Special Standing Committee
Thursday 18 March 1999
[Mr. John Maxton in the Chair]
Examination of Witnesses
The following witnesses were examined:
Medical Foundation for the Care of Victims of Torture
Ms Alison Harvey
Mr. Sherman Carroll
Local Government Association
Association of London Government
Lord Harris of Haringey
Mr. John Ransford
Mr Mark Brangwyn
Kent County Council
Mr. Peter Gilroy
Ms Jan Askew
British Airways
Mr. Mervyn Walker
Mr. Jim Forster
Road Haulage Association
Mr. Steven Norris
Freight Transport Association
Mr Geoff Dossetter
Memorandum from the Medical Foundation for the Care of Victims of Torture
A: Overview of the Bill
The Medical Foundation is disappointed that the ``comprehensive, integrated strategy'' promised by the government has not been served by a consolidating Act but by an unwieldy collection of often awkwardly drafted provisions to be bolted onto all the immigration Acts going back to 1971, with only one Act repealed in its entirety. The form and content of this Bill are an eloquent testimony to the dangers of prioritising speed over quality.
We are hampered in our discussions of the Bill by the extent to which its proposals depend on sweeping and draconian powers to make delegated legislation and guidelines, with grossly inadequate restrictions on the exercise of these powers either now or in the future. The adequacy and cost, and hence viability, of the proposals are therefore not open to scrutiny.
It is an indictment of the consultation process surrounding this legislation that the reforms identified by those consulted as the key to a fairer, faster, firmer system—the reform of initial fact-finding and decision-making procedures—have not been addressed, and objections to the systematic social exclusion of asylum seekers have been ignored. The Minister has suggested that broad powers have been taken in order to enable account to be taken of future consultation, but the very limited impact consultation has had, and the extent to which wholly proper concerns highlighted by those participating have been disregarded, lead us to look to parliament and to amendment of the primary legislation to provide protection for our patients.
At paragraphs 9.1 and 9.8 the White Paper made commitments toward treating torture survivors with sensitivity and taking evidence of torture seriously. At paragraph 12.4 it made the commitment that evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release while a claim is being considered. None of these commitments find expression in the Bill.
To realise the commitments made to torture survivors in the White Paper, it is necessary:
_to put in place specific procedures and
—to create the most propitious general conditions both
—to identify survivors of torture at the earliest possible stage; and
—to react to identification with appropriate procedures: for the provision of, and opportunities to access, appropriate care and support, for opportunities to obtain evidence of torture where appropriate and for proper evaluation of that evidence.
This has not been done. There are no specific references to survivors of torture in the Bill except for sub-paragraph 9(5) of Schedule 4, a saving provision. The systems proposed militate against early identification of torture survivors and appropriate reaction to identification.
An example will illustrate this. Historically, applications have been reconsidered in the light of new medical evidence whenever submitted. We obtained a sensible concession that the five-day time limit for submitting further evidence will not apply to medical reports. The decision would await the report. However, despite criticisms, the general five day time limit remains. Thus a survivor of torture must find a representative, and that representative arrange to see the applicant with an interpreter, obtain details of past torture, make a referral to us, obtain our response, and communicate this to the IND, all within five days, in order to benefit from the concession. Only thus will s/he avoid the negative impact upon healing of a rejection of his/her experiences in a premature and inappropriate refusal. Support provisions resulting in dispersal and isolation of survivors of torture, while limiting their own ability to take steps to seek assistance, failure to make provision for early access to independent clinicians or to representation, and failure to improve Home Office fact-finding procedures, all mean that the necessary conditions for this concession to start to yield tangible benefits are not in place.
B: Home Office Decision-making: The Missing Chapter
The White Paper and Draft Process Manual justify the harshness of support proposals on the basis that people will be subject to them only for a short time: two months for an initial decision, six to complete the appeal stage. We understand that the proposals have been costed on this basis. We have not met any officials or practitioners who believe that these time limits will be achieved. Exchanges of wry smiles are the norm when the issue of the two month and six-month time limits arises in official meetings, mocking laughter in other fora.
