1.  The Immigration Law Practitioners' Association (ILPA) is the professional association which represents the interests of some 1,100 immigration practitioners in the United Kingdom. This submission is based on the experience of practitioners and our understanding of the United Kingdom's international and humanitarian obligations as they relate to removals policy and process.

  2.  ILPA considers that the distinction between asylum and immigration must be clearly maintained in a removals policy. Further, the UK's obligations under the European Convention on Human Rights (ECHR) and the 1951 Convention on the Status of Refugees (the 1951 Convention) must underpin any removals policy in relation to those who claim to have humanitarian needs.

  3.  ILPA further points to the rights of long term residents and those with family ties in the UK. Finally ILPA is concerned that the removals process and in particular the use of detention as part of that process and the manner in which removal is effected remains compliant with international standards.

REMOVALS AND ASYLUM

  4.  The full and inclusive application of the 1951 Convention and particularly the principle of non-refoulement of those who face a well founded fear of persecution must underpin all of the UK's policy in this area. That principle is also protected by the ECHR and the European Court of Human Rights has made very clear that bilateral and international agreements will not detract from the States' responsibilities under the ECHR[18].

  5.  The UK should be aware of its responsibilities in the global context to set high standards that it would wish to be seen replicated elsewhere. Particularly where policy on returns and readmission are concerned which involve negotiations with third countries, the UK should be setting the best example to those countries it expects to adhere to international human rights law. It is therefore vital that asylum should not be linked with a returns policy for illegal residents. There has been an increasing tendency for the UK to view asylum seekers as "illegals" and for the Government to seek means to undermine due process in determining asylum claims prior to removal.

  6.  The right to claim asylum is accompanied by various safeguards in the 1951 Convention such as the right not to be punished for arriving illegally in the Contracting State (Article 31 1951 Convention). This acknowledges that refugees often have to flee persecution in circumstances which mean that they are unable to obtain proper documentation from their country of origin. Furthermore given the near impossibility for an asylum seeker to make an application for asylum in a UK Embassy abroad, and given the very stringent border controls that the UK now imposes (including visa regimes and carriers sanctions legislation) it is almost impossible for a refugee to arrive in the UK "lawfully".

  7.  However the fact that persons seeking international protection arrive without visas or having to employ clandestine means does not make them "illegal residents". Indeed by claiming asylum, in accordance with their right to do so under international law, applicants are not acting illegally and their presence in the UK during the processing of their asylum applications should not be treated as illegal.

  8.  The danger of treating asylum seekers in the same way as illegal migrants manifests itself in confusion amongst the public about the UK's obligations towards those seeking international protection and undermines adherence to the principles of the 1951 Convention. ILPA believes that measures employed to control illegal migration and to return illegal residents must be kept entirely separate from measures concerning asylum seekers and those in need of international protection. Yet the Government not only fails to recognise this distinction, but moreover routinely presents policy aimed at preventing illegal migration squarely at those who are in fact asylum seekers.

  9.  ILPA finds unacceptable the Government's proposals in the Nationality, Immigration and Asylum Bill to curtail rights of appeal for asylum seekers and others in need of international protection and to enforce removal prior to the exhaustion of appeals. The recent Administrative Court decision in the case of R (Ahmadi) v SSHD [2002] EWHC 1897 concerning the forcible removal of an Afghan family suffering serious psychiatric problems to Germany demonstrates the dangers of enforcing removal prior to exhaustion of all appeals. In that case a catalogue of factual errors in the Home Office submission to the court, taken together with hasty action by decision makers, led to the removal of a family where psychiatric evidence suggested that removal may constitute a breach of human rights. The prospects of refugees being expelled to their countries of origin on the basis of similarly egregious factual errors is frightening.

