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ASYLUM MEASURES TO BUILD ON SUCCESS IN HALVING NUMBERS

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A crackdown on abuse of the asylum appeals system and unqualified ...
A crackdown on abuse of the asylum appeals system and unqualified

legal advisers will be at the centre of the remaining phase of the

government's major reform of the asylum system, the Home Office and

Department for Constitutional Affairs announced today.

New measures aim to reduce the length of time and cost to the

taxpayer of the current multi-layered appeals system which is open to

abuse by unfounded asylum claimants and unscrupulous legal advisers.

The proposals build on the success of previous measures in halving

the number of asylum applications, removing record numbers of failed

asylum seekers and reducing the backlog of claims to the lowest for a

decade.

The government published proposals today for new legislation to give

the immigration services commissioner new powers to investigate legal

advisers and introduce a single tier of appeal. The Department for

Constitutional Affairs has already set out measures to cut the amount

of money spent on asylum legal aid.

The new legislation would also include:

- sanctions for those who destroy or discard their travel documents

- measures to speedily return those who have already claimed asylum

in safe third countries

- an end to support for families able, but unwilling, to return home

Home secretary David Blunkett said:

'The tough measures we have taken to secure our borders and cut

illegal immigration and asylum applications are working - with the

numbers now half what they were towards the end of last year. We have

also made great strides in speeding up the beginning of the process,

deciding three quarters of new cases within two months.

'We must now speed up the appeals process. Too often unscrupulous and

unqualified legal advisers are encouraging claimants to lodge appeal

after appeal with no prospect of success, all at taxpayers' expense.

'These new measures will introduce a single tier of appeal and give

new powers to the re gulator to act against the legal advisers who are

simply giving advice on how to defraud the system. This will

complement new restrictions on legal aid to stop money being wasted

on groundless cases.

'We need to call time on dubious legal advisers whose only advice is

how to exploit the system at taxpayers' expense.

'I am also dealing with the problems caused by the majority of asylum

seekers who claim not to have travel documents - even those who

arrived on planes having needed documents to get on the plane in the

first place. The fact is, many destroy them en route because

traffickers tell them it's their best chance of staying in UK - by

making fraudulent claims and making it difficult to remove them if

their claims fail. Most of the time, people need documents to travel.

If they won't tell us how they got here without them it will be more

difficult for their claim to succeed.

'Our strategy is not anti-immigration. I have greatly expanded the

opportunities for hard-working immigrants to come to the UK through

legal routes. But the asylum system cannot workin the interests of

genuine refugees if it is widely abused and open to exploitation by

criminal gangs and the so-called legal advisers who help them.

'Some people will call these measures controversial. But to me,

facing up to the real challenges posed by the changes in global

migration is vital to building tolerance and understanding in our

diverse communities.'

Secretary of state for constitutional affairs Lord Falconer said:

'The move to a single tier Asylum and Immigration Tribunal represents

the government's commitment to provide an appeals system that keeps

pace with change - one that is not open to exploitation by

unsuccessful appellants seeking to use the system to delay their

removal.

'The single tier tribunal will provide an effective and early

independent remedy to those seeking to challenge official decisions.

There will be a flexible approach to tribunal composition in place to

provide consistency, quality, justice and fairness.

'A swifter and fairer appeals system is in the interest of all

appellants, and will help the government to ensure that genuine

asylum seekers can integrate quickly into communities.'

The proposals published today include:

A single tier of appeal

- A new single tier of appeal against all adverse immigration

decisions inculding refused application for asylum.

- The current appeal system provides an appeal to an adjudicator with

a further appeal, with permission, to the immigration appeals

tribunal. The new system will merge these opportunities into a

single appeal to a new tribunal. We are also looking at ways to

restrict access to the higher courts.

Enhanced powers to regulate legal advice

- The immigration services commissioner would be able to enter

solicitors' office to seize and examine documents or investigate

unqualified advisers who are not being properly supervised.

- Powers for the immigration services commissioner to raid private

and business premises of unqualified legal advisers.

- Designated professional bodies, such as the Law Society will be

legally required to provide swift co-operation during

investigations.

- A new criminal offence of advertising or offering immigration

advice without appropriate qualifications.

- Sanctions for those who destroy or discard their documents and

tougher assessments of claimants' credibility

- It will be more difficult for someone's asylum claim to succeed if

they have no travel documents without good explanation, or have

travelled through a safe third country or who do not claim asylum

on arrival.

