Introduction  

1. There are few issues more contentious than asylum. The years since the end of the Cold War have seen a dramatic growth in the numbers of people, including dependants, seeking refuge in the developed world. In Britain in the space of 20 years numbers of asylum seekers have risen from 4,223 in 1982 to 110,700 in 2002.[1] Some other developed countries have seen similar increases. Clearly, this is unsustainable. If allowed to continue unchecked, it could overwhelm the capacity of the receiving countries to cope, leading inevitably to social unrest. It could also, and there are signs this may already be happening, lead to a growing political backlash which will in turn lead to the election of extremist parties with extreme solutions.

2. The challenge facing democratic societies in the developed world is how to distinguish swiftly and fairly between those who are fleeing persecution and, therefore, entitled to expect our protection and those who are economic migrants. It should be said at once that there is nothing dishonourable about being an economic migrant. Many of our ancestors were. As the Government has acknowledged, there may well be a case for extending the system of work permits that allows people with skills that are needed in this country to enter legally and work legitimately, paying taxes and national insurance and receiving the benefits to which they are accordingly entitled. That, however, is a separate issue and, in any case, it cannot be right to leave migration in the hands of criminal gangs, as to a large extent it is at the moment. Nor can it be right to admit only those who can afford to pay the large sums demanded by the traffickers. Finally, of course, there is nothing more likely to discredit the notion of asylum than the knowledge that a majority of applicants are in fact economic migrants, some of whom do not even come from the country from which they claim to be fleeing.[2]

3. There are some who believe that there is no reason why a prosperous country like Britain cannot afford to continue to absorb a growing number of migrants, whether or not they are genuinely fleeing persecution. Such people fail to recognise the social and political realities. There are others who, while accepting that there is a problem, contrive to find objections to every single practical measure devised to deal with it. They, too, are in denial. For the record we wish to state at the outset: we believe there is a serious problem and that it has to be addressed robustly, but also with humanity for, at the end of the day, we are talking not only about numbers, but about fellow human beings.

4. Our inquiry has focussed on only one aspect of asylum policy: removals.[3] The failure to remove most failed asylum seekers has understandably attracted widespread criticism. What is not so widely understood is the practical difficulty of removing people who may have lived in this country for years, whose country of origin may not be willing to re­admit them, whose national airline may not be willing to carry them and who, in the case of families, may have children (including some born here) who may know no other life but this. This report examines how the Government and the immigration service is coping with each of these obstacles and examines ways in which the removals process might be made both more efficient and humane. We do not, however, wish to pretend that there are any simple, overnight solutions available. There are not. The best we can hope for is steady progress towards resolving what is a very complex problem.

Background

5. The right to seek asylum is governed by the United Nations Convention on the Status of Refugees (1951) and its amending Protocol (1967). Article 1 of the Convention defines a refugee as a person who is outside the country of his nationality or of his former habitual residence and is unable or unwilling to return, "owing to well­founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion".

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Source: see footnote.[4]

6. In 2002, according to provisional figures, 85,865 applications for asylum in the UK were made, excluding dependants (a spouse or minor accompanying the main, or "principal" applicant may be included in his application for asylum as his dependant). Including dependants, the figure for 2002 was 110,700, although there are signs in the last few months that the number of new applications has begun to decline steeply as a result of recent measures.[5] In the decade since 1992, asylum applications have risen and fallen but the trend of the last five years has been that of a steep increase, as the graph above demonstrates. There is a widespread concern that this considerable rise in numbers over the last decade indicates not an increase in genuine refugees fleeing persecution but an increase in the abuse of the asylum system by economic migrants who are in many cases exploited by highly organised criminal gangs.