  10.  Regrettably Ahmadi is not an isolated case. Indeed, ILPA is aware of at least two further recent cases which highlight such concerns. First, a Lithuanian minor arrested for a driving offence who was then detained under Immigration Act powers overnight and removed the next day. He had been unable to telephone his mother who was awaiting consideration by the Home Office of her human rights claim; the minor was dependant on his mother's claim yet not only was there no contact between mother and son, but she was left not knowing what had happened to her son for two to three days. Second, a Kosovan with an outstanding human rights appeal was detained. His solicitors were (correctly) assured that no removal directions had been set, but he was then removed in the absence of any removal directions.

  11.  ILPA believes that the dangers which are reflected by the foregoing examples are heightened by the Home Office's propensity to act first, think later in pursuit of a political imperative of looking tough. Furthermore, ILPA believes that direct service by the Home Office of decisions of the Immigration Appellate Authority in certified cases (and others) [19]coupled with the difficulties for many rejected asylum seekers (particularly when dispersed) of making contact with their lawyers further exacerbates these dangers. In all these circumstances ILPA has real concern that removal can take place without due process.

  12.  Finally ILPA is very concerned about the uncertain situation that refused asylum seekers may find themselves in if they are unable to be returned to their country of origin. ILPA calls on the Government to ensure that persons are not left in a state of limbo with undefined rights and exposed to a risk of destitution. It is clear from the Strasbourg jurisprudence that exposure to conditions of destitution can constitute a violation of Article 3 ECHR in severe cases or Article 8 ECHR in others. ILPA is concerned that where persons are clearly non-removable the Home Office is reluctant to acknowledge that fact and makes constant attempts instead to attempt or threaten removal, such as with those from Northern Iraq. It is of no assistance to public policy and the discussion regarding return to suggest that persons in these circumstances should somehow be returned to third countries when that is clearly contrary to human rights obligations.

FAMILIES; OTHER GROUPS NEEDING SPECIAL PROTECTION, AND TERMINATION OF LEGAL RESIDENCE

  13.  ILPA urges a greater move towards accepting the rights of those who have been long term residents in the UK. The present policy is to consider applications to remain from those who have been lawfully resident in the UK for 10 years, or for 14 years where residence has been unlawful (or a mixture of both lawful and unlawful) or for seven years as children. ILPA considers this policy to be a welcome step towards acknowledging that those who have lived in the UK for a long time will have become integrated into the UK. However ILPA considers that the discretionary nature of such policy leads to uncertainty and suggests a lack of real appreciation for the rights of long term residents.

  14.  ILPA considers that in certain circumstances there should be absolute bars to the withdrawal of residence, and removal. This is unavoidable in the case of refugees and persons with similar protection needs, but is also necessary in other cases. Those are cases of long term residence or where the individual has family ties in the UK. In this context the individual's right to private and family life is protected by Article 8 ECHR. Even where an individual does not have a family in the UK it must be acknowledged that

"Expulsion severs irrevocably all social ties between the deportee and the community he is living in and . . . the totality of those ties may be said to be part of the concept of private life"[20].

  15.  Further, it is ILPA's view that the deportation of an integrated migrant is clearly discriminatory in relation to nationals where a State attempts to rid itself of "undesirable" migrants[21] whom it had for reasons of its own convenience authorised to enter and remain on its territory in the first place.

  16.  ILPA also considers that although the ECHR provides a necessary minimum level of protection against expulsion for family members and long-term residents, this is all that it is intended to do. Compliance with the ECHR should not necessarily be seen in all cases as sufficient protection, and the UK can and should develop its own standards of protection.

  17.  Children represent a very vulnerable group in the context of expulsions and their rights as developing individuals should be acknowledged in any removals policy. It is therefore not adequate for policies relating to children to be limited to cases where the children have lived in the UK for seven years when at certain stages of a child's development shorter periods may have lead to integration of that child.

