it ‘pretty damning’.7 6. Rachael Ellis, Asylum-seekers and Immigration Act Prisoners – The Practice of Detention, London, Prison Reform Trust, 1998, 2–5. 7. Leanne Weber and Loraine Gelsthrope, Deciding to Detain: How decisions to detain asylum-seekers are made at ports of entry, University of Cambridge, Institute of Criminology, June 2000, 112.

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An Immigration Service Instruction dated 3 December 1991 states that detention should be used for asylum-seekers only when there is no alternative, and that it should be kept under close review. The instructions note that ‘genuine asylum-seekers who arrive from countries where there is civil strife or upheaval may not wish to contact officials and that the absence of proper documentation cannot automatically be held as evidence of bad faith’. The instructions continue: ‘There must be a clearer shift away from detention assessments based narrowly upon the likelihood of compliance with temporary admission/release towards a system which also takes account of the probability of removal and the suitability of the person concerned for detention.’ Eight criteria are then listed to guide immigration officers, with the advice that detention would not be justified on the basis of only one test. Detention should be reviewed within seven days, and detainees should be regularly informed of the progress of their cases. On 20 September 1994, these instructions were reissued and amplified, stressing the need to assess cases fully. Medical and compassionate circumstances were also to be taken into consideration. When detention is reviewed, ‘It is not sufficient … simply to conclude that the factors which led to detention remain unchanged and thus that continued detention should be authorised.’ It is further noted that ‘the case for detaining an asylum-seeker when he first makes his claim needs to be particularly strong’. In an undated Annex (apparently also issued in 1994), which followed representations made by Amnesty International and the Medical Foundation for the Care of Victims of Torture, we read the following which reiterates previous instructions: It is essential that all staff ensure that when a person is to be detained the reasons for detention are explained to the individual fully, in a language he or she understands. It is not sufficient to say that the Immigration Service is not satisfied that the person will comply with the terms of temporary admission. The reasons for making the decision to detain must relate to the individual factors of the case and be explained as fully as possible.8

The fact that the instructions had to be reissued and basic principles re-emphasised suggests that they had not been complied with. Although the Home Office has insisted that all detainees have the reasons for detention fully explained to them, this has not always happened in practice. ‘Obviously you just go as far as you think is 8. The Instructions were obtained by AI. They were then published in Why Detention? the report of a conference held by the Asylum Rights Campaign and the Churches Commission for Racial Justice, 1997.

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necessary. If you said to somebody “You’re detained”, and they didn’t say anything, that would be the end of it maybe’, explained one IO to a researcher. ‘I know certain of my colleagues will say “Right you’re going to be detained and that’s it”’, said another, adding, ‘And I think it’s only fair that they do be told why they are detained’ [sic].9 Under the 1999 legislation detainees have to be given written reasons for detention. These are in the form of a checklist, which not all IOs find fully satisfactory. There is a possibility that they will reflect the IOs’ shaping of their decisions to fit the options available to them rather than stating why the decision was originally made.10 In early 1999, The Civil Liberties Research Unit of Kings College, London undertook research into those detention cases where bail had been asked for and sureties provided through the group ‘Bail for Immigration Detainees’ (BID). They found that 85 per cent of the fifty-five cases they looked at had been detained immediately on arrival, that 49 per cent were still awaiting an initial Home Office decision, that 36 per cent had spouses and children in the UK, and that 27 per cent were detained on a ground which was outside the Immigration Service Instructions on Detention. They concluded that a number of basic rights were being violated: Article 9 of the Universal Declaration of Human Rights and Articles 9 (1) and 9 (4) of the International Covenant on Civil and Political Rights 1966 which lay down that no one shall be arbitrarily arrested or detained; Article 5 (1) and (4) of the ECHR, which deal with the right to liberty and the right for a detained person ‘to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’ and Article 8 of the European Convention which declares that ‘everyone has the right to respect for his private and family life’.11 Recent research into the reasons given by IOs for deciding to detain suggests that some IOs are unaware of what is lawful and what is not. IOs were asked what they thought were the main purposes of detaining people on arrival, and were asked to give two responses each. Of those interviewed, 52 per cent thought one of the main purposes was to prevent the asylum-seeker from absconding and 40 per cent gave facilitating the person’s eventual removal as a main purpose. However, for 15 per cent, encouraging the person to withdraw their asylum claim and return home was given as a main purpose, 9. Weber and Gelsthorpe, Deciding to Detain, 74. 10. Weber and Gelsthorpe, Deciding to Detain, 80–81. 11. Civil Liberties Research Unit of Kings College, London, Immigration Service Detention Powers: “Strictly and Narrowly Construed”?, London, March 1999, 2–4.

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and another 10 per cent listed the deterrence of other asylum-seekers.12 Detention for either of these last two reasons is unlawful. Theoretically, many detainees can now apply for bail, but few do so and fewer succeed in getting it because of the stringent conditions, and the lack of lawyers who have time to take on bail applications. Bail may be obtained either through an application to the Immigration Service, or, more usually, at a hearing before an Adjudicator. Adjudicators often ask for two sureties of £2,000 each, sometimes more,13 and the person bailed must provide an address to which he or she can go. As a result, few of those who might be eligible to apply for bail actually do so, and many who do are refused.14 Among those refused are people who have subsequently been recognised as Convention refugees. Bail applications do not test the legality of detention, and not everyone accepts that bail is an appropriate procedure for asylumseekers because of its association with criminal charges. Habeas corpus is occasionally applied for, but is seldom useful, because unlimited detention is lawful under the 1971 Immigration Act. In 1996, two Algerians were released on temporary admission shortly before a habeas corpus hearing. One had been detained for 520 days, the other for 703 days. Both had been refused asylum and had lost appeals, but neither could be returned to Algeria.15 Such cases are exceptional. The number of asylum-seekers who are detained has greatly increased during the 1990s, but detention has been used on occasion for many years. In 1979, the African Studies Association of the UK held a one-day symposium on refugees in Africa. A representative of the UK Immigrants’ Advisory Service read a paper on African asylum-seekers in the UK. One of the case studies was of a West African national who was detained for eight months, during which time both his mental and physical health deteriorated. He was eventually released, but had to wait a further seven months before the Home Office finally recognised him as a Convention refugee. There were at that time just five asylum-seekers in detention. The African Studies Association, inexperienced in the workings of the asylum procedures, 12. Weber and Gelsthorpe, Deciding to Detain, 59. See also examples on 11, 14, 62. 13. Amnesty International, Dead Starlings, London, 1997 Appendix, case no. 27, was released on sureties totalling £19,000. 14. Amnesty International, Cell Culture: The Detention and Imprisonment of Asylum-seekers in the United Kingdom, London, 1996, and its sequel, Dead Starlings, list important facts about the 150 detainees studied in these reports. Only 20 were bailed, whereas 31 were released on temporary admission with their cases still unresolved. See also Helen Kimble, Desperately Seeking Asylum, Glasgow, Iona Community, 1998, 22–24. 15. Amnesty International, Dead Starlings, Appendix.

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were shocked that there were any at all, particularly that someone eventually recognised as a refugee should have been detained. By 1988 there were 220 places in detention centres in the London area at Harmondsworth, Heathrow and Gatwick airports, and at Latchmere House, a prison service establishment, whose inmates were later transferred to Haslar, and a new immigration detention centre with 200 beds was being considered.16 This eventually opened at Campsfield House, Kidlington near Oxford at the end of November 1993. It ran into trouble almost immediately. By March 1994, it was already full and more than half the detainees were on hunger strike. Judge Stephen Tumim considered that it had been filled too quickly, before the staff had acquired the necessary skills.17 The Home Office had assumed that people would stay at Campsfield House detention centre no longer than thirty or forty days, and that ‘the detainee population would be compliant and there would be no major control problems’. Neither of these assumptions was justified.18 Not long after Campsfield House had been opened, a ‘People’s Tribunal on Immigration and Asylum’ was staged by the Campaign Against Immigration Act Detention, and the issue of detention figured largely. By the time the report of this was published there had been a hunger strike at Campsfield House and the first outbreak of major trouble.19 Campsfield quickly became the most contentious of all the detention centres. The Home Office failed to realise that no matter how gilded the cage, it was still a cage, and it was the denial of freedom to which asylum-seekers objected. ‘I suppose it is a bit different from other places I’ve been in, but it is still a prison. Remember, I’m not a free man’, said one young African detainee. Besides, the detainees had nothing to do.21 Campsfield House is surrounded by a high chain-link fence topped with razor wire, surveillance cameras are fitted throughout, and an endless series of announcements over the tannoy destroys any possibility of peace and quiet. The racket can even be heard over the phone. Campsfield House has never been free of controversy, and 16. H.M. Chief Inspectorate of Prisons, Detention Centre Hardmondsworth, London, Home Office, December 1988, 6. 17. H.M. Chief Inspectorate of Prisons, Report of an unannounced short inspection by HM Inspectorate of Prisons, Immigration Centre, Campsfield House, London, Home Office, April 1995, 8–10. 18. H.M. Chief Inspectorate of Prisons, Campsfield, 1995, 8. 19. Campaign Against Immigration Act Detentions, The People’s Tribunal on Immigration and Asylum, London, September 1994, 43–45. 20. Guardian, 15 March 1994. 21. H.M. Chief Inspectorate, Campsfield, 1995, 1.

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vigilant groups of volunteers keep a close watch on it, visiting the detainees, publicising their concerns, and campaigning for its closure.22 It is run by Group 4 Total Security staff under contract. Escort grade staff were employed, unlike the better-qualified custody staff that run the privatised prisons contracted to Group 4, and do so satisfactorily. Tinsley House at Gatwick airport is also run by a private security firm, Wackenhut of the US, without experiencing the problems that have dogged Campsfield House. Sir David Ramsbotham found that many of the problems of Campsfield House arose because the contract drawn up by the Immigration Service had not properly defined areas of responsibility between the two bodies, and in any case, the contract had been partially suspended for upwards of a year.23 A report prepared for the Asylum Rights Campaign came to much the same conclusion.24 Contractual arrangements also mean that Campsfield House is unable to refuse certain categories of immigration detainees such as convicted criminals who have completed their sentences and are awaiting deportation and are therefore unsuitable for detaining together with asylum-seekers.25 Meanwhile, some restrictions on visitors verge on the absurd. A girl of eleven who went with her parent to visit a detainee in Campsfield took photographs of her little brother and sister to show the detainee. ‘There was a lot of argument between the warders searching us about whether they should let me take the photographs in. In the end, they did’. She was searched and her hand marked with a number in what she described as strange ink that was checked again when they left. ‘I felt … that the whole process we were made to go through was made to deter people from visiting the prison’, she said afterwards.26 The year after Campsfield House was opened, two wings of Rochester Prison were refurbished to take immigration detainees. By the following March the total number detained nationally had risen to over 600, and by 1997 it was around 800, where it stayed until the opening of the former Oakington Barracks as a detention centre.27 22. Kimble, Desperately Seeking Asylum, is an impassioned account of the injustice of detention and of current asylum procedures written by a member of one of these groups and based on first-hand experience. 23. H.M. Chief Inspectorate of Prisons, Report of an Unannounced Inspection of Campsfield House Detention Centre, 1998, 21–32, 73–74, 92–93. 24. Asylum Rights Campaign, Campsfield Report, 1998, 5–8, 26. 25. H.M. Chief Inspectorate, Campsfield, 1995, 56–57. 26. Lucy Johnson aged 11, ‘My Visit to an Alleged Rioter in Prison’, Asylum Welcome Newsletter, Oxford, Autumn 1998, 5. 27. The numbers held at Oakington are not included in the asylum statistics on the grounds that it is a reception centre, not a detention centre. But those held there are detained under Immigration Act powers, and are referred to by the staff as ‘detainees’.

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The wings used at Rochester are Victorian prison buildings of depressing aspect, with the cells arranged down each side of a fairly narrow space, the ground floor of which provides the only recreation and association area. It is open to the roof, so the cells on the upper floors open onto narrow walkways with iron railings and safety nets. The ironwork and high central space creates a noisily echoing environment where young men dressed in identical tracksuits hang around or idly play snooker in an atmosphere of pointlessness and despair. At times, some avail themselves of education; chapel services provide another break and are well attended. In both establishments, as in all those where asylum-seekers are detained, there are deeply frightened people who ask, ‘Why would we tolerate these conditions instead of returning home unless we feared for our lives and liberties?’ Whilst many prison officers try to do a good job, (although they do not like being taken away from their proper duties to supervise asylum-seekers), there have been reports of racism and ill treatment of detainees at Rochester. These were taken up by the Medway Racial Equality Council, and there was a useful and productive meeting with prison governors in September 1998. Some asylumseekers transferred from Campsfield House have found that the prison officers were less racist than the Group 4 staff,28 whilst some of the Rochester staff think Group 4 at Campsfield are unprofessional, and incapable of dealing with anyone who creates any ‘trouble’, sending them to Rochester and other prisons at the slightest provocation. Those who fall ill in other detention centres may also be sent to the prison hospital at Rochester. Every now and again, the detainees’ listlessness and despair give way to anger, and erupt in a hunger strike or even a riot. Hunger strikes are a recurrent feature of detention. There is almost always someone somewhere on hunger strike in protest at delays in dealing with their case, and at the felt injustice of detention. Occasionally there is a major hunger strike, as in January 1997 when a large number of detainees protested at being held in Rochester prison rather than in a detention centre (this was before it was re-designated), and some, who were already weakened, refused fluids – a very dangerous move.29 Great concern was expressed to the Home Office, but they responded in the usual way by saying that hunger strikes were an ‘inappropriate’ way for detainees to draw attention to their

28. Kimble, Desperately Seeking Asylum, 10. 29. Hansard, House of Commons, 29 January 1997, columns 359–68.

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plight.30 Detainees resort to hunger striking because they cannot find any other way of protesting or bringing their situation to public attention. Whereas most hunger strikes do not last too long, and usually only a few individuals persist after the first few days, some have been very serious, and one wonders if Prison Service doctors and the Home Office may not be overconfident of their ability to monitor and control hunger strikes. Very occasionally, detainees have rioted, several of the riots being at Campsfield House. On 5 and 6 June 1994, there was a major riot when eight detainees escaped. Nine others had escaped previously.31 In 1995, riot police were called in to quell a further disturbance. A still more serious riot occurred on 20 August 1997. ‘No-one who saw photographs or television footage of the destruction of facilities on that day can but be appalled by the damage and sheer waste involved. Everyone concerned with immigration detention, as a detainee, staff member, advocate, other professional, relative, visitor, campaigner or professional, must have been relieved that no serious injuries resulted: we all knew that it could have happened.’32 The riot started on 20 August 1997 when two detainees were forcibly removed to prison: One was identified by detainees as someone who was ‘up front’ about complaining … He was also suffering from high blood pressure and had had a couple of dizzy spells. Some orderlies … arrived in the Yellow Block and entered his room, having removed the other detainee (from a different room) already. His roommate was alerted by the noise … The man was removed, but the scuffle and noise alerted other detainees in the area, who saw what happened. When some orderlies returned to bag up and collect his belongings, they were ambushed, and ran away. Then a fire alarm went off. Detainees began running around, some responding to the automatic tannoy messages instructing people to go to the yard in case of a fire.33

Things went from bad to worse. The detainees explained that the trouble had started when it was feared that one of the men being forcibly removed was being strangled. This was categorically denied by Group 4 and the immigration officers who staffed Campsfield 30. Letter from David Barnes, Assistant Private Secretary to Charles Wardle MP, Home Office Minister with responsibility for refugees, 22 February 1993 to Charter ’87 for Refugees; Charter ’87 to Charles Wardle 4 March 1993 which received no reply. 31. H.M. Chief Inspectorate, Campsfield House, 1995, 8. 32. Asylum Rights Campaign, Campsfield Report, London, 1998, 2. 33. Asylum Rights Campaign, Campsfield, 19.

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House. Following the riot many detainees were removed to other prisons and detention centres, some of the women at their own request because they were frightened by what had happened. There was a clampdown by staff on those who remained, and harsh restrictions were placed on everyone, with legal advisors being refused access to their clients. Finally, charges were brought against thirteen of the detainees, although subsequently dropped against four of them. The trial of the remaining nine opened in late May 1998 and was expected to run for three months. It collapsed on 17 June after only three weeks when much of the evidence offered was shown to be unreliable. Videotapes from the security cameras repeatedly contradicted the evidence given by Group 4 staff, who were unable to identify individual detainees when the tapes were shown. In particular the member of staff accused of strangling the detainee who was being removed, and who had denied doing anything of the sort, was clearly shown with his hands round the detainee’s neck. Another member of staff accused the detainees of smashing the telephones, but a videotape showed him doing so himself. A third man alleged that he had been concussed and that solvent had been thrown over him, but he was shown walking around a few minutes later quite fit and with his shirt dry and undamaged.34 Ultimately the prosecution withdrew its evidence; the trial was stopped and the judge ordered the acquittal of all the defendants. The collapse of the trial was widely reported in the media, and public confidence in Group 4’s ability to run Campsfield House was severely undermined. There were calls for action for perjury to be taken against members of Group 4 and one chief immigration officer. Shortly after this, indignant detainees at Campsfield House threatened another hunger strike. Several of the detainees charged with riot had in the meantime been recognised as Convention refugees, and these were freed, but the others were reincarcerated in Rochester prison. They were released on bail over the next few weeks thanks to the vigorous efforts of members of support groups in Oxford after one of them had tried to hang himself. Another suffered a mental breakdown before the trial and had to be hospitalised. In all, there were four suicide attempts among the defendants. The UNHCR, in a highly unusual move, intervened on the behalf of those still under threat of removal. Home Office Ministers attempted to defend Group 4, but their efforts were unconvincing.35 It was 34. Independent, Guardian, 16 June; Guardian 20 June; Observer, 21 June 1998; Asylum Welcome, Newsletter, Autumn 1998 (this organisation had observers present throughout the trial); Kimble, Desperately Seeking Asylum, 8–10. 35. Guardian, 4, 18, 20, 23, 29 June, 1, 3, 6 July; Observer, 21 June, 1998; Independent on Sunday, 5 July; Big Issue, 15–21 June, 6–12 July 1998, etc.

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unclear why Group 4’s contract to run Campsfield house should have been renewed. The detainees mentioned above who attempted suicide are not the only ones reduced to that level of despair. In 1987 a Ugandan, Ahmed Katongole (whose case was mentioned in Chapter 2) succeeded in hanging himself in Pentonville. Following this, the Medical Officer at Harmondsworth detention centre was reported to be very conscious of the possibilities of depression and suicide, but there had been no case of suicide and only one attempted suicide there in the previous ten years.36 This record was shattered in 1989 by the death of the Kurdish asylum-seeker, Siho Iyiguven, who set his room and himself alight and died a few days later from his burns (his story is also told in Chapter 2). A further death occurred in Harmondsworth in June 1990 when Nsimba Kimpua, fleeing Zaire, hanged himself. He was wrongly assessed by the immigration officer who interviewed him on arrival, and he was declared fit to be detained by the port medical officer. Because the immigration officer did not believe him to be a Lingalaspeaking Zairean, she did not find an interpreter, and he was never properly interviewed. He hanged himself in a toilet a week after arrival and was not found for twenty-two hours, even though he was known to be missing. He was identified by his relatives from photographs for the inquest. The jury brought in a rider to their verdict saying, ‘A search had been made when he was missing. This was inadequate, and he was not found until the next day. The level of communication with the person who died was a matter of concern in the days from 11–15 June 1990’37 – it seems to have been no better between his arrival and 11 June. There then followed nearly ten years during which many detainees attempted suicide, but none succeeded. However, in January 2000 a Lithuanian detained in Harmondsworth hanged himself. In December 1990 A Report of a Review by Her Majesty’s Chief Inspector of Prisons for England and Wales of Suicide and Self-Harm in Prison Service Establishments in England and Wales was published, but Harmondsworth, then the only major detention centre, was specifically excluded from the study. Moreover, the report did not deal with motivation. Suicide and attempted suicide among detained asylumseekers raises very different issues than among criminal prisoners. In spite of the Home Office’s refusal to respond usefully to letters sent 36. H.M. Chief Inspectorate of Prisons, Immigration Detention Centre Harmondsworth, London, Home Office, 1988, 23. 37. Pirouet, ‘Suicide and Attempted Suicide’ in Deaths in Custody, eds Liebling and Ward, 152–5. Charter ’87 arranged for two law graduates to attend the inquest.

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by refugee organisations that raised the issue of suicide with them, they seem to have begun to take the matter more seriously after the 1992 conference on deaths in custody run by the Institute for the Study and Treatment of Delinquency.38 In 1993 the Board of Visitors at Pentonville stated in their Annual Report, ‘The greatest problem [for the health care services] has been the detainees and deportees who have threatened suicide. This has caused disruption both for the staff and the inmates. The immigration authorities provide 24 hour watch for the most vulnerable men’.39 It is not known whether the same level of care was provided in other establishments where asylum-seekers who were detained were recognised as suicide risks. It has proved impossible to discover any quantifiable information about the rate of attempted suicide, but some suicide attempts have come to light. Among them was a Zairean aged thirty-three, Mr M. M., who tried to hang himself in Wandsworth Prison in 1993 after being detained for ten months. He was found by his cellmate, and cut down just in time. His lawyer applied for bail, which he finally received at his third attempt to apply for it, Group 4 having failed to get him to the first two hearings. He then won an appeal against refusal of asylum, and was recognised as a Convention refugee.40 In late 1996, a report on the mental health implications of detention of asylum-seekers by Christina Pourgourides MB, ChB, MRCPsych was published, entitled A Second Exile.41 Dr Pourgourides worked with fifteen detained asylum-seekers who were referred to her because of their mental health problems. She found that medical provision for detainees was often inadequate: those held in detention centres who became sufficiently ill to need hospitalisation, were moved to prison hospitals, which was experienced as a form of punishment, and perceived as unjust: They had suffered multiple traumatic experiences in their country of origin. 27% had a history of previous torture, 33% of previous detention and 33% of bereavement. Typically, they coped well with the initial 1–2 months of 38. Liebling and Ward, Deaths in Custody, published many of the papers presented at this conference including one by this writer on suicides of detained asylum-seekers. 39. H.M.P. Pentonville, Board of Visitors, Annual Report, 1933, 5. 40. Appeal heard at Hatton Cross on 16 February 1994. This hearing was listed for 8 November but adjourned because the Home Office refused to hand over the appellants medical reports to his lawyers on the grounds that they were prison service property, and the Adjudicator refused to order them to be handed over. The hearing was therefore adjourned until fresh medical reports could be compiled. 41. The research was jointly funded by the Barrow Cadbury Trust and the Northern Birmingham Mental Health Trust. A research grant was made available through the University of Birmingham Department of Psychiatry.

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detention, and appeared to break down in the third and fourth month, when their difficulties became manifest, usually coming to the attention of their legal representative. 33% had made serious attempts at self-harm, including attempted hanging. Assessment revealed that 27% fulfilled criteria for post traumatic stress disorder, 60% for depression, and many had symptoms of anxiety and psychosomatic complaints. [original emphasis]42

Dr Pourgourides described the ‘information vacuum’ in which these detainees lived: they were undermined by the three ‘d’s: debility, dependence and dread, in situations which were characterised by the three ‘u’s: they were unaccountable, unpredictable and uncontrollable. People did not know why they were being held, they had not been charged with any offence, there was no time limit to the length of time they would spend in detention, they lived in fear of deportation and they found being held with remand or convicted prisoners frightening and bewildering. Detention reactivated memories of the bereavement and harassment they had suffered before fleeing to seek asylum, their stories were subjected to intense scrutiny and were disbelieved which they found very distressing, and their grief and suffering were devalued. There was no possibility of recovery from these experiences whilst in detention: detention simply added to their trauma. As a result of Dr Pourgourides’ work with these detainees, nine of them were released. Some of the rest were still awaiting the outcome of their asylum applications at the end of her study. Six of her patients were recognised as Convention refugees or given exceptional leave to remain for humanitarian reasons. If all seriously depressed detainees had the benefit of the care and attention that these fifteen received, with strong medical representations being made to the Home Office on their behalf, how many more would be found to merit asylum? A third of Dr Pourgourides’ patients had suffered torture. The UK Government’s 1998 report to the UN Committee Against Torture (UNCAT) was bland and vacuous on the subject of detained asylumseekers who might have suffered torture. Appendix B listed documents referred to in the report, including that by Dr Pourgourides, but her work is not actually mentioned in the text, nor was it among the documents submitted to UNCAT by the Home Office. In addition, no use was made of the reports by refugee agencies which were submitted to the Home Office at its own request.43 The agencies 42. Quoted from the Summary. Original emphasis. See also Asylum Rights Campaign and the Churches’ Commission on Racial Justice, Why Detention? Report of a Conference held 6th November 1996, 6–9, 17–19. 43. Home Office, United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, Third Report under Article 19 by the United Kingdom of Great the U.K. and Northern Ireland (Metropolitan Territory), HMSO, 1998,

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reserved the right to send their reports direct to UNCAT, and they included a quantity of supporting documentation that the Home Office had omitted to send, including Dr Pourgourides’ report. Detention is far worse for asylum-seekers than prison is for criminals. Rachael Ellis for the Prison Reform Trust discusses the facilities available in the different establishments, and makes sensible recommendations, but it is the fact of detention, people’s burning sense of injustice, their uncertainty about the outcome of their asylum applications, and the fear of removal which make detention unbearable, not the physical conditions.44 Between 1987 and 2000 there have been fourteen reports by NGOs on detention, some of them major pieces of work,45 the Detention Advice Service has published Annual Reports, and the subject has figured substantially in numerous other publications including reports by HM Chief Inspector of Prisons and Boards of Prison Visitors. The bail proposals in the 1999 legislation to be discussed in Chapter 8 do not really meet the concerns of the refugee agencies. Both Judge Stephen Tumim and his successor as Chief Inspector of Prisons, Sir David Ramsbotham, have drawn attention to the plight of detained asylum-seekers. Harmondsworth detention centre was inspected by Judge Stephen Tumim, in 1988. He was generally satisfied with the running of the centre, but he was concerned that a number of the detainees claimed to have been tortured, and he recommended that greater care should be taken in identifying and dealing with such claims with the help and expertise of the Medical Foundation for the Care of Victims of Torture.46 This recommendation was not implemented. The Home Office refused even to consider his suggestion that Haslar should be designated a detention centre rather than a prison, because of the stigma attaching to imprisonment.47 In his report on Haslar in 1990 Judge Tumim wrote: Detainees were not entitled to Legal Aid and relied upon various immigration welfare agencies to provide legal help and advice. Immigration Service procedures were perceived as slow at best but often inadequate. As a result detainees showed signs of anxiety and stress, became depressed, or ‘demonstrated’ by refusing to take food. We accept that this is a matter for the Immigration Service to resolve. However, they have a firm commitment 44. Ellis, Asylum-seekers, 9–13. 45. These are listed in the bibliography. 46. H.M. Chief Inspector of Prisons, Immigration Detention Centre Harmondsworth, 1988, pp. 23–24, 33. 47. Letter from the Private Secretary to the Parliamentary Under-Secretary of State, Home Office, 4 October 1990 to Charter ’87 for Refugees. It was finally re-designated in 1998.

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continually to monitor cases and ensure that the need for continuing detention is regularly reviewed. We saw little evidence of this at Haslar, and have some sympathy with the view expressed to us by staff and detainees that having been sent to Haslar they were out of sight and out of mind.48

In April 1998, Sir David Ramsbotham’s report of an unannounced inspection of Campsfield House was finally published. It was severely critical of the Immigration Service and of the whole policy on detention: there had been too much secrecy and there was no judicial oversight. The Introduction, pages 5 to 18, deals with the Immigration Service and detention in general, not with Campsfield House in particular. In a private letter, he had described the situation he found as: a complete and utter shambles, not only so far as Immigration policy is concerned, but in the activities of all connected with immigration detainees and asylum-seekers, and in particular the Immigration Service itself … what is needed is a proper examination of the whole operation of the Immigration system, what happens at ports of entry, in courts, and the conditions in which everyone caught up in the system is contained, including passport offenders and others.49

The previous inspection, carried out in 1995, had found that responsibilities had not been properly thought out by either the Immigration Service or Group 4, and made thirty-eight recommendations to improve the organisation of the detention centre. Yet three years later things were worse rather than better. One of Sir David Ramsbotham’s main recommendations in 1998 was that detention should be brought under judicial oversight. This was one of only three out of ninety-three recommendations that were not immediately accepted. The Home Office did agree that detainees should be given written reasons for detention. If, however, this is to be done by way of a checklist as is used in magistrates courts, it may not be adequate. Full written reasons are needed if they are to be effectively challenged.50 Sir David’s other recommendations covered the need for a proper allocation of responsibilities between Group 4 staff and the Immigration and Nationality Division, the need for more adequate health care arrangements, a better grievance procedure, and better liaison between the Prison Service and Campsfield House 48. H.M. Chief Inspector of Prisons, H.M.P. Haslar, 1990, p. 18. 49. Letter to the writer dated 21 October 1997. It is not known who leaked this letter to the press. 50. Amnesty International, Response to the White Paper of July 1998, 14.

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when detainees were transferred. Yet when Campsfield House was opened, the Immigration Service had been proud of it, and the official responsible for overseeing the increased use of detention was awarded the CBE in the 1996 New Year’s Honours List.51 AI’s research raises questions about the reiterated claim that detention is carefully targeted at failed asylum-seekers. In 1996, Amnesty studied the cases of 150 detainees brought to their attention by lawyers. They found that 83 of those surveyed had been continuously detained since applying for asylum at a port of entry, and a further 40 had been detained since the time when they applied for asylum other than immediately upon arrival. In total, therefore, 82 per cent had been detained from the time that they had made their asylum applications. Of these, 35 had been held for more than 200 days. In only 10 cases did it appear to the researchers that the individual had been arrested by the immigration authorities solely in order to deport the person.52 On the basis of a follow-up study published in April 1997, AI suggested that that some 60 per cent of detainees might eventually be released without their asylum claim being fully resolved.53 The report mentioned earlier that was produced for BID tended to support AI’s findings. The report by Leanne Weber and Lorraine Gelsthorpe, Deciding to Detain, notes the frustration felt by IOs when those they have detained are released without the Home Office having been able to reach an initial decision on their cases. The refugee agencies agree that in exceptional circumstances there may be a need to detain an asylum-seeker. If, after all appeal rights have been exhausted during a determination process which can be widely recognised as fair, someone is briefly detained prior to removal, they would have no objection. They do not, however, accept that detention as currently practised is either necessary or effective.54 The UNHCR says that if detention is used, it ‘should be proportional to the ends to be achieved and for a minimum necessary period’.55 AI’s research suggests that neither of these criteria is being met. The refugee agencies have maintained for years that 51. Helen Bamber, founder and Director of the Medical Foundation for the Care of Victims of Torture, was awarded the OBE in the same Honours List, an interesting comment on the scale of values employed. 52. Amnesty International, Cell Culture, 12–16. 53. Amnesty International, Dead Starlings, 4. 54. Justice, Immigration Law Practitioners’ Association, Asylum Rights Campaign, Providing Protection: Towards Fair and Effective Asylum Procedures, July 1997, 63–65. 55. UNHCR, Division of International Protection, UNHCR, Geneva, to Amnesty International, 21 January 1997, quoted in Amnesty International, Dead Starlings, 6.