B(i): Reorganisation and Computerisation of the IND
As members of the User Panel we have seen for ourselves and discussed with officials the endemic delays in the IND. The system being implemented was designed to cope with the volume of cases believed to exist in 1996-7. Recent reorganisation has revealed that the directorate has a greater volume of work than it thought. The new system is not designed to cope with the current volume of work, even when fully operational. Scanning of files on to computer is not scheduled to start until late this year and will take years. Documents currently being generated are not stored on disk but will have to be scanned in later. The IND is to move back in two years into the offices now vacated for refurbishment. Current changes have added to the backlog and will not make time limits viable in future.
B(ii): Reform of Fact-find and Decision-making
A fairer, faster, firmer system depends upon getting all necessary information at the earliest possible stage and dealing with all issues in a decision that gets matters right first time. In our response to the White Paper and elsewhere we have made detailed suggestions for ways in which to achieve this where the applicant is a torture survivor, emphasising the need to focus on overall expedition, rather than shifting delays to different stages of the procedure by putting in place arbitrary and inefficient time limits. We have highlighted the need for specific improvements to the quality of fact-finding and decision-making procedures. Without such reforms, evidence of torture will continue to emerge in piecemeal fashion during successive challenges to poor quality decisions. We emphasised, inter alia:
—optimising of asylum-seekers' contacts with all officials, including Port Medical officers, medical staff in detention centres, and IO's to increase the chances of identification
—procedures to ensure referral of torture survivors for care and treatment, and to ensure that medical evidence was forthcoming in appropriate cases
—access to a competent representative of probity with whom the torture survivor could establish a relationship of trust and confidence at the outset of fact-finding procedures
—the use of a self-completion questionnaire to establish initial details of the case
—improvement of the quality of decision-making inter alia by ensuring access to accurate country information through the establishment of an independent Documentation Centre
Key Amendments
New clause Transitional provisions so that the support arrangements proposed in the Bill cannot come into effect until the proposed two month and six month average times for the determination of an application are met
New clause As a minimum, safeguards for individuals whose cases are not determined within six months: access to benefits and the opportunity to work
New clauses Rights of early access to an independent clinician and legal representation during the period in emergency support, prior to dispersal, for anyone in this system
New clauses Duties on the relevant officials to ensure that those relating a history of torture are given access to specialist care and treatment and the opportunity in practice to obtain medical evidence in support of the application where appropriate
New clause Incorporation of the RWLG Gender Guidelines, supported by NUNHCR and many MPs, to facilitate identification of torture survivors in especially problematic cases
New clause Express provision in the Bill for the allocation of resources for the setting up of an independent Documentation Centre as recommended by the Consultative Group.
C: Part VI & Schedule 8—Support
We commence, out of sequence, with support because this is what happens when a patient presents at the Medical Foundation. In initial contacts and subsequent sessions immediate and pressing subsistence needs prevent attempts to engage with the sequelae of torture and to commence the process of healing. We have taken a number of steps to address these difficulties: undertaking casework on housing and related problems, providing food parcels, basic toiletries and clothing, making of financial grants for travel, education, household goods and living expenses. It goes without saying that these are not the primary functions of an institution providing clinical assistance. Without them, however, many of our clinical interventions would be less effective. Indeed, some would be altogether ineffective.
C(i): Dispersal
Survivors of torture should not be compulsorily dispersed as specialised services for their care and treatment are concentrated in the London area and they cannot be accommodated in safety if dispersed to areas in which specialised support is not available. We increasingly receive requests for assistance where torture survivors have been dispersed under current arrangements, because appropriate services are not available locally. The specialist work of the Foundation, its expertise and holistic approach, and the support provided to patients and practitioners, cannot be replicated under a dispersed structure. Nor can intensive services be provided at a distance. A lengthy journey, even if the funds and assistance to make it were put in place, is not the best prelude or sequel to an appointment with a doctor, or to a counselling or physiotherapy session.