DETENTION

  18.  ILPA notes an increasing use of detention by the Government in the context of its removals policy. ILPA believes that the detention of those liable to removal can only be justified if it is compliant with the minimum standards that have been set in Article 5 ECHR and the equivalent provision (Article 9) of the International Covenant on Civil and Political Rights (ICCPR). The principles established by the European Court of Human Rights in its jurisprudence under Article 5 must be respected in full. The right to liberty and security of person is also reiterated in Article 5 of the EU Charter of Fundamental Rights and is clearly a basic element of the inviolability of human dignity recognised in Article 1 of the Charter.

  19.  The right to liberty and security of the person in Article 5 ECHR is a fundamental human right and integral to a free and democratic society. The presumption in Article 5 is against detention in general and arbitrary detention in particular. Individuals can only be deprived of their liberty pursuant to a procedure prescribed by law, in accordance with the narrow circumstances set out exhaustively in Article 5, and when it is objectively justified and strictly necessary in their particular individual case. No other exceptions are permissible although it would be possible to derogate from this right further by virtue of Article 15 in time of war or other public emergency threatening the life of the nation, but only "to the extent strictly required by the exigencies of the situation". The detention of non-nationals may only take place within the Article 5(1)(f) exception, which permits the deprivation of a person's liberty "to prevent his/her effecting an unauthorised entry into the country or . . . against whom action is being taken with a view to deportation or extradition".

  20.  According to the European Court of Human Rights in Amuur v. France, Article 5 ECHR comes into play whenever a restriction on an individual's liberty becomes "excessively prolonged in duration to amount to a deprivation of liberty as opposed to a mere restriction on liberty"[22]. Article 5 also stipulates that the detention must be "prescribed by law". Since the detention of those subject to immigration control is undertaken on the basis of executive discretion, the legal conditions under which officials are permitted to act must be clearly laid out. Moreover, as noted above, detention is only possible if it complies with the specific exceptions to the deprivation of liberty outlined in Article 5(1)(f), namely to prevent a person "effecting an unauthorised entry into the country" or "against whom action is being taken with a view to deportation or extradition". According to Article 5(2) ECHR, detainees must be informed promptly, in a language they understand, of the reasons for their arrest. These reasons must constitute more than merely stating that the person concerned is in an illegal situation and must indicate clearly why detention in the particular individual circumstances is considered necessary. Detention for reasons of administrative convenience or with the sole objective of deterring illegal immigration is not compatible with Article 5.

  21.  ILPA considers that the presumption against detention in general means that it can only be an exceptional measure and should be objectively justified and strictly necessary in the circumstances of each individual case, which engages the important principle of proportionality. This principle requires that the use of detention is balanced against its detrimental impact. Detention of a group of non-nationals without regard to an individual examination would be impermissible and assessing individual circumstances by reference to race, ethnic origin or nationality can never constitute a justification for detention.

JUDICIAL REVIEW OF DETENTION

  22.  The detention must comply with Article 5(4) ECHR: "Everyone who is deprived of his/her liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his/her detention shall be decided speedily by a court and his/her release ordered if the detention is not lawful". The legality of the detention should not only be reviewed promptly by the court after the initial decision to detain, but also at regular intervals throughout the detention period to ensure that it is objectively justified and necessary at all times. The Government's failure to implement the automatic bail hearings provided in Part III of the Immigration and Asylum Act 1999 represents a failure to provide judicial scrutiny of decisions to detain.

WHO SHOULD NOT BE DETAINED?

  23.  In ILPA's view certain categories of persons should never be detained, such as pregnant women, persons suffering from serious medical conditions or mental health problems, and those in respect of whom there is independent evidence that they have been tortured or maltreated. Moreover, families and children must not be detained and adult family members with children should not be detained in order to avoid splitting up the family unit. The increasing use of detention for families is, in ILPA's submission, an extremely alarming aspect of the Government's removal policy.