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detention is arbitrary and therefore unlawful. Although they seem hesitant to conclude that detention is arbitrary, Weber and Gelsthorpe find it difficult to avoid doing so,56 and indeed some IOs had admitted it was arbitrary.57 Their work shows that whether an individual asylum-seeker is detained or not depends on such things as which IO interviews them (IOs have widely differing attitudes to the appropriateness of detention), whether there is space in a detention centre or even whether the interview takes place in the morning or at the end of what has been for the IO an exhausting day. There are no clear-cut objective tests for detention, and the system of review is of doubtful worth. Meantime many observers, including Amnesty International, believe that detention is used as a deterrent: It is difficult to avoid the conclusion that the systematic use of Immigration Act detention in asylum cases in recent years stems from an assumption on the part of the Government that such arbitrary and prolonged detention may act as a deterrent to would-be asylum-seekers. As one commentator has put it, the detainees are ‘like dead starlings hung on a fence to frighten the other asylum-seekers away’.58

As we have seen, immigration staff do not seem to realise that detaining in order to deter is unlawful, and for 10 per cent of those interviewed in the report by Weber and Gelsthorpe, deterrence was a main purpose of detention. A further reason why this expensive and often pointless exercise continues in the way it does may be that sections of the Immigration Service rather than ministers are calling the tune. The 1971 Immigration Act gave immigration officers powers to detain, and many of them appear to be reluctant to relinquish them. Mr John Tincey of the Immigration Service Union, to which most, though not all Immigration Service staff belong, would like all asylum-seekers to be detained in all but name. He has recommended the placing of all asylum-seekers in reception centres on arrival: ‘These need not be secure detention centres providing that absconding resulted in the irretrievable loss of all rights to seek asylum and was backed up by an efficient enforcement of immigration laws in general’60 The open56. 57. 58. 59. 60.

Weber and Gelsthorpe, Deciding to Detain, 116–117. Weber and Gelsthorpe, Deciding to Detain, 106–109. Amnesty International, Dead Starlings, 7. Weber and Gelsthorpe, Deciding to Detain, 59. Immigration Service Union Report to the Home Office enquiry into asylum, 19 August 1997. It is difficult not to sense a general animus against asylum-seekers in this report. Weber and Gelsthorpe found some IOs who wanted virtually all asylum-seekers to be detained; Deciding to Detain, 10.

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ing of Oakington Barracks as a reception/detention centre in March 2000 seemed to be exactly what Tincey had in mind. Local residents left a meeting with Home Office representatives under the impression that anyone that escaped would lose all rights to asylum and be summarily deported. As this would be a breach of the Convention, a local monitoring group, Cambridge Oakington Concern, wrote to the Minister for clarification. They were assured that the Home Office did not intend to breach the Convention in this way, and that the cases of any who escaped would still be considered; although their noncompliance with regulations might lead to refusal, they would not lose their right to appeal against refusal.61 All governments have to find ways of controlling their security services, and they do not always find it easy to do so. In many of the countries from which people flee to seek asylum, the army, far from being under control, has seized power; in many more the police and paramilitary groups are not under proper control. There are ongoing power struggles in the UK: the power of the Prison Officers’ Association has been partly curbed through the privatisation of parts of the prison service – the Conservative government introduced privatisation in this sector to reduce the power of the Prison Officers’ Association as well as to save money. There is an ongoing struggle to make the police fully accountable: the Complaints Commission still needs to be taken out of the hands of the police. The Immigration Service Union which represents the majority of immigration officers gives the impression of being strongly opposed to all immigration, and to being overwhelmingly concerned with the removal of illegal immigrants.62 Weber and Gelsthorpe are careful to show that not all IOs share these views. As long ago as 1972, the Asians expelled from Uganda were brought in through Stansted rather than Heathrow because of the ‘Powellite’ feelings of many immigration and customs officers.63 and promising to give detainees written reasons for their detention – rather than placing detention under full judicial oversight, and so curbing the power of immigration officers. Moreover, it is not clear that successive Home Secretaries have wished to see the system changed. Home Secretary Jack Straw told the Refugee Council’s Annual General Meeting in 1997 that he himself had ordered 61. Letter signed by Cathy Hume, Private Secretary to Mrs Barbara Roche MP, Minister with responsibility for asylum and immigration, 14 April 2000. 62. This is easier said than done. John Morrison, The Cost of Survival: the trafficking of refugees to the U.K., Refugee Council, July 1998, 2. 63. Phrasing used by Home Secretary Robert Carr to the Revd Elliott Kendall of the British Council of Churches, September 1972.

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the detention of Roma asylum-seekers who had arrived at Dover: Adjudicators later allowed many out on bail, some of them for derisory sums such as £5 from their wives.64 Over the years, many who have been detained have eventually been recognised as Convention refugees. We have already noted that six of the deeply distressed individuals in Christina Pourgourides’ study were either found to be Convention refugees or given exceptional leave to remain for humanitarian reasons. Some IOs are apparently completely unaware of this and sure that they can correctly identify those asylum-seekers who are not genuine and can therefore safely be detained.65 Dead Starlings lists several asylumseekers who were imprisoned for long periods before being recognised as Convention refugees. Among these is Marcolino from Angola who spent his eighteenth birthday in Rochester Prison, where he had been transferred after trying to hang himself in Campsfield House. As a minor he should not have been held in an adult detention centre or prison service establishment at all. On 17 December 1997, a case came before the High Court in which damages were awarded to a refugee for wrongful imprisonment for the first time. The court held that the refugee was wrongfully detained between 8 May and 10 July, because it had by then become clear that the weight of evidence indicated that he would probably be recognised as a refugee and so the original reasons for detention no longer held good. The court ruled that by 8 May the Home Office had had adequate time to reassess the case, but had failed to do so, and had continued to detain the person for two more months.66 A number of juveniles under the age of eighteen have been detained. In January 1998, seven minors were being supported in detention by the Panel of Advisors set up through the Refugee Council, two of them in young offender institutions.67 Amnesty International claimed to know of seventy-six juveniles held in detention 64. As of September 1998 there appears to be an on-going battle between the Asylum Directorate and the Immigration Service about judicial oversight. 65. ‘I’ve never personally come across a case where I think, “This person’s genuine and they’ve been detained.” I’d like to see a case. If someone has got any grounds for thinking that’s happened, I’d like to see the case. Because I don’t think it has happened at all really. I don’t think anyone’s been detained and subsequently been granted asylum.’ Cited in Weber and Gelsthorpe, Deciding to Detain, 99. Another similar remark was noted. The writers point out that the port records showed that 12 detained applicants had been recognised as refugees or given ELR during the time of the study, and other cases were identified through legal representatives. 66. Ellis, Asylum-seekers, 6. 67. Ellis, Asylum-seekers, 7–8.

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between 1 January 1997 and 2 June 1998. Some were as young as thirteen or fourteen years old.68 One of these was a girl of fourteen from Sierra Leone held in Holloway although she had suffered severe physical torture, and there were clearly visible tracks of cigarette burns up her arms.69 Medical evidence about age is often difficult to establish and is contested, but the detention of juveniles is a very disturbing feature of current practice.70 What is the long-term result of holding people in detention in this way? No research has been done apart from that by Dr Pourgourides. When people who have already been forced to flee their home countries, and who have suffered trauma which may include bereavement, detention without trial or charge, torture and threats, are then subjected to further detention without charge or trial, longterm effects on both physical and mental ill-health must be expected. The traumatised person may be unable either to settle or to become financially self-supporting. There is a high rate of suicide among refugees, and some ex-detainees have to receive long-term counselling and treatment. By mid-2000 there was growing concern about the mental health of detainees, and refugee agencies were holding discussions with the Minister about this. In September 1998, whilst the government was working on a new Asylum Bill, the Working Group on Arbitrary Detention visited the UK to investigate the use of immigration detention. Its report raised eight ‘matters of concern’ and made fifteen ‘conclusions and recommendations’. Its concerns were precisely those repeatedly raised by the refugee organisations and Amnesty International: that detention was arbitrary; that detainees had no immediate access to a court or quick judicial remedy; that they were not given written reasons for their detention; that there was no judicial oversight of detention; that there were no written rules delineating the responsibilities of government to detainees nor setting out detainees’ rights; that there was no specified time within which a detainee must be brought before an Adjudicator and no limit on the length of detention; that detention might be ordered by inadequately trained immigration officers; and that the White Paper proposals on bail were inadequate to provide an effective remedy. The 1999 Asylum Bill, when published, failed to act on most of these recommendations.71 68. Response to the White Paper, 16. 69. Amnesty Internnational, Most Vulnerable of All: The Treatment of Unaccompanied Refugee Children in the U.K., May 1999, 6. 70. See also Chapter 9. 71. UN Economic and Social Council, Report of the Working Group on Arbitrary Detention.

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Finally, we must look at a group of asylum-seekers who have served prison sentences in Holloway, Wormwood Scrubbs and High Down prisons between 1995 and 1999. The groundbreaking work on these was done by Dr Liz Hales, a probation officer then working at Wormwood Scrubbs.72 She became concerned about an increasing number of asylum-seekers who were victims of carrier’s liability legislation. Most were found by airline officials at Heathrow attempting to reach Canada and the US with false or inadequate documentation. Instead of simply preventing them from travelling, airline officials handed them over to the police, who took them to Uxbridge Magistrates’ Court, and charged them under the criminal law73 – not under immigration law – with possession of false documents and attempting to obtain services by deceit. The second count is particularly perplexing to those charged, as they have paid for their onward travel. At first Uxbridge magistrates handed down sentences of three months on each charge, the sentences to run concurrently, but the length of sentence was increased to six to nine months following judicial guidance in a court case. This is longer than for some cases of actual bodily harm. The magistrates have been unwilling to listen to pleas in mitigation or to wait for presentencing reports.74 Those intercepted at Gatwick were dealt with by the Crown Court, as the magistrates refused to handle the cases.75 Intercepted asylum-seekers who are imprisoned have no option but to apply for asylum in the UK even though they may have been trying to reach family members elsewhere. On completion of their sentences they were usually detained by the Immigration Service. Those trying to join their families in the US or Canada will never be able to do so unless their sentences are quashed because they have acquired a criminal record. Liz Hales found that these prisoners were particularly vulnerable and often deeply depressed and bewildered by what had happened to them. ‘It was like some false hearing. I was a political prisoner and I escaped to save my life. How can I be treated as a criminal for that?’ asked one.76 Since Liz Hales completed her work, the phenomenon she uncovered has been mentioned in several further reports. Passport offend72. Her study was conducted whilst holding a Cropwood Fellowship from the University of Cambridge’s Institute of Criminology and published by them as Refugees and Criminal Justice, Cropwood Occasional Paper, No. 21, 1996. 73. Lord Justice Simon Brown, in his judgement in the case of Adimi, Sorani and Kaziu, Court of Appeal, 29 July 1999, expressed surprise that the criminal law, which involves higher penalties than immigration law, should have been used. 74. National Association of Probation Officers, Foreign Nationals in British Jails, August 1998, 11–12. 75. Morrison, Cost of Survival, 85, note 78. 76. This quotation appears on the front cover of the survey.

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ers figure in Amnesty International’s Cell Culture and in the follow-up report, Dead Starlings. In August 1988, the National Association of Probation Officers highlighted passport offenders in their Foreign Nationals in British Jails. Rachael Ellis, reporting for the Prison Reform Trust, discusses passport offences in an Appendix on the consequences of the Carrier’s Liability Act, and they also feature in John Morrison’s The Cost of Survival written for the Refugee Council. Around 450 passport offenders were being imprisoned in the UK at any one time, many of whom are likely to be asylum-seekers, in addition to the 800 or so asylum-seekers detained in the ordinary run of things. It is a matter of particular concern that the men were held in Wormwood Scrubbs. This prison was visited by HM Chief Inspector of Prisons in 1996, and it was described as ‘a flagship dead in the water’ in a highly critical report. In 1999, after allegations of ill-treatment of prisoners had been made against a number of prison officers and when court action was pending, an unannounced inspection found no improvement. Particular concerns were raised about foreign nationals and passport offenders.77 As the number of passport offenders charged and imprisoned is rising, the policy of deterrence referred to by the magistrates is clearly not working. John Morrison, reporting for the Refugee Council, concluded a section on passport offenders thus: It is an unambiguous example of how carriers’ liability legislation (in this case Canadian) creates a ‘buffer-zone’ (in this case, the UK). It is very disturbing that refugees, who don’t even want to be in this country, should be imprisoned at a human cost to them and a financial burden to the UK tax-payer. This practice, which ironically would be illegal in Canada, degrades any concepts of justice and fair play, while further undermining Article 31(1) of the 1951 Convention.78

A number of these passport offenders have eventually been recognised as Convention refugees including Mr B, a 25–year old Cuban arrested at Heathrow in transit from Norway to the United States, where he hoped to join his married sister. On the completion of his sentence he was taken to the airport, and was on the point of being returned to Cuba. When he realised what was happening, he claimed asylum. He was then taken to Haslar and held there for nine months. His asylum application was refused, the refusal letter being largely irrelevant to his claim. He was eventually released in 77. HM Chief Inspector of Prisons, HM Prison Wormwood Scrubbs: Report of an Unannounced Inspection 8–12 March 1999, 126–131, 177. 78. Morrison, Cost of Survival, 78–79.

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October 1996 after being detained for 277 days. In January 1997, he won his appeal against refusal of asylum.79 In January 1998 Liz Hales, together with Eileen Bye, a lawyer from JCWI with a special interest in these cases, and one of the Coordinators of Charter ’87, saw the then Immigration Minister, Mike O’Brien, about this matter. They told him that they considered the asylum-seekers should have been protected from prosecution under Article 31.1 of the Convention. The Minister agreed that the group appeared to have a case with regard to the asylum-seekers and asked the group to suggest what should replace the blanket prosecution of anyone found to be in possession of false instruments. Their reply included the following suggestions: •

•

that the Immigration Service and the Asylum Division of the Home Office should consult with the Lord Chancellor’s Department, the Director of Public Prosecutions and the Prisons Department to ensure that magistrates use proper discretion when passport offenders are brought before them so as to see that the UK’s obligations under international humanitarian law, and especially Article 31, 1 of the 1951 Convention on Refugees, are fully complied with; that transiting asylum-seekers should not face criminal charges and imprisonment, but should be dealt with by the Asylum Division of the Home Office and under Immigration Act powers.

The Minister did not reply to this letter.80 In 1998, UNHCR told the Home Office of their concerns about the prosecution of asylum-seekers and of their understanding that this was a breach of Article 31 of the Convention. In a statement made later to the Court of Appeal, they set out their position with regard to this Article: This obliges Contracting States not to apply the relevant provisions under domestic penal law to refugees and asylum-seekers. If necessary, they have to amend domestic penal law or prosecution instructions/practice to ensure that no person entitled to benefit from the provisions of Article 31 shall run the risk of being convicted.81 79. Richard Dunstan, ‘United Kingdom: Breaches of Article 31 of the 1951 Refugee Convention’, International Journal of Refugee Law, 10, 2, 1998, 207–8. 80. Letter to The Rt. Hon. Michael O’Brien, MP from Charter ’87 dated 30 January 1998. 81. In the Court of Appeal, R. v. Uxbridge Magistrates Court ex parte Adimi; R. v. Crown Prosecution Service ex parte Sorani; R. v. Secretary of State for the Home Department ex parte Sorani; R. v. Secretary of State for the Home Department and Another ex parte Kaziu, judgement delivered 29 July 1999.

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A group of solicitors initiated legal proceedings on behalf of three asylum-seekers and were granted leave for a judicial review of the Crown Prosecution Service’s decision to mount prosecutions in these cases. This was heard by the Court of Appeal. The strangest of the three cases brought before the Court of Appeal was that of an Algerian, Mr Adimi, who had fled from reprisals by the Armed Islamic Group. His false documents were recognised as such by the Immigration Officer. He then claimed asylum, but was nevertheless arrested and charged. His solicitor recognised the possibility of raising Article 31 protection, but after legal argument on this point, the Stipendiary Magistrate at Uxbridge refused the request for a stay, at which point he applied for leave for judicial review. Mr Adimi was recognised as a refugee under the Convention shortly after this, nevertheless the Crown Prosecution Service proposed to continue the prosecution once the case had been heard. In a judgement which dealt exhaustively with every aspect of the case, Lord Justice Simon Brown and Mr Justice Newman found that these prosecutions of asylum-seekers and potential asylum-seekers for possessing false documents was in contravention of the Convention. They also found that it was the responsibility of the Secretary of State for the Home Department to insure full compliance with the Convention. In places, the judgement was forthright: ‘The respondents acknowledge that, until these challenges were brought, no arm of State, neither the Secretary of State, the DPP, nor anyone else, had apparently given the least thought to the United Kingdom’s obligations arising under Article 31.’ However, as we have seen, the matter had been brought to the attention of the Immigration Minister, who had apparently done nothing at all. ‘We are told’, continued Lord Justice Simon Brown, ‘that once our judgements have been given, a “multi-agency group” is being convened to examine this whole issue. It will include representatives of the Home Department, the CPS, the police, the Law Society and Magistrates Courts Clerks.’82 This is precisely the sort of consultation which had been suggested to the Immigration Minister eighteen months previously. It is believed that between 500 and 1,000 asylum-seekers may, over the years, have suffered false imprisonment.83 This is an important judgement in that it strengthens the standing of international law. Although only Article 33 (prohibiting refoulement) of the 1951 Refugees Convention has been incorporated into English law, the judgement finds that rights conferred by nonincor82. Ibid. 83. Guardian, 30 July 1999.

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porated Articles should be fully assured. However, by mid-2000 it was reported that once again magistrates at Uxbridge were giving prison sentences to transiting asylum-seekers without proper documentation, and that a further judicial review was being sought. So, does the UK policy of detaining asylum-seekers achieve its purpose? If it is intended to deter, then it signally fails. A steady increase in detention has been far outstripped by the increase in people seeking asylum. Does the policy achieve the measure of control intended? Again the answer is no. Numbers of people who are detained for months are released before their cases are even decided. Does it assist in the prompt removal of those whose asylum applications are finally rejected? No, because so many detention places are taken up by people who are detained by the Immigration Service at the beginning of the process rather than at the end. Is the Oakington experiment likely to succeed? It is too early to tell. In late 2000 numbers held there are way below Oakington’s eventual capacity. Whether the fairly relaxed atmosphere can be maintained and the tight time schedules achieved when the planned capacity of four hundred is reached is not clear. Everyone sent to Oakington has what a port immigration officer has decided is a ‘manifestly unfounded’ case for asylum because they have come from one of a list of countries where the Home Office believes there is no real risk of persecution. Some people have withdrawn their asylum applications and agreed to return home because they recognise they do not qualify for asylum. Though most people have been refused asylum, a small but significant number have been recognised as Convention refugees or been given ELR. Most of those who are refused appeal against refusal, their appeals are heard very quickly, and the Home Office’s decision has usually been upheld. In a few cases, the Home Office has withdrawn from the appeal and not contested it. A few people have arrived so traumatised that they have been declared by the doctor to be unfit for asylum, and have been released into the care of relatives or others able to care for them. It appears that those released have been removed from the ‘fast track’ procedure and will have their cases fully heard. A further matter of concern about Oakington is that one section contains family accommodation, and small children are held there. Unless a parent is with them, they have no means of communicating with the nursery nurses employed to care for them, a very frightening experience.84 84. Further information about Oakington can be found on http://website.lineone.net/~camoak

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The Conservatives have threatened to detain all asylum-seekers on arrival. They have been charged with not working out the costs of this.85 The Labour government appears to be moving in the same direction. We end this chapter by quoting from a report on the legality of detention commissioned by the Asylum Rights Campaign: In accordance with s.19 (1)(a) of the Human Rights Act 1998, the Home Secretary has expressed the view that the provisions of the Immigration and Asylum Bill 1999 “are compatible with those Convention rights incorporated by the Human Rights Act”. On the basis of the analyses in this Report, this is a view that is not certain to be shared by the Courts. In several crucial respects, the practice of detaining asylum-seekers can be predicted to collapse under the scrutiny of courts armed with the jurisprudence of the European Convention on Human Rights. The challenge may be made in domestic courts or in Strasbourg. Whatever the source, the Government may well suffer the indignity of finding that its first major piece affecting individual human rights after the Human Rights Act is incompatible with it.86

85. Independent, 19 April 2000. Plans to rebuild detention centres go back to the 1998 White Paper on Asylum and Immigration but that does not envisage a large increase in the use of detention. 86. N.S. Ghaleigh, Immigration Detention and Human Rights: Deserving the Name of Democracy, for the Asylum Rights Campaign, London, June 1999.

6 Protecting Women, Children and Families

1. Women 5.2 Some women asylum-seekers arrive alone. Others arrive as part of a family unit and are sometimes not interviewed or are cursorily interviewed about their experiences even when it is possible that they, rather than, or as well as, their male relatives, have been persecuted. Male relatives or associates may not raise relevant issues because they are unaware of them or are ashamed to report them. 5.8 Women face particular difficulties in making their case to the authorities especially when they have had experiences that are difficult and/or painful to describe. The interview should be non-confrontational and exploratory. This is critical for the full discussion of experiences relating to a woman’s claim. (Refugee Women’s Legal Group, Gender Guidelines for the Determination of Asylum Claims in the UK, 1998, 18–19.) UNHCR endorses the principle of gender specific guidelines and recognises the need for such guidelines in the UK. We congratulate the RWLG on compiling such a quality document. (Representative of the UNHCR in the United Kingdom, May, 1998.)

For a variety of reasons women face particular difficulties when applying for asylum. They may come from societies where women are not expected to take initiatives, and so, finding themselves endangered and forced to flee, they may then be disadvantaged as women as they try to make their claims for asylum. The newly-produced gender guidelines recommend that ‘if a woman is interviewed in connection with her asylum claim, she should have access to a – 108 –

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woman interviewer and interpreter’.1 The acceptance of this advice might well be advantageous to the Home Office in that some women’s stories would be likely to emerge at an earlier stage of the asylum procedure, making fewer appeals necessary. The types of political activity in which women are involved may be rather different from those of men. They are likely to be used in behind-the-scenes activity: running messages, supplying food, and in other ways supporting political groups. Such activities are not always recognised as placing women in danger. These roles should not, however, be dismissed as too low-level to bring them to the attention of the authorities. In many countries it may be taken for granted by the authorities that women, as well as their husbands, are involved in political activity, and the political opinion of their husbands may be imputed to them. It is often impossible for women to dissociate themselves from their men folk’s activities: ‘I had no choice’, was the reply of one woman endangered by being forced to take part in what had become a family activity.2 This is not always properly understood by asylum caseworkers or by Adjudicators.3 It is therefore important that women should be interviewed separately and their claims considered independently of their husbands’ application. They should not be treated merely as dependants because they may have an independent claim to asylum. At the detention/reception centre opened in March 2000 in the disused Oakington Barracks near Cambridge, married men, who were certified as having manifestly unfounded cases because they came from East European countries where the Home Office thought there was no danger of persecution, were detained and fast-tracked through the asylum procedures. Their wives and children, however, were dealt with under the old arrangements, then called the interim arrangements, and were sent off by London boroughs to various parts of the country. How their asylum claims were being considered is not at all clear at the time of writing. It seems that they were being considered merely as appendages of their husbands.4 The need for women to interview women and to do so with sensitivity is most obvious when women have experienced sexual abuse or rape as part of the persecution and torture from which they have 1. Refugee Women’s Legal Group, Gender Guidelines for the Determination of Asylum Claims in the U.K., London, 1998. 2. Comment made by a woman to the writer regarding her involvement with her family in surveillance activities, Uganda, 1972. 3. Crawley, Women as Asylum-seekers, 24. 4. Cambridge Oakington Concern, Update on Oakington, 28 April 2000

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fled.5 In many countries, women prisoners are in danger of rape, and the conflicts in Bosnia and Kosovo have been reminders that rape is often used as a weapon of war. Many women who have experienced rape will only be able to give a full account of what they have experienced in the context of sensitive counselling. Even when sexual abuse and rape have been admitted to a counsellor or therapist, women may find it difficult to face admitting to it in front of an Adjudicator, especially a male Adjudicator. In some societies women may be blamed for rape although they are the victims, and may be rejected by their families who believe they have been defiled. For these reasons women will often be reluctant to reveal their stories in front of male relatives, and it is important that they should be interviewed separately and privately.6 It has been established in principle that medical examinations at Oakington Detention Centre should always be same sex.7 Because of the difficulty women experience in revealing rape and sexual abuse, they may be wrongly refused asylum, and only when faced with an appeal does the story of rape emerge. Sometimes it will not even emerge then because of the fear that it will become known to members of the woman’s family, because of the humiliation involved, and because of particularly appalling experiences. For this reason, a woman’s allegations of rape and sexual abuse should not be discounted if they only emerge at a late stage. Sensitivity is needed when appeals are heard in cases involving rape. The Determination of a Tribunal hearing in April 1999 involving multiple rape was restricted (not made available on the Internet) and the appellant was referred to simply as ‘M’ in the determination. Other cases have been held in camera, but such good practice is not yet universal. Some Adjudicators have displayed little sensitivity and made highly inappropriate comments about rape claims.8 Do women constitute ‘a particular social group’ (Article 1 of the Convention), and how is ‘a particular social group’ to be defined? The UNHCR Handbook of 1979 suggests that ‘a particular social group’ ‘normally comprises persons of similar background, habits or 5. For the discussion on rape and sexual violence in asylum cases see UNHCR, Sexual Violence Against Refugees: Guidelines on Prevention and Response, Geneva, 1995; Heaven Crawley, Women as Asylum Seekers: A Legal Handbook, London 1997; Refugee Women’s Legal Group, Gender Guidelines. 6. Refugee Women’s Legal Group, Guidelines, 20; Heaven Crawley, Women as Asylum Seekers, 22. 7. Information from Cambridge Oakington Concern following a meeting with Home Office officials. 8. Asylum Aid, Still No Reason at All, 24, 70.

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social status’, but this has been found to need further definition. In any case, UNHCR accepts that mere membership of a particular social group would not usually be adequate to substantiate a claim to asylum, though in certain cases UNHCR accepts that ‘mere membership can be a sufficient ground to fear persecution’.9 There have been a number of attempts to define further the meaning of ‘a particular social group’, a phrase inserted into the Convention deliberately to cover cases which might not be covered by race, religion, nationality and political opinion. Some of these are explored in a historic ruling by the Lords in March 1999, which recognised that ‘women in Pakistan’ could constitute a ‘particular social group’ under Article 1 of the Convention.10 There were two women in the case, both married and both from Pakistan. They were in danger of being falsely accused of adultery in Pakistan after being forced to leave their homes by their violent husbands. Pakistani women accused of extramarital sex are not protected by the state; indeed the law works against them. If the women had been returned to Pakistan they risked being punished by flogging or death. They would be unable to defend themselves against such false charges under Pakistani law. The disadvantaged position of women in Pakistani law has been the subject of a major report by Amnesty International.11 Both women already had exceptional leave to remain in the UK as had some other women in similar circumstances, but wished to upgrade their status to that of Convention refugee. The Home Office had resisted a test case concerning genderrelated persecution: They [the Home Office] made a deal and told me to take one year Exceptional Leave to Remain … In the end I accepted it. Had I won this case I would have been the first woman and that’s what they wanted to avoid. I really wanted to win my case and open things up but I didn’t want to fight any more. If I carried on I would have been famous but scandalised. A lot of personal problems would come out. All my private life would come out, and names. I would help a lot of women but then I would pay the price … maybe a bullet on the street. I care for my friends, my family and my reputation.12 9. Paragraph 77. 10. House of Lords. Islam v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Another, ex parte Shah, Conjoined Appeals, 25 March 1999. 11. Amnesty International, Women in Pakistan, London, December 1995. 12. Cited in Crawley, Women as Asylum Seekers, 45. The Lords judgement in Islam and Shah related only to women in Pakistan. The person whose case is referred to here came from a Middle Eastern country, and the details of the case were different.

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The case of Islam and Shah, although it related only to ‘women in Pakistan’, nevertheless broke new ground for gender-related cases. There is an urgent need for gender guidelines to be adopted in the UK, and staff in all departments of the Immigration Service and especially in the Asylum Directorate, need adequate training – as indeed do Adjudicators. Heaven Crawley’s comprehensive study, Women as Asylum Seekers: A Legal Handbook published in 1997, draws on extensive research, providing numerous examples of both good and bad practice, and is built around the experiences of many women who have been through the process of seeking asylum in the UK. The guidelines proposed by the Refugee Women’s Legal Group which grew out of Crawley’s study are endorsed by the UNHCR and an impressive array of individuals and organisations including law firms and law centres, refugee organisations, church groups and women’s groups. This is a coalition that should not be ignored.

Children And Families States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, birth or other status. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. A reservation incompatible with the object and purpose of the present Convention shall not be permitted. (UN Convention on the Rights of the Child, Articles 2,1; 3,1; 51,2.) The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom on those who do not have the right under the law of the United Kingdom to enter or remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time. (Reservation to Article 9 (family unity) and 22 (refugee children) of the UN Convention on the Rights of the Child entered by the United Kingdom.)

In practice, what the reservation above means is that refugee children and those seeking asylum are not fully protected by the Convention on the Rights of the Child, and that if there is a conflict between immigration law and the Rights of the Child, immigration

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law shall prevail.13 It can be argued that this reservation should have been ruled inadmissible on the grounds that it is incompatible with the object and purpose of the Convention as it rules out a whole category of children by reason of their status, which is specifically forbidden by Article 2.1, and frustrates the purpose of Article 3.1.14 This incompatibility was a principal subject of concern in the response by the Committee on the Rights of the Child to the UK’s 1995 report, and the first of the Committee’s recommendations was that the UK should ‘review its reservations to the Convention with a view to withdrawing them’. This the UK has so far failed to do.15 Most of the children who seek asylum are accompanied by one or both of their parents. In spite of the reservation to the Convention on the Rights of the Child, it is widely recognised that children are in need of special protection. Provisions in the asylum legislation that would damage children, have, therefore, been found particularly objectionable. The children’s charities Save the Children, the NSPCC, National Children’s Homes and the National Children’s Bureau, produced a briefing paper for MPs on children and unaccompanied children when the 1991 Immigration and Asylum Appeals Bill was published. This argued for all children to be given special consideration in the asylum process. The briefing paper pointed out that children who arrived in the UK might have experienced interrogation, torture and imprisonment, and that all arrived ‘in a state of upheaval and confusion’, perhaps having lost one or both of their parents. They were in desperate need of security and care, and should be treated as children first, refugees second. The Children’s Legal Centre believed that the 1992 Asylum Bill with its accompanying rules jeopardised all children who arrived seeking asylum. It weakened the housing entitlements of families with children, and was likely to result in them being shunted around from one unsatisfactory accommodation to another. It insisted that unaccompanied child asylum-seekers needed specialist legal services to help them make their claims and, if the need arose, to appeal against refusal.16 Fol13. NGOs concerned with the welfare of children have long campaigned for this Convention to be incorporated into U.K. law. 14. Amnesty International argues the same point in greater detail in Most Vulnerable of All: The Treatment of Unaccompanied Refugee Children in the U.K., 1999, 31–35. See also The Children’s Society, ‘Immigration Policy and Practice in relation to Children’s Rights’, November 1998. 15. Committee on the Rights of the Child, Eighth Session, ‘Consideration of Reports Submitted by States Parties under Article 44 of the Convention. Concluding observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland.’ 16. Children’s Legal Centre, ‘Briefing to Accompany Amendments to the Asylum Bill’, n.d. but 1991.