All steps to identify survivors of torture at the earliest possible stage must be taken. To this end provision must be made for access to an independent clinician, and to a representative with whom a relationship of trust and confidence can be established, during the period in emergency support. Current proposals that asylum-seekers will leave emergency support without knowledge of their new address exacerbate the problem. Where a survivor of torture is accepted for London-based care and treatment prior to dispersal, s/he should be given the choice of remaining in London to access this. Torture survivors identified after any dispersal should be given the option of returning to London to take up care and treatment there.
Early identification of survivors of torture, appropriate responses to that identification, and the obtaining of medical evidence where appropriate, require access to appropriate refugee community organisations, specialist voluntary organisations and legal representatives. They often provide the gateway through which torture survivors access specialist care, as well as providing essential support in their own right. Physical disabilities, mental distress and fears resultant from past experiences mean that some of the most isolated asylum seekers in the country are torture survivors. Dispersal to areas where there are not strong existing support network risks compounding this isolation and increasing the likelihood that evidence of torture will not emerge until a late stage, if at all, and that torture survivors will not make contact with specialist help.
Key Amendments
To Clause 76 to provide for the taking into account of a preference to remain in/return to the London area to access care and treatment for the sequelae of torture.
To Clause 76 (1)(c) to ensure that dispersal is not led solely by the availability of housing. Factors including the existence of established community and other organisations working with refugees and asylum seekers and appropriate to the particular asylum seeker, specialised medical services appropriate to the asylum seeker, access to legal advisors regulated and funded to practice in this area, appropriate linguistic support and race relations, should be included in primary legislation and not left to regulations.
To the Draft Process Manual to ensure that asylum-seekers have a destination address before leaving emergency support.
C(ii): A Separate and Wholly or Mainly Cashless System
One of the aims of the torturer is to destroy the sense of dignity, self-worth and strength of the victim. One of the central aims of the healing process is to nurture the sense of dignity, self-worth and strength of the survivor. Proposals to provide support wholly or mainly in kind rob asylum seekers of autonomy and privacy, humiliate them, and place them in a position of absolute dependency, jeopardising their psychological, and in some cases physical, health and undermining the healing process for survivors of torture.
Key Amendments
To Clauses 73-74 to provide for survivors of torture to receive welfare benefits.
To Clause 75(2) to recognise a history of torture as an exceptional circumstance.
C(iii): Unsafe Provision
It is course unsafe that the Secretary of State, and future secretaries of State, are placed under no duty, and no-one else has any power, to support asylum seekers (Clause 74(1)). It is not only unsafe, but a threat to the rights under articles 2 and 3 of the European Convention on Human Rights and under the Human Rights Act, to create a group at the end of the asylum process with no rights to food or shelter. These provisions, in their disregard for fundamental human rights, set the tone for the support section of the Bill. We refer you to the evidence of ILPA and others for a detailed commentary, while focusing here on the particular dangers of the failure of the Bill and Draft Process Manual to take proper account of the particular needs of vulnerable individuals, which have especially grave implications for the safety of many survivors of torture.
The destitution test for accessing support (Clause 74(3)) is the first bar to safe provision. Where the health and safety of a particular individual is jeopardised by existing arrangements and his/her needs are not being met s/he must be able to access support.
There can be no safe provision of support to a torture survivor with physical sequelae resulting in impeded functioning, distrubed sleep patterns, disturbed behaviour, or special needs for security and privacy in accommodation, if these are not taken into account. The statements in the Draft Process Manual (paragraphs 3.18, 3.21, 3.23) that support will be according to broad packages, not individually tailored, will mean that survivors of torture are not accommodated in safety. There must be reference to the particular individual in determining what are his/her essential living needs and this should be reflected in Clauses 74-76. Parliament should not grant a Secretary of State the sweeping powers sought to make regulations allowing him to ignore certain needs (Clause 78(7)(b), and, astonishingly, to deem any essential living need not to be one (Clause 74(8)).
