This paper constitutes a detailed analysis and critique of the British asylum system from 1997 until the present day. It covers all the clearly defined areas of government policy, including funding, detention, deportation, human rights, European Union obligations, and asylum welfare. It also addresses the role of the judiciary and cites many of the landmark legal cases that have had a major impact on the sector. In providing a comprehensive overview of asylum and immigration that spans the entire period of the Labour government and the first few months of the new Coalition's tenure, the author aims to show that an often illiberal UK asylum policy is largely governed by principles of deterrent and political expediency. Only an enlightened House of Lords, now the Supreme Court, has served as a bulwark for justice and mitigated the effect of draconian government policies.
Cet article est une analyse detaillee et une critique du systeme de l'asile britannique de 1997 a aujourd'hui. Il couvre tous les domaines clairement definis de la politique gouvernementale, dont le financement, la detention, la deportation, les droits de la personne, les obligations en vertu de l'Union europeenne et l'aide sociale offerte aux demandeurs d'asile. Il s'attarde aussi sur le role de la justice et cite des cas ayant fait jurisprudence qui ont eu d'importantes repercussions. En fournissant un portrait complet de la situation de l'asile et de l'immigration durant toute la duree du gouvernement travailliste et les premiers mois du mandat de la nouvelle coalition, l'auteur cherche a montrer que la politique restrictive en matiere d'asile au R.-U. est largement regie par des principes de dissuasion et d'opportunisme politique. Seule une Chambre des lords eclairee et aujourd'hui la Cour supreme ont servi de rempart pour la justice et ont attenue les effets des politiques draconiennes du gouvernement.
About suffering they were never wrong, The Old Masters: how well they understood its human position; how it takes place while someone else is eating or opening a window or just walking dully along. (1) Introduction
This paper constitutes a comprehensive analysis of the British asylum sector between 1997, the year that the Labour Party acceded to office after eighteen years of Conservative rule, and the present day. It aims to present a balanced critique of government policy from a practitioner's perspective. Issues such as legal aid funding, the role of the judiciary, detention, deportation, human rights policy, welfare, and British participation in European Union immigration policies are all addressed in detail. I shall endeavour to show that UK asylum policy is often illiberal and largely governed by principles of deterrent and political expediency.
Legal A id and the Demise of Two of the Major Publicly Funded Refugee Charities
On 16 June 2010, the UK's new Conservative-Liberal Democrat coalition government presided over the demise of one of the longest standing and most respected national refugee charities. Refugee and Migrant Justice (RMJ), formerly the Refugee Legal Centre, which had provided free advice and representation for vulnerable asylum seekers since it was founded in 1992, went into administration.
In 2005, it was given a human rights award from the human rights campaigning organizations, Liberty and Justice and the Law Society, for "consistent and fearless use of the law to protect human rights and hold immigration and asylum policies up to the scrutiny of the courts." RMJ had been a shining beacon within the sector and its demise heralded a new low for legal aid immigration and asylum practitioners, as well as its 10,000 asylum-seeking clients who suddenly found themselves without legal representation.
The RMJ was no longer able to remain solvent due to a change of policy introduced by the then Labour government which prevented it from billing its work in progress while cases were still ongoing. Given that cases can continue for several years, it has never been viable for organizations reliant upon legal aid to function without staged billing. The Justice Secretary in the new coalition government, Ken Clarke, claimed that the RMJ failed to make the efficiency savings of other immigration providers. The RMJ rejected that allegation, arguing that it worked a minor miracle by continuing to operate for years in the face of swinging cuts in its budget, particularly the replacement of hourly rates by the fixed fee system.
On 11 July 2011, the Immigration Advisory Service (IAS), the largest provider of publicly funded asylum and immigration legal advice and representation, went into administration. The IAS had been in existence for thirty-five years and employed 300 people. It routinely handled over 20,000 cases a year. The government's decision to remove immigration from the scope of legal aid and also to reduce the legal aid fees for refugees seeking asylum in the UK by 10 per cent, resulted in the IAS losing 60 per cent of its income.