 

Number of principal applicants
	1998	1999	2000	2001 (P)	2002 (P)
Applications Received	46,015	71,160	80,315	71,365	85,865
Decisions (year of outcome)	31,570	33,720	101,645	126,200	82,715 (E)
Granted asylum (B)	5,345	7,815	10,605	12,610	8,100 (E)
Granted exceptional leave to remain (B)	3,910	2,465	11,475	21,175	19,965(E)
Refused asylum & exceptional leave to remain (B)	22,315	11,025	67,910	92,420	54,650 (E)
Adjudicator appeals
Appeals received by the Home Office	14,320	6,615	46,190	74,365	49,500
Appeals determined by the Immigration Appellate Authority	25,320	19,460	19,395	43,415	64,405
Of which appeals allowed	2,355	5,280	3,340	8,155	13,875
Total granted asylum, exceptional leave to remain, or appeal allowed (year of outcome)	11,610	26,705 (B)	35,745 (B)	41,940	41,940 (E)
Removals and voluntary departures	6,990	7,665	8,980	9,285	10,410

P provisional figures

E excludes cases reconsidered (figures not yet available)

B includes some granted asylum or exceptional leave to remain under backlog criteria

Source: Asylum Statistics United Kingdom 2001; Asylum Statistics: 4^th Quarter 2002

7. That concern is heightened by the disparity between the numbers of people refused asylum or leave to remain in this country and the numbers recorded as having left, whether voluntarily or through removal by the Immigration Service. In 2002, 54,650 people were refused asylum or leave to remain. 49,500 asylum appeals were received by the Home Office and 64,405 appeals were determined (see table). These figures give some indication of the backlog of determinations, and the progress being made to tackle it. In the same period a total of 13,875 appeals were allowed. Although some of the 50,530 asylum seekers whose appeals were rejected will have subsequently applied to be allowed to remain in this country on other grounds (see paragraph 16 below), there is no doubt that the great majority will have become liable to removal by the Immigration Service. The number of principal applicants removed or notifying the Immigration Service of their voluntary departure in 2002, however, was only 10,410.

8. This failure to remove large numbers of people whose claims have been refused strikes at the credibility of the asylum system. As the Refugee Council stated in evidence to us, "the overall integrity of the asylum process relies on the ability ultimately to remove those found not to be in need of protection".[6]

9. The pressure to increase the numbers of removals may entail dangers of its own. It has been suggested to us that, unless handled appropriately, a major increase in the number of removals could endanger the rights and dignity of those being removed. The United Nations High Commissioner for Refugees told us that:

a removals policy that is driven by target removal rates may not be consistent with a humane approach. In the drive to reach targets, sight may be lost of the need to respect the privacy and personal dignity of the individual.[7]

10. We therefore decided to consider the two elements of this problem together: how the removals system may be made both more efficient and more humane.

11. During the course of our inquiry we have taken evidence on four occasions and visited Harmondsworth Removal Centre near Heathrow Airport. We took oral evidence from Mr Tom Davies, Chief Executive, Loss Prevention International Ltd, Mr Michael Payne, Head of Government Services Division, Wackenhut UK Ltd, Mr David Banks, Chief Operating Officer, Group 4 Falck Global Solutions Ltd, Mr Herb Nahapiet, Managing Director, UK Detention Services, Mr Trevor Williams, Director of Operations, Premier Detentions Services Ltd, Ms Nicola Rogers, Member of the Executive Committee, Immigration Law Practitioners' Association, Mrs Sally Tarshish, Honorary Secretary, Association of Visitors to Immigration Detainees, Mr Bill Jeffrey, Director General of the Immigration and Nationality Directorate and Beverley Hughes MP, Minister of State for Citizenship, Immigration and Community Cohesion. We are very grateful to the individuals and organisations who have attended our oral evidence sessions as witnesses, to those who supplied us with written evidence, some of which we publish with this Report, and to the staff at Harmondsworth who facilitated our visit. We also publish here the record of a general evidence session on wider asylum and immigration issues held in September 2002, immediately prior to our inquiry focussed on removals, in which we took evidence from Mr Keith Best, Chief Executive, Immigration Advisory Service, Mr Nick Hardwick, Chief Executive, Refugee Council, and Sir Andrew Green KCMG, Chairman, MigrationWatch UK.[8] This session was followed up by a meeting ranging over a wide range of issues with the Home Secretary, Rt Hon David Blunkett MP, when he gave evidence to us with the Minister of State, also in September 2002.[9]

12. This report considers first the problems surrounding the statistical analysis of removals, and target-setting in relation to these statistics, and then moves through the process by which removal or departure of a failed asylum seeker is effected, highlighting areas of concern. Over recent months, the Government has implemented new methods of managing asylum applicants, mainly through the provisions of the Nationality, Immigration and Asylum Act 2002.[10]

THE LEGAL BACKGROUND

13. The general scheme of immigration control, establishing who can come into the UK and in what circumstances is set out in the Immigration Act 1971 (as amended) and the Immigration Rules made under it, as well as a large body of statutory instruments. Under this legislation British citizens and a small number of Commonwealth citizens have "right of abode" in the United Kingdom, which means that they can reside in and enter the UK after absence without requiring permission. Some other groups of people, including European Economic Area nationals, can enter the county without requiring leave, subject to certain conditions, despite not having right of abode in Britain. However, the majority of those without the right of abode require specific permission, or "leave" to enter or remain in the country.