The right of appeal to an Asylum Support Adjudicator should be extended to appeals on the level of support in order to ensure adequacy consistency of provision. Vulnerable individuals require legal representation meaningfully to exercise this right and therefore legal aid should cover these appeals.
The Draft Process Manual envisages that the provider will allocate the accommodation. Thus what is delivered to the torture survivor depends upon the provider. We understand from officials that the government is considering further amendments to the Bill extending providers' ability to determine eligibility for support. There is no reason to expect that providers will have experience of the needs of survivors of torture.
There are good reasons to doubt that a system of competitive tendering by consortia will generate the requisite provision. Potential bidders are likely to be deterred by the risks of increased racism and of the creation of an ever-growing group of destitute single adults in the area as support is withdrawn at the end of the process. In addition there is the risk that funding for accommodation and subsistence will run out or be cut because the total sum available is capped and because the calculations on uptake and length of time to be spent in the system on which it is based are flawed. Local authorities have the added disincentives of the expenses of providing for a group with special and expensive needs for language support, health and educational care.
Assuming a willingness to form consortia, it must be recognised that years of expertise in dealing with the special needs of refugee populations and the corresponding growth of networks cannot be exported overnight. Important lacunae in the Bill are that the asylum seeker is given no rights whatsoever against the provider and the provider no obligations toward the asylum seeker and no provision is made for independent monitoring of quality of service provision.
The above failures to provide for the special needs of torture survivors are compounded by the effects of Clauses 95 to 99, which will have a disproportionate impact on children and adults suffering physical and mental sequalae of torture. Officials tell us that the desired effect of Clauses 95 to 99 is that vulnerable asylum seekers in special need will receive a social services response. If this is the case then severe disablement allowance, disability living allowance and disability working allowance should not be included in Clause 95. If officials are correct then Clause 97 should be deleted, along with the equivalent provisions for Scotland in Clause 98. Clause 97 preserves no rights. Clause 97(1) baldly takes away powers of local authorities to supply assistance to vulnerable elderly people. Clause 97(2) has the same effect, but here the target is the mentally disordered, for the provisions being disapplied provide the framework for social work services for the identification, assessment, diagnosis and social treatment of mental illness. These powers are used where the needs are not being met from other sources; there is no reason to disapply them.
Clauses 96 and 99, as drafted, risk giving rise to a prima facie assumption that asylum seekers do not require a social services response. We fear that they will result in vulnerable asylum seekers, including children being passed from pillar to post as local authorities tell them that the support directorate should be meeting these needs and the directorate tells them to go to social services. Officials tell us that the word ``may'' rather than ``are being'' in Clause 99(2) is supposed to prevent a family rejecting an offer of accommodation under the support scheme and then seeking assistance from a local authority under the Children Act. If this is the case, then the clause should be redrafted to provide for this express situation and the rights of asylum-seeking children in need to the services set out in 17(1), which also provides access to services under Section 17(2) and Schedule 2 of the Act, expressly affirmed.
There should be an express statement that none of the exclusions apply to those recognised as refugees or granted ELR. In addition to these amendments, the Bill must include provision for section 74 support to act as a passport to health and other benefits, as income support and job-seekers allowance do.
Key Amendments
New Clause to place the Secretary of State under a duty to promote the well-being of asylum seekers.
To Clause 74(1) placing the Secretary of State under a duty to provide support.
To Clause 74 extending the protection of 74(5) to all asylum seekers whose claims have been decided or appeals disposed of.
To Clause 74(3) providing that the test for accessing support shall be that the needs of the individual asylum seeker cannot be met without such support.
Clause 78(7)(b) to be deleted, to remove the power to disregard the needs of individuals.
Clause 78(8) to be deleted, to remove the power to declare that any essential living need shall be not treated as such.
To Clause 84(1) to give an appeal against the level of the support provided.