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lowing the 1992 Act, a Children’s Panel was set up under the auspices of the Refugee Council which provided mentors for unaccompanied children, although its powers were limited – otherwise the pleas made on behalf of refugee children fell on deaf ears. The children’s societies repeated their pleas even more urgently in 1998 and 1999 when further legislation would have exempted asylum-seeking children from the full protection of the Children Act. Social Service Departments would no longer have a responsibility to provide safety-net protection to the children of asylum-seekers on account of destitution or the physical or anticipated physical effects of destitution. The 1999 legislation proposed deactivating the Children Act with regard to asylum-seeking children. Under pressure from MPs, an equivalent measure of responsibility for a child’s welfare was placed on the Support Directorate to be established under the legislation. There was concern that responsibility for the child’s welfare under the new legislation was still unclear and insufficiently defined. All children under the age of sixteen who are resident in the UK must attend school. Most asylum-seeking children qualify for free school meals by reason of their poverty. The presence of so many refugee children places a huge responsibility on schools, especially schools in London where asylum-seekers have been concentrated. It is not unusual for London schools to find that their pupils have scores of different mother tongues, and teachers have to find ways of integrating children who often speak little or no English, and who come from a variety of cultural backgrounds. Many imaginative teachers use this cultural and linguistic diversity as a source of enrichment rather than seeing it only as a problem. Refugee children may encounter serious difficulties at school: there are reports of such children being laughed at and bullied, perhaps because they do not know English, or because they and their parents are asylum-seekers or refugees – they must, surely, be ‘bogus’ and ‘scroungers’ other children may conclude. Such bullying is not easy to eradicate.17 The Refugee Council reports the words of a schoolchild: I was shocked to find that in the lunch queue they used to laugh at me and say that I never had decent food in my country. They said I had always been hungry and that was why I had run away from home. Some people treated me like a fool because I couldn’t speak English well. Some just ignored me as if I didn’t exist. I was all alone in the corner and did 17. Refugee Council, Exile, 92, May/June 1996; Minority Rights Groups, Voices from Somalia, London, 1991, 27.

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not understand the jokes during lessons. Once I even got beaten up by a group of students who used to bully everyone. They said they couldn’t stand me because I was a refugee who lived on the government’s money which they considered to be their own.18

During the Gulf War, Iraqi children, whose parents had fled persecution for opposing Saddam Hussein’s regime, suffered abuse because they were Iraqis, and the other children believed all Iraqis to be bad. Refugee children have sometimes been excluded from school.19 Parents who are waiting for a decision on an asylum claim or an appeal against refusal of asylum are often stressed, anxious and bewildered. They are likely to be unemployed and may be unable to provide their children with the security they need. As a result of this and the horrors they have seen and experienced, their children may exhibit severe behavioural problems, and the resources for helping such disturbed children are not always available. Drawings of war and murder by refugee children may give a clue to what they have suffered, and drawing is sometimes used by therapists to help traumatised children.20 Children may find it difficult to adapt to unaccustomed educational practices and regimes; some have never been to school before because schools cannot function in the war torn countries they have fled.21 The Minority Rights Group and the Medical Foundation for the Care of Victims of Torture jointly produced a leaflet entitled ‘Integrating Refugee Children into Schools’ to help teachers with problems they might not have experienced before.22 In mid-1996 there were some 29,000 asylum-seeking and refugee children in schools in this country, about 40 percent of whom also attended supplementary schools organised by their own community groups to help them learn English and adapt as well as keeping their own culture alive. Many of these schools receive no local authority funding, and their existence demonstrates the value refugee communities place on their children’s education, and their commitment to preserving their own cultures and languages. Some local authority funding is available to support education for asylum-seeker and refugee children in mainstream education. The Borough of Enfield ran a scheme with five specially funded refugee support teachers, a 18. Cited in Refugee Council, Exile, 91, May/June 1996. 19. Personal communication, Medical Foundation. 20. For examples of such drawings, see Minority Rights Group, Voices from Somalia, 13, 19; Refugee Council, Exile, 78, June 1994. 21. Refugee Council, Exile, 92, May/June 1996. 22. Medical Foundation News, November 1992.

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social worker and an educational psychologist who worked with such children in the Borough. Elsewhere teaching has been introduced to help counter the negative images of refugees and asylumseekers.23 One of the most heartening stories came from a comprehensive school in Hampstead where traumatised unaccompanied refugee children found a haven of peace and understanding. A teacher, Athy Demetriades, herself a refugee, assisted by Maureen Fox, an educational psychologist at the Tavistock Clinic, established a programme to assist deeply disturbed and frightened pupils. This involved helping other pupils to understand the needs of refugees, and involved them in supporting such pupils.24 The Minority Rights Group (MRG) and the Refugee Council are among the organisations that have produced material to assist refugee children learn English and at the same time retain a pride in their cultural identity. Voices from Eritrea, Voices from Somalia and Forging New Identities25 include material written by pupils themselves about their experiences of being forced out of their countries and as asylum-seekers and refugees in the UK. The books, in a bright A4 format, include drawings, maps and photographs. The writers themselves were present at the launch of these books, impressively bright and self-confident young people. Learning language at the same time as exploring experiences that had often been traumatic was therapeutic for the writers, and the result of their work aided others who were less articulate and self-assured.26 The Refugee Council has produced a series of word books to help Somali, Kurdish, Turkish, Albanian, Arabic, and Persian speaking newcomers struggling with learning English, as well as a selection of folk tales of many of the countries from which asylum-seekers and refugees originate. A further series of books are resource books for schools to help promote an understanding of refugees and to counter adverse publicity.27 These publications are part of the Refugee Council’s work on behalf of refugee children. A further problem for children arises from inadequate housing. Families with children may be living in overcrowded bed and breakfast accommodation where they are turned out on to the street for much of the day. Mothers and children have been given some pro23. Ibid. 24. Independent, 23 September 1993. 25. The full title is: Forging New Identities: Young Refugees and Minority Students Tell Their Stories, London, 1998. 26. These two books were edited by Rachel Warner, MRG’s Education Officer, and published in December 1991. 27. All these publications are listed in iNexile, November 1998.

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tection from the most vicious of the deterrent asylum legislation so that when the 1996 Act deprived asylum-seekers of all access to benefits, an exception was made for mothers with young children. The children had some protection under the Children Act. Those living in overcrowded accommodation, where parents and children may all be crowded into one room can find it difficult to get proper sleep, and it may be virtually impossible to get any homework done. Children living in these circumstances are being schooled into a sense of their own and their family’s worthlessness, something they may never recover from. To add to their problems, housing is often short term and children may have to move schools as the family is shifted from place to place.28 The problems arising from inadequate housing are not, of course, confined to asylum-seekers and refugees, but they are exacerbated by the experience of exile. For children forced into overcrowded and unsuitable accommodation with parents who, desperate with anxiety, are unable to give their children the security they need, school may become a refuge.29 The situation of asylum-seekers with regard to housing has become much more serious as a result of the 1999 Immigration and Asylum Act which gave asylum-seekers no choice as regards where in the country they would be sent, or what housing they would be allocated. The Act contained no provision against overcrowding or of families being split up. Separation from other family members is often part of the experience of being forced to leave one’s country. When an asylum-seeker is finally recognised as a Convention refugee, he or she is then entitled to be joined by a spouse and any dependent children, but the actual process of applying for them to be given entry clearance through the British Embassy, or High Commission in the home country, may be long-drawn-out whilst checks are made to ensure that the spouse and children are ‘genuine’. Adopted or step children will be refused, as will a spouse whose marriage is not legally registered, elderly dependent parents and older children who may have remained dependent because of disability. Someone granted exceptional leave to remain rather than Convention status must wait a further four years before he or she can begin to apply to be joined by family members. By this time some of the children may be over the age of eighteen and so be ineligible to join the parents. Worse still, marriages sometimes break up 28. Refugee Council, Exile, 92, May/June 1996. 29. A major report on housing, Roger Zetter and Martyn Pearl for the Housing Associations Charitable Trust and the Housing Corporation, Managing to Survive: Asylum Seekers, Refugees and Access to Social Housing, London, 1999 made little reference to children.

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under the strain of separation. The Home Secretary has discretion to vary the rules for compassionate reasons, but seldom does so. These separations cause immense distress and do great damage to children. The Medical Foundation often encounters parents who do not know how to cope with the pain of being separated from their children, and the organisation describes this separation as one of the most unbearable aspects of being an asylum-seeker. Some clients have been waiting to see their children for many years. In one case, the son was thirteen years old when his parents left. They are still awaiting a decision on their asylum application. He is now nearing eighteen and the tragedy is that he will then no longer be eligible to join his parents as a dependent. He is faced with the prospect of never seeing them again unless they return to their country or he comes here and proves that he too is entitled to be a refugee in his own right.30

The Foundation started its work for families by setting up a support group for Kurdish parents who were separated from their families. This work widened out, and a Children and Families Team of paid staff and volunteer specialists is now responsible for this important area of concern.31 One of the saddest cases of family separation was that of Lejla Ibrahimovic, a mother who came to the UK early on in the Bosnian crisis with her five-month-old baby daughter, Dzenana and a son, Mirza, by an earlier marriage. She and the children were brought to the UK by a British Muslim group called Human Appeal. She hoped her husband, Safet, would be able to join her, but by the time he tried to do so, the UK had imposed a visa restriction and Safet’s application was refused. Only those Bosnians brought over under a government-sponsored scheme might apply to be reunited with other members of their family. Human Appeal found itself unable to provide adequate housing and the strains of trying to cope with housing and other problems wore Lejla down. The enforced separation from her husband distressed her most of all. In mid-December 1999 she committed suicide by swallowing the contents of a bottle of sleeping pills. Now her two children were all alone. By a terrible irony this meant that Safet was able to get a visa immediately in order to come to the UK to look after them. He was on a plane within twenty-four hours.32 It was a further tragic irony that this took 30. Medical Foundation, The Supporter, 3, Winter 1994. 31. Medical Foundation, Annual Review, 1996; The Supporter, 3, Winter 1994. 32. Guardian, 14 December 1993; Refugee Council, Exile, 75, December 1993/January 1994.

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place in1993, which had been declared by the UN as ‘Year of the Family’. The UK authorities declined to accept any responsibility for the disaster to the Ibrahimovic family, insisting that there was little evidence that it was separation from her husband that drove Lejla Ibrahimovic to take her own life. She had not yet been recognised as a Convention refugee, they said, so she had no right to family reunion. They tended to place the blame on Human Appeal for failing to provide proper accommodation, and on her husband for not joining her earlier before visas were required.33 There were other tragedies involving separated families. One such was briefly recorded by the Refugee Council as an appendix to their article on Lejla Ibrahimovic: ‘A “swop” arrangement in which a Bosnian husband in Germany would join his family in the UK, and a husband in the UK would join his family in Germany, has been rejected by the Home Office as “logistically impossible”. The German authorities had agreed to the plan’, they reported.34 Earlier in 1993, Turan Pekoz, a Kurdish asylum-seeker, became so desperate at the length of time taken to process his asylum application and the enforced separation from his wife and children, that he set himself alight inside the Home Office. This action was probably intended as a demonstration rather than being a deliberate act of suicide, but there were no fire-extinguishers readily available – they had been locked away lest they were used as weapons by agitated asylum-seekers – and he died from his burns. In these, and in the hundreds of other cases where families are separated because of bureaucratic niggling, a child’s right to be brought up by both parents is violated, as is Article 16 (3) of the Universal Declaration of Human Rights enshrining the right to family life, which describes the family as ‘the natural and fundamental unit of society’.35 The Windmill Project for Refugee Women with Children was started in Clapham by the Sisters of Notre Dame in 1992. The Project offers English language and vocational courses leading to recognised qualifications, and tries to help people get into work; it offers nursery provision for mothers who are attending classes at the Project and it has some short stay accommodation for six months or more for people with particular needs. It has also set up a network to 33. Letter to Charter ’87 for Refugees, 7 February 1994, signed by Andrew Pizzey. The letter was three and a half pages long, suggesting that the Home Office had had a drubbing in the media about this tragedy and was anxious to disclaim responsibility. 34. Refugee Council, Exile, December 1993/January 1994. 35. Refugee Council, ‘Far-Flung Families’, Exile, 78, June 1994.

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provide continuing support and outreach. It is a small but high quality project, and many more like it are needed. The Children’s Section of the Refugee Council has three tasks: it works to promote policy changes which will uphold the rights of refugee children; it runs a small hostel in London, The Cedars, with places for eleven asylum-seekers and refugees aged between sixteen and nineteen years old, staffed by four workers, and it has responsibility for the Panel of Advisors for Unaccompanied Refugee Children. All unaccompanied child asylum-seekers are referred to this panel. Its thirty or so sessional workers, who ideally are able to talk with the children in their own language, support unaccompanied juvenile asylum-seekers throughout the complicated process of applying for asylum. They have to ensure that the child has adequate legal advice and representation, and they attend Home Office interviews with the youngster. This should help to ensure that any interview is sensitive and non-confrontational (adult asylum-seekers often report that the interviewer seemed hostile and out to trap them). Panel members also have a responsibility for seeing that any child under the age of sixteen has access to education, and for liaising with the social services who will have a statutory responsibility of care for the child.36 The panel is concerned for any young person placed in detention and whose age is in dispute. They will try to obtain a paediatric assessment of the person’s age, and if there is good reason to suppose that the detainee is, indeed, under age, they will work on their behalf to obtain the youngster’s release. This is not always easy. The Refugee Council Panel liaises with the Home Office’s Unaccompanied Children’s Module, set up in 1995. This gives priority to dealing with these cases, and the establishment of the Module has resulted in greater sensitivity being shown to unaccompanied children.37 Amnesty International, whilst praising the excellent work of the Panel of Advisors for Unaccompanied Refugee Children within the limitations imposed on them, believes that Guardians ad Litem (guardians who can act for them in law) should be appointed for all these children as a further safeguard. Save the Children agrees with them.38 Why do unaccompanied children flee abroad? Some are sent by desperate parents living in a war zone or threatened by a break36. Refugee Council, iNexile, April 1999. 37. Louise Williamson, ‘Unaccompanied Refugee Children’, in Refugees, Citizenship and Social Policy in Europe, eds. Alice Bloch and Carl Levy, 1999, 152. 38. Save the Children, ‘Evidence to the Special Standing Committee on the Immigration and Asylum Bill’, 9 March 1999.

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down of law and order and gross abuse of human rights. They have no hope for themselves, and are desperate for their children’s safety, as were the Basque parents who sent their children away after the bombing of Guernica and the Jewish parents whose children arrived here in the Kindertransport. ‘I came here alone when I was 11 years old. I only knew the day before that I was leaving my country. My mother paid a lot of money to get me here,’ one child explained to a Save the Children interviewer. Sometimes children themselves are threatened. One child told Save the Children Fund, ‘In Africa, if you are the child of a politician, for instance, you’re counted just as much as your parents. Sometimes they use the children as a way to make the parents conform and you’re marked for elimination as well.’39 The first problem unaccompanied minors encounter upon arrival in the UK is that of assessing their correct age. This is not always easy as children in different cultures mature at slightly different ages, and paediatricians sometimes disagree. Age determination becomes most contentious when a minor is detained and placed in a detention centre, a young offenders’ institution or even an adult prison. In one case a girl, whose age was later agreed to be thirteen, was sent to Campsfield House detention centre. The Immigration Service insisted on relying on the date of birth entered in the passport she arrived with although they accepted that this was false: They insisted upon holding an interview with the girl about her age, during which she was harassed and asked about the deaths of her parents. Complaints by the girl’s lawyers and the Refugee Council advisor about the conduct of the interview were brushed aside in favour of the officer.40

Since the Refugee Council’s Children’s Panel of Advisors was set up in 1994, 152 detained minors have been referred to it, twenty-four of whom were under sixteen years of age. Of the children interviewed by Save the Children who had been detained, one had been held for over a year. Save the Children has urged the government to give an unequivocal undertaking not to detain minors. They believe the detention of these children is unlawful: ‘Under UK law, children can only be detained as a result of criminal proceedings or under the Mental Health Act or under Section 25 of the Children Act’, and they note the distress suffered by children who 39. Save the Children, ‘Young People’s Evidence to the Special Standing Committee on the Immigration and Asylum Bill’, March 1999, 3. 40. Amnesty International, Most Vulnerable of All, 45; Save the Children, ‘Evidence to the Special Standing Committee on the Immigration and Asylum Bill’, 9 March 1999, para. 11.8.

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have been detained.41 The recommendation of the Chief Inspector of Prisons, Sir David Ramsbotham, that detention should be brought under judicial supervision, has so far been rejected. Such supervision is particularly necessary in the case of minors when their age is a matter of dispute, and the Home Office is sometimes extremely reluctant to give the benefit of the doubt, in spite of findings by paediatricians that the young person in question is likely to be well below the age of eighteen, the age at which detention becomes legal. A new development that results in children being detained is that two detention centres, Tinsley House near Gatwick Airport and Oakington near Cambridge, now make provision for whole families being placed in detention. Whilst it may be better for families to be kept together than separated – either the husband being detained and the wife and children sent off elsewhere, or, as has sometimes happened, both parents being detained and the children placed in care – the holding of children in detention in any circumstances is felt to be unacceptable by most refugee organisations and children’s charities. At Oakington the Home Office planned that the husbands should be allowed to be with their families during the day, but that they should have to sleep with the unmarried men at night, a plan which the children’s societies found bizarre. The Home Office finally abandoned this idea when it became clear that once the Act incorporating the European Convention on Human Rights came into force, separating families in this way would be open to legal challenge.42 The care of unaccompanied child asylum-seekers and refugees has fallen on local authorities. In 1992–3 341 children were in the care of 18 London boroughs. This is clearly an enormous responsibility, and the level and appropriateness of the care provided varied considerably. 66 of the children were living with relatives, 13 of them with older siblings. Others were fostered. The researcher found that some boroughs: had made considerable efforts to meet the needs of the unaccompanied refugee children in an appropriate and culturally sensitive manner. However, there were worrying gaps in provision in other authorities, especially regarding the low number of ‘same culture/religion/language’ matched placements as opposed to ‘same race’ placements. There was very little evidence that respondents understood the nature of their statutory duties 41. Save the Children, ‘Evidence to the Special Standing Committee’, paras. 11.1–11.2, 11.9. 42. Information from Cambridge Oakington Concern. 43. Williamson, ‘Unaccompanied Refugee Children’, in Refugees, Citizenship, eds. Bloch and Levy, 1999, 154.

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concerning the appointment of independent visitors to children. Few departments appeared to have considered pressing questions of family tracing or (if possible) reunion. Arrangements for translation/interpretation were often made ad hoc. Almost no training was given either to interpreters or to staff who used them.43

Since this survey was made, the number of unaccompanied child refugees has risen, and the burden on already over-pressed local authorities has therefore grown. The situation described would seem to point up the need for appointing legal guardians who can work with the local authorities in the children’s interests. Very few unaccompanied children are recognised as refugees, but if they are refused asylum, they cannot always be returned home; it is not always possible to contact parents or relatives to whom they can be sent. The care regime for such children does not always seem to be adequate. Among the suggestions made by unaccompanied children themselves to Save the Children was that they should not be moved around from one foster home to another – they needed stability. Also, it was proposed that once leave to remain has been granted, if a minor wishes, moves to reunite the family should be started immediately and not after the current four year delay period. Another request was that if there is a dispute over age, the Home Office should give the young person the benefit of the doubt.44

44. Save the Children, ‘Young People’s Evidence’.

7 Building Walls Around Fortress Europe

efore we can look at the walls that the UK has erected to keep asylum-seekers out, we need to look at the wider European scene, as policies decided among EU member states, to which the UK contributes, are of increasing importance.1 In 1985 Michael Marrus published a classic study entitled The Unwanted: European Refugees in the Twentieth Century. It deals with the enormous migrations across Europe of millions of people uprooted by the wars and revolutions that characterised the continent in the first half of this century. A large part of Caroline Moorehead’s massive history of the Red Cross deals, perforce, with the same phenomenon, and includes a lengthy discussion of the Red Cross’s efforts to ameliorate the suffering caused by these events.2 At the time he was writing, Marrus felt able to conclude that the European scene had radically changed. He noted that European governments saw their prime responsibility as being to the trickle of people who managed to escape to the West from behind the Iron Curtain, whilst at the same time they were hardening their attitudes to the refugees fleeing persecution in poor countries, who were managing to reach their shores in growing numbers. What he

B

1. The EU has changed its title several times. The EEC (European Economic Community) was succeeded by the EC (European Community) and finally became the EU (European Union). For convenience it will be designated ‘EU’ throughout this chapter, regardless of what stage of evolution it had reached at the time under discussion. Much of the work on asylum was undertaken by EU member states acting together rather than through organs of the EU itself. 2. Caroline Moorehead, Dunant’s Dream: War, Switzerland and the History of the Red Cross, London 1998.

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found extraordinary was that there were no longer refugee crises within Europe itself: Of course, no one can say that a new tide of refugees may not one day engulf the continent, and few believe that existing legal structures or international agencies could themselves prevent such an inundation. If this history suggests any lesson, it is that ultimately the flow of refugees can only be controlled by favorable economic circumstances and the stabilization of the economic order. Until the achievement of these elusive goals worldwide, the consciences of Europeans will forever be tested by refugees, wherever they appear.3

Marrus appreciated the need for dealing with the root causes of refugee migrations. It was as well that he did not go on to make prophecies, for the collapse of communism and the resulting power vacuums and instability have generated a new round of conflicts and refugee emergencies within Europe. As Marrus suggested might happen, European states have found themselves ill equipped to deal with these. Mark Mazower, too, notes that the second half of the twentieth century has seen a huge improvement in Europe: ‘Before 1950, more than sixty million people died in wars or through statesponsored violence; by contrast, the number of those who died in such a fashion after 1950 is well under one million, even taking the war in Yugoslavia into account’.4 Marrus was correct in discerning the beginnings of a hardening of responses to Third World catastrophe. He was also right to note the inadequacy of legal structures to prevent catastrophe in Europe or elsewhere, and in recognising that economic and political instability go hand in hand in producing situations that generate refugee flows. There is often no hard and fast distinction between economic migrants on the one hand, and Convention refugees and further categories of people needing international protection on the other. Europe has been battening down the hatches, building defensive walls to protect itself from an influx of refugees, not only from the ravaged poor countries of the South, but also from conflict and persecution (the two are inseparable) in middle income countries of the Middle East and Latin America, and collapse and conflict in the former Eastern Bloc. Poles and Lithuanians are no more wanted in the West than refugees from further afield, even though, if they manage to make it, they are less visible and so able to blend in with the majority population more easily 3. Michael Marrus, The Unwanted: European Refugees in the Twentieth Century, Oxford, 1985, 371. 4. Mark Mazower, Dark Continent: Europe’s Twentieth Century, London, 1998, 406.

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than Black and Asian people. The West operates a form of cultural racism, which discriminates against those from outside Western Europe, North America, Australia and New Zealand. Ethics and humanitarian concerns have played only a minimal part in EU thinking, and have barely troubled the consciences of European governments at all, although the consciences of some individual Europeans have been more and more troubled by what they have come to see as unethical legislation passed by their governments. Governments and politicians have been concerned to preserve their sovereign rights over the control of immigrants, and to ensure that those they admit to their countries are broadly acceptable to, or will at least be tolerated by the majority population. Throughout the EU large numbers of immigrants have formed a substantial part of the labour force since the end of World War II. The UK was short of manpower, and demobilised soldiers would not take some of the poorly paid, uninviting jobs which were nevertheless essential, but which Black and Asian immigrants were glad to accept. Turks assisted the economic miracle of the German economy. Both the Netherlands and France have admitted large numbers of people from former colonies, driven out as a result of decolonisation or wars of independence. As prosperity returned and industry became less labour-intensive, the need for such workers declined, and they were easy scapegoats when unemployment set in. Highly skilled manpower in certain fields continued, and continues to be wanted. Refugees are unselected immigrants and often find themselves discriminated against even when they possess skills that are in short supply. Some countries have preferred to import professionals such as doctors and teachers rather than provide the money to update the skills of refugee doctors and teachers already in the country.5 State policies about refugees are self-regarding: politicians for the most part pander to popular opinion rather than leading it unless necessity forces them to do otherwise. Policies are determined by expediency.6 ‘The fear of all of us,’ said Philip Rudge, Director of ECRE, the European Consultation (later Council) on Refugees and Exiles, ‘is that what we see is the inexorable process towards harmonisation of the lowest common denominator. It is bound to happen so long as we have overwhelming concern with security and policing and tidying up awkward problems’.7 5. iNexile, Refugee Council, London, November 1998. 6. A good discussion of the political construction of asylum is found in the chapter entitled thus in Danièle Joly, Haven or Hell: Asylum Policies and Refugees in Europe, London and New York, 1996, 17–43. 7. Guardian, 28 November 1988.

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There are voices, at the European level as well as the national level, calling for a different and more humane approach. Philip Rudge, speaking for ECRE, is one of these. Monitoring developments in European policy on asylum is the particular concern of ECRE, which brings together national refugee councils and a host of nationally based refugee organisations. ECRE has access to the Council of Europe and organises the lobbying of EU organs in Brussels but is hampered by the EU’s secrecy. It disseminates comparative information about asylum in Europe, publishes an annual compendium of reports from all the European states, and holds general meetings in the spring and autumn of each year. ECRE’s legal arm is ELENA, the European Legal Network on Asylum, which runs a programme of research, dissemination of information and training. The Minority Rights Group (MRG) is concerned, as its name indicates, about minorities worldwide. It works by educating public opinion, and has made asylum, including asylum in Europe, one of its areas of concern: people from persecuted minorities around the world have ended up seeking asylum in Europe. The MRG has produced an important series of publications on asylum in Europe written by specialists, prominent among whom is Danièle Joly. The Churches’ Committee for Migrants in Europe, based in Brussels, publishes Migration News Sheet, a valuable source of information on developments in the EU. This Committee is concerned about the participation of ethnic minorities in European society, and so, inevitably, has an interest in refugees. Other Europewide movements that include a concern for refugees among their interests include Amnesty International, the International Council of Voluntary Organisations, the Red Cross and Caritas Europa. Caritas Europa coordinates national branches of the Catholic charity, Caritas, which is concerned with justice as well as charity. UNHCR has some links with all of these.8 Because of the secrecy in which EU policy has been developed, NGOs in general and the refugee organisations in particular are forced to be reactive rather than proactive. When they try to be proactive, they are simply brushed aside, and the Council of Europe, with its concerns about human rights, has been equally unable to affect policy in this area. The ‘democratic deficit’ in the EU is nowhere more marked than in the area of asylum policy-making, characterised as it is by ‘an alarming lack of transparency and democratic accountability’.9 8. UNHCR, UNHCR and Its Partners in Europe: Briefing Handbook, Geneva, January 1995. 9. Carl Levy, ‘European Policy after the Treaty of Amsterdam’, in Refugees, Citizenship and Social Policy in Europe, eds. Alice Bloch and Carl Levy, 1999, 18.

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In November 1989, the fall of the Berlin Wall, symbolising the end of the Cold War, and the collapse of communism in Eastern Europe, raised further fears among EU leaders. Pleased though Western democracies were that they had ‘won’ the Cold War, the results of the breakdown of the Soviet Empire added to the possibility of new flows of refugees. Even before this, oppressed peoples elsewhere in the world had been watching the effect of glasnost in the USSR, the struggle of the Solidarity trade union in Poland, and the exodus of East Germans to the West, where they were royally welcomed. Commonly referred to as ‘refugees’, these joyful immigrants were not refugees as defined by the Convention, but people who were no longer prepared to put up with the privations of the collapsing Communist Bloc and its failing economies, and who eagerly seized on opportunities of escape offered by glasnost and the weakening Eastern Bloc states. Elsewhere in the world, people who suffered under intolerable circumstances began to ask why they should continue to do so. As the tolerance threshold was lowered, two possibilities presented themselves. One was to use ‘people-power’ as the Poles had done to overturn a repressive regime, and in a whole string of countries people-power was effective. But it was not always successful. President Mobutu of Zaire, for instance, could not be budged, and the situation grew worse rather than better. The other option was to seek an escape from tyranny, and obviously the West, which for years had advertised itself as the fount and guardian of human rights, democracy and freedom, was the place to go to. By the time of Marrus’ survey, moves were already afoot to restrict asylum-seekers trying to find refuge in Western industrialised countries. In 1985 the UNHCR had initiated discussions on asylum in these countries, but it was quickly sidelined, and the Intergovernmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia (IGCARM) became a secret forum for discussion and policy formulation. The IGCARM has set up an electronic database enabling the movements of asylum-seekers to be traced. This forum and its deliberations are virtually unknown to the public of those countries represented on it.10 By the mid 1980s EU Home Affairs Ministers, too, had started meeting to discuss matters arising from the anticipated removal of internal customs and border controls, which would complete the 10. Nathalia Pendo Berkowitz and Curtis Francis Doebbler, ‘The European Dimensions of Asylum Law’, in United Kingdom Asylum Law in its European Context, eds. Prakash Shah and Curtis Francis Doebbler, 1998, 12.

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implementation of the common market free trading area in 1992. A White Paper published in 1985 had set out plans for implementing the necessary measures, and these were formalised in the Single European Act of 1986. Questions about refugees and asylum needed to be considered in the context of the removal of internal borders. Would this mean that asylum-seekers might apply in more than one state as an insurance policy against refusal, selecting the state with the most liberal asylum policy? It was felt that the shuttling of people from one state to another because no state would take responsibility for them had to be stopped. Could member states coordinate their efforts so as to deter asylum-seekers from coming to Europe at all?11 Under the provisions of the Dublin Convention agreed in early 1989, people would have one chance only of applying for asylum in the EU, and refugee agencies viewed with alarm the erection of a ring fence around what was already widely known as ‘fortress Europe’.12 Kay Hailbronner, a judge in the Administrative Appeal Court, Land Baden-Würtemberg, Germany, has argued that stricter controls alone would not be sufficient to deal with the problem of large numbers of people needing protection for humanitarian reasons but who did not meet the Convention criteria. Fundamental changes in asylum policy as well as harmonisation of policy would be needed. He supported EU plans to maintain a common list of states whose nationals would require visas to enter the EU, stricter border controls, a Black List to prevent asylum-seekers moving from one EU state to another, and accelerated procedures to deal with people who made ‘manifestly unfounded’ asylum applications. At the same time he recognised that it must not be made virtually impossible for people to reach the borders of the EU. ‘The concept of non-refoulement in intention or practice, has never operated to facilitate easy access into the country of refuge by potential asylum-seekers’, he suggested, a line of argument often used by Ministers who were being criticised, not for failing to facilitate the arrival of asylum-seekers, but for trying to prevent it altogether; quite a different matter. His arguments 11. The process of EU harmonisation is discussed in Amnesty International, Europe: Harmonisation of Asylum Policy, 1990; Amnesty International, Europe: Human Rights and the Need for a Fair Asylum Policy, 1991; Danièle Joly and Clive Nettleton, Refugees: Asylum in Europe? (for the Minority Rights Group), 1992; Sarah Collinson, Beyond Borders: West European Migration policy Towards the 21st Century, (for the Institute of International Affairs), 1993; Danièle Joly, ‘The Porous Dam: European Harmonisation on Asylum in the Nineties’, IJRL, 6, 2, 1994, 159–193; Danièle Joly, Haven or Hell?; Danièle Joly, Lynette Kelly and Clive Nettleton, Refugees in Europe: The Hostile New Agenda, (for the Minority Rights Group), 1997; Shah and Doebbler , eds, United Kingdom Asylum Law. 12. Independent, 13 May 1989.