14. The 1971 Act did not deal with asylum, and rules made under it simply indicated that full account was to be taken of the UK's obligations under the 1951 Refugee Convention (as amended by the 1967 Protocol) when a person seeking to enter, or being removed, claimed asylum or indicated a fear of persecution. However, a statutory scheme for asylum determination and appeals was set up for the first time by the Asylum and Immigration Appeals Act 1993. This Act made the United Nations Convention on the Status of Refugees (or "Geneva Convention") of 1951, as amended by a Protocol of 1967, part of UK law. According to this Act, the immigration rules must not be implemented in any way which contravenes the UK's obligations to provide protection to those in danger of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in their source country, under the Convention. The enforcement of the immigration law against persons who enter the country is therefore suspended, if they claim asylum, while that claim is considered. Immigration law has also been affected by the European Convention on Human Rights, as introduced into UK law by the Human Rights Act 1998. Most importantly, Article 3 of the European Convention, and its interpretation by the courts, prohibits torture or inhuman and degrading treatment or punishment, and prevents the removal of people to a country where they might be exposed to such harm.

15. The process of applying for leave to enter and remain in this country and the criteria on which leave is granted are not set out in Acts of Parliament. Instead, they are laid out in a set of regulations known as the Immigration Rules, originally provided for by the Immigration Act 1971. The Rules set out categories of people who can be granted leave, under different controls. For example, a person may be granted "visitor" status, which has different requirements attached from that of "student" status. The Rules also lay down periods of leave to be granted for different categories. Leave can be "limited" to a particular period, or "indefinite". Limited leave may be subject to certain conditions, whereas indefinite leave cannot be made subject to any conditions. Those accepted as refugees are usually given indefinite leave to remain. There is no provision in the Rules for asylum seekers to obtain leave to enter on the basis that they wish to claim asylum. Instead they must somehow get themselves to the UK and, once here, submit their claim. If they claim asylum at their port of entry they may be detained or, as an alternative, be given "temporary admission" to the UK. Temporary admission allows a person to be physically, but not legally present in the country. For immigration purposes, they are considered as if still waiting in the port.

16. While "limited" or "indefinite" leave to remain in the UK may be granted according to the Immigration Rules, the immigration authorities have discretion to grant leave outside the rules, and concessions are made in certain circumstances, for example where a person has been continuously resident in the UK for 14 years, or is suffering from a serious illness. As this is leave granted outside the criteria laid down, this has been known as "exceptional" leave to enter or to remain. Exceptional leave to remain has also been used as a term to refer to the granting of leave to persons whose claims for asylum fail, but who are recognised as requiring protection. Furthermore, exceptional leave to remain has been granted to people who have successfully shown that their human rights would be endangered by removal. In November 2002 the Government announced that the granting of exceptional leave to asylum seekers would be scrapped, and a new category of "humanitarian protection" would be introduced. This was clarified recently in a Written Statement: from 1 April 2003, a new category of leave named "Humanitarian Protection" has been granted to those who "though not refugees would, if removed, face in the country of return a serious risk to life or person arising from the death penalty, unlawful killing or torture, inhuman or degrading treatment or punishment". Moreover, "Discretionary Leave", instead of exceptional leave, will be granted to some people who "do not qualify for Humanitarian Protection or leave under the Immigration rules". The difference between the two categories lies in the provision that those who qualify for Humanitarian Leave will be granted three years of leave and then, if still in need of protection, will be eligible to apply for settlement in the UK. Under Discretionary Leave, periods of three years or less can be granted, after which a person will only be able to apply for a further period of leave, rather than for settlement.[11]

17. The 1951 Convention lays down that a person can only be a refugee if outside his or her country of origin: asylum seekers must therefore come to this country before claiming asylum. However, in January 2003 the Home Secretary announced that he would be implementing a new scheme in co-operation with the United Nations High Commissioner for Refugees to screen asylum applicants in the regions from which they wish to flee. Five hundred refugees will be accepted by the UK when the scheme begins, rising to a larger number as the programme is developed.[12] Several other countries have been participating with the UNHCR in such schemes for some time.