New Clause to provide for legal aid for representation at appeals before an Asylum Support Adjudicator.
New Clauses To provide for the independent monitoring of the quality of service provision
New Clause To provide the asylum-seeker with enforceable rights against the provider
New Clause To place the provider under obligations toward the asylum seeker
To Clause 95 providing that it shall not apply to refugees or those granted ELR
Clause 95(b)(d)(g) to be deleted to reinstate entitlement to disability benefits
To Clauses 97 and 98 so that services can be provided to elderly and mentally disordered asylum seekers whose needs are not being met
To Clauses 96, 98 and 99 making explicit the rights of asylum seekers in need to a social services response
New Clause providing that receipt of support shall act as a passport to health and other benefits, as income support and job-seeker's allowance do now
D: Parts I & II—Pre-Entry and On-Entry Controls
Torture survivors have frequently been detained or otherwise come to the attention of the authorities in their own country. The presence of visible scars may raise suspicion against torture survivors, as has been the case for many of our Sri Lankan patients. Thus many torture survivors, fearing future persecution, will be unable to risk approaching their own governments for passports or even to risk being seen to approach a foreign embassy for a visa. Unaccompanied children can face particular problems in obtaining documentation, especially when parents have died or been imprisoned.
A grant of leave to enter in the country of departure may facilitate travel for business and pleasure. A refusal of such leave will prevent survivors of torture from reaching a place of safety. Similarly with measures to penalise carriers for carrying undocumented passengers. These proposals do not distinguish those in need of protection from other travellers and no safeguards are built in to protect those fleeing persecution.
We are concerned by the breadth of clauses 9-12 on the provision of information which could put torture survivors at risk in the country in which they have been tortured. Express safeguards are essential to limit the information that can be required, the persons who can be approached, to protect confidentiality and to impose duties to inform the subject of the information that it is to be given.
To reflect the necessity for many torture survivors to resort to the use of false documents to flee and the gravity of the implications of further detention in the UK for them, we are particularly concerned to see the broad and draconian clauses 16 & 17 amended to protect them from prosecution contrary to the UK's international obligations.
Key Amendments
To Clause 1 so that leave to enter cannot be refused prior to arrival.
New Clauses and consequential amendments to make express provision for those who seek to travel to the UK to seek asylum from persecution. Pre-entry controls, such as imposing visa regimes should not be applied to countries where torture is practised.
To Clauses 9 to 12 to limit the information that can be required, protect confidentiality and provide for informing the person about whom information is to be given of this fact.
Clauses 9(7)&(8), 11(1)(e), 11(2)(d), 12(1)(e), 12(3)(c) and 12(6)(h), the combined effect of whch is to allow the Secretary of State to exchange whatsoever information he chooses with whomsoever he chooses, should be deleted.
New Clause The powers of the Independent Monitor should be extended to include monitoring of the impact of carrier's sanctions on those fleeing persecution.
To Clauses 16 & 18 to prohibit prosecutions in breach of the UK's obligations under Article 31 of the 1951 Convention on the Status of Refugees and the 1967 Protocol thereto.
E: Parts III & VIII Schedules 9, 10 & 11—Bail & Detention
Survivors of torture at risk of detention under the Bill, despite the compelling medical evidence that the detention of torture survivors has caused serious mental and emotional effects. The White Paper made a commitment that ``evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release while a claim is being considered'' (paragraph 12.4). Yet neither provisions for the running of detention centres nor those for bail address either the detection of torture survivors nor procedures to ensure that this is taken account in deciding whether or not to detain. We focus here on the failure to make good the commitment to survivors of torture, referring you to the evidence of ILPA, UNHCR and others for detailed comments on Parts III & VIII.
E(i): Bail Hearings
The Bill should expressly reflect the presumption in favour of liberty for torture survivors that underlies the commitment in the White Paper. That commitment also requires that reasons for detention and bail summaries should make express reference to any account of past torture in order that the bail hearing can address this issue. Use of a checklist as proposed in the White Paper (paragraph 12.7) is inadequate.