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demonstrate the difficulty of formulating policies to exclude people whilst at the same time remaining committed to honouring the 1951 Convention. All the measures he discussed were already under consideration by EU ministers, and have formed a major part of the EU refugee agenda for a decade, in spite of the concerns of refugee agencies, including the UNHCR.13 In preparation for the removal of internal borders, a group of five northern European states within the EU – Belgium, the Netherlands, Luxembourg, France and Germany – had formed a bloc to plan for the speedy removal of internal border controls necessary to implement the Single European Act of 1986, and to solve the asylum problems which they saw would inevitably arise. These five had for years received the bulk of applications for asylum within Europe, France and Germany being the main recipients. Italy did not then recognise people coming from outside Europe as refugees. Asylum-seekers arriving in southern European countries tended to make their way northward. The UK, out on the periphery, received far fewer asylum applications, and was not involved in these negotiations because its government refused to consider abolishing external border controls. Ministers from the five countries held their first meeting in the Luxembourg village of Schengen, and so came to be called the Schengen Group, a sub-set of the wider group which considered terrorism and drugs as well as refugees – an unhappy conjunction. Agreement was reached between the Schengen countries in 1985 when a ‘framework’ agreement was signed by the five founding states, followed by an ‘implementation’ agreement in 1990. Since then most EU member states apart from the UK have also acceded to this Convention. It was applied from March 1996 in the signatory states. It considered four matters relating to asylum: which state was to handle an asylum claim, how the claim was to be handled, how information on asylum and immigration was to be shared, and the movement of foreigners, especially people seeking asylum, within the area governed by the Schengen Convention. In a fierce attack on Schengen, H. Meijers of the Dutch Permanent Court of Arbitration indicated that he thought it was less a case of harmonising asylum policies than a reflection of civil servants’ desire to facilitate the removal of persons from Schengen territory. It rides roughshod over the wishes of asylum-seekers, and leaves life and death decisions in the hands of unqualified airline officials, who must check travel documents before a passenger is allowed to board an aircraft, stiff fines being the penalty for carrying 13. K. Hailbronner, ‘The Right to Asylum and the Future of Asylum: Procedures in the E.C.’, IJRL, 2, 3, 1990, 341–60.

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improperly documented passengers. ‘Forgery and bribery will increase, the relevant prices will rise, illegal travel agencies will flourish, and rich refugees will be given a much better chance than poor refugees,’ Meijers prophesied all too correctly.14 Reaching agreement on the detail of these areas of policy was not easy. Ministerial meetings involved reporting back to national parliaments, and in 1989 a draft directive had to be shelved because agreement could not be reached. It was therefore decided to set up a ‘Group of Coordinators’ consisting, not of ministers, but of senior officials. A section of this was known as the Ad Hoc Group on Immigration, later renamed Steering Group 1 (Asylum and Immigration).15 The conclusions and resolutions of this group are not legally binding, but ministers agree to incorporate them into national legislation.16 Because this Group was able to work in secret, and without the need to report back to national parliaments, it was able to reach agreement much faster. But there was no public scrutiny of its work, so agreements could be reached without national parliaments even being aware of the contents before they were signed and had become unalterable. In July 1992 the UK’s new Home Secretary, Kenneth Clarke, was astonished and indignant to learn of the extent of this secrecy. He is reported as saying of the Convention on the Crossing of External Frontiers: I had no idea that the draft European frontiers convention ... is a secret document. If you are saying is that a sensible way of proceeding, I think the answer is no ... You can’t have a government that’s prepared to sign a document, but won’t show anybody ... Maybe the other eleven ministers can get away with going back to their parliaments and saying we have agreed this convention, but you can’t see it. I’m amazed that British ministers are allowed to get away with that for so long.17

In July 1993 the European Parliament adopted, by 194 votes to 11 with 3 abstentions, a motion criticising the fact that cooperation in the fields of Justice and Home Affairs had been kept outside the Maastricht Treaty, and not scrutinised by democratic institutions.18 14. H. Meijers, ‘Refugees in Western Europe: “Schengen” Affects the Entire Refugee Law’, IJRL, 2, 33, 1990, 428–41. 15. This is part of the K4 committee of senior officials, which works on Justice and Home Affairs which fall under the ‘Third Pillar’ of EU co-operation.. 16. Joly, ‘The Porous Dam’, 166. 17. Guardian, 2 July 1992. Clarke did not succeed in obtaining open discussion of these measures. Richard Dunstan, ‘A Case of Ministers Behaving Badly: The Asylum and Immigration Act 1996’, in Current Issues of UK Asylum Law and Policy, eds F. Nicholson and P. Twomey, 1998, 65. 18. Migration News Sheet, August 1993.

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Some note was taken of this criticism. A small measure of greater transparency was introduced: the UNHCR was now able to make representations to Steering Group I, for instance, and has been able to obtain some small modifications of the text of the Dublin Convention. Nevertheless, agreements continue to be reached in secret.19 By the Treaty of Amsterdam (1997) the European Parliament has to be consulted, not merely informed, about asylum and refugee policy, but it has no powers to amend or veto such legislation.20 The Dublin Convention, reached in 1989 although not ratified by all for several years, sets out how responsibility for determining asylum applications is to be decided between states. It was negotiated outside the EU structures altogether in the hope that it might ultimately become international, not just EU law. Both these Conventions, Dublin and Schengen, were deliberately created with no right of appeal to the EU Court of Justice (or to any other international court), so asylum-seekers have no means of appealing against decisions made under its rules. The UNHCR points out that under the Maastricht Treaty future conventions ‘may stipulate that the Court of Justice shall have jurisdiction to interpret their provisions and to rule on any disputes regarding their application, in accordance with such arrangements as they may lay down (Article K 3(2)c), but no such arrangements have been made so far’.21 The Dublin Convention is extremely complicated because it seeks to cover all possible eventualities, but in essence it lays down that asylum applications will be decided in the first country which the person enters, or the country which issued them with a visa or took some other action such as granting temporary admission, thus showing that it had accepted some responsibility for the applicant. It was ratified in 1997 by the EU states, although some had been acting as though it was in force long before this when it suited them to do so. Both the Schengen and Dublin Conventions allow asylum-seekers who have passed through another country on the way to their final destination to be returned to seek asylum in that country.22 Their asylum claims do not need to be examined at all by the state which 19. UNHCR, UNHCR and Its Partners, 35. 20. Levy, ‘European Policy’, in Refugees, Citizenship, eds. Bloch and Levy, 40. 21. C.A. Groenendijk, ‘The Competence of the EC Court of Justice with Respect to Inter-Governmental Treaties on Immigration and Asylum’, IJRL, 4, 4, 1992, 531–6; Levy, ‘European Policy’, in Refugees, Citizenship, eds. Bloch and Levy, 34–5. 22. Safe third country issues are discussed in Amnesty International, Playing Human Pinball: Home Office Practice in ‘Safe Third Country’ Asylum Cases, London 1995; and Richard McKee, ‘Safe Third Countries’ in Shah and Doebbler, United Kingdom Asylum Law, 103–13.

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they finally reach, provided that the country to which they are sent back is a ‘safe third country’ (the ‘first country’ is the one the asylumseeker has fled, the ‘second country’ the one finally reached, hence the term ‘third country’ for the one passed through en route).The 1951 Convention says nothing about where asylum must be sought. West European countries have invented the idea that asylum must be sought in the first ‘safe’ country that a person reaches rather than the country of their choice, and are attempting to make this notion part of international law. Sending people back to safe third countries raises large questions: which countries are to be considered safe, and how is safety to be decided? Not all the countries that have signed the 1951 Convention can be considered safe. Some are safe for some nationalities, not others. Some refuse to grant asylum to those persecuted by non-state agents even when the government is unable or unwilling to protect them. For it to be safe to send asylum-seeker X to country Y, it would need to be shown that Y would admit X to its determination procedures, would give X a fair hearing, and would not return X to the country he or she had fled unless a full examination of the asylum claim had shown that X would not be in danger of persecution for a Convention reason if returned. Amnesty International believes that no one should be returned to a ‘safe’ third country ‘unless the government concerned has established beyond any reasonable doubt, and preferably by obtaining an undertaking from the authorities in that third country, that the asylum-seeker will be provided with effective and durable protection, which should normally include legal protection’.23 Not even all EU countries have proved to be ‘safe’ third countries for some asylum-seekers. A number of them operate so-called ‘international zones’ where arrivals may be held for questioning. By a legal fiction, people held in international zones have not yet reached the country where they have landed, and so they have no protection under the Convention. It is difficult to discover what happens to those held in these international zones. Some may never be allowed to apply for asylum before being returned to their countries of origin. An over strict and unimaginative application of safe third country procedures has led to some absurd decisions. On 22 April 1993, a Colombian who had fled to the UK was sent back to Portugal because the aircraft he had travelled on had made an emergency stop in the Azores, a Portuguese dependency, when fire had broken out on board, and the passengers had to make an overnight stay in a 23. Amnesty International, Europe: Harmonisation, November 1990.

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hotel on the island. The UK authorities maintained that he should have sought asylum during this stopover. He had a sister in the UK and knew no one in Portugal.24 By 1992, alarm about Fortress Europe was widespread among refugee agencies. The World Council of Churches based in Geneva added its voice to that of ECRE, the UNHCR and national refugee organisations in EU member states, publishing a special issue of its monthly bulletin Oikoumene on refugees in Europe. ‘This newsletter is sent with some urgency’, wrote the editors, ‘as the decisions about implementation of the Single European Act are being made now.’ As well as several statements by leading churchmen, it contained a Campaign Action Sheet, which dealt with the need for a humane refugee policy for Europe, the need to project positive images of refugees and asylum-seekers, comments on the Schengen agreement, and a call to the European Parliament, noting that its wish to be consulted had been ignored by the Ad Hoc Group. The World Council of Churches’ summary of asylum concerns was thorough and succinct, but it is not clear that member churches took its 10–point call to action seriously. In December 1992, the UK hosted the summit of the EU Justice and Home Affairs ( JHA) Council. There was no sign that this meeting heeded in any way the cautions expressed about what it was doing. A ‘Resolution on manifestly unfounded applications for asylum’ was signed, and a ‘Conclusion on countries in which there is generally no risk of serious persecution’. A ‘Resolution on minimum guarantees for asylum procedures’ was signed at the June 1995 meeting of the JHA Council held in Luxembourg, which committed JHA Ministers to seek harmonisation of their asylum policies. In response to this Resolution ECRE produced a paper, Fair and Efficient Procedures for Determining Refugee Status. If there was to be a category of manifestly unfounded applications, what about a category of obviously well-founded applications? These, it suggested, should be given special priority, decisions being made in not more than three months. ECRE thought that safeguards should be introduced for manifestly unfounded claims; that the decision that a claim falls into this category should be made by the authority normally responsible for making asylum decisions; and that the reasons for certifying the case as manifestly unfounded should be given in detail. ECRE proposed that the UNHCR or some other body should be able to monitor such cases, and that guidelines should be laid down to define cases which could not be considered manifestly unfounded, but which were, by 24. Migration News Sheet, May 1993.

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contrast, ‘manifestly founded’, with the UNHCR or some other independent body being responsible for defining this category. The 1992 ‘Resolution on manifestly unfounded applications for asylum’ and the ‘Conclusion on manifestly unfounded applications’ were brought into UK law by means of the 1996 Asylum and Immigration Act, although their origin in EU thinking was not acknowledged.25 When such cases are certified, they are dealt with under an accelerated procedure, which means that they are examined more cursorily than is ordinarily the case. An asylum application would be certified as manifestly unfounded if there was clearly no substance to the claim to fear persecution; if there was a lack of personal detail in the dossier; if the story manifestly lacked credibility; if internal flight was a possible option; or if an applicant came from a country where there is, in general terms, no fear of persecution. Further matters might be taken into consideration: the use of a false identity or forged documents, the making of deliberately false representations regarding the claim, destroying or damaging documents in bad faith, making an application simply to forestall expulsion from a host country, and making a series of applications in different countries.26 It is immediately obvious that it may be very difficult to decide that an application is manifestly unfounded. It is a doubtful and dangerous way of speeding up the decision making procedures which involves prejudging the asylum claim before it has been fully heard. The UNHCR expressed its grave concerns about the proposal in connection with the Asylum and Immigration Bill brought before the UK Parliament in 1995 (the terminology used in UK law is slightly different from that used above): UNHCR has monitored a broad cross-section of cases in the United Kingdom where the Secretary of State has certified that a claim was ‘without foundation’ because it was frivolous or vexatious in terms of paragraphs 334–336 of HC 395. In the period 1 January 1995 to 11 October 1995, UNHCR received notification of 155 appeals against such a certificate. The appeal was unsuccessful in 110 cases (71%). In 45 cases (29%), the Special Adjudicators did not agree with the Secretary of State’s decision and remitted or allowed the appeal.27

There was clearly good reason for concern about possible misuse of this category. 25. Home Secretary Michael Howard insisted, to applause from the Conservative Party Conference, that asylum law was made in the UK, not Brussels. Dunstan, ‘A Case of Ministers’, 64. 26. Joly, ‘The Porous Dam’, 167. 27. UNHCR, ‘Certain Comments by the United Nations High Commissioner for Refugees on the Asylum and Immigration Bill 1995’, 6.

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Danièle Joly has pointed out that the way in which the resolution on manifestly unfounded claims was drawn up showed a complete failure to understand the position of those fleeing persecution. One sentence in a first draft leaked to the BBC read, ‘Those who fear violations of their human rights should if possible remain in their own countries and seek protection or redress from their own authorities or under regional human rights instruments’.28 This had to be withdrawn because of internal criticism, but was a pointer to the unrealistic and unimaginative spirit in which the measure was drafted. Equally contentious was the ‘Conclusion on countries in which there is generally no risk of serious persecution’.29 EU member states could not reach agreement on which countries should be considered ‘safe’, and questions were raised about unlisted countries: were they to be considered unsafe? Different EU states had different diplomatic reasons for wishing to avoid antagonising particular countries or listing others. It was agreed that guidelines would need to be established and information shared, and that no country could actually be designated ‘safe’. The sort of country EU states had in mind was one ‘which can clearly be shown, in an objective and verifiable way, normally not to generate refugees, or ... [where] circumstances which might in the past have justified recourse to the 1951 Geneva Convention have ceased to exist’. Certain objective criteria needed to be considered: that human rights were respected, that democratic institutions existed, and that the country enjoyed a measure of stability. There would be no point in listing countries which never produced refugees: Canada or New Zealand, for instance – or were such countries the only ones which, in fact, could be safely listed? The countries the EU was concerned about were those which produced a great many asylum-seekers whom EU states did not wish to admit, Nigeria, India and Pakistan among them, although everyone knew that in all three there was widespread abuse of human rights. India and Pakistan were among the countries which many EU states listed.30 This left a number of people who needed international protection at risk of having their claims refused as a result of the accelerated procedures which were all they had access to. Once again, the UNHCR was unhappy about the proposal, and laid out what it felt might constitute adequate safeguards. These amounted to a full and 28. Joly, ‘The Porous Dam’, 168. 29. Guy Goodwin-Gill, ‘Safe Country? Says Who?’, Refugees 89, May 1992, Geneva, 35–36; Debbie Winterbourne and Prakash Shah, ‘Refugees and Safe Countries of Origin’, in Shah and Doebbler, United Kingdom Asylum Law, 75–89. 30. Joly, ibid., 170.

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thorough examination of the claim such as is required in all cases. Nothing less could provide adequate protection from refoulement.31 In mid 1993 a ‘Resolution on harmonisation of national policies on family reunification’ was agreed. This rested on a minimalist definition of a family, following the most restrictive practices to be found among EU states. For the purposes of this Resolution a family consisted of the spouse and dependent children of a refugee already admitted to the country. ‘Dependent children’ were defined as children below the age of eighteen years (sixteen years in some countries) who had not formed an independent family or an independent life of their own. A ‘spouse’ was one whose marriage was of a type recognised as legal by the host state, and step children and adopted children might be excluded.32 Elderly and dependent parents or children over the age of 18 who remained dependent because of disability were not eligible for family reunion. A child who had lost his or her own parents and was being looked after by relatives who had then been forced to seek asylum was also excluded. As the UK Embassy in Santa Fe de Bogota explained to the solicitor acting for someone recognised as a Convention refugee in the UK: I can confirm that Entry Clearances were issued to your client’s son and daughter. The applications of his other family members were not refused as you have stated in your fax. A person who is granted refugee status is entitled to be joined by their pre-existing family at the time they made their application. The immigration rules clearly state that only a spouse and minor children qualify. As your client is not married his commonlaw wife does not qualify for a visa. Upon reviewing the applications your client’s family were advised that they did not qualify for a visa and decided not to proceed with their applications.33

The European Parliament continued to be concerned that policymaking regarding the abolition of internal borders was taking place without sufficient democratic oversight.34 The Council of Europe, which represented a far larger number of states, and which was responsible for the European Convention on Human Rights, was also concerned about the issue of asylum in Europe. It wanted to appoint a European High Commissioner for Refugees, the establishment of a fund to help over-burdened countries, and an increase in the quota of refugees its members states would admit. The Coun31. 32. 33. 34.

UNHCR, ‘Certain Comments . . .’ 1995, 3–4. Joly, ‘The Porous Dam’, 171–2. Letter dated 20 January 1999. Migration News Sheet, August 1993; May 1994.

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cil found it ‘intolerable’ that countries which had signed the ECHR should be generating refugees (this was directed at Turkey in particular whose treatment of the Kurds was giving rise to a large flow of people seeking asylum in Western Europe),35 but nothing came of this. The Council of Europe carried little weight, apart from the European Court of Human Rights (an instrument of the Council, not the EU) whose judgements had to be taken seriously. The European Parliament, which is more liberal than the Commission or Council of Ministers, likewise has little clout. The ‘Resolution on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis’ was agreed in September 1995, following the experience of the Bosnian war. Whereas there was a measure of agreement about extending the use of the new category of temporary protection which was introduced for Bosnians who fled the conflict, the Kosovan conflict a few years later quickly showed up the unwillingness of EU states to share the burden. Germany was particularly angered, for instance, by the slowness of the UK to take up its share of the burden. Temporary protection (TP) is a concept with no basis in international law, so its administration depends entirely on the goodwill and good faith of the country that grants it, and is therefore an unsatisfactory status. EU ministers were not even able to agree on what rights those with TP should be given. The Resolution suggested particular categories of people who should be offered temporary protection: those who had been held in a prisoner of war or internment camp and who could not otherwise be saved from a threat to life or limb; those who are seriously injured or ill and for whom no local treatment is available; those under a direct threat who could not otherwise be protected; those subjected to sexual assault who cannot be protected in safe areas near their homes; and those who have come directly from combat zones and who are still within the borders of their countries, but who cannot return home because of conflict and human rights abuse. Keeping families together was no concern of this measure. Any who fled the conflict on their own initiative are specifically excluded from being granted temporary protection: they must wait and be processed in the usual way.36 In 1999, this measure provided the UK with the basis for treating quite differently those Kosovars who fled and sought asylum on their own initiative, and those specially selected from the refugee camps 35. Migration News Sheet, May 1994. 36. Karoline Kerber, ‘Temporary Protection: An Assessment of the Harmonisation Policies of European Union Member States’, IJRL, 9, 3, 1997, 453–72.

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in Albania and Macedonia. Those who came in on their own initiative, if not detained by the Immigration Service, had to exist on food vouchers with no means to buy even a change of underclothes, whilst those specially selected under the categories listed above were able to claim full social security benefits and were provided with housing, utensils and so on. Meanwhile, the Home Office tried to discover, by means of trick questions, which of the self-selected refugees were Kosovan Albanians and which were not; distinguishing them by language or accent had proved too difficult.37 Interestingly, when strong objections to the discriminatory treatment were voiced in the press, the Home Office made no reference to the EU Resolution on which the decision was based. ‘Brussels’ is unpopular with the British, so the Home Office may have preferred to appear in control, rather than shelter behind the EU decision. Also, as it was not taking its full share of the ‘burden’, it was perhaps thought better not to mention the EU agreement at all. Now that the initial period of temporary protection has run out, Kosovars are being forcibly returned from Germany and threatened with forcible return from the UK even when there is evidence that their homes have been destroyed, that landmines have not been cleared and that the medical conditions – which were the reason for their evacuation in the first place – could not be effectively treated if they were returned to Kosova.38 JHA ministers worked on a harmonised definition of a refugee, although whether this added anything useful to the guidance given in the authoritative UNHCR Handbook is open to doubt. The ‘Joint Position’ on this subject does contain a recognition that persecution by non state agents may make a person eligible for protection under the 1951 Convention. Denmark and Sweden are mentioned as countries which already considered that it did. France and Germany are mentioned as not doing so. We also find the following: All applications will be examined individually except where whole groups of people are exposed to persecution or make claims which are clearly not related to the criteria for refugee status in the 1951 Geneva Convention. Even then, cases will be examined individually where evidence is put forward by an individual to show that his claim should be distinguished from that of the rest of the group.39

37. For instance, by asking where the main park in Pristina is. The correct answer to this is that there is no main park. 38. Big Issue, 19–25 June 2000; Guardian, 24 June 2000. 39. Migration News Sheet, December 1995.

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This provision appears to be a UK contribution to EU thinking. The Immigration Rules on Asylum, which accompanied the 1992 legislation, included the following proposal: Cases will normally be considered on an individual basis but if an applicant is part of a group whose claims are clearly not related to the criteria for refugee status in the Convention and Protocol he may be refused without examination of his individual claim. However the Secretary of State will have regard to any evidence produced by an individual to show that his claim to refugee status should be distinguished from those of the rest of the group.

There was an outcry in 1992 about this confused proposal, which critics thought was a reaction to the arrival of groups of Tamils and Kurds described in Chapter 2, and it was withdrawn. In 1991 the UNHCR had commented on the UK formulation, ‘The notion of group determination of refugee status, as reflected in paragraph 10, appears to be inconsistent with the 1951 Convention. Given that Article 1 includes a subjective criterion, it cannot be applied appropriately without an individual examination of each claim.’40 Another concern of JHA ministers was the rising number of unaccompanied child asylum-seekers, and they endeavoured to set standards for dealing humanely with them. A major problem was the difficulty of determining age. Immigration officials were often reluctant to agree that the young person they were dealing with was a minor. As we have seen, this has led to the holding of some quite young teenagers in detention centres in the UK. Member states were requested to bring their national legislation into line with the guidelines by January 1999, but they were left free to treat minors more generously than the minimum laid down by the guidelines.41 A Conference of Ministers on the Prevention of Illegal Migration, held in Prague in December 1997, was primarily concerned with trafficking in aliens.42 Trafficking brought in women for sexual exploitation and illegal workers as well as asylum-seekers who could find no other way of reaching safety in Europe. Strict anti-immigration rules were in large part responsible for a huge rise in person trafficking, and governments knew this. The Conference was held in Prague, not in an EU member country, because the EU was in the 40. UNHCR, ‘UNHCR’s Observations to the Asylum Bill and Related Rules’, London, November 1992. 41. Migration News Sheet, June 1997. 42. John Morrison, The Cost of Survival; The Trafficking of Refugees to the UK, Refugee Council, 1998 is a major study of this issue.

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process of pushing its borders back, and making adjacent, non-EU states responsible for preventing illegal entrance into the EU itself.43 Amid a welter of recommendations aimed at punishment and deterrence, there was brief recognition that a distinction should be made between the trafficker and the person trafficked, and that the latter was often placed in a very vulnerable position.44 In June 2000, this whole matter exploded into prominence again when fifty-eight young Chinese died of asphyxiation in a refrigerated container between Zeebrugge and Dover. There were just two survivors. Whilst many may have been economic migrants from south eastern China, one of the dead appears to have been a Roman Catholic Christian whose parents said he had fled persecution.45 Home Office reaction was to fulminate against the traffickers, and vow to eliminate them. The responsible British press pointed out that this was a fantasy, and that a war against traffickers would leave some genuine asylum-seekers with no other means of escape, and lead to even more risky and dangerous trafficking. New immigration and asylum policies were needed, they said, but there was little evidence that government was in any mood to listen.46 In mid-June 2000 the Medical Foundation issued research on Sri Lankan survivors of torture, many of whom had also been forced to resort to agents in order to escape the country.47 At the beginning of the Second Millennium those who seek asylum in the EU are left in a vulnerable position. The UNHCR has six main concerns about the current situation. First, there are the rapid procedures introduced for many asylum-seekers, which may mean that claims are never adequately considered. Secondly, there are the so-called ‘international zones’at some airports where asylum-seekers are in danger of being returned without being allowed to reach immigration controls and present their claims. There are no such officially designated holding zones in the UK, but there is concern that people may be at risk between leaving the plane and reaching immigration controls. Thirdly, the Convention on Crossing Borders would limit asylum-seekers to designated crossing points and times, in contravention of Article 31 of the Convention. Fourthly, carrier 43. The Czech authorities are not able to afford the sophisticated screening equipment used by the Germans, and the Czech–German border is exceptionally permeable. Guardian, 5 July 2000. 44. Migration News Sheet, December 1997. 45. Independent, 21 June 2000. 46. The Times, Financial Times, Guardian, Independent, 20 June 2000; Tablet, 23 June 2000. 47. Medical Foundation, Caught in the Middle, 28–9.

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sanctions limit the ability of those in genuine need of asylum from leaving their own countries to seek safety. Fifthly, the UNHCR is concerned that people seeking asylum may, in several countries, especially in the UK, be detained on arrival. Finally, the UNHCR is critical of the concept of ‘the safe third country’ which has been added on to the Convention by European states and which may endanger refugees and prevent family reunion. NGOs and refugee organisations share all of these concerns.48 Just occasionally a European country has drawn back a little from the overall harshness. In May 1997, the journal IRR European Race Audit noted a report that social security officials in several towns in the Anvers region of Belgium were refusing to implement harsh rules whereby rejected asylum-seekers should be denied social security, the right to work, housing and health care. They decided it was not only inhumane, but would lead to increasing public order problems on the streets. In February 1998, Norway, not an EU state, acted to liberalise its asylum legislation. It would include as grounds for granting asylum social and sexual discrimination against women and the persecution of minorities on account of their sexual orientation. It would not return to a ‘safe’ third country anyone who had family ties with someone already in Norway, and it would facilitate family reunion.49 At last, in May 1999, after a change of government in the UK a group of backbench MPs threatened a major rebellion on new, harsh measures against asylum-seekers, and won a few concessions. Some of the reasons for this will emerge in Chapter 8 when we come to consider the organisations that assist refugees and asylum-seekers in the UK. Such touches of humanity are all too rare in the grim world of asylum in Europe, but they give a glimmer of hope that there may be a limit to the extent that people will tolerate the EU’s harsh asylum policies.

48. Levy, ‘European Policy’, in Refugees, Citizenship, eds. Bloch and Levy, 45. 49. Migration New Sheet, February 1998.

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t is against the background of EU decision-making that legislative developments in the UK must be seen. The government has seldom referred to decisions taken on asylum by EU Justice and Home Affairs Ministers. They have preferred to let it be thought that that the British were making their own decisions. The Conservative Party was divided in its attitude to the EU, and wanted harsh policies to look like their own initiatives because harshness on immigration played well to a large section of the population. The Labour government which came to power in 1997 seems no more anxious to point to decisions made at EU level than were their predecessors. Only Home Secretary Douglas Hurd, introducing carrier sanctions in 1987, pointed out that other countries were introducing the same deterrent. If the world worked in the way the West thought it ought to, carrier sanctions should have been sufficient. Once airlines could be fined for bringing in improperly documented passengers, all that was needed to stem the flow of people seeking asylum was a visa requirement for nationals of countries likely to generate refugees. However, visas can be obtained on false pretences, airline staff in many countries can be bribed, and documents can be forged. On top of that, the imposition of strict visa regimes and carrier sanctions gave rise to profitable rackets of various kinds: the theft of passports from British and other Western nationals, forgery, bribery, and human trafficking. It became a matter of crimes emerging to fit the punishment. The introduction of carrier sanctions in the UK was described in Chapter 2. This measure effectively criminalised spontaneous refugees and put anyone seeking asylum at an immediate disadvan-

I

– 143 –

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tage, even in danger. Under the headline ‘Lone child turned away because airline feared fine’, the Guardian of 3 July 1991 told the following story: An unaccompanied 12-year-old boy from Zaire was denied entry at Heathrow after a 15-hour flight because officials of Sabena airlines feared a £1,000 fine if they let him present his passport to British immigration officers. The child was not allowed to see his father, who was waiting in the arrivals hall. He was sent back to Brussels and was about to be handed to Air Zaire for return to Kinshasa when the United Nations High Commission for Refugees demanded his admission to the UK.

There is no way of knowing how many more cases like this may have occurred. The number of people seeking asylum in the UK and other Western countries was not stemmed, except very temporarily, by this means. The collapse of an empire invariably creates a power vacuum in which many competing factions emerge, and the former Soviet empire was no exception in this regard. Conflicts broke out in several parts of the former USSR. Refugees from such countries were as unwelcome as those from African and Asian countries where instability was also in part the result of the ending of empire. Conflicts in the former Eastern Bloc demonstrated the failure of capitalism to provide economic solutions by means of the free market which the West saw as the way forward everywhere. In response to this, further restrictions on people seeking asylum were imposed. On 2 July 1991, Home Secretary Kenneth Baker told Parliament that new legislation would be introduced. ‘Fear of persecution is no longer the dominant element for many asylum-seekers,’ he announced. ‘In only a small minority of cases in the United Kingdom are the applicants shown to have a “well-founded fear of persecution” as required by the term of the 1951 United Nations Convention on Refugees’, although Home Office acceptance rates at the time suggested otherwise. In future asylum-seekers would be expected to claim asylum in the first safe country they reached, fines levied on airlines which brought in undocumented passengers would be doubled from £1,000 to £2,000;1 document checks at overseas airports would be strengthened; finger-printing would be introduced to check on multiple applications; and 500 extra staff would be 1. The Times, 18 July 1991 reported that this was the ‘last straw’ for Lord King of Wartnaby, Chairman of British Airways, leading him to cancel donations to the Conservative Party. See also Sunday Times, 21 July 1991, where Lord King explained his position.

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recruited by the Immigration Department to deal with the growing backlog. There was one sweetener: all failed asylum-seekers would be given a right of appeal. However, Baker also intended to introduce extremely strict time limits, and to end ‘green form’ legal aid. In future such advice and representation would only be available through the UK Immigrants’ Advisory Service, he declared. Knowing that legislation had been planned, eight refugee organisations had formed themselves into an umbrella group which they named the Asylum Rights Campaign (ARC), and they invited others to join them.2 ARC promptly issued a list of its concerns about Baker’s proposals. Its members were particularly concerned about proposals to double fines on airlines and check documents overseas; at accelerated procedures which they feared might not give asylum applicants sufficient time to present their claims fully; at the abolition of ‘green-form’ legal aid meaning that a government-funded body would have a monopoly of advice to asylum-seekers; and at aspects of the proposed appeals procedures which would ‘fast track’ some asylum-seekers through the procedures with no oral hearing. ‘The likelihood that victims of persecution will be denied sanctuary is greater today than yesterday’, they said in a press statement.4 The UNHCR also voiced its concerns in a document dated 1 August which drew attention to the same points as had been made by ARC. The main stumbling block for the Home Office, and one which scuppered one part of their plans, was that they had not thought to consult the UK Immigrants’ Advisory Service (UKIAS) on the decision that it should become the monopoly provider of advice to asylum-seekers. This body, funded mainly by the government to give free advice and representation to immigrants, including asylumseekers, gave notice that it might not be willing to take on this monopoly.5 UKIAS’ governing body was plainly divided as to what to do, and Krishna Sarda, its Director, complained that a ‘highly organised campaign by specialist solicitors’ was accusing UKIAS of incompetence.6 It soon emerged that not only was there concern 2. These eight organisations were Amnesty International, Charter ’87 for Refugees, the Immigration Law Practitioners’ Association, the Joint Council for the Welfare of Immigrants, the Medical Foundation for the Care of Victims of Torture, the Refugee Council, the Refugee Legal Group and the Refugee Working Party. 3. This is a limited amount of legal aid, applied for on a green-coloured form, enabling solicitors to give advice to asylum-seekers. 4. The swiftness and unanimity of this response startled the Home Office, but did not deter it. 5. Guardian, Independent, 5 July 1991. 6. Guardian, 5 July 1991.