18. There are a number of different procedures for removing a failed asylum seeker from the UK. These include "port removal", removal of illegal entrants, "administrative removal" and deportation. The formal procedures for removal are triggered by the underlying immigration decision against the individual (for example, that he is an "illegal entrant" or an "overstayer") rather than the refusal of the asylum claim. In effect, the asylum claim is a ground for appealing against removal in circumstances where the applicant is not otherwise entitled to remain in the UK. This is because an asylum claim is, in legal terms, a claim that removal would be contrary to the protection laid down in the 1951 Convention.

19. The first ground for removal concerns people who arrive at a sea port or airport in the UK and apply for leave to enter the country. If, after consideration, their application is refused, they will then be liable to removal under a procedure known as "port removal", against which they have limited rights of appeal. It is a simple process as the only decision which needs to be made by the immigration officer is that the individual does not qualify for leave to enter the country. The term "port removal" is not a technical term, but is generally used to describe this group of removals. It applies both to those removed directly from the port at which they arrive, and to those who are granted "temporary admission" to the UK for a period of time while their claim for asylum is considered, before being removed when the claim is unsuccessful.

20. Other asylum seekers enter this country illegally, and subsequently lodge a claim for asylum. If this claim is unsuccessful, they will be liable to removal as illegal entrants. Appeals may be made both against removal on human rights and asylum grounds, and also disputing the decision that the individual is an illegal entrant. A person can be declared an illegal entrant in several circumstances. First, if he enters the country without seeing an immigration officer—in the back of a lorry, for example. Second, if he enters without obtaining leave from an immigration officer. If an officer fails to examine someone who requires leave to enter, and allows him to pass into the UK without stamping his passport, that person can be treated as an illegal entrant because he has not obtained leave (whether or not the person deliberately deceived the officer in order to enter). Further categories of illegal entrants include those who enter when a deportation order is in force against them, and those who enter by deception of an immigration officer. Most illegal entrants fall into the final category, by virtue of using false documents, or failing to supply all the relevant information to an immigration officer.

21. Those who have been granted leave but have breached the conditions attached to that leave, overstayed the period allowed or obtained leave to remain by deception, are subject to "administrative removal", a process introduced in October 2000. Previous to this date, these groups would have been subject to deportation (see below). Those subject to administrative removal are given a notice of the decision to remove them, and may appeal only on asylum or human rights grounds. The effect of replacing deportation by administrative removal for these groups has been to reduce the available rights of appeal and speed up the process. The right to appeal on compassionate grounds, which was available under the deportation processes to overstayers who had been in the country for at least seven years, no longer applies to this group.

22. Finally, a small number of people are subject to deportation. Since the introduction of the Immigration and Asylum Act 1999, deportation has been applicable only to those whose departure from the country is judged "conducive to the public good" or who have been convicted of a criminal offence and recommended for deportation by the court, or who are family members of a deportee. Deportation is a lengthier process than other removals, carrying greater rights of appeal. In most cases a "decision to deport" (against which various grounds for appeal may be raised) must be issued before a deportation order can be made.

23. All of these processes should end in "removal" and all those subject to them should be issued with "removal directions", which are instructions to the carrier to transport the person away from the UK. Different procedures apply to those who are removed for reasons of national security, and a further category of departure applies to those extradited to another country to face trial.