The Legal Services Commission (LSC), which had raised concerns over the IAS's financial management, stated that the decision taken by the IAS to go into administration was "theirs alone."
Practitioners would adduce the sad end of both the RMJ and the IAS as evidence that the government is seeking both to undermine immigration and asylum practitioners and to restrict access to justice for their clients.
The LSC, formerly the Legal Aid Board, is the agency mandated to administer legal aid, a system predicated upon access to justice for the unemployed and lowest income segments of society. In the early years of the New Labour period, the LSC encouraged dynamic small and medium sized immigration firms to expand, but it signally failed to follow through on its commitment to good quality immigration and asylum representation. Instead, increasingly lent on by government, it set about cutting costs and increasing bureaucracy with gusto. One by one, respected, longstanding legal aid immigration lawyers either were forced out of business altogether or decided to move into the private sector.
Multi-million pound "super" contracts were negotiated with a handful of large firms, the vast majority of which were known within the sector to be disreputable. Prime Minister Blair and a succession of hard-line home secretaries, notably David Blunkett and Jack Straw, launched stinging attacks on human rights lawyers, whom they alleged were cynically milking the system by stringing out cases and bringing frivolous appeals. Many practitioners were of the opinion that New Labour did not want to be inconvenienced by conscientious asylum lawyers who were not prepared to allow poor decision making to go unchallenged. Its ultimate aim appeared to be a pared down, American-style system of public defenders.
For at least hall a decade under New Labour, the Home Office became a nightmare to deal with. It was supposed to be undergoing a complete overhaul, to include a new computer system costing an estimated 80 million pounds, which was eventually scrapped in 2001. Hundreds of files were lost and getting through on the telephone was virtually impossible. With the exception of minors, Legal Aid for representatives to attend their clients' asylum interviews was discontinued.
New Labour's Asylum Policy
In 1998, a year after Labour carne into office, they tagged their new policy on immigration and asylum "Fairer, Faster and Firmer." The "Fairer" element of the package consisted of warm words as to the contribution made by immigrants to British society, an amnesty for 10,000 asylum seekers who had been waiting for a decision since 1993 (a backlog of 50,000 undecided applications had accrued), and the right of detainees to have automatic bail hearings. However, it soon became clear that government policy would be largely influenced by the Europe-wide push to harmonize asylum and immigration policy. Governments across Europe appeared to be at one in their desire to cut costs and ramp up controls.
The following measures all appeared in the government's 1999 asylum and immigration law: increased powers of enforcement and detention (including the continued detention of torture victims and children); the expansion of "fast-track" appeals and a reduction in appeal rights, not least the right to appeal against deportation and to pursue Judicial Review actions in cases where a person faced removal on safe third country grounds; the termination of all welfare benefits to asylum seekers; and a new system of dispersal under which asylum seekers would be given no say as to where in the country they were sent. The offer of housing was to be made on a "take it or leave it" basis.
The pressing issue of the poor quality of initial decision making, a corollary of the culture of disbelief which permeated the whole system, was not addressed. The UK Home Office has long been infamous for its "cut and paste" refusal letters and the fact that it routinely refuses 95 per cent of applications. Historically, some 25 per cent of applicants have been successful in overturning those decisions in the immigration courts.
Judicial Review applications were knocked back by High Court judges with ever increasing regularity and Immigration judges showed no compunction in rubbishing expert reports and either ignoring or quoting selectively from human rights reports.
In October 2000, the European Convention on Human Rights (ECHR) was enshrined into British law by way of the Human Rights Act (HRA), a development that received a widespread welcome. The aim was to protect the individual from public authorities that violated Convention rights and to bring human rights issues within domestic jurisdiction. In order to dampen down any premature optimism that New Labour intended to be a pioneer in the cause of human rights, the Home Office minister, Mike O'Brien, immediately declared that the legislation should be viewed as "a shield, not a sword for...