LENGTH OF DETENTION

  24.  ILPA is very concerned at the effects of prolonged detention on those who the Secretary of State intends to remove. The European Court of Human Rights has underlined on a number of occasions that detention under Article 5(1)(f) must not be unduly prolonged. As identified by the Commission, this is a problematic issue in the UK where detention can range from a few days to several months and where what effectively amounts to indefinite detention remains a possibility. The length of detention can only be assessed in the individual circumstances of each case and ILPA considers that a maximum limit should be set, in terms of weeks rather than months. Removal must also be feasible. A person who cannot be removed for whatever reason (conditions in country of origin giving rise to a real risk of ill-treatment contrary to Article 3 ECHR; identity of individual not determined; absence of travel documents; lack of transport connections; refusal of country of origin or third country to readmit the person concerned) cannot be detained under Article 5 and should be released immediately as soon as barriers to removal are identified.

PROPOSALS IN THE NATIONALITY, IMMIGRATION AND ASYLUM BILL

  25.  Furthermore, the Government's proposals in the Bill (laid at report stage by Lord Filkin) contained in the clause "Liability to Detention: Interpretation" would allow detention in circumstances which would manifestly breach Article 5 (where a person "cannot presently be removed from the United Kingdom because of a legal impediment", where "practical difficulties are impeding or delaying the making of arrangements for removal" and where "practical difficulties, or demands on administrative resources, are impeding the taking of a decision"

ALTERNATIVES TO DETENTION

  26.  Alternatives to detention must always be considered first when assessing the specific circumstances of each individual and are particularly important for vulnerable persons. Recent research conducted by BID on the compliance with conditions of temporary admission suggests that very few abscond.

EFFECTING REMOVAL

  27.  The mechanisms employed to effect removal are of serious concern to ILPA. In particular ILPA submits that the extreme hastiness of effecting removal by the Immigration Service in order to effect removals is inhuman and unnecessary. ILPA is aware of numerous cases were individuals are fully complying with conditions of temporary admission and are suddenly arrested at reporting centres, at places of work or at home without time to prepare for removal. These individuals may have been living in the UK for months and in many cases years, and may have families here, and it is entirely unacceptable that they should not be afforded the opportunity to prepare themselves both mentally and materially for their removal from the UK if it is to take place. ILPA has experience of individuals being removed over weekends and holiday periods when they have no opportunity to contact legal representatives.

  28.  ILPA believes that safeguards and procedures must be in place to ensure that individuals are treated with the minimum level of decency and care. Firstly, they must always be afforded adequate time and facilities to contact family, friends and legal representatives. Secondly, they must be able to collect and retain their property for removal. Thirdly, arrests at work and in public places should be avoided save in the most exceptional circumstances.

  29.  ILPA is further concerned at the use of deception by Immigration Services in order to effect removal. ILPA is aware of cases where individuals are called to interview and no interview takes place other than a brief notification of removal. ILPA is aware of cases where the serving of removal directions is delayed even when the individual is detained with the effect that the individual is unaware of the timing of removal and is unable to prepare or take advice. ILPA is also aware of instances where removal notices have been served on individuals, and of people being taken into detention, when they have applications for asylum still current at the Home Office, or dependent children who would be left uncared for, and removal has only been delayed because they have competent representatives working outside normal hours. Removal must not be proposed until it is clear that any application the person has made has been properly considered and decided.

  30.  Indeed, ILPA submits that such deception may contravene the provisions of the ECHR. The Strasbourg court has examined circumstances in which States have employed deception, such as issuing a notice calling individuals to report in order to complete their asylum files, in order to arrest persons who they wish to deport. The Court considered that acts whereby the authorities seek to gain the trust of asylum seekers with a view to arresting and subsequently deporting them may be found to contravene the general principles stated or implicit in the ECHR[23].

October 2002

19   Asylum Appeals (Procedure) (Amendment) Rules 2001. Back

20   Beldjoudi v France, 26 March 1992, p 38. Back

21   Judge Morenilla expressed the view that deportation in such circumstances would per se breach Article 3 in his partly dissenting opinion in Nasri v France, 13 July 1995, p 18. Back

22   (1996) EHRR 533, para 43. Back

23   Conka v Belgium, 5 February 2002. Back