We have emphasised repeatedly the difficulties that a torture survivor may have in articulating what has happened to him/her and these are compounded by the fears and suspicions aroused by being detained. A requirement to provide legal representation at bail hearings for all would increase the chances of a history of torture emerging for consideration at a hearing. Extension of routine bail hearings beyond 37 days would help to ensure review of detention in the light of evidence of torture emerging at a later stage.
Key Amendments
New Clause Expressing a presumption in favour of liberty
New Clause An express prohibition on the detention of torture survivors
New Clause Statutory provision for bail summaries particular to the individual and incorporating express reference whether and what history of torture the detainee has given
New Clause Requiring provision of legal representation at routine bail hearings
To Clause 29 to provide for routine bail hearings throughout the period in detention
E(ii): Detention
The Bill fails to give statutory recognition to the rights of detainees and in particular to recognise a right to an independent medical examination prior to entry into detention, on, or during detention. The introduction of compulsory medical screening on entry into detention is not accompanied by safeguards to ensure that medical staff in detention centres do not content themselves with these powers and therefore fail to promote voluntary uptake of full medical screenings, with adequate linguistic support, at which detainees might be encouraged to disclose a history of past torture. This makes independent examination all the more essential. The criminalisation of refusal to submit to a medical examination reveals a profound lack of understanding of the fears of those tortured in detention in the past. We are concerned that the use of ``reasonably force'' in these and similar circumstances, particularly given the failure to make adequate provision for training, supervision or accountability of staff, will underscore for torture survivors the parallels between present and past detention.
Detention centre rules must, not ``may'', make provision for the safety and care of detainees. In order to ensure that survivors of torture are not wrongfully detained, not only must contacts with medical personnel prior to and on entry into detention be optimised, but officials must be under a duty to seek the consent of a detainee giving a history of torture to refer him/her for independent clinical examination. Procedures should be put in place for such referrals.
Key Amendments
New Clause setting out the rights of detainees, including to independent medical examination
New Clause imposing duties on staff where a detainee gives a history of torture
New Clause dealing with training supervision and accountability of detention centre staff.
Amend 124(2) Regulations must make provision for the safety and care of detainees, their health, well-being and procedures to be followed where detainee given a history of torture.
F: Part IV & Schedules 2, 3, & 4—Appeals
We refer you to the evidence of ILPA and others for detailed comments on Part IV, which close reading suggests is at the moment far from in its final form. We welcome the intention, perhaps as yet insuffienctly developed, to provide a right of appeal on Human Rights Act grounds. There are two matters to which we wish to make specific reference.
F(i): Certification
We are opposed to certification for all the reasons we set out at the time of the passage of the 1996 Asylum and Immigration Act. The decision to retain certification should be of no moment to us because during the passage of that Act, parliament intervened to keep torture survivors out of the system of certified appeals. However, despite assurances given to the Medical Foundation that where torture was in issue there would be no certification, appeals of torture survivors have been certified because decision-makers have ignored the histories of torture they have given.
Refusal letters have also suggested that the ill-treatment suffered is not torture within the meaning of the 1996 Act for technical reasons relating to the motivation of the torturer, despite clear statements during the passage of the 1996 Act that the term torture was to apply ``to any severe form of physical and indeed psychological abuse deliberately inflicted to cause suffering'' (HL Report, 20/06/96, Cols 494-495), the aim being to protect those who had undergone a certain intensity of suffering rather than to decide an aspect of the appeal. The intention of parliament has not been given effect.