THE QUALITY OF AVAILABLE STATISTICS

24. The success or failure of the asylum system and the removals programme which backs it up can be judged only with the help of meaningful statistics. The Government's collection of statistics in this area has been the subject of much criticism. MigrationWatch UK, a voluntary organisation set up in 2001 with the aim of monitoring and publicising immigration issues, challenged the Home Office's statistics in evidence to us.[13] MigrationWatch claim that there is a pressing need for accurate statistics—and estimates where clear statistics are not possible—in the areas both of asylum and immigration. They cite the Home Office estimate for annual net immigration from non-EU countries of 180,000 by 2005 and make the point that this excludes two potentially significant groups: those that enter illegally and are not discovered at the border; and students and others on temporary visas who overstay and do not subsequently claim asylum.[14] Their estimates for the two groups are 25,000 and 35,000 a year respectively.[15]

25. With regard to asylum statistics, MigrationWatch make an estimate of the numbers of people remaining in this country after refusal of their claim, which is arrived at by deducting numbers of known removals and departures from numbers refused asylum. The Home Office judged that 42% of cases overall in 2001 were granted asylum or exceptional leave to remain.[16] MigrationWatch therefore maintain that around 73,000 principal applicants (the remaining 58% of decisions) were refused asylum and exceptional leave to remain and lost their appeals. Inclusion of dependants would increase the number to around 95,000.[17] Given that only 13,335 people (including dependants) were removed in 2002, MigrationWatch estimate that "those who set foot in Britain have a nearly 90% chance of remaining—most of them illegally".[18]

26. When we asked the Minister of State for the Home Office's estimation of numbers of failed asylum seekers remaining in the UK, she acknowledged that there was no official estimate. She added that a methodology for making a more reliable estimate was currently being developed, based on tracking asylum seekers by the year of their application.[19] The Minister also told us that MigrationWatch's methodology for estimating this number, as cited above, does not take into account those failed asylum seekers who apply for leave to remain on other grounds after their asylum claim fails, or who leave voluntarily without notifying the Home Office.[20] She stated that there is currently no way of judging the size of the group who return voluntarily, as the UK no longer has embarkation checks at its borders, to count non-EU visitors in and out. Embarkation controls were abandoned in 1994 for all ports (i.e. seaports and airports) which serviced only EU destinations, and in April 1998 for all ports. In September 2002, the Home Secretary told us that the reason controls had been abandoned was because the system "was not robust; it was non-existent in terms of actually being able to follow through and check those who had not presented themselves". He said that any re-introduction of controls would have to be accompanied by a reliable method of identifying people crossing the controls, and the ability to follow up those who did not leave the country when they were obliged to. He concluded that "there is a real issue as to whether we should examine [embarkation controls] again", and the Minister of State told us in March that the reinstatement of controls was "under consideration".[21] According to a Written Answer in January 2003, "the cost of recording electronically the admissions and departures of all non-EEA nationals is provisionally estimated to be around £20 million a year".[22]

27. It is very difficult to address the problem of over-staying failed asylum seekers effectively in the absence of reliable statistics. It is not satisfactory that the Government is unable to offer even a rough estimate of the number of failed asylum seekers remaining in the UK. Embarkation controls would enable the scale of the problem to be more accurately assessed, even if the identification and detection of over-stayers remained difficult. We recommend that, subject to proper evaluation and costing, embarkation controls should be reinstated at UK borders, to enable credible estimates to be made of the number of failed asylum seekers who remain in this country. Embarkation controls would also address one of the two groups identified by MigrationWatch, namely students and others on temporary visas who overstay. The size of the second group—those who enter illegally and are not discovered—is more difficult to determine. Without such an estimate we cannot know for certain the number entering the UK to settle each year. We believe that the Government should explore the most appropriate method for building a complete picture of net migration into the UK.

TARGETS

28. In its 2002 annual report, the Home Office listed a Public Service Agreement target to increase the number of failed asylum seekers removed from the country to 30,000 by March 2003. However, when the Home Secretary gave evidence to us in September 2002, he told us that the 30,000 target had been "massively over­ambitious" and that he would "set a new target that is realistic over and above the 12,000 we expect to remove this year".[23] The Home Office has not subsequently published a revised numerical target. In response to a Parliamentary Question in March 2003 asking when a target figure for removals will be announced, the Government replied that:

The Public Service Agreement in 2003-04 remains the same as in the Public Service Agreement 2000, i.e. to enforce the immigration laws more effectively by removing a greater proportion of failed asylum seekers.[24]

In March, the Home Office published the Technical Notes which provide definitions for the targets. According to this document, the removal target "will be met if the proportion of refused asylum seekers (including dependants) removed in [ ... ] 2005-06 is greater than those removed in [ ... ] 2002-03".[25]