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that UKIAS was not competent to do the job the government planned for it, but also that it was riven by internal quarrels and factionalism.7 A group of fifteen of its staff warned the director that they would not cooperate with the government’s plans and on 31 July the Board decided unanimously to refuse to do so in spite of a veiled threat that, unless they did, their Home Office grant might be transferred to the Citizens’ Advice Bureaux (CAB). The CAB quickly made it plain that they would not be willing to take over UKIAS’ proposed role.8 The Home Secretary apparently failed to realise that, in a democratic society, NGOs, however funded, could not simply be ordered around. Strong support for the retention of green form legal aid came from Anthony Scrivener QC, then Chairman of the Bar Council. He told an audience at Birmingham University on 20 July, ‘No-one is seeking to open the doors to a floodgate of refugees who do not qualify as refugees under the 1951 UN Convention, but we must make sure that our system of law is not so mutilated that it will not let through those who do qualify’. He attacked the proposal in even stronger terms in an Observer article on 18 August. By the end of September the government had been forced into the beginnings of a retreat on this issue, but the continuation of legal aid remained in flux until the last minute, and threats to cut the grant to UKIAS were repeated. ARC received assurances from the Lord Chancellor’s Office that green form advice would not be removed ‘until satisfactory alternative arrangements have been made’, but were not entirely satisfied by this.9 Eventually a section of UKIAS was hived off to become the nucleus of the new Refugee Legal Centre which provided free advice and representation at appeals for asylum-seekers. By the time the Asylum and Immigration Appeals Bill was published on 1 November, the number of organisations joining ARC had risen to over 80, and included the Law Centres Federation, Liberty, the National Association of Citizens’ Advice Bureaux, the Catholic Bishops Conference, the Council of Churches in the UK 7. Independent on Sunday, 21 July; David Pannick, The Times, 23 July; Guardian, 24 July 1991. 8. Memorandum signed by 15 staff members of UKIAS to the Director, 2 July 1991: ‘We totally reject this attempt to turn UKIAS into a Government-funded monopoly ... It is vital that our clients see us as truly independent and not an extension of the machinery of immigration control’. See also The Times, Independent, Guardian, 1 August; Independent, 16 August 1991. 9. Observer, 29 September; Independent 1 November 1991 quoting from a letter from Home Office Minister Peter Lloyd to UKIAS; letter dated 22 August 1991 to Ali Sabet and Kate Allen, Joint Chairs of ARC.

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and Ireland, Quaker Social Responsibility and Education, the Scottish Council for Civil Liberties, World University Service and many refugee community groups. The government was apparently surprised by the strength and unanimity of the opposition, but pressed ahead, knowing that the ‘race-card’ was always a good card to play in the run up to an election (and the Bill would have to be pushed through Parliament fast if it were to become law before the election had to be held). They also knew that the right-wing press would support anything it saw as helping to cut down immigration.10 The Bill was published on 1 November and was even more restrictive than expected. When discussing the right of appeal in Chapter 4 we noticed that in the failed 1991 Bill there was no right of appeal, only a right to apply for leave to appeal, and that the time limits were unrealistically tight. The Procedural Rules which accompanied the Bill and which were carried over into the 1993 Act, included a long list of factors which would count against asylumseekers. For instance, if a student or someone on business in the UK made an unsuccessful application for asylum during the course of their stay, perhaps because of changed circumstances in their home country, their leave to enter would be curtailed, and they would be returned to their country of origin straight away. If, on the other hand, they stayed and completed their business or course of study before applying for asylum, it would count against them that they had not applied immediately they felt themselves endangered. Under a further provision, the Secretary of State might make a decision on an asylum application at any point during the determination process, and on the basis of such information as was then available. This was later withdrawn. Green-form legal aid was not mentioned. ARC coordinated a sustained campaign against these and other provisions of the Bill. Posters and well-designed leaflets were printed in a readily recognisable format which gave information and points for campaigners; selected MPs and members of the Lords were approached; the bishops in the Lords and other religious leaders were sent briefing papers and letters were written to the press. Those who criticised the Bill did not do so only on the grounds that it was unjust, but also that it would fail to reduce the backlog, and that the time schedules it proposed for dealing with new asylum applications (which were binding on asylum-seekers but not on Adjudicators or 10. Andrew Lansley, former head of research at Conservative Central Office, quoted in the Observer, 3 September 1995: ‘Immigration, an issue we raised successfully in 1992 and again in the European election campaign, played particularly well in the tabloids and has more potential to hurt.’

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the Home Office) were unrealistic and could not be adhered to. Events were to prove them right. In November 1990, Amnesty International had published a 41–page report entitled United Kingdom: Deficient policy and practice for the protection of asylum-seekers. This was followed by A Duty Dodged: the Government’s evasion of its obligations under the 1951 Convention on Refugees in October 1991. A full-page advertisement by Amnesty appeared in the Guardian on 13 November. The Medical Foundation for the Care of Victims of Torture produced specialist briefings relating to people who had suffered torture and provided case histories of some of their clients.11 But nothing moved the government. Only on the matter of timing was the government moved, and a reconsideration of the time limits was promised. The Bill met with stiff opposition in the Lords, but a majority of Tory peers could always be whipped in to stave off what would otherwise have been defeats. The government then found itself unable to get the Bill into law before an election had to be called. There was a last minute panic when it seemed that the Labour Party might be willing to do a deal over the Bill in order to allow it through with some minimal amendments, but once this became known, the idea was hastily dropped. Soon after the election, which returned the Conservatives to power, a new version of the Bill was produced. Kenneth Clark had succeeded Kenneth Baker as Home Secretary, and some of the more crass elements of the Baker Bill were eliminated or sorted out.12 There was now to be a right of appeal for all, and a new time limit of ten working days was proposed for the lodging of an appeal, except for those asylum-seekers held in detention on whom notice of refusal could be served in person. Nevertheless, the UNHCR and the members of ARC remained firmly opposed to most of the Bill’s provisions.13 And the right of appeal for all asylum-seekers was to be ‘paid for’ by the loss of any right of appeal for visitors to the UK who were refused visas; these were overwhelmingly either students or visitors from Africa, the Caribbean and the Asian sub-continent. This was a manifestly unjust move, which caused great resentment in those communities. The Home Office must have been aware that it had the potential to set the Black and Asian communities against asylum-seekers. The second reading of the new Bill took place almost exactly a year after the second reading of the failed Bill. MPs and members of 11. Medical Foundation News, ‘Asylum Rights under Threat’ and accompanying case histories, November 1991. 12. Baker had by this time been convicted of contempt of court over the deportation of an asylum-seeker, and could not continue in office. 13. UNHCR document dated November 1992.

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both Houses of Parliament were inundated with lengthy briefings by all the major refugee agencies and by some church organisations: later these decided that they had probably overdone their advice. In the Lords, Lord Ackner, a Lord of Appeal, once again pointed out that the retention of a two-day time limit for detainees would be counter-productive: A person who has no time to consult an adviser or an adviser who has no time to make the necessary enquiries of a safe third country, Amnesty International or elsewhere, will automatically put in an appeal notice. With thought and consideration, no notice of appeal might have gone in at all ... It is forensically myopic to think that a rushed procedure is in effect going to produce efficiency.14

The government drove the Bill through virtually unamended, refusing to listen either to the objections, or to the repeated warnings that its provisions would not work. The criteria introduced in the Immigration Rules that accompanied this Bill still waste endless hours of appeal time. A woman who fails to make ‘full and prompt disclosure’ of rape to male immigration officers, for instance, may have this failure held against her, so a specialist medical report has to be produced at appeal to demonstrate what everyone knows, namely that women who have been raped find it extremely difficult to reveal what they have been forced to undergo, and should not be penalised for this. Almost all the points that the rules say should count against an asylum-seeker are of the same doubtful value in assessing the true merits of asylum cases. But most appeals are unrepresented and refused and some Adjudicators accept Home Office refusals based on these criteria.15 The new legislation did little to deter asylum applications, and the time limits laid down for the Home Office and the Adjudicators to deal with cases very quickly proved unworkable, just as the refugee organisations had said they would. A steadily growing backlog of appeal cases was now added to the backlog of cases awaiting an initial decision.16 So in 1995 another piece of asylum legislation was put forward, which was to be accompanied by administrative measures specifically designed to deter people from seeking asylum in the UK. Liv14. Hansard, Lords, 26 January 1993, Col. 1175 15. These are among the time-wasting elements commented on by barristers called in to advise the Home Office on refusal letters. See Chapter 3. 16. The backlog included cases outstanding since 1987. Guardian, Letters, 13 October 1995.

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ing conditions were to be made almost intolerable for anyone who did not apply for asylum immediately on entry. Peter Lilley, Secretary of State for Social Security, told the Conservative Party Conference that any asylum-seeker who did not claim asylum immediately on arrival would lose all entitlement to social security benefits, with no alternative provision of the means of life, as would anyone refused and awaiting an appeal. This was in spite of the fact that more in-country applicants were recognised as Convention refugees than on-entry applicants. Changes to the social security regulations can be made by Statutory Order, so do not normally require primary legislation, and do not need to be debated and voted on by Parliament. The government pressed ahead with this change against the advice of the Social Security Advisory Committee. This body pointed out the obvious fact that ‘thousands of men, women and children will be left with no means of providing themselves with food or shelter. Many will have no option but to live on the streets of our major cities and ports. Health professionals have warned that, given the vulnerability of many asylum-seekers due to their already precarious physical or mental health, some may die’.17 There were no other announcements about immigration and asylum at the party conference, but documents were said to be in circulation suggesting the introduction of a ‘White List’ of countries from which it would be assumed people were not in need of asylum, with applicants from such countries being fast tracked through the asylum procedures. This was a policy decided on by EU Justice and Home Affairs ( JHA) Ministers as we saw in the previous chapter.18 Business leaders were reported to be unhappy at plans to fine employers of illegal immigrants, and this plan was reported as meeting opposition from the Secretary of State for Education, Gillian Shepherd, on the grounds that it would be likely to lead to racial discrimination in employment.19 Again, cautionary advice was ignored. A Bill finally came before Parliament in early 1996. This new Bill expanded the categories of people who would be dealt with under an ‘accelerated procedure’, so reducing their chances of having their cases fully heard and understood. Those who had transited through so called ‘safe third countries’, in which it was held they should have claimed asylum rather than completing their journeys to the UK, were to lose the right to appeal against a decision to return them to those countries before removal. A ‘White List’ 17. Independent, 21 January 1996. 18. Minutes of the Asylum Rights Campaign, 19 October 1995. 19. Independent, 6 October 1995; Independent, Financial Times, Guardian 13 October 1995.

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was planned under the title of ‘safe countries of origin’.20 The London Office of the UNHCR published a lengthy critique of the government’s proposals in a document dated 19 January 1996 as well as a copy of the 1994 UNHCR document, ‘Fair and Expeditious Asylum Procedures’, so making clear that they did not consider that the UK government’s intentions were in compliance with those standards. Decisions along these lines had, however, been taken by EU JHA Ministers, and the government had no intention of modifying the proposals. The Glidewell Panel, chaired by Sir Iain Glidewell, a recently retired Lord Justice of Appeal, was set up in January 1996 by a number of voluntary organisations and charitable trusts. It received evidence, oral and written, from ninety-five organisations, with the Home Office declining an invitation to give evidence. The Panel concluded that the Bill was unlikely to achieve the government’s stated objectives and that the backlog was likely to grow rather than be reduced (a finding which, as has been noted, quickly proved to be correct). They also found that the Bill was not in the spirit of international law in some important respects and that race relations in the UK were likely to be worsened by the Bill. It was further recognised that in practice, if not in theory, it would be likely to increase the ‘culture of disbelief’ which those giving evidence thought existed in the Home Office. In addition, it was thought that the Bill’s proposals would be likely to deny access to the appeals mechanism by those who had travelled through ‘a safe third country’. The Panel members were also extremely concerned about the proposed removal of asylum-seekers from access to social security benefits.21 None of the findings of the Panel was accepted by government. It was, of course, the removal of social security benefits which attracted most attention and which shocked a wide range of opinion. The proposals were described by the religious affairs journalist, Clifford Longley, as: the most disgraceful and least respectable actions, in any area, of any British Government since the Second World War … They deliberately created a class of people who … were, so to speak, outside the reach of ordinary human solidarity, in effect, non-people. I have some idea of 20. The criteria for White List countries were that they had produced large numbers of asylum applications, that many of these had been unsuccessful, and that, in the opinion of the Home Office, ‘there was in general no serious risk of persecution’. 21. The Report of the Glidewell Panel, 16 April 1996. It proved impossible to produce the report in time for the Second Reading debate in the Commons, but it was available to the Lords when the Bill came to them.

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what the rival policies might be for this unique distinction, but that only hardens my view.22

Moreover, it was planned to introduce the removal of benefits on 8 January 1996, at the coldest time of the year, leaving people to sleep rough in frost and snow. There were protests by religious leaders and calls to local religious communities and other groups to provide food and shelter for asylum-seekers.23 The government was unmoved, but the outcry did succeed in delaying the implementation of this measure for four weeks. Then the courts ruled that the action was ultra vires, finding that, if such radical measures were to be taken, it must be through primary legislation which had been fully debated by Parliament, not by Statutory Order. So a new clause was hastily inserted into the Bill, which was still going through its final Parliamentary stages, and driven through. A House of Lords amendment which would have allowed newly-arrived asylum-seekers three days in which to apply for asylum before losing the right to benefits was twice thrown out by narrow majorities in the Commons, in spite of a public appeal by the Archbishop of Canterbury, Cardinal Basil Hume and the Moderator of the Free Church Federal Council. The Bill therefore passed into law.24 A vast relief operation in the London area, where most asylumseekers were found, was hastily patched together by the Refugee Council, the churches and other religious groups coordinated by the Roman Catholic Diocese of Westminster, with help coming in particular from the Jewish Council for Racial Equality, as well as from a host of other sources including the Red Cross.25 A night shelter provided temporary accommodation for a few of those who would otherwise sleep rough. This was officially opened by Cardinal Basil Hume.26 He was forthright on the moral issues involved in deliberately depriving vulnerable people of food and shelter, and he ended by quoting the words of the greatly respected Rabbi Hugo Gryn who had died the previous month: Asylum issues are an index of our spiritual and moral civilisation. How you are with the one to whom you owe nothing except our common humanity … that is a grave test … I always think that the real offenders 22. 23. 24. 25.

The Tablet, 26 April 1997. Council of Churches of Britain and Ireland, Press Release, 21 November 1995. The Times, 15 July 1996, reported on the BBC’s Today programme. The Red Cross was castigated by The Times in an uncharacteristically illiberal leading article for giving out food parcels the following Christmas; The Times 19 December 1996. 26. The plight of asylum-seekers has often figured in the homelessness magazine, The Big Issue. A good article on the night shelter appeared in the first number in 1997.

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at the half-way mark of the century were the bystanders, all those people who let things happen because it didn’t affect them directly and then unspeakable things can happen. I believe that the line that our society will take in this matter – on how you are to people to whom you owe nothing – is a critical signal that we give to our young, and I hope and I pray that it is a test we shall not fail.27

Rabbi Alan Plancey, representing the Chief Rabbi, and Rabbi Albert Friedlander of the Westminster Synagogue, who had himself been a refugee, visited the Night Shelter, and were deeply distressed to see asylum-seekers, many of them young and highly educated people, reduced to such a plight by government action. ‘It’s frightening to see such a thing in the UK’, Rabbi Plancey told the Jewish Chronicle, which reported the visit, which was organised by the Jewish Council for Racial Equality. A day centre was also set up in borrowed premises, and later moved a couple of times before finding a permanent home. It, too, was visited by journalists and well wishers, the latter including the Dean of Westminster and his wife. The Dean wrote in his diary: 10 August. Alison and I visit a feeding and advice Day Centre for asylumseekers deprived of all benefits in a Methodist church in Vauxhall. We take a cheque from the Abbey’s One People Fund for £5000. The Centre opens for four hours daily. It is run by volunteers and sponsored by the local churches with a grant from the London Boroughs. There is a sense of baffled hopelessness. Many have walked from the farthest outskirts of London in order to have a hot meal, some legal advice and a bit of company. I talk to a man who has been tortured in Iran; a woman whose family were killed and who was raped by soldiers in Zaire … There has been much talk this year of morality. Morality is at heart about giving proper value to every human being, and any Christian critique of society must begin by judging how it treats the poor, the disadvantaged and the stranger in its midst.28

Nothing the voluntary agencies could do could prevent huge suffering. The Medical Foundation reported that one of their female clients who had fled from persecution, including torture and rape, was found sleeping in a public toilet. The Refugee Council gave out plastic sheeting to people driven to sleeping rough, and angry members of the UNHCR talked about setting up a third-world-type camp in Hyde Park. ‘The UNHCR thinks the UK is the pits’, remarked 27. Quoted in an address by Cardinal Hume, 6 September 1996 whose text was published by Archbishops’ House, London, SW1P 1QJ. 28. Michael Mayne, Pray, Love, Remember, London, 1998, 112.

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one of its British staff to her parents. Tented accommodation near White City was mooted. The first legal challenge to this action failed, though appeals succeeded in deferring the implementation of the measure by some months. An appeal to the European Commission on Article 2.1 grounds (the right to life) could not be begun until all legal remedies in the UK had been exhausted, and would then take years. A subcommittee of ARC spent much time making contingency plans for a major fund-raising spectacular to be opened by celebrities on the steps of St Martin-in-the-Fields Church, Trafalgar Square, but in the end those plans were not needed. A solicitor, Gerry Clore, realised the possibility of claiming assistance for persons with no other means of support under the 1948 National Assistance Act. He brought claims on behalf of four people – from Algeria, China, Iraq and Romania – and won his case in the High Court. Mr Justice Collins, giving judgement, said, ‘I find it impossible to believe that Parliament intended that an asylum-seeker, who was lawfully here and who could not lawfully be removed from the country, should be left destitute, starving and at risk of grave illness and even death because he could find no one to provide him with the necessities of life’, and this was upheld on appeal, with Lord Justice Simon Brown and Lord Justice Waite delivering judgement, and using equally strong, morally-loaded language.29 An appeal to the Lords by the Ministry of Health was deferred, apparently because the Ministry was warned that it was likely to lose. Meanwhile the care of asylum-seekers who had been excluded from the benefits system became the responsibility of local authorities under the 1948 Act, although it was eventually ruled that they could give that assistance only in kind, not in cash, which landed them with a huge administrative burden, and was not cost-effective. They were only partially reimbursed by central government for the expense incurred.30 The government sought to recommend its asylum legislation to the public in a campaign which played into the hands of racists, and whipped up public opinion against asylum-seekers.31 Arguably this 29. The Times, Law Report, 10 October 1996; The Times, Guardian etc, 18 February 1997. See also Rozenberg, 1997, 94 ff. who says that complete deprivation was precisely what Parliament had intended, although he seems to be disapproving of their action. 30. Travers, British Immigration Courts, 138–9 quotes from an interview with a Home Office official regretting that they had overlooked the 1948 National Assistance Act when drafting the Bill. There was no indication at all that the person quoted had any sense that depriving people of the means of life might be immoral. 31. As Dr Paul Young of Manchester Metropolitan University explained to a meeting of the Royal Geographical Society on 7 January 1997.

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did nearly as much damage as the actual legislation, in that it ratcheted up the spiral of anti-immigrant, anti-refugee feeling, and so made any change of policy much more difficult to engineer. When a Labour government came to power in May 1997 it ordered a radical re-examination of the whole asylum system, and spent a long time consulting and deciding what to do. The Immigration Law Practitioners’ Association, the organisation ‘Justice’ and the Asylum Rights Campaign had commissioned a programme of research into the asylum process, so that when the review of procedures was announced, they were ready with positive proposals based on their extensive experience. Providing Protection: Towards Fair and Effective Asylum Procedures was published in July 1997. The UNHCR thought it a fine piece of work, which could have been the basis of the new legislation that Labour promised. To the dismay of ARC, no use of Providing Protection could be detected in the White Paper, which finally appeared in July 1998. This was entitled Fairer, Faster and Firmer – a Modern Approach to Immigration and Asylum, but its emphasis was on ‘firmer’ and ‘faster’ rather than ‘fairer’. There was a sense of déja vu, with few people believing, in view of past experience, that it would lead to the swift decision-making that its authors aspired to, with applications dealt with and unsuccessful asylumseekers removed from the country, all within six months. Nothing in the Bill showed how the faster decision making was to be achieved, although plans for computerisation were known about. At the beginning of 1999, the Home Office had to place a ‘Warning’ on its website to the effect that the Immigration and Nationality Directorate was being reorganised, and that whilst this was going on – and it would take some months – they could not deal with extensions to visas for foreign nationals in the UK. If such people needed to travel urgently, their passports would be returned to them unendorsed, and they would have to reapply from overseas.32 It soon transpired that the foreign nationals’ passport section was not the only part of the Home Office to be in chaos. So was the entire Immigration and Nationality Directorate. Thousands of letters were unopened, files were in heaps on the floor or inaccessible, and the new computer system, intended to make the six-month target a possibility, had failed.33 By mid-May the Appellate Authority was in difficulty for lack of cases coming through from the Home Office. 32. A copy of this warning was enclosed with the Minutes of the Refugee Legal Group, 2 February 1999. 33. Guardian, 18 March 1999. The supplier of the computer system was Siemens.

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The 1999 Asylum Bill, when it was finally published, was long and complex. Because of its length, only certain of its most important aspects can be discussed here. Although some of the measures announced by the government were welcomed when the Bill was published, overall this legislation makes it even harder for genuine refugees to find sanctuary in the UK than it was before. Among the measures announced – not all of which required legislation – was that there was to be a limited amnesty for some 30,000 people who were still awaiting an initial decision despite applying for asylum before the end of 1995. Further well received plans that included an announcement that refugees would be given indefinite leave to remain concurrently with recognition, and those with exceptional leave to remain would have to wait only four, instead of seven years before being granted indefinite leave to remain. However, the Home Office dragged its feet over processing these ‘amnesty’ cases. One caseworker suggested that they did not like allowing someone to stay in the UK when, had they arrived only a few months later, they would have been refused. It took longer to clear the backlog cases than it should have done. Another popular decision was that as well as observing criteria under the 1951 Refugees Convention, other international human rights covenants such as the UN Convention on Torture would be observed. Then there was a general welcome for the decision to regulate unscrupulous immigration advisors, something that lawyers had requested for a long time. The acceptance of a recommendation by the Legal Aid Board that that legal aid should be made available for representation at appeals is a particularly welcome move.34 Promises of greater openness were also encouraging, although the reality of this has still to be fully tested.35 Much of the very long Bill gave cause for concern, however, not least the huge number of amendments introduced by the government itself, making the final shape of the legislation very difficult to follow. Most public attention was caught by the decision to introduce vouchers rather than restore some form of social security for asylumseekers, although this latter would have been the simplest and most cost-effective way of dealing with the legacy of the 1996 Act.36 A new 34. Legal Aid Board, Access to Quality Services in the Immigration Category: Exclusive Contracting. Recommendations to the Lord Chancellor, May 1999. 35. See, for instance, Amnesty International’s Response to the White Paper of July 1998. 36. Association of London Government, ‘Report on the Impact of Provision for Asylum-seekers on Local Authority Social Services Departments’, September 1997; Medical Foundation for the Care of Victims of Torture, ‘Past Misery, Present Muddle: Council by Council Survey of Assistance to Asylum Seekers, One Year On’, October 1997.

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agency was set up, the National Asylum Support Service (NASS), with centres in various parts of the country. It was admitted that the new support system would be expensive to administer, but what was referred to as its ‘disincentive effect’ was held to override considerations of expense. The clause in the Bill that introduced the section on support gave the Secretary of State powers with which he ‘may’ make provision for asylum-seekers; there is no compulsion on him to do so. A Home Secretary might, at some future date, decide not to provide any subsistence for asylum-seekers, leaving them without adequate protection and the extent of the provision is not laid down. When MPs came to consider the proposals about provision for asylum-seekers, backbenchers forced a minor concession on the balance between cash and vouchers being proposed. The original plan was to give only £1.00 in cash per day to each adult and 50p per day to each child to cover non-food needs, the remainder to be in the form of vouchers, which are only valid in designated supermarkets. The balance between cash and vouchers was shifted as a result of the protest, adults being given £10 per week, and children the same, and less in vouchers. Supermarkets may not give change when vouchers are used, so they make a small profit on many transactions. Sodexho Pass, the agency which was employed by the Home Office to operate the voucher system, thought the retention of the change would be a suitable incentive for the supermarkets to join the scheme.37 This decision caused Oxfam to withdraw from the voucher scheme.38 If families were still without a final decision at the end of six months, MPs were promised that a cash handout would be given to meet special needs, including clothes. Critics were assured that, when accommodation and other basics – ‘essential living needs’ as they were called, a phrase meant to include ‘pots and pans and utilities’ – were taken into account, this brought the overall provision up to 90 per cent of the normal rate of social security, a conclusion that is not universally accepted.39 No account has been taken of the needs of those asylum-seekers who arrive from a hot country with inadequate clothing or who arrived in only the clothes they stood up in. Social workers have found themselves buying underpants for some who arrived in this plight. The Bishop of Southwark, speaking in the Lords, drew on experience gained by drop-in centres, many of them run by the churches in his diocese, to point out the recurring needs 37. Guardian, 10 March 2000. 38. Guardian, 3 April 2000. 39. Lord Williams of Mostyn, Hansard, Lords, Column 1120, 21 July 1999.

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of refugees for clothing, especially when they had children, but his pleas fell on deaf Home Office ears.40 A decision that support would not be available to those who lost an appeal and then sought leave for judicial review attracted less notice in spite of its potentially serious consequences. This now makes it almost impossible for anyone to apply for judicial review. The possibility of judicial review is important: some asylum-seekers are only recognised as Convention refugees as a result of the intervention of the courts following judicial review, and important points of law have been clarified when judicial reviews have brought them to the notice of the courts. It is not right that charities and NGOs should have to shoulder the burden of supporting people in order for them to exercise their legal rights. The provision of needs has to be made by consultation between local authorities and NGOs. Concern has been expressed about this for two reasons. First, not all voluntary agencies are happy at being co-opted in this way. The Refugee Council, for instance, is shouldering a huge burden in this regard. As Lord Alton pointed out in the course of the House of Lords debate: One of the points made very forcefully to us last week by the groups which came here is that they feel that if they were increasingly dependent on income from the Home Office – and I understand that this is a rehearsal of a point that is often made to the minister – and given that often they have an advocacy role on behalf of asylum-seekers and refugees, that independence may be compromised and their ability to speak on behalf of these vulnerable groups of people may be neutered if they are effectively co-opted as an arm of the state to administer services.41

Secondly, the extent to which the NGOs are to be relied on is too great, and it is not clear why some have agreed to be co-opted in this way. The Bishop of Southwark, quoted above when speaking in the Lords debate on the Asylum Bill, went on to say that when he had asked earlier whether the voluntary sector had been consulted about being involved, and whether it had given its consent, the Minister had answered ‘yes’ to the first part of the question, but had not replied to the second part. The Bishop believed that NGOs and charities were willing to help bridge the gap between the support package on offer and the provision they felt necessary in a civilised society, but that the gap being created was too wide.42 40. The Bishop of Southwark, speaking in the Lords debate on the Asylum Bill, Hansard, Lords, Column 1120–1121, 21 July 1999. 41. Lord Alton of Liverpool, speaking in the Lords debate on the Asylum Bill, Hansard, Lords, Column 1123, 21 July 1999. 42. The Bishop of Southwark, ibid.

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On the other hand, helping to fill that gap has provided an opportunity for people to protest about the inadequacy of provision. In April 2000 the new support agency, NASS, began to receive gifts of toys, which it was asked to hand on to the children of asylum-seekers. People had learnt that toys were not considered to be necessities, so might not be bought with vouchers. They had also been warned that if help in kind was given to asylum-seekers, an equivalent amount might be deducted from voucher provision. So toys were sent to NASS since there seemed to be no other way of giving them without putting asylum-seekers at risk. It took a few weeks before the Home Office climbed down: toys might be bought with vouchers (only, of course, asylum-seekers would not be able to afford them), and might be given to children without endangering their support.43 A little later it became clear that gifts of clothes might also be given without damaging the asylum-seeker’s support. As for cash, contradictory statements have been made. On the one hand, the rules state clearly that any gift of money must be reported to NASS, and failure to do so could result in the withdrawal of support. The fear is that reporting such gifts would lead to an equivalent amount being deducted from their support.44 On the other hand, Home Office Minister Barbara Roche was asked at a conference in London on 11 May 2000 whether small cash sums given to asylum-seekers would affect the amount of support given by the Home Office. ‘If you are talking about small donations and not substantial support, of course, not … Small donations are a matter for individual organisations.’ The impression given was that such small donations did not count. As a result of a further provision of the Act, more Airline Liaison Officers have been placed in airports overseas in order to prevent people leaving their countries with inadequate or false documentation. Officers in Accra, Dhaka, Nairobi, Colombo and New Delhi had been so successful in preventing people without full travel documentation boarding planes to the UK that a further fifteen posts were to be created. What happens, however, to someone trying to escape persecution who is refused permission to travel at this juncture, and is thereby brought to the attention of officials? Amnesty International, concerned that people are being prevented from fleeing persecution, has called this ‘constructive refoulement.’45 Another provision of the legislation concerns those who have transited through a ‘safe third country’. In future all EU countries are 43. Letter from NASS dated 26 April 2000. 44. Parliamentary Question, written answer, Hansard 12 May 2000, quoted in iNexile, June 2000. 45. Response to the White Paper of July 1998.

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to be declared safe, and decisions to remove asylum-seekers to EU countries may no longer be judicially reviewed. The Home Secretary also now has the power to certify non-EU countries as safe. France and Germany, however, are among countries that will not afford Convention protection to people persecuted by non-state agents, even though their governments are unwilling or unable to protect them. In a test case brought during the passage of the Bill by a Somali, a Sri Lankan and an Algerian, the Court of Appeal ruled that such persons were entitled to the Convention’s protection, and that they could not lawfully be returned to a country which would refuse them the protection of the Convention: ‘The Convention had to be regarded as a living instrument. Looked at in that light, the Convention was apt unequivocally to offer protection against nonstate agent persecution, where, for whatever cause, the state was unwilling or unable to offer protection itself.’46 The legislation broadened the scope of criminal offences. Any false statement made by an asylum-seeker, whether material or not, may lead to criminal prosecution. An attempt to pass off false documentation as genuine, or to make any other statement considered to be false, therefore, puts the asylum-seeker at risk. This shows a refusal to recognise the realities of asylum-seeking, and ignores advice given in the UNHCR Guidelines which recognise that asylum-seekers may be driven to use deceit in order to escape. Carrier’s Liability has been extended to lorries that bring in asylum-seekers, whether the driver is aware of their presence or not. Both the lorry driver and the asylum-seeker who enters clandestinely now face stiff penalties and vehicles may be impounded until fines are paid. The Road Haulage Association was justifiably angry because the driver of a lorry is not always the person responsible for packing the container. However, there was clearly trafficking going on from a huge Red Cross camp outside Calais which the French Authorities were doing little to control, and both traffickers and drivers were making considerable sums of money.47 As this legislation was being debated, Kosovar refugees were arriving in the UK in just this fashion. Had the new legislation been in force, the lorry drivers would have been fined £2,000 apiece, and far fewer Kosovars would have reached a place of safety. The numbers brought in by lorry fell after the fines were introduced. 46. The Times, Law Report, 28 July 1999. Regina v. Secretary of State for the Home Department, Ex parte Adan, Regina v. the Same, Ex parte Subaskaran, Regina v. the Same, Ex parte Aitseguer. 47. The Times, 1 April 2000, ‘Human Tide Seeking a Golden Dream’.