Key Amendments
Schedule 4 Part II, paragraph 9. Delete
To Schedule 4, Part II, paragraph 9 As a minimum safeguard, clarification that there is no power to certify appeals where torture is in issue
F(ii): Compassionate Circumstances
There may be strong compassionate reasons why a survivor of torture found not to face a breach of his/her human rights or rights under the the 1951 Refugee Convention on return should not be sent back to the country where s/he was tortured. The Bill provides for consideration of compassionate circumstances, but it appears that the first stage at which these will be raised will be in the grounds of appeal. We have referred to negative effects upon healing of an inappropriate refusal, effects compounded by delay. Delays will ensue either if the IND has to reopen a case it has already rejected, or if an adjudicator is the first to consider such issues, resulting in more lengthy hearings and thus a greater backlog at the appellate level. We are also concerned for those, particularly those without competent representation, who fail to articulate their compassionate circumstances clearly in the appeal form and are therefore deprived of a right of appeal. Provision should be made for the IND to invite submissions on compassionate circumstances prior to issuing a final decision where it has decided not to recognise the applicant as a refugee.
We are concerned that consideration of compassionate circumstances may be limited to ``published concessions''. A comprehensive appeal should address all compassionate circumstances, and all applicants should have such an appeal prior to removal.
Key Amenendments
To Clause 55 to place a duty on the Secretary of State to invite submissions on compassionate circumstances prior to making a decision on an application
Clause 56(2) & (8) As a minimum safeguards to exclude unpresented appellants and to allow adjudicators to consider reasons for not having detailed the ground in the notice.
Under Clauses 55 to 58 As a minimum safeguard, a concession for torture survivors Related amendments to ensure a right of appeal prior to removal and a right to raise compassionate grounds at that appeal in all cases.
G: Part V & Schedules 5, 6 and 7—ImmigrationAdvisors
The Bill is extremely vague as to how regulation will work. Others will be making detailed comments on Part V, so perhaps the most useful contributions we can provide is to offer the Medical Foundation as an example of some of the uncertainties. By looking at Part V from our own point of view we can address our primary concern, which is to see it protect our patients from the poor advice all too many of them receive from a variety of sources.
G(i): Regulation in Practice: Example of the Medical Foundation
We are a registered charity. Our work is as a treatment centre, not an advice agency, but we do advise on support and on certain other asylum and refugee issues. Are we a not-for-profit business giving immigration advice within the meaning of Clause 61(2)? If so, presumably we should require an exemption or we could all end up in prison (Clause 70(1)). Our legal officer is a non-practising barrister. If she should be regulated would it be by the Bar Council or the Commissioner? Could she choose? Would she be regulated by the Bar Council even if the organisation as a whole opted for exemption? The Bill is silent on the criteria for exemption, what one must do to meet them, and on how to obtain, and retain, an exemption. Could we seek an exemption for certain areas of work, or to cover certain staff only? Must we all be competent to represent in asylum cases to obtain an exemption, or will it suffice to show that a member of staff is competent to give the sort of advice s/he provides? Will fear of the burdens of exemption, or simply of prison, prompt us to decide to cease saying anything that might be construed as immigration advice?
We do not wish to see our patients given incompetent advice by voluntary agencies, however well-intentioned. We do not want to see non-practising barristers regulated, whether by the Bar Council or by the Commissioner. We are aware that those giving excellent advice on support issues are not always those who practice in the field of asylum and would not wish to see them deprived of the right to register and/or obtain exemption just because the experts are in one regulated area only or because they provide basic advice then refer applicants on.
Survivors of torture require the assistance of competent representatives with whom they can establish a relationship of trust and confidence in order to present the often very distressing facts of their cases, a situation fundamentally misunderstood in the White Paper with its comment at paragraph 8.10 that ``legal representation is not necessary to enable an applicant to set out his or her case truthfully''. Representatives have a central role in ensuring that torture survivors get therapeutic support and, in appropriate cases, clinical evidence in support of applications. We do not want lack of clarity on regulations and exemptions, or sweeping provisions criminalising the giving of advice on asylum, to lead to competent advisors abandoning this area of work. The already yawning gap between supply and demand for competent advice on asylum is one of the circumstances that creates a market for unscrupulous advisors in the first place. Unless it is addressed we fear that regulation will be circumvented by those who levy fees to complete forms, then get their clients to sign them as though unrepresented.