29. Some witnesses argued that targets are not a helpful means by which to address the issue of removals. The Law Society told us of its concern that:

unrealistic targets will increase the pressure on the relevant agencies to remove people as quickly as possible. This will only increase the risk of people with legal status to remain in this country being wrongly removed.[26]

Likewise, the Public and Commercial Services Union, which represents the majority of staff in the Immigration and Nationality Department, stated that its members "view removal targets as somewhat arbitrary and the numerical objectives that they produce as lacking in credibility".[27]

30. It is also argued that numerical targets are insensitive to the changing global conditions which dictate migration flows. The Immigration Advisory Service asserted that "in view of fluctuating figures of asylum applications and grant of status (very much depending on the profile of asylum seekers which in turn depends on the situation in countries which generate asylum seekers) it is better, in our view, not to have numerical targets".[28]

31. Responding to these criticisms, the Minister of State acknowledged that "when targets become ends in themselves then perhaps [ ... ] they can be counter-productive", but they "do provide a goal for people which helps to shape decision-making and practice and performance as people try to meet that target".[29]

32. We deprecate the setting of wholly unrealistic targets which serve only to arouse false expectations and which can only prove demoralising for all concerned. We are at a loss to understand the basis for the belief that a target of 30,000 removals a year was achievable, and ministerial pronouncements on the subject are obscure. It is surely not too much to expect that, if it is thought necessary to set targets for removals, they should be rational and achievable.

2   Mr Tom Davies of Loss Prevention International told us that "85 % of the people we are removing who claim to be Kosovan on their asylum claims and their documentation held by IND in this country turn out to be Albanians" [Q 225]. Back

3   On 25 February 2003, we announced our inquiry into Asylum Applications ("Committee announces new inquiry into asylum applications", Home Affairs Committee Press Notice No. 13, 2002-03, http://www.parliament.uk/parliamentary_committees/home_affairs_committee.cfm). Back

4   Asylum Statistics United Kingdom 2000, HOSB 17/01, Home Office, September 2001; Asylum Statistics United Kingdom 2001, HOSB 09/02, Home Office, July 2002; Asylum Statistics: 4^th Quarter 2002  Back

5   Asylum Statistics: 4^th Quarter 2002; These measures include the agreement with the French over the closure of Sangatte, the improved security arrangements and the removal of benefits from those claiming in-country. In addition the agreement to allow British immigration officers to process applications in France has reduced the number of arrivals. Back

6   Ev 164, para 3 Back

7   Ev 177, para 5 Back

8   Ev 1 Back

9   Home Affairs Committee, Home Office Issues, Minutes of Evidence, 18 September 2002, HC 1186, Session 2001-02 Back

10   The Nationality, Immigration and Asylum Act 2002 received Royal Assent on 7 November 2002. Back

11   HC Deb, 1 April 2003, col 54WS Back

12   HC Deb, 20 January 2003, col 4 Back

13   MigrationWatch described their origins, aims and objectives to us in evidence [Q 5]. Back

14   Stephen Glover, Ceri Gott , Anaïs Loizillon, Jonathan Portes, Richard Price, Sarah Spencer, Vasanthi Srinivasan and Carole Willis, Migration: an economic and social analysis, RDS Occasional Paper No 67, Home Office, December 2001, p 12, cited in Ev 156, para 3 Back

15   "Migration; its present and future scale", Bulletin No. 7, MigrationWatch UK, http://www.migrationwatchuk.org/ Back

16   Asylum Statistics United Kingdom 2001 Back

17   Ev 158, para 4 Back

18   Ibid. Back

19   Q 580, Ev 157, para 1 Back

20   Q 580 Back

21   Home Affairs Committee, Home Office Issues, Minutes of Evidence, 18 September 2002, HC 1186, Session 2001-02, Q 45; Q 584 Back

22   HC Deb, 16 January 2003, col 767W Back

23   Home Office Issues, Q 86, Q 88 Back

24   HC Deb, 10 March 2003, col 66W Back

25   SR2002 Public Service Agreement Technical Notes, Home Office, March 2003, p 20 Back

26   Ev 151, para 3.2 Back

27   Ev 161, para 4 Back

28   Ev 137, para 2.5 Back

29   Q 588 Back