- New criminal offences of failure to provide a good explanation for

being without travel documentation and failure to co-operate with

re-documentation.

- We are also considerin g introducing a requirement for travel

operators to make copies of or hold travel documents for routes

where there is a problem with undocumented passengers arriving in

the UK, and will initiate discussions with carriers.

Speedily returning those who have already claimed asylum in a safe

third country

- Designating some countries as safe for non nationals for both

asylum and human rights purposes to speed up the process of

removal, and reduce the scope for legal challenge, where a safe

third country is responsible for considering an asylum claim.

Ending support for families able, but unwilling, to return home

- Support can already be withdrawn from families who fail to turn up

for a flight once enforced removal arrangements have been made. We

propose to extend this to families who are able to take up a paid,

voluntary route home but choose not to.

The secretary of state for Constitutional Affairs is currently

considering responses to his consultation on proposals to reduce

legal aid granted to asylum seekers. The proposals were in response

to the steep rise in asylum legal aid costs and concerns that the

quality of legal work is variable. DCA propose to:

- introduce independently assessed accreditation for solicitors

working on asylum cases

- limit the costs incurred by introducing thresholds and by

restricting the advice available for asylum seekers

- introduce a single file number for each asylum seeker, in order to

avoid duplication of costs

These measures would save the taxpayer around £30m a year.

* Further announcementfrom the Home Office on Friday.

Notes

The proposals are published for consultation with stakeholders before

the government brings forward new legislation at the earliest

opportunity.

A copy of the consultation letter is attached.

Immigration and Nationality Directorate Departm ent for Constitutional

Affairs

27 October 2003

NEW LEGISLATIVE PROPOSALS ON ASYLUM REFORM

The Nationality, Immigration and Asylum Act 2002 enabled us to make

significant progress in reforming the UK's nationality, immigration

and asylum systems. For asylum this has meant that the number of

claimants has halved, removals are at record levels and the number of

claims awaiting an initial decision is at the lowest for a decade.

The Government is determined that there should be a balanced approach

in asylum and immigration policy, so that we bear down on those who

would seek to enter the UK illegally and who make unfounded claims,

whilst ensuring effective help for refugees who need our protection.

Our policy on asylum has to be seen in the wider context of managed

migration, through which we are opening up routes for people to enter

the UK legally. That is why we are committed to continued reform, as

necessary, of the asylum system to ensure that those in need of

protection are identified quickly and those who try to exploit the

system are prevented from doing so.

The Government has made it clear that we seek to tackle two remaining

problems in the asylum system: applicants who lodge groundless

appeals to delay removal and the problem of asylum seekers who

deliberately destroy or dispose of their documents to make unfounded

claims.

We reformed the appeals process in the Nationality, Immigration and

Asylum Act 2002 and the changes made are already producing real

improvements. However, we must increase the speed and finality of the

appeals system still further. An efficient and speedy system which

provides an effective remedy but discourages dishonesty is in the

interests of all.

We also need to tackle the problem of asylum seekers who deliberately

destroy or dispose of their documents and refuse to co-operate with

the re- documentation process in order to frustrate removal after

making unfounded c laims. This can lead to delays in removal, pressure

on detention space and is an unacceptable exploitation of the system.

We believe that these are important and urgent reforms and intend to

introduce legislation to enact the measures we have announced today

as soon as parliamentary time allows. We are therefore seeking your

comments on these proposals as a matter of urgency. Our proposals are

set out at Annex A.

BEVERLEY HUGHES DAVID LAMMY

Annex A

NEW LEGISLATIVE PROPOSALS ON ASYLUM REFORM

We are writing to outline new legislative proposals on asylum reform

and to seek your comments on these proposals. Responses are requested

by 17 November 2003.

Asylum and Immigration Appeals System

The Government is determined, through incremental change, to

safeguard the appeals system from misuse and protect the credibility

of the process. The Government is also concerned to ensure that

community relations are not adversely affected by what may be seen in

many quarters as continuing evasion and exploitation of immigration

and asylum controls at significant cost to the taxpayer.

The changes made in the Nationality, Immigration & Asylum Act 2002

are already showing real improvements in the appeals process.