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Sections of the legislation deal with appeals, and new hurdles are erected for appellants. When an appeal before an Adjudicator is lost, and an asylum-seeker asks leave to appeal to the Tribunal, the Tribunal may place a warning. If the appeal is then disallowed, the legal advisor may be fined. ‘One-stop appeals’ have been introduced. Previously if an appeal was lost, a failed asylum-seeker might, in certain circumstances, appeal against removal. Now the appellant has to present arguments on both counts at once, and the Adjudicator must consider both matters together. On various other technical grounds, appeal rights are further limited by the legislation, and there are increased powers to strike out appeals. There is concern among lawyers that the present legislation is a step along the road to hearing cases on the papers only without an oral hearing, and that the present two-stage process may be reduced to one stage only. This was one option put forward in the discussion paper, Review of Appeals: A Consultation Paper, published by the Lord Chancellor’s Department in July 1998. A suggestion that the Tribunal was to be reduced to just one person was scrapped. There is disquiet about the increased powers given to immigration officers to arrest and remove failed asylum-seekers, and immigration officers themselves are unhappy about these. Only the police have previously had such powers, and there have been notorious cases where restraint procedures have been disregarded with serious or fatal results. Immigration officers fear finding themselves in situations they are not adequately trained to deal with.48 The rate of removals greatly increased in the wake of the new Bill. In the first four months of 2000 15,120 people were removed from the UK. A substantial proportion of these were failed asylum-seekers.49 The Confederation of British Industry, the Trades Union Council and the Commission for Racial Equality have all expressed disquiet about the requirement placed on employers to enquire into the immigration status of employees. Those targeted for investigation will inevitably be mainly Black and Asian employees, and employers fear accusations of racism. Hospitals and education establishments have already been co-opted into monitoring patients and students, and some of their staff object on grounds of conscience at being required to ‘spy’, as they see it, in this way.50 48. Amnesty International, United Kingdom: Cruel, Inhuman or Degrading Treatment during Forcible Removal, July 1994. 49. National Association of Anti-Deportation Campaigns, Newsletter, 26 June 2000. 50. A teacher of English in London whose post was Section 11 funded was asked by her college administration to report on her students. She was advised to ask the administration of her institution to do this themselves if they felt the instruction had to be obeyed.

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Some modification of the Bill was achieved as it passed through Parliament, but detention is still not to be brought under full judicial control; bail hearings are offered instead although they cannot determine the legality of the detention as is required by Article 5.4 of the European Convention on Human Rights. The Bill has been amended to include a presumption that bail will be granted unless good reason can be shown for refusing it, but this is hedged about with so many exceptions that lawyers fear it will be of little use. It is agreed that the hearings must be open to the public, and it is not clear at the time of writing how the original provision stands that would allow hearings to be held in detention centres or by video-link. The Detention SubGroup of ARC has vigorously objected to the latter as something completely new and foreign to many asylum-seekers. They thought that tests showing it to be acceptable to British prisoners were not valid for asylum-seekers. Bail hearings for all detainees will not now be introduced until October 2001. They have been pushed back again and again as Home Office staff try to work out how to manage them. The measure that has attracted most attention is the provision for asylum-seekers to be dispersed to areas outside London and the South East. It is widely accepted that the London Boroughs have borne an undue burden, particularly since the 1996 Act removed the right to social security, and provision had to be made by local authorities under the 1948 National Assistance Act. Some local authorities went ahead and made their own dispersal plans before the Act came into force, sending people to inappropriate locations without proper preparation, and so causing hostility towards the asylum-seekers, and jeopardising the whole dispersal process.51 Some London boroughs, together with some authorities in the South East, jumped the gun and arranged for asylum-seekers to be housed elsewhere before April 2000 when dispersal was due to start. Placements were inadequately prepared, asylum-seekers were sometimes placed in seriously substandard accommodation, and local people were not always consulted or prepared for the arrival of asylum-seekers – with predictable results.52 The House of Lords achieved a promise from Lord Williams of Mostyn, Home Office Minister, that ‘in circumstances where a general practitioner concludes that an asylum-seeker has been the victim of torture and local medical services do not deal fully with the particular nature of the case, so access to the specialised services provided by the Medical Foundation would be in the patient’s best interests, we would arrange to pay the costs of travel by the asylum-seeker to 51. Guardian, 30 November, 6 December 1999; Observer, 5 December 1999, etc. 52. Observer, 4 June; Independent, 14 June; Guardian, 17 June; Tablet, 17 June, 2000.

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appointments with representatives of the Medical Foundation.’53 Few GPs have any experience in recognising the clinical indications that a person has been tortured, but this concession at least recognises that asylum-seekers who have suffered torture and who are placed outside London must have some access to appropriate help. A particularly worrying aspect of the 1999 Act is the extensive and undefined powers given to the Secretary of State. Recent legislation has frequently been in the form of enabling acts, but the powers given to the executive have seldom been at the same time so vague and so extensive as under this Act. Some of the recommendations of the House of Lords Committee on Delegated Powers concerning this Bill were rejected. This Committee’s recommendations are usually accepted without question. Legislation is being passed without Parliament having any clear idea of what will be done with the powers granted. Yet another matter of concern is the government’s certificate that the Bill is compliant with the European Convention on Human Rights. The certificate simply states the compliance as a fact, without justifying this conclusion in any way. Many legal experts believe that in certain respects it is not compliant. Certification is an untried procedure, and it is not clear what the effect of the certificate will be. The overall result of the 1999 Act is that anyone seeking asylum in the UK is going to have a much tougher time and it will be more difficult for people needing protection to reach the UK to claim it. ‘What else could we do to exclude the flood of bogus refugees?’ the writer has been asked by an MP. Penalising genuine refugees is not the way to go about it. Improving initial decision-making could help, but there is nothing in the legislation about that. Speeding up initial decisions should also help, but the legislation does not show how that is to be done. Even greater damage has been done by the xenophobic campaign against asylum-seekers unleashed during 1999 and accelerating through 2000 in the lead-up to local elections when the Conservatives gave in once again to the temptation to ‘play the race card’ and Labour sought to out-tough them. Unwise dispersal by local authorities exacerbated this, and the growing backlog of undecided claims resulting from the failure of computerisation made matters worse as the Home Office demonstrated its inability to cope. The blame for the computerisation fiasco cannot be placed entirely on the previous government, although it must bear responsibility for an inadequately negotiated contract with Siemens. Just who should 53. Hansard, Lords, Column 1119, 21 July 1999.

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take the blame for the failure to coordinate computers used in the airports with those in the Home Office is not clear, but it represents another major bungle.54 What is also not clear is the extent to which Shadow Cabinet assertions that the UK is a ‘soft touch’ have served to act as a pull-factor for people desperate to escape persecution or economic deprivation, the latter being the very people that both government and opposition insist they want to keep out. If politicians or others insist on describing the UK as a soft touch for asylumseekers, then they have only themselves to blame if some people take them at their word. The Daily Mail did its bit to spread the message: ‘Britain is seen as the softest of soft touches’ it declared on 26 February 2000. It sometimes seems that possible electoral advantage outweighs all other sensible considerations. By the time of the local elections of May 2000, a veritable storm of hatred against asylum-seekers had been whipped up by politicians and sections of the right wing press. Dispersal had brought asylumseekers to attention in new parts of the country. Words like ‘swamp’ and ‘flood’ were being bandied around, ‘bogus’ had become glued to ‘asylum-seeker’ in some people’s vocabularies, a small number of Romanian gypsies who had been found begging in London had caused a wholly disproportionate moral outburst (from a population which is normally fairly tolerant of buskers and beggars) and Labour and Conservatives vied with one another in the toughness stakes. The Refugee Council issued a Briefing: ‘Nailing press myths about refugees’, and the Independent, the Independent on Sunday, the Guardian, the Observer and the Big Issue tried to redress the balance, with The Times usually running a more restrained line even if it was less generous to asylum-seekers than the Guardian. These papers, however, were not read by the millions who happily swallowed the line peddled by the Mail, the Sun and some local papers. In this climate of opinion, both the main political parties advocated the increased use of detention. The Conservatives would detain every asylum-seeker, though how they would do that is unclear as the cost of doing so, even if the spaces in detention centres were available, would be prohibitive.55 The Labour Party seems to be moving in the same direction. A reception centre was opened in the disused Oakington Barracks near Cambridge, and all those placed there are held under 1971 Immigration Act powers to detain, although the Home Office does not include them in the detention

54. Guardian, 1 November 1999, ‘Asylum System hit by IT “black hole”’. 55. Guardian, 19 April 2000.

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statistics. It was suspected that this might be a pilot project. There are plans to rebuild several other detention centres so as to take more people than at present, as well as to open a 900-bed detention centre in Bedfordshire. No cost seems too great if it is thought it might deter people from coming to the UK. The UK’s reputation as a place of refuge for the persecuted has never been in greater danger.

9 Supporting Asylum-Seekers

he 1999 edition of the Refugee Council’s publication, Refugee Resources in the UK, lists 745 organisations that provide some sort of assistance for refugees and asylum-seekers. The range is enormous, from the London office of the UN High Commissioner for Refugees to small refugee community groups, from groups that are partly or wholly government funded, to organisations totally dependent on membership fees and donations, from very large international organisations to tiny, locally-based groups. They can be categorised in several ways: official/voluntary, insider/outsider, advice and representation/support in kind, those which specialise in assisting refugees and asylum-seekers and those which assist refugees and asylum-seekers as part of a wider clientele. It is among these groups that the people are to be found who strive to keep the UK a welcoming society whose members were once proud to provide a place of refuge for the persecuted. The Refugee Studies Programme (RSP) based at Oxford University’s International Development Centre at Queen Elizabeth House does not fit any of these categories. The support it gives is of a markedly different kind from that given by most of the bodies discussed below, though it provides a resource for them. Nor is its primary concern refugees in the West. It started with a weekly seminar in 1982 when ‘refugee studies’ as an academic discipline was nonexistent in the UK. Its programme grew steadily, attracting funding from a multiplicity of sources, until, in 1994, extra funding was obtained to endow the Directorship of the RSP and a lectureship, and it was brought within the University of Oxford, so ensuring its continuance and academic standing. The RSP’s aim ‘is to increase understanding of the causes, consequences and experiences of

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forced migration through multidisciplinary research, teaching, publications, seminars and conferences. Independent of governments and assistance agencies, RSP provides a neutral forum for discussion between refugees, researchers, practitioners and policy-makers’.1 Its seminar programme includes sessions on asylum law and practice in the UK designed for practitioners. The RSP’s Library and Documentation Centre is a very important resource on forced migration, holding a unique collection of ‘grey material’.2 Out of its work have come several publications, notably the Journal of Refugee Studies, a learned journal concerned with research into refugee situations all over the world, and Forced Migration which contains shorter and more factual reports. We now come to the agencies and groups that exist to give handson assistance to refugees and asylum-seekers. There is a small core of important, mostly long-established refugee agencies and a much larger raft of newer groups that have sprung up to meet particular needs, some of which have achieved a place of great importance. First we must look at the London office of the UN High Commissioner for Refugees, though only a few individual refugees and asylum-seekers are likely to have any personal contact with it. The UNHCR has ultimate responsibility for protection, and seeks to find long-term solutions and to facilitate return wherever and whenever that becomes possible, since return is the best possible long-term solution. The staff of the Delegation is always international, and the Representative of the UN High Commissioner will seldom be of the same nationality as the country in which he or she is placed. UNHCR has a responsibility for educating the public about the needs of refugees. The richer countries of the West are able to provide for the basic needs of refugees and asylum-seekers themselves, so the UNHCR is not, as in poorer countries, responsible for feeding and sheltering people. It fulfils a different role, monitoring the general situation, but leaving basic care to government agencies and NGOs. Within the European Union, UNHCR liaises with a number of EU institutions.3 The UNHCR is, of course, an intergovernmental organisation, and cannot do what governments will not countenance or pay for. It 1. The RSP Report, 1995–1996. 2. Grey material is typescript and other material which is not fully published so cannot be bought through booksellers and is therefore difficult to find in library collections. 3. UNHCR, UNHCR and its Partners in Europe, Geneva, 1995 describes the complexities of the scene within Europe. UNHCR has only informal consultation with the Council of Ministers for Justice and Home Affairs which is responsible for the harmonisation of asylum policy.

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was not helpful when UNHCR underwrote restrictive EU policies by agreeing that most of those who sought asylum were economic migrants. This was, no doubt, forced on UNHCR by its constituent governments, and since most of its funding comes from the West, it is sensitive to pressure from Western governments. The London office of the UNHCR has observer status at meetings of the Co-ordinating Committee of the Asylum Rights Campaign (ARC), thereby keeping in touch with the concerns of a wide range of organisations. UNHCR staff visit UK detention centres regularly. They monitored cases certified as manifestly unfounded and appeals against removal to ‘safe third countries’ during the brief period when such appeals were possible. UNHCR does not normally handle individual cases, but may sometimes intervene on behalf of endangered asylum-seekers. They may declare a person a mandate refugee when asylum has been refused if they believe the person requires protection under the Convention. They exercised this right over Selahattin Ozberk, the Turkish Kurd whose case was discussed on Chapter 2, and they made representations over five men cleared of riot at Campsfield House in 19984. On this latter occasion the Home Office quickly acceded to Mrs Hope Hanlan’s request that deportation orders be lifted until the men’s cases had been more fully investigated.5 Mrs Hanlan explained in this instance: ‘We only intervene in exceptional circumstances, where there are wider cases of policy relating to our mandate. In this case it’s more of a humanitarian angle we are looking at.’6 In the UK the UNHCR have sought to intervene when new legislation has threatened to erode the rights of asylum-seekers, making public their concerns about the 1993, 1996 and 1999 Acts,7 but they cannot insist on legislation being modified even when they fear it may place the government in breach of the Convention. Over the years the London office has become increasingly outspoken on such issues as the lack of judicial supervision over detention.8 Then there is the London-based Refugee Legal Centre, which is a major source of free advice and representation for those seeking asylum in the UK. RLC is a registered charity, though it is largely government funded (until the late 1990s it also received a small amount of UNHCR funding to help guarantee its independence). It has built 4. This case was discussed in Chapter 5. 5. Independent on Sunday, 5 July 1998. Perhaps something had been learned from Mr Ozberg’s case in spite of the bluster on that occasion. 6. Independent on Sunday, 5 July 1998. 7. See Chapter 6. 8. Eg. Guardian, 17 April 1998.

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up a reputation for dedicated and thorough work. In spite of its large staff, it is unable to handle anything like all those who apply to it, and it has a three-month waiting list. Its work is supplemented by solicitors specialising in this field, law centres, and by Asylum Aid, a small charity that provides an advice service and is also able to represent some asylum-seekers. The Immigration Advisory Service has rebuilt itself since it had to be hived off from the UK Immigrants’ Advisory Service in 1991 and has branches elsewhere than London. It, too, provides assistance to those facing appeals against refusal. After the UNHCR, RLC and IAS we come to the NGOs, of which there are a great many in the UK. They fall into three main groups, those set up specifically to assist refugees and asylum-seekers, other voluntary agencies which may provide advice and help to refugees and asylum-seekers among others whom they serve, and community groups formed by refugees and asylum-seekers among themselves. The core group of well-known, long-established agencies includes the Refugee Council (formerly the British Refugee Council), which is the country’s largest provider of services to refugees and asylum-seekers. The media usually turn to its Director when an instant comment is required. The RC runs a walk-in advice centre, and helps newly-arrived asylum-seekers to access housing, benefits or other support, health care, and education. Each year up to a thousand people are helped with training and employment. A special community development team assists the many refugee community groups as well as the regional Refugee Councils in Birmingham, Newcastle, Edinburgh, Glasgow and Cardiff. Specialised activities include the Panel of Advisors for Unaccompanied Refugee Children, and a home for elderly refugees. We have already mentioned the Day Centre and Night Shelter set up to deal with the emergency created by the withdrawal of all social security benefits in 1996. The Night Shelter was only needed for a few months; the Day Centre, now in Brixton, fulfils an on-going need. Since the 1999 Act it is one of the agencies which runs ‘one-stop shops’ around the country to help asylum-seekers access the National Asylum Support Service and see that their needs are met. At the beginning of the period covered by this study, the Refugee Council was an ‘insider’, part of the ‘policy community’ on refugees and asylum, working with government, though it was not uncritical.9 The Refugee Council was unhappy about the introduction of Carrier’s Liability, but was forced further into opposition by the 1993 Act. The government of the day made no attempt to consult with the 9. Kaye, ‘Political Processes’.

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Refugee Council or with any other agency, and showed itself willing to override criticism from every quarter. With a change of government in 1997, the Refugee Council moved temporarily back towards an insider position, hoping that it would once more become possible for the refugee agencies and the Home Office to work with a measure of understanding. The 1999 Asylum and Immigration Act strained this relationship severely. Another veteran organisation is the Joint Council for the Welfare of Immigrants which has been increasingly involved in work for asylum-seekers as well as for immigrants in general. It has never been an ‘insider’ to the same extent as the Refugee Council. It assists asylum-seekers at all stages of their asylum applications, has a comprehensive advice service, employs specialists in immigration and asylum law, and publishes authoritative handbooks. Its Immigration, Nationality and Refugee Law Handbook by Sue Shutter is a standard work on this subject and accompanies training programmes for those involved in these fields,10 and the latest edition of the European Directory of Migrant and Ethnic Minority Organisations lists over 9,000 groups. As its name shows, JCWI does not deal only with refugees. A third long term player is Amnesty International, and especially its British Section. Amnesty International has become increasingly concerned about refugees both at the international and the national level and has never been in any way an ‘insider’. Refugees are, of course, only a small part of Amnesty’s human rights remit: its mandate extends to refugees because of the danger that, if they were refouled, they would become prisoners of conscience or victims of torture or of cruel, inhuman or degrading treatment, or worse. Indeed, many have experienced such persecution already. In the early 1980s the part-time Refugee Officer in AI’s UK Section handled some individual cases. In the 1990s a second full time Refugee Officer was appointed to deal with an expanding workload, though of a different kind. AIUK no longer handles individual cases – this is now better done by others – but it researches specific aspects of the refugee scene, publishes important and very thoroughly researched reports, provides back-up for other organisations, makes representations to the Home Office over legislation, and campaigns not only in the UK but also world-wide on refugee issues. Its research on detained asylum-seekers in the UK has been particularly important.11 AI is uniquely placed when it comes to mounting a campaign: it has a reputation for accurate reporting, a large and active member10. The latest edition was published in 1997. 11. Amnesty International, Cell Culture and Dead Starlings.

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ship and the capacity to mount a fully professional campaign worldwide. The government is sensitive to what AI says, and is sometimes extremely defensive when criticised by AI. Yet it has seldom listened to AI to the extent of allowing that organisation’s critique to influence its policy, though it sometimes seeks to deflect expected criticism by at least the appearance of consultation. The Medical Foundation for the Care of Victims of Torture, founded in 1986, grew out of AIUK’s Medical Group. Helen Bamber, a medical secretary who had worked with the group, realised that the survivors of torture whom they were seeing needed something more than could be provided by volunteers working part time in borrowed premises.12 Two rooms in the disused National Temperance Hospital in Hampstead Road were the Foundation’s first home, and it was there that a panel of volunteer doctors and other therapists first began to see people who had fled to the UK from torture, and to offer them a wide variety of therapies. The Medical Foundation has become one of the best known refugee organisations in the UK, partly because of the arresting nature of its work, and partly as a result of a skilled publicity programme. Medical Foundation doctors are often called upon to examine asylum-seekers who have been refused although they claim to have suffered torture. This medical evidence will be presented at appeal hearings, and it is imperative, therefore, that the Medical Foundation should present its findings and carry out its mission in such a way that its expertise is treated with respect. This does not mean that it cannot voice its concerns about policy developments, but it is always careful to see that what it has to say is strictly related to its remit for survivors of torture. The exodus of Kurds in the later 1980s tested the Medical Foundation to the limit. Many of the Kurds claimed they had been tortured, and their stories were often disbelieved. Doctors worked long hours to examine them and write medical reports which showed that scarring and other symptoms were consistent with their stories, though they could not, of course, provide proof: not all torture leaves scars, and very few types of scarring can provide ‘proof’ of torture. The Home Office was concerned about this overturning of their decisions, and has sought to question the Medical Foundation’s reports. However, the Home Office practically never call in their own doctors to reassess cases. Together with the Medical Ethics Committee of the British Medical Association, the Foundation drew up guidelines with its doctors for how reports should be presented, and agreed the format with the Home Office. 12. Neil Belton, The Good Listener. Helen Bamber: A Life Against Cruelty, London, 1998.

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Writing such reports, which always involved hearing the person’s story, could be misunderstood as something of a diversion from the Foundation’s real work, which is to provide therapies and means of helping those who have survived torture, but this is not so. Torture survivors are encouraged to tell their stories, which are then carefully filed as valuable records, and this is one of the ways in which people are helped to recover a sense of personal worth which torture had tried to destroy. People cannot ‘get over’ torture, though some manage to come to terms with it without the need for any form of therapy. Many, however, need one or other of the very varied forms of help that the Foundation is able to offer. The Foundation is supported by the UN and the European Union, but does not accept money from the UK government lest it compromise its independence.13 Most of the newer organisations have been established to plug some hole or other in a system which had become seriously flawed. Among the newer organisations is the Refugee Arrivals Project. Founded in 1988, it is of increasing usefulness and importance. Before RAP was founded, asylum-seekers who were given temporary admission on arrival were given a travel voucher and expected to make their own way from the airport to bed and breakfast accommodation on the other side of London by bus and tube. They then had to fend for themselves.14 Newly-arrived asylum-seekers sometimes had no English and became stranded at the airport, not knowing where to turn for help. RAP functions at both Heathrow and Gatwick airports, and asylumseekers who are given temporary admission, and who have no funds or contacts, are passed on to RAP by immigration officials. In their first year of operation RAP saw 2,634 new arrivals. Ten years later the number had risen to 9,049, and by then they employed 16 full-time and 68 sessional staff members able to speak 25 different languages. RAP is funded by the Home Office, the London Boroughs Grants Committee, and a number of charitable trusts. ‘We help people through the first day or two in the community. We take them to the Benefits Agency, help them register with a doctor and dentist. If they have children we take them to the Homeless Persons’ Unit and we enrol the children at school,’ explained Dorita Kowalska, a RAP support worker.15 RAP, like the Refugee Council, provides ‘one-stop shops’ in certain areas. 13. In their 1998 report on compliance with the UN Convention against Torture in 1998 the Home Office claimed that the Medical Foundation received some government support. The Medical Foundation expressed concern both to the Home Office and to the Committee Against Torture about this misinformation. 14. Albino Ochero-Okello, ‘Arrival’, Granta 65, 1999, 33–46. 15. Refugee Arrivals Project, Annual Review, 1998. Some of this activity will change when the provisions of the 1999 Act are in force.

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After RAP, it is the refugee community groups to which asylumseekers are likely to turn next. There are hundreds of these, enabling members of the same national community to meet and find mutual support. The most important function of the community groups is to provide a meeting-place for their compatriots who have fled the same oppression. Many go much further than this. They visit detainees of their own community, and may even find bail sureties and somewhere for a newly-released detainee to stay. Language skills provided by members of the group will be of great importance to new arrivals. The community groups may then be able to direct new arrivals to agencies or solicitors who can help them present their asylum applications. A long-established group may be able to make itself widely heard, as was Chile Democratico when General Pinochet was faced with extradition to stand trial for crimes committed when he was head of state. The Refugee Council helps community groups get established, and the London Boroughs Grants Committee supports many of those in London. The 1999 legislation operates on the understanding that asylum-seekers should turn first to members of their own community for support, and should only receive state provision when that fails, so these already poor communities are in danger of becoming further impoverished, with the knock-on effects that may have on health, especially of children. Several organisations specialise in work with detainees, among them the Detention Advice Service which assists all Immigration Act detainees, not only asylum-seekers, with specialist advice.16 Their role is invaluable and welcomed by prison and detention centre staff. The Association of Visitors to Immigration Detainees and the Jesuit Refugee Service are befrienders rather than advisors, though they may be able to help detainees find appropriate advice. This latter is a world-wide organisation which also has small branches in the West. Generations of Zaireans held in Pentonville remember with gratitude the visits of Brother Bernard of JRS. Visits from JRS or AVID are of immense importance. As ‘Jean’, a former detainee explained, ‘When I was detained, I thought that was what British people thought about us, that they did not care or hated us ... But when Audrey [Atter, founder of AVID] visited, I realised there were people here who cared about injustice and fought against it’.17 JRS and AVID have the 16. Kathy Lowe, Britain’s Forgotten Prisoners: Meeting the Needs of Immigration Act Detainees (for the Detention Advice Service), 1993. DAS also publishes Annual Reports. 17. ‘Jean’s Story’, Why Detention? Report of a conference held on 6th November 1996, sponsored by ARC and the Churches Commission on Racial Justice, 5. Although accepted as a Convention refugee, Jean was still too nervous for his full name to be used.

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expertise to advise detainees on where, for instance, to find help in appealing against refusal or applying for bail. The AVID network of visiting groups extends to all the detention centres and prisons where large numbers of immigration detainees are held, and selects and trains visitors with care. Visiting is demanding and can be emotionally draining, so support for those who undertake it is also provided, and a Handbook for Visitors has been compiled. It is not always clear that the detention centres and prisons welcome these visitors: they may see and hear things that the staff might prefer not to emerge.18 One recently established organisation is devoted to assisting detainees to get bail. Named ‘Bail for Immigration Detainees’ it has taken over the Bail Circle, previously run by the Churches’ Commission for Racial Justice, which pioneered this work.19 Then there are locally based groups offering support to asylumseekers and refugees in their locality. Asylum Welcome in Oxford, which is part of the AVID network, not only visits detainees in Campsfield House, but also helps those who are released on bail or temporary admission. In early 1999 they had some 500 people on their books. In just one day one of their project workers dealt with sixteen requests for help, from assistance in finding employment to money for travel to an appeal hearing, via dealing with someone with a bad asthma attack (they got him to the nearest hospital with an Accident and Emergency department) and two completely destitute Macedonian families who spoke no English.20 Fortunately Asylum Welcome has interpreters and stocks of second-hand clothes, basic kitchen equipment and other essentials. They monitored the whole of the trial of the nine African detainees accused of riot following the outbreak at Campsfield House described in Chapter 5, and then arranged bail for all those re-detained after they had been cleared of all the charges made against them. By mid 1999 Asylum Welcome had expanded to the point where they had raised sufficient funds to employ three paid workers as well as using the services of many volunteers. Asylum Welcome is an exceptionally large and well-organised group. The Cambridge Refugee Support Group is much smaller – there is no long-term detention centre nearby – but it is increasingly professional, able to arrange a wide variety of support facilities for asylum-seekers, including a small weekly cash supplement for those who received nothing but food vouchers as a result of the 1996 Act. 18. Ibid. 19. Civil Liberties Research Unit, Kings College, London, Immigration Service Detention Powers: ‘Strictly and Narrowly Construed’? (for BID), 1999. 20. Fiona Morrison, ‘A Day in the Life of a Project Worker’, Asylum Welcome Newsletter, Spring 1988, 3.

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Originally run by a small group of dedicated volunteers, in 2000 it was able to employ a paid worker for the first time. In 1998/9 it assisted 67 asylum-seekers and refugees from twenty-three different countries, the largest number being from Kosovo, giving them all kinds of help, from advice to payments for basic necessities not covered by food vouchers. By mid 2000 it was in touch with nearly 200 clients. Asylum-seekers and refugees play a crucial role in the running of the group. The opening of Oakington Barracks as a Reception/Detention Centre near Cambridge promptly spawned three groups: Cambridgeshire Against Refugee Detention, Cambridge Oakington Concen which was founded to work for safeguards for both local residents and asylum-seekers, and the establishment of a branch of Student Action for Refugees. In mid 2000 they came together with eleven other NGOs21 to form a coalition, the Cambridgeshire Refugee and Asylum Network. Its first major task was to mount a celebration of the Fiftieth Anniversary of the UN Convention on Refugees supported by the Mayor of Cambridge. The largest network of support is in London, though it functions quite differently from the Oxford and Cambridge groups. In 1996, people who applied for asylum after passing through immigration controls lost the right to social security benefits and were left destitute until it was established that they must be assisted under the 1948 National Assistance Act. In order to help them, a support network, based mainly on churches and other faith communities, was built up in the London area with the help of the Roman Catholic Diocese of Westminster and the Refugee Council. The Red Cross also became involved. A directory was put together of soup kitchens, day centres, night shelters and organisations which could offer help during this dreadful period.22 Some of the groups listed by the Refugee Council were primarily constituted to help the homeless, and they now found themselves inundated with asylum-seekers. The network remained in place when the immediate emergency was over because the benefits available under the 1948 Act, though life-saving, were inadequate. The network continues to be serviced by the Diocese of Westminster. A wide variety of NGOs have either extended their remit to include refugees and asylum-seekers within it, or have started work 21. These were Amnesty International, the Cambridge Refugee Support Group, Christian Aid, Justice and Peace, One World Week, Oxfam, People and Planet, and the local branches of Amnesty International, the UN Association, the UN Development Fund for Women and the Medical Foundation for the Care of Victims of Torture. 22. Refugee Advisors Support Unit of the Refugee Council, Day Centres, Soup Kitchens and Clothing/Blanket Distribution Centres, September 1996.

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on behalf of refugees and asylum-seekers as changing circumstances have brought them within the organisation’s mandate. One such, which has done remarkable work on behalf of refugees and asylumseekers, is JCORE, the Jewish Council for Racial Equality, under its Director, Dr Edie Friedman. It organised the collection of large amounts of food and other necessities when asylum-seekers were left destitute by the1996 legislation, and has campaigned steadily for the preservation of refugee rights. Many Jews can be found working in refugee organisations, their own experience providing them with the impetus to help others suffering persecution. Remembering that Roma as well as Jews were targeted in the Holocaust, it was the Jewish community who offered sanctuary for the night to a coach load of Roma who had been bussed out of Dover to escape a National Front march, and who landed up in London, not knowing where to go. The West London Synagogue took them in for the night. It is invidious to name names, but Rabbis Hugo Gryn and Albert Friedlander are among the members of the rabbinate who have taken an important public stand on behalf of refugees and those seeking asylum. Successive Chief Rabbis lent their names to Charter ’87’s campaign for the rights of asylum-seekers and refugees. The United Nations Association is in a special position. It exists to support and inform people about the work of the UN and its various bodies. These include the UNHCR, and hence it has a responsibility to help see that the Convention is honoured and supported, both in the UK and elsewhere. UNA groups have been concerned about refugees and asylum-seekers in the UK for many years, the Director of UNA has made representations to government on refugee issues, and UNA’s Newsletter keeps its membership aware of the current situation. Special issues, such as the treatment of refugee children, become the concern of UNICEF and agencies specialising in the welfare of children: representatives of Save the Children, the Church of England Children’s Society, Barnardo’s and UNICEF jointly lobbied the Immigration Minister, Mike O’Brien, in May 1999, over the government’s decision to take the children of asylum-seekers out of the protection of the Children Act. The representative of the Children’s Society stated after their meeting that they were ‘extremely shocked and disappointed’ by the government’s response.23 Some improvements were made later, but they were insufficient to meet the concerns of the children’s societies. Spurred on by the presence of families with children held at Oakington near Cambridge, the Mothers’ Union in the Anglican Diocese of Ely organised the col23. Church Times, 21 May 1999.