Organisations such as the Medical Foundation are in a position to observe the quality of representation our patients are receiving. Officials have indicated that we shall have locus to bring complaints and we wish this reflected in the Bill.
Key Amendments
To Clause 61(20)(b) to define ``in the course of a business''
To Clause 63(2)(c) to clarify the position of non-practising or employed barristers and employed solicitors or those not in private practice
New Clauses Clarifying how the system of exemption will operate in practice
New Clauses Making provision for registration and/or exemption for particular areas of advice and for different levels of advice-giving
New Clauses Addressing the issue of access to representation, including in the context of dispersal and making appropriate provision for funding for representation and training
New Clause Detailing who will have locus to complain to the Commissioner
H: Children
The Bill exploits the UK's reservation to the UN Convention on the Rights of the Child (criticised by the Committee on the Rights of the Child as apparently incompatible with the Convention), which allows it to legislate on immigration without regard to the Convention.
The Bill fails to give express recognition to the needs of children for representation and to their difficulties in articulating their experiences. It does not provide for the adoption of guidelines dealing with their applications to the Home Office or appeals. Comments on support in the White Paper (8.24) included a commitment to ensuring that ``the needs of children are fully respected and their welfare and rights respected''. Both the Bill and the Draft Process Manual are silent on child protection issues. Disability living allowance is to be denied disabled asylum-seeking children. Dispersal to areas where there is a sufficiency of housing risks isolating children, be they unaccompanied or not, from connections to their cultural roots provided through communities and from the specialist care from adults, including specialist clinicians such as ourselves, who could make sense of the human rights abuses, loss and change they have experienced.
We draw particular attention to the barrier Clause 99 as drafted presents to children's access to social services support in practice. The wholly or mainly cashless subsistence system will deny asylum-seeking children access to a childhood that could be called ``normal'' by any definition and there is a risk that these support arrangements will create conditions whereby children can no longer be supported in families. Similarly with Clause 77 which means that an asylum seeking family could lose its right to agency support. Will Clause 99 deprive social services of the ability to intervene to provide assistance to keep the family together?
None of the tortured children or children of torture survivors with whom we work came to the United Kingdom of their own volition. They were brought or sent. The concerns we have outlined in parts A-G above will affect them as they will affect adults, for the sum total of the ``measures to safeguard the welfare of children'' promised by the White Paper (at 8.25) are the provision that unaccompanied children shall not be the responsiblity of the support agency but of social services, and that families with children will not be deprived of food and shelter solely because their claim is determined or their appeal disposed of.
H(i): Detention of Children
The White Paper refused to outlaw the detention of children, arguing that this would be required in limited circumstances. We oppose any detention of children and as a minimal safeguard would have expected detailed provisions in primary legislation strictly limiting the exceptional circumstances in which children can be detained. While disputes over age are being sorted out, a child or adolescent should not be detained. Any other approach undermines the White Paper's commitment to never detaining unaccompanied minors for longer than one night. A duty should be placed on all detention centre personnel to make contact with social services immediately when there is a dispute as to age. The suitability of those working in private detention centres to work with children should be subject to checks.
Key Amendments
(See also amendments proposed in Parts B to G above)
New Clause The Bill shall not come into force until above-mentioned reservation to the Convention on the Rights of the Child has been withdrawn
New Clauses & amend Clause 99 accompanied by an audit of all provisions of the Bill to make explicit provision for children's rights through both the support and the asylum determination process
To Clauses 73-74 to provide for families to receive welfare benefits
New Clauses prohibiting the detention of children. As a minimum, restricting it tightly
New Clause A duty on detention centre staff to contact social services immediately in cases of disputes as to age
New Clauses providing for checks on the suitability of providers of accommodation, detention centre staff and detention custody officers and others to work with children
Ms Alison Harvey, Parliamentary Liaison Officer, Mr. Sherman Carroll, Director of Public Affairs, Medical Foundation for the Care of Victims of Torture, called in and examined.
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