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lection of toys for the children and later clothes for those who arrived in need of such help.24 Justice (the British branch of the International Commission of Jurists), Liberty (formerly the National Council for Civil Liberties), the Citizens’ Advice Bureaux, Shelter, The Children’s Legal Centre and Black Women Against Rape are just a few of the other specialist humanitarian organisations which have come to include asylumseekers among those they are concerned for. We saw earlier that when faced with the possibility of legislation in 1991, an umbrella organisation was formed, the Asylum Rights Campaign. This exists to co-ordinate action by its more than one hundred member organisations, but it is also able to commission research and take certain initiatives jointly on behalf of its membership. Its most important piece of work was perhaps the commissioning of Providing Protection, positive and practical suggestions based on the wide experience of its member organisations which, it was hoped, might make a positive contribution in 1997 when there was a change of government. It had previously commissioned the report into appeals procedures mentioned in Chapter 4 and entitled “The Risks of Getting it Wrong”. It has co-ordinated briefings for MPs when legislation has been going through Parliament, and the sharing of experience within its Steering Group has greatly assisted member organisations. Another important group enabling specialists to share experience is the Refugee Legal Group which meets monthly to discuss technical legal issues. How successful are these organisations in providing advice and support for refugees and asylum-seekers? On the one hand, many of the support and advice groups are very professional and have dedicated and well-trained staffs. Community groups cope with varying success, but asylum-seekers would be infinitely worse off without even the newest and weakest of these. Advice groups are coping fairly well, though there are always queues. However, in some respects the support networks are not able to cope. First, it is more and more difficult to cater for people’s basic physical needs. In 1998 the government accepted that asylum-seekers could not be left without food or shelter of any kind as the previous government had planned, and minimal provision of both, therefore, had to be made, but nothing more, and until the 1999 legislation came into force, they received no cash at all. The disabled, children and the elderly must cope as best they can without any of the help available to UK nationals. The gaps in provision that have to be met 24. Cambridge Evening News, 6 June 2000, ‘Appeal to Help Refugee Tots’.

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are increasingly beyond the resources of the voluntary sector. Shopping with vouchers, nicknamed ‘asylos’ by sections of the press, can be a humiliating experience: asylum-seekers have been abused and even spat at in supermarkets.25 Caught up in this misery and deprivation are people who have fled from severe persecution and torture in their own countries, and who are deeply distressed and traumatised. The government believes that removal of social security benefits will deter bogus asylum-seekers, and that this ‘disincentive’ is so important that those most traumatised by their sufferings must suffer further if need be.26 The government believes that this does not matter very much. It claims that in future no one will be left in this position for more than six months, with both initial decisions and appeals against refusal of asylum being completed within that time. These claims are viewed with considerable scepticism by most refugee agencies and by some Home Office civil servants. Such claims were made for previous legislation, but they could not be met, and the backlog continued to grow. For a person who has already suffered persecution and torture to be subjected to six months of such poverty and humiliation is too long, and NGOs are not able to meet all the extra needs.27 Secondly, there are not enough solicitors qualified to handle asylum claims. The scandal of solicitors who take on too many clients, apply for green form legal aid, and then do not do the work properly is something that the government is rightly determined to deal with. There are a number of highly skilled solicitors who specialise in asylum cases and who have to turn away cases because they are overloaded, as are the Refugee Legal Centre and the Immigration Advisory Service. The lack of qualified solicitors is most serious outside London in areas to which asylum-seekers are now being dispersed. Home Office sources continue to suggest that legal assistance is not necessary, but experience and the statistics suggest otherwise. A third area of work in which the organisations have had only limited success is in educating public opinion and influencing government thinking, particularly the latter. The right wing press, in particular the Sun and the Mail, but also sometimes the Daily Telegraph and the Evening Standard, publishes material that denigrates asylum-seekers, labelling them ‘scroungers’ and taking up the gov25. Oxfam News, Summer 1999. 26. Six months after the 1996 legislation came into force there was little sign that asylum applications were falling. 27. As a result of lobbying by trades unions, in particular the Transport and General Workers’ Union, at the Labour Party Conference held in the Autumn of 2000, a review of the voucher system was promised.

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ernment’s stock epithet, ‘bogus’ (‘abusive’, which Home Secretary Jack Straw substituted, is little better). At the same time, however, we have seen that an ever-growing number of charities and other organisations have taken up the cause of asylum-seekers. In 1987, the year in which this study begins, two of the major refugee organisations could be classified as ‘insider’ groups in what could then be described as a refugee policy community.28 These were the United Kingdom Immigrants’ Advisory Service (whose Refugee Unit was the precursor of the Refugee Legal Centre) and the (British) Refugee Council. The former provided free legal advice for newly arrived asylum-seekers and those refused asylum, whilst the Refugee Council dealt with welfare and employment. In 1985 these two had felt able to tell the Parliamentary Home Affairs Select Committee that they regarded UK asylum policy as ‘satisfactory’, ‘generally good’.29 The other main players were JCWI, which acted more independently, and could be more critical of government policy, and Amnesty International which was never in any way an insider.30 The one organisation which stood right outside was Ronnie Moodley’s Refugee Forum. This group, formed to give refugees themselves a voice, was totally distrustful of all the other organisations, which it criticised for cosying up to the Home Office, but it was not acceptable to all the refugees and asylum-seekers whom it claimed to represent. Many judged its stridency to be counter productive, alienating the host community. The Churches Commission for Racial Justice tried to keep lines of communication open, as did JCWI, but the Refugee Forum seems to have disappeared from the scene.31 The clamp-down on asylum-seekers that began in 1987 gradually changed the contours on this map, forcing the ‘insiders’ to the outside. This process can be described from two perspectives. First, the agencies became increasingly concerned at the direction in which policy was moving. Attempts to deal with this as ‘insiders’ were unsuccessful, and this drove them into more overt and explicit opposition. Secondly, the government decided to go in a direction that it knew would be opposed by the humanitarian lobby. It ignored the advice of the refugee organisations, and expressed hostility and impatience at their protestations, sometimes caricaturing their position. 28. Ronald Kaye, ‘NGO’s, Political Processes and Refugee Issues in the UK: the Breakdown of a Policy Community’, University of Warwick Centre for Research in Ethnic Relations, seminar paper, 5 June 1992, 8. 29. Kaye, ‘NGOs, Political Processes’, 14. 30. ECRE, the European Consultation on Refugees and Exiles, worked closely with the Refugee Council, and is considered in more detail in Chapter 6. 31. Kaye, ‘NGOs, Political Processes’, 10–11, 14; ‘British Refugee Policy’ , 53–54

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Matters came to a head over the legislation of 1992–3. This was seen as excessively harsh, and the questionings and protests of the refugee organisations were brushed aside. Earl Ferrers, speaking at the end of the Second Reading Debate in the House of Lords on 10 February 1992, insisted that it was unfair to suggest that there had been no consultation with the refugee agencies. Home Office Ministers and civil servants ‘have had discussions about the Bill with Amnesty International, the United Nations High Commissioner for Refugees, the Law Society, the Bar Council, the Asylum Rights Campaign and the United Kingdom Immigrants’ Advisory Service’, he claimed.32 Lord Ferrers omitted to say that these bodies had asked to see Ministers and officials to voice their concerns, not vice versa, and that all their advice had been ignored. This was not a process that could be described as consultation. When NGOs attempted to lobby over policy on border controls and asylum issues within the EU, their views were ‘viewed by the UK government with extreme caution if not open hostility’.33 As Danièle Joly observed, government on the one hand, and those concerned for the safety and welfare of asylumseekers on the other, looked at asylum from entirely different points of view: ‘The mention of refugees to government officials immediately brings to mind the notion of state security and immigration controls. For the NGOs the term conjured up notions of human rights and humanitarian traditions.’34 Campaigning groups felt that, no matter how unlistening government was, there was an ethical imperative to go on stating the humanitarian case. So, listened to or not, the refugee agencies worked to try and influence legislation. JCWI, the Refugee Council, the Medical Foundation for the Care of Victims of Torture, the British Section of Amnesty International, Charter ’87 for Refugees (founded specifically to campaign about the rights of refugees and asylum-seekers – it did not offer assistance), Asylum Aid (founded in 1990 out of Rights and Justice, which had a wider civil liberties remit), and many others working under the umbrella of the Asylum Rights Campaign have all increasingly taken on a campaigning role. This has involved creating networks of supporters, producing publicity material and information for them, lobbying Parliament and other opinion mak32. Hansard, Lords, 10 February 1992, Col. 526. 33. Ronald Kaye, ‘British Refugee Policy and 1992: The Breakdown of a Policy Community’, Journal of Refugee Studies, 5, 1, 1992, 63. 34. Quoted in Kaye, ‘British Refugee Policy’, 63. The Home Office, for its part, prefaces almost every statement on refugees with a ritual pronouncement that it is committed to upholding the UN 1951 Convention.

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ers, and seeking to get important developments and points of view into the local and national print and broadcast media. Campaigning and education have been aimed at different groups of people. Ultimately all campaigning is aimed, directly or indirectly, at government in order to persuade it to act more in the spirit of the 1951 UN Convention on Refugees. Some material is directly targeted at MPs, ministers, and members of the House of Lords, to build up a body of humanitarian opinion and to counter false information, especially when new legislation is being prepared. Much other material is directed at the general public who, it is hoped, will help to persuade government through lobbying their MPs. Scare stories and political propaganda put out by government ministers have to be countered. The large number of poor and underprivileged Britons are understandably resentful if they see help being made available to people whom they are told are ‘scroungers’, when they themselves are experiencing inadequate levels of social security and harsh conditions of employment. The internet is increasingly used by refugee organisations as a means of education about their own work and about refugees and asylum in general. The broadcast media and the national press are, however, by far the most important channels of information. The BBC and ITV can usually be relied on to present unbiased coverage, both in news stories and features, but serious news bulletins and informative features are watched by only a minority of the population, whilst the reach of the Sun and the Mail is very extensive. It is difficult to get information about refugees accepted as newsworthy. ‘Not another hunger strike, please. Find us something new’, tends to be the response of news-hardened journalists even when a hunger strike among detained asylum-seekers has reached quite serious proportions. Besides, the official line is always that the story is being blown out of all proportion; that the hunger strike has not gone on as long as is claimed; that the authorities know how to deal with hunger strikes; that most of the strikers have by now given up; and that things are under control. It takes a very serious situation and an exceptionally determined group of campaigners to get the story into the press. The local rather than the national media are easier to interest. AIUK used two other tactics: first, it used full-page advertisements in the national press intended to shock people into realising what was happening to asylum-seekers in the UK,35 and there was a substantial Guardian inset in June 1997 entitled No Refuge. This was a popular, well-illustrated presentation of stories to highlight the main issues. 35. Eg. Observer, 14 October 1990.

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Secondly, AIUK has highlighted asylum issues from time to time in its membership magazine, Amnesty, and in 1997 it ran a campaign on refugees and asylum world-wide. Besides that, AIUK was fairly successful in getting press publicity for its concerns, and frequently contributed to TV programmes dealing with asylum and detention. The Medical Foundation has also succeeded in getting substantial media coverage for its work, and a biography of its founder and director, Helen Bamber, The Good Listener, was widely and favourably reviewed when it appeared at the end of 1998. Waterstones adopted the Medical Foundation as its charity that year, and marketed a special edition of the Universal Declaration of Human Rights, highlighting the work of the Foundation. There have, of course, been some causes célèbres that have received massive media coverage. Some have been legal rulings. The most important of these was Home Secretary Kenneth Baker’s attempt to claim crown immunity when he defied a judge’s order which prevented the deportation of an asylum-seeker. The case went right up to the House of Lords, with renewed publicity at each stage, and much leader discussion in the press. An undergraduate course on Constitutional Law at Cambridge for some years began with a consideration of this case to demonstrate to undergraduates that this branch of law was relevant and interesting.36 And there were the tragedies such as the death of Siho Iyiguven who set himself alight when facing deportation to Turkey which occupied yards of newspaper space. The Sikh activist, Chahal Singh, detained for over six years without charge or trial because the government alleged he was a terrorist, though they offered no evidence to support this, also got extensive media coverage. The European Court of Human Rights found that he had a well-founded fear of persecution and torture if returned to India, and the Court’s ruling led to his release. Then there was the saga of the removal of social security benefits in 1996, and the eventual ruling of the Court of Appeal that destitute asylumseekers had to be cared for under the provisions of the 1948 National Assistance Act; the arrival of Roma at Dover in 1998; the arrival of Bosnians from the former Yugoslavia in 1995 and of Kosovars in 1999. The print media have taken sides, some papers being violently opposed to asylum-seekers and branding them all as scroungers, and others running a far more balanced line. In June 2000 came the tragedy of fifty-eight Chinese who suffocated inside a lorry between Zeebrugge and Dover and discussion about ‘people-traffickers’. 36. Information from Dr Robert McCorquodale, then a Fellow of St John’s College, Cambridge, who taught the course for some years.

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Two organisations have come to the fore for the professionalism and extensive range of their publications, AI’s UK Section and the Refugee Council. AI is known for its meticulous research standards, and has produced material in two fields during the last decade. First, there is a series of publications assessing the United Kingdom’s asylum procedures in general. The most important of these were issued at the time of the first Asylum and Immigration Act. These were densely-argued, major assessments, for specialist consideration.37 Then come other papers dealt with more limited concerns: Passing the Buck ( July 1993) dealt with the removal from the UK of so-called ‘safe third country’ cases, those asylum-seekers who had stopped over, however briefly, in some other country. This was a far from safe practice which resulted in some asylum-seekers being returned to their countries of origin without their applications ever being properly considered. More recent reports by AIUK have concentrated on detention. Prisoners Without a Voice: Asylum-Seekers Detained in the United Kingdom (October 1994) was revised and re-issued the following year. The most damaging reports were Cell-Culture: The Detention and Imprisonment of Asylum-Seekers in the United Kingdom (December 1996), and its sequel, Dead Starlings (April 1997).38 The first issue of the Refugee Council’s newsletter, Exile, appeared in January/February 1983. This has never been concerned solely with refugees in the UK: the Refugee Council also provides a forum for UK aid agencies involved with refugees overseas. Increasingly, however, its focus has shifted to the UK scene, and to the backgrounds from which those fleeing to the UK have come. In 1998 the 8–page black-and-white Exile was given a completely new look and emerged as a sophisticated, 16–page, two-colour publication renamed iNexile that takes a tough, campaigning line on refugee matters. The Refugee Council is also responsible for a growing number of other occasional publications of high quality, directed at helping to inform public opinion. Credit to the Nation, 1997, set out to illustrate the many ways in which refugee groups and individuals had enriched UK economic, social and artistic life. Strikingly printed in two colours, and illustrated with photographs and line drawings, it 37. United Kingdom: Deficient Policy and Practice for the Protection of Asylum Seekers, November 1990; re-issued, May 1991. See also Europe: Human rights and the Need for a Fair Asylum Policy, November 1991; United Kingdom: Human Rights Concerns, June 1991. 38. The Revd Paul Nicholson had used this phrase in a letter to the Independent on 8 February 1997: he likened detainees to ‘dead starlings hung on a fence to frighten the other asylum seekers away’. Paul Nicholson was a member of the Bail Circle.

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was packed with the sort of information educators needed. In modern jargon, it was an impact-making publication. Two years later Unwanted Journey: Why Central European Roma are Fleeing to the UK was a tougher-to-read publication of over a hundred pages. Funded by Christian Aid, and based on research carried out in the Czech Republic, Slovakia and Romania as well as the UK, it provided a counter-weight to the denigration of Roma refugees which had disgraced sections of the UK media, and which seemed to inform the Home Office’s handling of the Roma. 1998 saw the publication of a major survey of trafficking in refugees entitled The Cost of Survival, written for the Refugee Council by John Morrison whose research and the report’s publication were funded by the Joseph Rowntree Charitable Trust, Oxfam and the Body Shop Foundation.39 Refugee Resources in the UK, most recently updated in 1999, is an invaluable tool for workers in this field. The statistical summaries, based on Home Office statistics and regularly produced by the Refugee Council, are particularly useful. Also producing high quality material is the Medical Foundation. As well as its excellent membership material, its report on Zaire written for the Foundation by Cécile Porta in 1998, that on torture survivors from Turkey produced in 1999, and Caught in the Middle: A Study of Tamil Torture Survivors Coming to the UK from Sri Lanka in 2000 are carefully researched and documented.40 Such material is not only of interest to the general public, but is also valuable for lawyers defending refused asylum-seekers at appeal. They ought to cause some re-thinking in the Home Office, but it is not clear that sufficient attention is paid to them. Finally, the churches and other religious groups have had a role to play. We have already briefly noted that of the Jewish community. The Council of Churches in Britain and Ireland, through its Commission for Racial Justice, has had some success in bringing refugee issues to church people. The Methodist Church and the Society of Friends (Quakers) have both given a strong lead to their members. Individual bishops and other dignitaries of the Church of England have been strongly supportive of efforts to promote greater fairness and humanity in the asylum processes. The strongest and most clearly enunciated lead has come from the Catholic Bishops’ Conference and its Committee on Refugees and Migrants and Office for 39. A more impressionistic account is given by Jeremy Harding, The Uninvited: Refugees at the Rich Man’s Gate, London: Profile Books and London Review of Books, 2000. 40. Cécile Porta, for the Medical Foundation, Zaire: A Torture State, 1998; Medical Foundation, Staying Alive by Accident: Torture Survivors from Turkey in the UK, 1999.

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Refugee Policy as well as through the Catholic aid agency, CAFOD. Just prior to the 1997 election a paper entitled ‘Catholic Social Teaching: The General Election and Refugee Policies’ set out its concerns about the position of asylum-seekers and refugees in the UK, a brief guide to Catholic activity in support of refugees, and four important questions that Catholics needed to think about when deciding who to vote for in the election. In 1999 Jubilee for Refugees appeared, a guide to the refugee situation in the UK, a summary of biblical teaching about refugees and a guide to Catholic social teaching on the issue. The hope was that this would be used widely in Lent or other study groups to promote thinking and action on behalf of refugees. Earlier, the Jesuit Refugee Service had produced Keeping Hope Alive: Who Finds Refuge in Britain?, a rather longer study. Other faith communities are also actively involved in helping refugees, especially but not only their co-religionists, largely working through the London-wide network serviced by the Diocese of Westminster. Muslims were particularly concerned for Bosnian and Kosovar refugees, and in Chapter 6 we noticed the charity Human Appeal which brought Lejla Ibrahimovich to Britain. Sikh temples will give a meal to anyone in need. When Labour came to power in 1997 it moved quickly to announce a complete overhaul of the existing asylum procedures. Now the relentless campaigning seemed to be paying off: the new government announced that there would be extensive consultation, and refugee organisations were asked to comment on a variety of issues. A White Paper eventually appeared, but, disappointingly, it reflected little of the advice the Home Office had been given. The new Home Secretary’s instincts proved to be less liberal than had been hoped, and there were clearly tensions within the Home Office, as well as undue concern about readers of the Mail and the Sun. Nevertheless, a massive consultation exercise was set in motion, and there was a greater awareness of human rights issues than under the previous government. However, the refugee organisations found themselves once again on the outside and having to publicise their concerns about the undesirable aspects of the White Paper and then the Bill. The homelessness paper, The Big Issue, ran a hard-hitting campaign in conjunction with the major refugee agencies. All this contributed to the threatened revolt of Labour backbenchers over parts of the Bill. The refugee organisations are, by now, the recipients of growing amounts of charitable money. Funding comes from a wide variety of charitable trusts, from membership subscriptions and individual charitable donations, from local and central government, lottery

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charitable funding, the EU and the UN. The amounts involved must add up to a very considerable sum, even if a number of organisations, particularly community groups, are run on a shoe-string, and employ largely volunteer labour. In a whole variety of ways they are doing what government increasingly fails to do, providing advice, representation, basic needs and services which ought not to be forced on to charities. Growing numbers of people are involved as paid workers, volunteers and supporters. The size of this constituency is seen to be even larger when staff and supporters of related institutions are counted in: law centres, CABs, housing advice groups, religious communities actively supporting asylum-seekers, and aid agencies such as Christian Aid, Oxfam, CAFOD, and Save the Children with their very large numbers of supporters.41 It is a constituency that is well-informed, and that is growing in size and influence, and it is a constituency that is deeply unhappy about official asylum policy and practice. It is losing faith in government’s intentions, and fears that government’s oft reiterated commitment to the 1951 Convention is largely meaningless. When government finds it politically necessary to admit refugees – Vietnamese, Bosnians or Kosovars – it mounts propaganda to ensure that the decision is accepted, and uses the refugee agencies to help it achieve what it feels is politically necessary. There is a fund of goodwill among British people which comes to the fore whenever people see and understand the plight of some group of refugees, but the government too frequently ignores this and panders to the xenophobic lobby.42 The Kosovar refugees are a case in point. British people felt a sense of responsibility as well as compassion for them. Ashtead Parish in Surrey raised £9,000 in two weeks for the Kosovars, and some £13 million plus was raised by the Disasters Emergency Committee, a more generous response than from most other countries, whilst help of all kinds poured in for those who were brought to the UK by government because of their special needs.43 Meanwhile legislation was being passed that would prevent others finding the same routes to safety. The goodwill of many people needs to be taken into account and is a resource waiting to be used.

41. Christian Aid funded the Refugee Council’s publication, Unwanted Journey, and Oxfam has funded refugee work through its GB Poverty Programme since 1995 when government planned the removal of benefits from many asylum-seekers (Oxfam News, Summer, 1999). 42. Alibhai-Brown, True Colours, 83–84, 112. 43. Personal communication; Big Issue, 3 May 1999; Church Times, 7 May 1999.

Afterword What of the Future?

uring its presidency of the EU in the second half of 1998, Austria put forward a ‘Strategy Document on Immigration and Asylum Policy’. The main thrust of this was to strengthen efforts to make the wall round Fortress Europe increasingly impregnable. Front line states to the east have already been made to shoulder responsibilities for keeping asylum-seekers out of the EU, but if this and other measures fail to prevent an influx of refugees, then, the policy document suggested, further strategies might have to be developed:

D

‘the question actually arises as to whether a new approach should also include initial steps harking back to the beginnings of the development of asylum law when the affording of protection was not seen as a subjective right but rather as a political offer on the part of a host country’.1

This bland phraseology masks an extraordinary suggestion, namely that the Convention should be abandoned, and Article 14 of the Universal Declaration of Human Rights annulled. Those fleeing persecution would then no longer be able to rely on the protection of the Convention. Protection would no longer be a right. Asylum would be solely at the invitation of a state.2 This suggestion was shelved for the time being, but it rhymes with hints from the present Home Secretary that if the 1999 Asylum Bill does not work, then other ways would have to be sought, rumours that at least one senior minister under the previous government recommended that the UK should withdraw from the Convention, and the present Home Secretary’s threat to demand a re-negotiation of 1. Quoted in Berkowitz and Doebbler, ‘The European Dimensions’, 18. 2. Ibid., 19.

– 187 –

188 | Whatever Happened to Asylum in Britain?

the UN Convention on Refugees when he was faced with a hijacked planeload of Afghans seeking asylum in January 2000. That section of the Austrian paper was withdrawn, but it lies waiting in the wings. Until now the idea of withdrawal from the Convention has been unthinkable. However, all those concerned for refugees, as well as for the ethical health of the nation, and, indeed of the EU, need to take the threat seriously. It should be made quite clear to all EU governments that such a broad section of the citizenry would be opposed to any action of this kind that it cannot be seriously considered. Berkowitz and Doebbler, in whose article the Austrian suggestion quoted above is discussed, suggest that the few rays of light in what they describe as a dark picture come from the work of NGOs, refugee community groups and refugee agencies, who have organised themselves into lobbies and work to ensure respect for refugee rights. They name, by way of example, the British NGO, Asylum Aid, which, together with lawyers and other agencies is ‘at the forefront of the protection of asylum-seekers’ rights in Western Europe’.3 These are the groups that can make this retrograde suggestion unthinkable. The previous chapter has shown that the groups involved in supporting refugees and asylum-seekers forms a large constituency. In the UK, the Refugee Council, Amnesty International, the Joint Council for the Welfare of Immigrants and others have, over the last few years, spelt outagain and again the basic principles of fair treatment for people seeking asylum, but ARC’s positive proposals – set out in their study, Providing Protection – were not adopted. The only way in which asylum-seekers can be protected would therefore appear to be through legal action, and there the judges have, on a number of notable occasions, come down on the side of fairness and humanity. In Chapter 5 we noted a decision of the Appeal Court which ordered an end to the imprisonment of passport offenders who should have been protected by Article 31.1 of the Refugees Convention. Chapter 8 discussed the Appeal Court ruling that not all EU countries can be considered safe third countries for certain categories of asylum-seekers. France and Germany will not grant asylum to people persecuted by non-state agents even when the state is unwilling or unable to protect them. These judgements are likely to require certain clauses of the 1999 Act to be amended. The test cases had to be brought because merely bringing the issues to the attention of the Home Office was unavailing. Government policy appears to be to continue with any course of action that is called into question until prevented from doing so by 3. Ibid., 19.

Afterword: What of the Future? | 189

the courts. In Chapter 3 it we saw how asylum-seekers were not informed of the reasons for refusing them asylum until the courts ordered the Home Office to state their reasons for refusal. Chapter 4 described how an in-country right of appeal was resisted until it was thought that the European Court of Human Rights would be bound to find that judicial review did not provide a proper remedy. If the government is serious both about honouring the Convention, as it says it is, and at the same time about reducing the number of refugees, then the rethinking must begin with the root causes of asylum-seeking rather than with deterrence. A proper immigration policy is needed to replace the present ‘No Entry’ signs. These patently do not work. This means that arms must not be sold to countries such as Indonesia, which will use them to repress their own populations. Highly indebted poor countries must be relieved of their debt with greater urgency and more concern for the plight of their populations than the IMF and creditor nations have so far shown. The UK has a good record here, but needs to exert pressure on its EU and NATO partners to follow suit. Export credit guarantees should not be given for construction projects which are not soundly based and which may benefit the rich of a country, but at the expense of the poor, and in any case will benefit most the business consortium hired to undertake it. At the time of writing there is a question whetheror not to give export credit guarantees to a British company to build the highly controversial Ilisu Dam in Eastern Turkey. This will displace thousands of Kurds, and may well drive some of them to seek asylum in Western Europe, as well as causing a diplomatic crisis over the distribution of the waters of the Tigris with countries further downstream. Businesses have to be pressured not to accept contracts in countries where human rights are grossly abused, unless they are prepared to use their clout to demand improvements.4 Currently Turkey is resisting any suggestion that the resettlement programmes for those displaced by the dam should be internationally monitored. The dreadful imbroglio that Shell found itself involved in when the Ogoni people of the Niger Delta rose up against the pollution of their land and demanded reparation has impressed on some businesses the need for ecological and human rights auditing. 4. This point was made to the writer by a member of the IBM Cambridge Course, 1999, at the end of a discussion about the refugee crisis. He believed that his company would wish to follow an ethical agenda of this sort. The whole group, whose members were drawn from nineteen different countries, agreed that dealing with root causes was where coping with the refugee crisis had to start. Mere deterrence and wall building could not solve the problem.

190 | Whatever Happened to Asylum in Britain?

MBA courses have a responsibility, when teaching business ethics, to cover this dimension. Amnesty International is already working with business firms on human rights issues. Stopping people needing to flee persecution should, therefore, be in the forefront of every country’s refugee policy. There may be costs associated with that, but there are also costs involved in the fall back policy of having to support those forced to flee. If commercial deals and arms sales are encouraged at the expense of the environment and protecting human rights, then we must expect to pay the price in the shape of increasing numbers of people being forced to seek asylum. More ethical foreign and trade policies will not turn the situation around overnight, but to date this approach – dealing with the root causes of the refugee crisis – has barely been tried by Western governments. When it comes to the situation in the UK, the imposition of more and more deterrent measures to prevent refugees from finding safety is not the answer. Such measures fail to deter, and they endanger those in genuine need of protection. Illegal workers find jobs all too easily and are exploited on farms that seek cheap, seasonal labour and in the restaurant and rag trades. At the same time as the Home Office is working against traffickers with the Chinese police in Fujien and Gwandong, Chinese nurses are being recruited into the NHS – albeit for a higher wage than they could earn at home, but one which does not attract sufficient British women into the profession. Greater skill and efficiency in the Asylum Directorate of the Home Office is also urgently needed. If people who do not qualify for asylum know that they will be sent home swiftly, then those who are exploiting the system may be deterred. This much the Home Office has grasped. If this is to happen, however, the initial decision-making process must be improved so that it can be trusted. At the moment, no one with an expert knowledge of the country from which an asylum-seeker has fled ever sits down in the Home Office and looks through the case to see if the applicant is at risk. No one in the Home Office has the required degree of expertise to do so. The person who makes the decision has never even met the asylum-seeker face to face, so how can credibility be properly assessed?5 Computerisation alone cannot do what is required. Skilled country experts must be employed. Refugee agencies need to become ‘insiders’ again, and those assisting refugees must be able to trust the basic fairness of the procedures. At the moment they find themselves unable to do so. 5. This was stated forcibly by Guy Goodwin-Gill, Professor of International Refugee Law, University of Oxford, in a letter to The Times, 28 October 1999.

Afterword: What of the Future? | 191

Once an asylum-seeker receives a refusal, he or she must be given adequate time to seek advice and decide whether or not to appeal. Five days is not enough. Some people are unable even to access a solicitor in so short a time. Reversing a decision to refuse an appeal because it has been made out of time is far more wasteful of time than allowing adequate time in which to prepare grounds of appeal. Unless enough time is given, everyone is likely to appeal because there is no time to persuade those without good grounds that their appeals will fail.We noted Lord Ackner’s warning on this score in Chapter 8. If initial decisions become trusted, and if advisers have sufficient time to talk things through with their clients, then more of those who have been refused might be told they have no hope of success at appeal, and could be encouraged to contact one of the agencies that provide help to returnees. A wise government would decide on a wider amnesty than is being offered at present, and would sell it to the public as they very well could if they saw the necessity to do so. Unless the backlog is more substantially cleared than present proposals provide for, too many staff are taken up with the backlog for new arrivals to be swiftly and competently dealt with. Other countries, notably the USA, have given amnesties when that has become the only way in which the situation can be dealt with. The appeals system, too, needs to be improved. Research has shown up major deficiencies, and these need to be remedied. Yasmin Alibhai-Brown, in True Colours, the report she prepared for IPPR, has made excellent suggestions in her final chapter about positive ways in which government can act and talk in order to promote good race relations. The rhetoric about asylum-seekers needs to be modified. Denunciations of ‘economic migrants’ and ‘scroungers’ and constant reference to ‘abusive claims’ and ‘floods of bogus asylum-seekers’ create a climate of opinion in which the general public cannot think through these issues sensibly. It is time that attention was drawn to the desire of refugees to return home, to the many groups which have returned home when conditions in their home countries have changed, to the fact that for years the rate of emigration has exceeded the rate of immigration, and to all that immigrants and refugees have contributed to the cultural and economic life of this country. Reasonable subsistence compatible with human dignity must be made available to those who seek asylum here. They should not be driven into deep poverty, with the danger that in desperation, especially if they have children, they will be reduced to fraud and theft. Government is in danger of losing the goodwill of NGOs who feel

192 | Whatever Happened to Asylum in Britain?

they are increasingly being asked to make provisions that are really the responsibility of the state. They do not wish to become ‘state agents’ whose voices are muffled as a result. Support must not be left to the discretion of a Minister. A decent subsistence must be a right. We ought to be ashamed if it were not. The people of Britain need to feel proud again of generosity, openness, and concern for the underdog. Concentration on competitiveness and success must not be allowed to erode these values or we shall end up poorer, our ethical capital eroded. A great many refugees flee to Britain because they still think this country is one where human rights and justice are respected. We ought to feel proud of that, and work to see that it remains true. Finally, all who are concerned about justice need to ensure that any consideration of withdrawal from the Convention, or modification of it, is made unthinkable. What the Home Secretary proposed in June 2000 was plainly unworkable, and a trenchant criticism of the proposals was made by Keith Best, Chief Executive of the Immigration Advisory Service at meeting in June 2000 soon after they were made. No doubt work will go on to refine Straw’s suggestions which would mean that the ‘burden’ of asylum would be pushed away from the rich countries of the EU and other highly industrialised countries onto the poorer countries at their margins, perhaps through compliance being made a condition of aid. The danger is that these poorer countries will be driven to finding ways of preventing the entrance of asylum-seekers, and that endangered people will be prevented from finding refuge. The subversion of the 1951 Convention on Refugees must not be permitted to take place as a result of undemocratic and secretive consultation processes. ‘Wherever there is lost the consciousness that every man is an object of concern just because he is a man, civilisation and morals are shaken, and the advance to fully developed inhumanity is only a question of time’ (Albert Schweitzer, 1925).6

6. Quoted in Victor Gollancz, A Year of Grace, London: 1950, Penguin Books, 1955, 9.

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Newspaper and periodicals referred to: Big Issue. Daily Mail. Daily Telegraph. Financial Times. Forced Migration, Refugee Studies Programme, Oxford. Guardian. Independent. Independent on Sunday. iNexile, Refugee Council, London. International Journal of Refugee Law, Oxford. Migration News Sheet, Monthly Information Bulletin on Immigrants, Refugees and Ethnic Minorities, Churches’ Committee for Migrants in Europe, Brussels. Observer. Refugees, UNHCR, Geneva. Sun. Tablet. The Times.

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Index

A Abacha, Sanni 51 Abiola, Chief 51 Accra 159 Accelerated procedures, fasttrack(ing) 69–70, 106, 141, 145, 150 Ackner, Lord of Appeal 149, 191 Ad Hoc Group on Immigration, see also Steering Group I 131–134 Adimi, Mr, Algerian asylum seeker 105 Afghans 188 Africa, African(s) 50, 54, 57, 87, 121, 144, 148 African Studies Association of the UK 86 Aid (to developing countries) 26 Airline Liaison Officers 159 Albania, Albanian(s) 116, 139 Alevi/s 40 Algeria, Algerian(s) 86, 105, 154, 160 Alibhai-Brown, Yasmin 191 Aliens’ Law, Act 14, 15 Allende, President of Chile 19 All-Party Parliamentary Group on Refugees 56 Alton, David, Lord Alton 60, 61, 158 Amadeus String Quartet 6 Amin, Idi 6, 17, 18

Amnesty (for undecided asylum cases) 25, 68, 156 Amnesty International 4, 20, 33, 36, 39, 40, 48, 52–54, 66, 77, 81 fn.1, 84, 97–98, 100–102, 111, 120, 127, 133, 148–149, 159, 170, 179–183, 188–189 Angola 100 Annan, Kofi 4 Anti–Semitism 14,16 Anvers 142 Appeal against refusal of asylum 31–33, 36, 38–39, 45, 65–80 Arabic 116 Argentina, Argentinians 6, 19 Armed Islamic Group 105 Armenia 6 Arslan, Dogan 41 Ashtead Parish 186 Asia, Asian sub-continent 50, 144, 148 Asian-African Legal Consultative Committee 10 Association of Visitors to Immigration Detainees 173–174 Asylum Aid 55–56, 58, 62, 71, 169, 180, 188 Asylum and Immigration Bill 1991/2 67–68, 113, 146–148, 180 Asylum And Immigration (Appeals) Act 1993 46, 140, 148, 168, 183

– 201 –

202 | Index

Asylum and Immigration Act 1996 60, 117, 135, 149, 152, 156, 168, 174 Asylum Appeals (Procedure) Rules, 1993 73, 147 Asylum Rights Campaign (ARC) 2, 70, 88, 107, 145–148, 154–155, 168, 176–177, 180, 188 Asylum Welcome 174 Atter, Audrey 173 Australia 32, 126, 128 Austria 3, 15, 21, 187–188 Azores 133 B ‘B’, Mr, Cuban asylum seeker 103 Backlog of undecided asylum claims 25–26, 53, 47, 62, 68,149, 151, 156, 191 Baden-Würtemberg 129 Bail 77, 82, 83, 86, 91, 93, 95, 100, 175 ‘Bail for Immigration Detainees’ (BID) 85, 97, 174 Baker, Kenneth 43, 144–145, 148, 182 Balkans 23 Bamber, Helen 171, 182 Bangla Desh 28–29 Banstead 46 Bar Council 146, 180 Barclays Bank 45 Barber, Martin 32, 35 Barnardo’s 176 Basque Children’s Committee 15 Basque Country, Children 14–16, 121 BBC 136, 181 Beehive Detention Centre, Gatwick 39 Belgium 5, 14, 21, 130, 142 Benefits Agency 172 Berkowitz, Nathalia 188 Berlin Wall 9, 23, 128

Bernard, Brother 173 Best, Keith 192 Big Issue 164, 185 Birmingham 169 Black Women Against Rape 177 Blaise, refugee from Francophone West Africa 54 Body Shop Foundation 184 Bosnia, Bosnians 5, 7, 110, 118, 138, 182, 185–186 Bridge, Lord 58 British Medical Association 15, 171 (British) Refugee Council see Refugee Council Brixton 169 Brown, Lord Justice Simon 105, 154 Brussels 127, 139, 144 Bulgara, Ladit 46 ‘Burden-sharing’ 138, 139 Burns, Ian 46 Bye, Eileen 104 C Calais 160 Cambridge 70, 109, 122, 164, 175–176, 182 Cambridge Oakington Concern 99 Cambridge Refugee Support Group 174–175 Cambridgeshire Against Refugee Detention 175 Cambridgeshire Refugee and Asylum Network 175 Campsfield House Detention Centre 48, 83, 87–91, 96, 97, 100, 121, 168 Canada 102, 103, 136, 174 Canterbury, Archbishop of 27, 67, 152 Cardiff 169 Care, Geoffrey 69 Caribbean 148 Caritas Europa 127

Index | 203

Carrier’s Liability 21, 26, 33, 34, 102–103, 141, 143–145, 160, 169 Catholic Church, Catholic(s) 2, 14, 19, 59 fn.38, 141, 185 Catholic Bishops’ Conference 146, 184 Catholic Bishops’ Conference Committee on Refugees and Migrants 184 Catholic Emancipation 14 Catholic Fund for Overseas Development (CAFOD) 185–186 Cedars, The 120 Charter ’87 for Refugees 36, 39, 40, 66, 104, 176, 180 Chief Rabbi 3–4, 27, 176 Children Act 114, 117, 121, 176 Children’s Legal Centre 113, 177 Children’s Panel 114 Chile Democratico 173 Chile, Chileans 6, 19, 22 Chilingirian String Quartet 6 China, Chinese 141, 154, 182, 190 Christianity 20 Christian Aid 186 Church of England 184 Church of England Children’s Society 176 Churches Committee for Migrants in Europe 127 Churches’ Commission for Racial Justice 174, 179, 184 Churchill, Winston 16 Citizen’s Advice Bureau(x) 146, 177, 186 Civil Liberties Research Unit, Kings College London 85 Clapham 119 Clarke, Kenneth 131, 148 Clore, Jerry 154 Cold War 2, 24, 128 Collins, Mr Justice 154 Colombia, Colombian(s) 133 Colombo 28–29, 159

Commission for Racial Equality 161 Commonwealth (British Commonwealth of Nations) 17, 20 Commonwealth Immigration Act, 1968 18 Communism, Communist 8, 16–17, 20, 12 Confederation of British Industry 161 Congo Brazzaville 5 Congo, Democratic Republic of (formerly Zaire) 10 Conservative Party, Government 1, 19, 21, 22, 27, 34, 62, 73, 99, 107, 143, 148, 150, 164 Convention on the Crossing of External Frontiers 131 Convention status, Convention refugee 17, 20, 36, 37, 45–46, 52–54, 56, 63, 74, 77–78, 86, 91, 93, 100, 103, 105, 106, 111, 117, 119, 150, 158 Convention on Crossing Borders 141 Council of Churches in Britain and Ireland 146, 184 Council of Europe 10, 12, 127, 137, 138 Country Information and Policy Unit 52–53 Court of Appeal 30, 37, 69, 75, 78–79, 104–105, 154, 160, 182, 188 Crawley, Heaven 112 Crawley Hospital 39 Crown Prosecution Service (CPS) 105 Cuba, Cuban 103 Czechoslovakia, Czech(s) 3, 17, 22, 184 D Daily Mail 2, 38, 164, 178, 181, 185 Daily Telegraph 2, 178

204 | Index

Dead Starlings 100, 103 Demetriades, Athy 116 Demmer, Anne-Marie 42 Denmark 21, 139 Deportation, see Removal Detention of asylum seekers, detainees 20, 25, 31–33, 35, 38, 39–41, 48, 50, 81–107, 120–123, 140, 149, 164–165, 168, 173–175, 181–183 Detention Advice Service 95, 173 Dhaka 28, 159 Director of Public Prosecutions, DPP 104–105 Disasters Emergency Committee 186 Doebbler, Francis 188 Donaldson, Sir John 37 Dover 82, 100, 141, 176, 182 Dublin Convention 129, 132 E Earl William 32, 35 East End (of London) 14, 16 East Germany, Germans 128 Eastern Bloc, E. European countries, Communist Bloc, Soviet Empire 2, 8–9, 14, 16, 17, 20, 69, 109, 124, 128, 144 Economic migrants 2–3, 22, 24, 26, 44, 191 Edict of Nantes 15 Edinburgh 169 Education, Secretary of State for 150 Edward I 14 Ellis, Rachael 95, 103 Ely, Diocese of 177 Employment Tribunals 68 Enfield, Borough of 115–116 European Commission 138, European Commission on Human Rights 38, 154 European Consultation/Council for Refugees and Exiles 126–127, 134

European Convention on Human Rights, ECHR 12, 63, 67, 82–83, 85, 107, 122, European Court of Human Rights 12, 37, 38, 65, 67, 138, 182, 189 European Court of Justice 132 European Legal Network on Asylum 127 European Parliament 134, 137–138 European Union, EU 5, 12, 20, 23, 27, 124–143, 159–160, 167, 172, 180, 186–188, 192 European Union Justice and Home Affairs Council, JHA 134 Evening Standard 2, 178 Exceptional leave to remain 8, 17, 20, 23, 25, 36, 37, 46, 54, 61, 63, 65, 68, 80, 111, 117, 156 F Fairer, Faster, Firmer (White Paper, 1998) 155 Family reunion 19, 43, 54, 117–119, 123, 137, 142 Fast track procedures see accelerated procedures Ferrers, Earl 180 Forced return see removal Foreign Nationals in British Jails 103 ‘Fortress Europe’ 7, 9, 125, 129, 134, 187 Fox, Maureen 116 France 14, 15, 21, 126, 130, 139, 160, 188 Franco, General 14–15 Free Church Federal Council, Moderator of 152 French Revolution 14 Friedlander, Rabbi Albert 152, 176 Friedman, Dr Edie 176 Fujien 190

Index | 205

G Gatwick Airport 38, 39, 61, 82, 87–88, 102, 122, 172 Gender Guidelines 108, 112 Geneva 33, 42, 134 ‘George’ 28 Germany, German(s) 3, 5, 15–16, 21, 119, 126, 129–130, 138–139, 160, 188 Ghana 52 Glasgow 169 Glasnost 128 Glidewell Panel 151 Glidewell, Sir Iain 151 Good Samaritan(s) 59 Gravesend 68 Green form legal aid 72, 145–147, 178 Group 4 Total Security 88, 90–93, 96 Gryn, Rabbi Hugo 152–3, 176 Guandong 190 Guardian 44, 144, 148, 164, 181 Guernica 15, 121 Gulf War 115 H Habeas Corpus 86 Hailbronner, Kay 129 Hales, Dr Liz 102, 104 Hampstead 116 Hanlan, Hope 168 Harmondsworth Detention Centre 41, 83, 92, 95 Harvey, Alison 74 Harwich 32 Haslar Prison/Detention Centre 83, 87, 95, 96, 103 Hatton Cross 68 Health, Ministry of 154 Heathrow Airport 22, 28–30, 68, 81, 87, 99, 102, 103, 144, 172 Henry of Navarre 14 High Court 29–30, 41–42, 58, 66, 75, 100, 154 High Down Prison 102

Holloway Prison 101, 102 Holocaust, The 3, 16, 176 Home Affairs Select Committee 30, 33 Home Office 2, 7, 25–26, 30–32, 35–36, 39–43, 46–47, 49–57, 59–65, 67–68, 70–74, 76–77, 79, 82–83, 87, 89–92–95, 97, 99–100, 104, 106, 109, 111, 119–120, 122–123, 139, 141, 145, 148–149, 151, 155–159, 164, 171–172, 178, 179, 180, 184, 188–189, 190 Home Office Presenting Officer (HOPO) 70, 72, 75–76 Home Office Unaccompanied Children’s Module 120 Home Secretary/Secretary of State for the Home Department 24, 29–38, 42, 56, 58, 59, 61, 70, 73, 77–78, 99, 105, 118, 131, 143–144, 146, 148, 157, 179, 182, 185, 187, 192 Homeless Persons’ Unit 172 House of Commons 4, 23 House of Lords 30–31, 35, 37, 79, 111, 147,149, 152, 157–158, 181–182 House of Lords Committee on Delegated Powers 163 Huguenot(s) 19 Human Appeal 118–119, 185 Human Rights Act 107, 122 Human Rights Watch 48 Hume, Cardinal Basil, see Westminster, Cardinal Archbishop of Hungary, Hungarian(s) 6, 17, 22 Hunger strike(s) 32, 35, 43–44, 87, 89–91, 95, 181 Hurd, Douglas 21, 23, 143 Hussein, Saddam 115 Hyde Park 153 I Ibrahimovic, Lejla, Safet, Dzenana, Mirza 118–119, 185

206 | Index

Ilisu Dam 189 Immigration Act, 1962 17 Immigration Act, 1971 82, 86, 98, 164 Immigration Advisory Service 71, 169, 178, 192 Immigration and Asylum Act 1999 1, 4, 27, 54, 69, 82, 85, 95, 101, 107, 114, 117, 155–157, 160, 168, 170, 173, 177, 187–188 Immigration Appeals Tribunal 31, 68, 74, 76–79, 110, 161 Immigration Appellate Authority 67, 72–73, 77–78, 155 Immigration Law Practitioners’ Association (ILPA) 77, 155 Immigration Department, Service, Immigration and Nationality Directorate 43, 47–48, 63, 82, 84–85, 88, 96–98, 102, 104, 106, 112, 121, 139, 145, 155, 190 Immigration Service Union 98–99 In-country applicant(s) for asylum 30–31, 33 Independent, Independent on Sunday 4, 31, 164 India, Indian sub-continent 25, 38, 69, 136, 182 Indonesia 189 Initial asylum decision 45–64, 70, 74, 97, 149 Institute for the Study and Treatment of Delinquency 93 Intergovernmental Consultations on Asylum, Refugee and Migration Policies 128 Internal flight 51, 56–57 International Council of Voluntary Organisations 127 International zones at airports 133, 141 Institute for Public Policy Research, IPPR 191 Iraq, Iraqi(s) 115, 154

Iron Curtain 124 Islam, Muslims 40, 57, 79, 118, 185 ‘Islam and Shah’ 79, 112 Italy 15, 42, 130 ITV 181 Iyiguven, Siho 41, 92, 182 J James, refugee from Uganda 54 ‘Jean’, former detainee 173 Jesuit Refugee Service 42, 173, 185 Jew(s), Jewish 3, 14, 15, 16, 19, 121, 152, 176, 184 Jewish Chronicle 153 Jewish Council for Racial Equality ( JCORE) 152–153, 176 Joint Council for the Welfare of Immigrants 20, 33, 170, 179, 180, 188 Joly, Danièle 127, 136, 180 Joseph Rowntree Charitable Trust 184 Judicial review 30, 31, 33, 35, 43, 66, 68, 76–78, 105–106, 158, 189 ‘Justice’ 81 fn.1, 155, 177 Justice and Home Affairs Council of the EU, JHA 131, 134, 139–140, 143, 150–151 K Katongole, Ahmed 38, 39, 92 Kasangulu 49 Kenya, 17, 18, 30, 52, 53, 56 Kenya elections 52 Kimpua, Nsimba 92 Kindertransport 3, 16, 121 Kings College London 85 Kinshasa 144 ‘K.L.’, Zairean asylum seeker 48, 49, 50 Koestler, Arthur 6 Kosovo, Kosovar(s) 4–5, 7, 110, 138, 139, 160, 175, 182, 185–186 Kowalska, Dorita 172

Index | 207

KPMG Peat Marwick 69–73, 75–76, 78 Kuala Lumpur 28 Kurd(s), Kurdish 40–44, 53, 60, 78, 92, 116, 118–119, 138, 168, 171, 189 L Labour Party, Government 1, 3, 19, 27, 52, 63, 69, 70, 107, 143, 148, 155, 164, 185 Latchmere House Detention Centre 39, 87 Latin America 125 Latter, Jim 72 Lavanchy, Philippe 56 Law Centres, Law Centres Federation 146, 186 Law Society 66, 180 Lawrence, Stephen 7, 63, League of Nations 9 Legal Aid, Legal Aid Board (see also Green form legal aid) 71, 95, 146, 156 Leighton, Ron 39 Levin, Bernard 13, 26 Liberal Democrat(s), Party 60 ‘Liberty’ 146, 177 Lilley, Peter 150 Lingala 92 Lithuanian(s) 92, 125 London 15, 28, 68, 87, 109, 114, 120, 122, 152, 158, 166, 169, 175, 178 London Boroughs Grants Committee 172–173 Longley, Clifford 151 Lord Chancellor, Lord Chancellor’s Office/Department 68, 69, 72, 76, 78, 104, 146, 161 Lord’s Resistance Army 46 Luxembourg 5, 130, 134 M ‘M’, Mr, Zairean asylum seeker 93

Maastricht Treaty 131–132 Macedonia, Macedonian(s) 139, 174 Madden, Max 32, 35 Madhvani, Manubhai 6 Magistrates’ Courts 104–106 Mail, see Daily Mail Malawi 5 Malaysia 28–29 Manchester Airport 43 ‘Manifestly unfounded’ asylum claims 70, 106, 129, 134–136 Maras, Turkey 40 Marcolino, Angolan asylum seeker 100 Marks, Michael 6 Marrus, Michael 124–125, 128 MaST Consultancy Service 62 Mazower, Mark 125 McCullough, Mr Justice 42 Medical Foundation for the Care of Victims of Torture 49, 52, 60, 61, 69, 76, 84, 95, 115, 118, 141, 148, 153, 171–172, 180, 182, 184 Medical Foundation, Children and Families Team 118 Medway Racial Equality Council 89 ‘Megalist’ 72–73 Meijers, H. 130–131 Member(s) of Parliament, MP(s) 4, 16, 20, 30–33, 39, 60, 114, 147, 148, 157, 181 Mental Health Act 121 Mercedes Benz 46 Methodist Church 184 Metropolitan Police 63 Mexico 14 Middle East 125 Minority Rights Group 115–116, 127 Mobutu, President of Zaire 48, 128 Moi, President Daniel arap of Kenya 53

208 | Index

Monday Club 34 Moodley, Ronnie 179 Moorehead, Caroline 124 Morrison, John 103, 184 Moseley, Oswald 16 Mothers’ Union 176–177 Mount Vernon Hospital 41 Moussalli, Michel 33 Mozambique, Mozambican(s) 5 Muslims – see Islam Musoke, Mr (of Ugandan Refugees Welfare Association) 39 N Nairobi 159 Namibia 6 Nansen, Fridtjof 9 National Assistance Act 1948 3, 154, 175, 182 National Association of Probation Officers 103 National Association of Citizens’ Advice Bureaux (NACAB) 146 National Asylum Support Service (NASS) 157, 159, 169 National Children’s Bureau 113, National Children’s Homes 113 National Front 18, 176 National Society for the Prevention of Cruelty to Children (NSPCC) 113 National Temperance Hospital 171 Nazi, Nazism 9, 15–16 Netherlands 5, 21, 126, 130 Newcastle 169 New Delhi 159 New Mexico 46 New Zealand 126, 136 Newman, Mr Justice 105 NGOs (non-governmental organisations) 52, 95, 127, 142, 146, 158, 167, 169, 175–176, 178, 180, 188, 191–192

Niger Delta 189 Nigeria, Nigerians 6, 22, 51–52, 136 Nissel, Siegmund 6 Nobel Prize(s) 6 Non-state agents (of persecution) 133, 188 North America 128 Norway, Norwegian(s) 9, 103, 142 O O’Brien, Mike 62, 104, 176 Oakington Barracks, Oakington Immigration Detention/Reception Centre 70, 88–99, 106, 109–110, 122, 164, 175–176 Observer 146, 164 Ogoni, Ogoniland 51, 189 ‘One-stop appeals’ 161 ‘One-stop shops’ 169, 172 Organisation of African Unity (OAU) 10, 50 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa 10 Oxfam 157, 184, 186 Oxford 87, 91, 174–175 Oxford University 166 Ozberk, Selahattin 42 P Pakistan, Pakistani(s) 57, 69, 79, 111, 136 Panel of Advisors (for unaccompanied minors) see Refugee Council Parliament 26, 31, 37, 66–67, 135, 144, 149–150, 152, 154, 180 ‘Particular Social Group’ 11–12, 37, 79, 110–111 Passport offenders 96, 102–107, 188 Pearl, Judge David 68

Index | 209

Pekoz, Turan 119 Pentonville Prison 38, 39, 49, 92–93, 173 ‘People power’ 23, 128 Persian (language) 116 Perutz, Dr Max 6 Pinochet, General 19, 173 PKK (Turkish Workers’ Party) 79 Plancey, Rabbi Alan 153 Poland, Pole(s) 14, 16, 22, 125, 128 Police Complaints Commission 99 Popplewell, Mr Justice 41 Port applicant(s) for asylum 30, 31, 33, 97 Porta, Cecile 184 Portugal 133–134 Pourgourides, Dr Christine 93–95, 100–101 Powell Onen P’Ojwang, see Bulgara, Ladit Powell, Enoch 18, 22, 99 Prague, Prague Spring 17, 140 Press Complaints Commission 2–3 Prison Officers’ Association 99 Prison Reform Trust 95, 103 Prison Visitor(s), Board of Visitors 50, 93, 95 Protestant(s) 2, 4, 14 Providing Protection 155, 177 Q Quakers 184 Quaker Social Responsibility and Education 147 Queen Elizabeth House, Oxford 166 Quota refugees 13, 22 R Race Relations Act 63 Racism, racist(s), the ‘race card’, race relations 3–4, 7, 13–14, 16, 18–20, 22, 25, 62–63, 89, 126, 147, 154–5, 191

Radio 4 4 Ramsbotham, Sir David, HM Chief Inspector of Prisons 88, 95–96, 103, 122 Rape 57, 67, 109, 110, 149, 153 Red Cross 124, 127, 152, 160, 175 ‘Refouler’, ‘Refoulement’ 11 Refugee Arrivals Project 172–173 Refugee Community Groups 173, 188 Refugee Council 3, 4, 6, 32–33, 35, 51, 66, 81 fn.1, 99, 103, 114, 116, 119, 120–121, 153, 164, 166, 169, 170, 172–173, 175, 179, 180, 183, 184, 188 Refugee Council – Day Shelter, Night Shelter 152, 153, 169 Refugee Council, Children’s Panel, Panel of Advisors (for unaccompanied minors) 100, 114, 120, 121, 152, 158, 169 Refugee Forum 179 Refugee Legal Centre 62, 71, 74, 75, 81 fn.1, 146, 168, 178–179 Refugee Legal Group 177 Refugee Status, see Convention status Refugee Studies Programme 166–7 Refugee Women’s Legal Group 108, 112 Refusal of asylum, refusal letters 20, 24, 26, 29, 33, 36, 41–43, 45, 47–48, 54–55, 58–61, 63, 67, 69, 70–72, 75–77, 78, 80, 86, 99, 103–104, 106, 128, 148, 168, 189, 191 Removal, deportation, forced return 15–16, 20, 22, 29–31, 33, 35–36, 39–42, 49, 50, 74, 76, 82, 84, 94–95, 97, 139, 147, 161 Renton, Timothy 41 Revocation of the Edict of Nantes 14 Rhodesia 17, 20

210 | Index

Riots (in detention centres) 89–91, 168 Road Haulage Association 160 Roche, Barbara 159 Rochester Prison 49, 76, 83, 88–89, 91, 100 Roma 14, 100, 182, 184 Roman Catholic(s), see Catholics Romania, Romanian(s) 154, 164, 184 ‘Root causes’ of asylum seeking 24–26, 125, 189 Rudge, Philip 126–127 Russia, Russian(s) (see also USSR) 14, 17, 22 Rwanda 5, 7, 10 S Sacks, Jonathan, Chief Rabbi 4, Safe countries of origin 64 fn.51, 136, 151 Safe third country 30, 69, 133, 142, 150–151, 159, 168, 183 ‘Safety net’ 21, 33, 39, 40, 114 St James’s Park tube station 43 St Martin-in-the-Fields 154 St-Martin-in-the-Fields Church 154 St Pancras Coroner’s Court 38 Sandys, Duncan 18 Santa Fe de Bogota 137 Sarda, Krishna 145 Save the Children 113, 120–121, 123, 176, 186 Schengen 130, 132, 134 Schidlof, Peter 6 Schweitzer, Albert 192 Scottish Council for Civil Liberties 147 Scrivener, Anthony, QC 146 Secretary of State for the Home Department, see Home Secretary Shadow Cabinet 164 Shell Oil Company 51, 189

Shelter 177 Shepherd, Gillian 150 Shutter, Sue 170 Sierra Leone 101 Sikh(s) 182, 185 Singh, Chahal 182 Single European Act, 1986 129–130 134 Sisters of Notre Dame 119–120 ‘Sivakumaran’ 37, 48 fn.12, 78 Slovakia 184 Smith, Ian 17, 20 Social Security 3, 150, 151, 152, 156–157, 169, 175, 181–182 Social Security, Secretary of State for 150 Social Security Advisory Committee 150 Social Services, Social Service Departments 114 Society of Friends, see Quakers Sodexho Pass 157 Solidarity Trade Union, Poland 128 Somalia, Somali(s) 116, 160 South Africa 6, 17, 20 Southwark, Bishop of 157–158 Soviet Union, Empire, see USSR, Eastern Bloc Soyinka, Wole 6 Spain 14–15 Spanish Civil War 14 Sri Lanka, Sri Lankan(s) 21, 24, 28–38, 60, 141, 160, 184 Stansted Airport 99 Statutory Order 150, 152 Steering Group I (Asylum and Immigration), Ad Hoc Group on Immigration 132 Stoke Mandeville Hospital 41 Strasbourg (European Court of Human Rights) 107 Straw, Jack 5, 99, 179 Student Action for Refugees (STAR) 175 Sudan 5, 10, 46

Index | 211

Suicide, attempted suicide, suicidal thoughts/tendencies 38–39, 41, 49, 91–93, 101, 118–119, 182 Sun 164, 178–179, 181, 18 Sweden 21, 139 Switzerland 5, 14, 21–22 T Tamil(s) 21–23, 25, 28–38, 40, 65–67, 184 Tanzania 17 Tavistock Clinic 116 Temporary protection 138–139 Thatcher, Margaret 19–20 Thirukumar and Others 54–55 Tiber, River 18 Times, The 164 Tincey, John 98–99 Tinsley House Detention Centre 122 To, Minh 6 Torture 12, 25, 36–37, 39, 45, 49, 51, 53–54, 59–61, 76–79, 93–95, 101, 113, 141, 148, 153, 170–171, 184 Trades Union Council 161 Trafalgar Square 154 Trafficking of people 34, 140, 141, 143, 160, 182, 184, 190 Treaty of Amsterdam, 1997 132 Tshatshi, torture centre in Zaire 49 Tumim, Sir Stephen, HM Chief Inspector of Prisons 87, 95 Turkey, Turkish, Turk(s) 40–44, 52, 53, 60, 61, 79, 116, 126, 138, 168, 182, 184, 189 U Uganda, Ugandan(s) 6, 10, 17–19, 30, 38–39, 46, 52, 54, 92, 99 Uganda, expulsion of the Asians 17–19, 99 Uganda Refugees’ Welfare Association 39

UN Committee Against Torture, UNCAT 12, 60, 62, 94–95 UN Committee on the Rights of the Child 113 UN Convention Against Torture 11–12 UN Convention Relating to the Status of Refugees, Convention of Refugees, 1951 Geneva Convention 10–11, 13, 20–22, 33–34, 36–38, 41, 46, 48, 50, 56, 59–60, 65, 75, 79–82, 91, 99, 103–105, 110–111, 125, 128–129, 133, 136, 139, 140, 144, 146, 156, 160, 168, 175, 181, 186–189, 192 UN Convention Relating to the Status of Refugees (1967 Protocol) 10 UN Convention on the Rights of the Child 112–113 UN Convention on Torture 156 UN High Commissioner for Refugees, Office of the UNHCR 5–6, 10, 12, 33, 36, 40, 42, 56, 65, 71, 74, 97, 104, 108, 111–112, 127, 130, 132, 134–136, 140–145, 148, 151, 153, 155, 166–168, 176, 180 UN High Commissioner for Refugees, Guidelines 12, 75, 83 UN High Commissioner for Refugees, Executive Committee 12, 81 UN International Covenant on Civil and Political Rights 85 UN Universal Declaration of Human Rights 9, 10, 45, 85, 119, 182, 187 UN Working Party on Arbitrary Detention 81, 101 Unaccompanied Minors, Children 13, 100, 101, 113, 120–123, 140 UNHCR Guidelines, Handbook 12, 75, 83, 139, 160

212 | Index

United Kingdom Immigrants’ Advisory Service, UKIAS 20, 29, 30, 31, 33, 34, 35, 86, 145, 146, 169, 179–180 United Nations 4, 9, 176, 186 United Nations Association 176 United Nations Children’s Fund, UNICEF 176 United States of America, USA 45, 88, 102–103, 191 US Department of State 48 USSR (see also Russia) 14, 17, 21, 128 Uxbridge Magistrates’ Court 102, 105–106 V Vantagepoint 47 Victoria and Albert Museum 14 Vietnam, Vietnamese 6, 7, 19, 20, 22, 186 Vouchers given to asylum seekers under 1999 Act 3, 157, 159, 178 W Wackenhut 88 Waite, Lord Justice 154 Walter, Natasha 4 Wandsworth Prison 93 Wangamati, Patrick 52, 53 Waterstones 182 Weber, Leanne and Loraine Gelsthorpe, Deciding to Detain 97, 98, 99 ‘Well-founded fear’ 37

West Indies 38 West London Synagogue 176 Westminster Abbey 153 Westminster, Cardinal Archbishop of , Cardinal Basil Hume 1, 26–27, 152 Westminster, Dean of 153 Westminster, (Catholic) Diocese of 152, 175, 185 Westminster, Synagogue 153 White City 154 ‘White List’ 69–70, 73, 150 Williams of Mostyn, Lord 162 Widdecombe, Ann 61 Windmill Project for Refugee Women and Children 119 Winstanley Burgess, Solicitors 29 fn.4, 43 fn.55, 32, 36 Wiwa, Ken Saro 51, 56 Wolverhampton 18 World Council of Churches 134 World University Service 42, 147 World War I 15 World War II 9, 15, 126, 151 Wormwood Scrubbs Prison 102–103 Y Yugoslavia 125, 182 Z Zaire, Zaireans 48, 49, 50, 59, 92–93, 128, 144, 173, 184 Zeebrugge 141, 182 Zimbabwe 6