However, more still needs to be done to improve the system. That is

why we are proposing to move to a single tier of appeal. Such a

change would continue to safeguard the right of appeal and provide an

effective remedy for those whose application has been refused by IND

or an Entry Clearance Officer. A single tier would simplify the

appeals system and reduce the risk of people seeking to play the

system by making unfounded appeals to frustrate final resolution of

their case.

The current appeals system is still too long and complicated. It

provides people with opportunities to abuse the system in order to

cause delay or abscond. We therefore propose to replace the curr ent

structure with a single appeal to a new single-tier Tribunal, the

Asylum & Immigration Tribunal (AIT), headed by a President.

The new judiciary will generally be titled Immigration Judges or

Senior Immigration Judges, but the precise hierarchy remains to be

determined. The vast majority of appeals would be heard and decided

by a single immigration judge, working closely with more senior

judiciary. Appellants, as now, would be expected to raise all of

their grounds of appeal at their one hearing.

The judicial oversight provided by the designated senior judge will

ensure high- quality justice without allowing cases to drag on for

many months through the legal process. Fairness, finality and speed

would be the hallmarks of our new appeals system. Together with the

creation of a single tier of appeal, we are looking at ways to

restrict access to the higher courts.

Undocumented passengers

We have already taken tough measures to tackle illegal immigration.

The deployment of high-tech freight screening equipment at French and

Belgian ports and moving UK border controls to France are already

preventing undocumented and inadequately documented people from

travelling to the UK. However, we also need to tackle the problem of

asylum seekers deliberately destroying or disposing of their

documents and refusing to co-operate with the re- documentation

process in order to prevent removal. We therefore propose to

introduce measures which would ensure that those asylum seekers who

fail to provide documents without a good explanation and/or have

travelled through a safe third country and/or who claim late, would

have this taken into account when considering the credibility of

their claim. These measures would require the decision-maker and

appellate bodies to take account of the above situations when

assessing the credibility of statements made by such persons in

support of their asylum claim. Immigration rules alrea dy make a

similar requirement for undocumented arrivals and those who delay

making their application, but the proposed measures would make this

requirement clearer and enable us to extend the policy to include

those who have travelled through a safe third country.

In support of this proposal, we also propose to create two new

criminal offences. The first offence of being undocumented without

reasonable explanation would apply to anyone, subject to certain

exceptions (EEA nationals for instance), arriving at a UK port

without adequate documentation to satisfy immigration control. The

second offence of failing to co-operate with re-documentation would

impose a duty on those with no right to remain in the UK, including

failed asylum seekers, to co-operate with the re-documentation

process. Prosecution would follow where it could be established that

a person did or did not do something that had the effect of

frustrating, obstructing or otherwise interfering with the re-

documentation process.

We also wish to consult on the introduction of measures to diminish

the benefit of passengers destroying or disposing of documents in

transit and before reaching passport control. While we have at this

stage taken no decision on this, we will consider including powers

that would allow us to require carriers to take copies of passengers'

identity documents before they travel. We will be discussing the

proposal with industry representatives to obtain further information

on the practicalities of such a proposal ahead of taking a decision

on the policy.

Safe Third Country

A further proposal would deal with situations where it is decided

that a country other than the United Kingdom is best placed to

consider someone's asylum or human rights claim substantively. We

intend to legislate so that a person will not be able to challenge

their removal to certain safe third countries on the basis of the way

they will be treated. The designated countries will be those where we

are satisfied that an individual will be neither persecuted nor

subjected to torture or inhuman or degrading treatment or punishment,

nor one which would remove a person in breach of the principles of

the Refugee Convention or the ECHR. This would facilitate their

faster removal from the UK, consistent with our international

obligations.

Restricting family support

Since Section 54 of the Nationality, Immigration and Asylum Act 2002

came into force, it has been possible for us to withdraw NASS support

from families with dependent children who have had their asylum claim

determined (either because their claim has been determined and they

choose not to appeal or because they have exhausted all appeal

routes), if they have failed to comply with a removal direction. We

propose that the law should be amended so that support for families

whose claim for asylum has been rejected and who have no avenue of

appeal left, will end as soon as it is confirmed that the family is

in a position to leave the UK. This would provide an additional

incentive to leave the UK promptly either via the Immigration Service

or via a voluntary assisted return and would reduce the waste of

public funds when such a family fails to comply with a removal

direction. Support would continue in cases where the family would

require a travel document to leave and they are complying with the

re- documentation process. The process for removing support from

those without dependant children when their claim is determined would

remain unchanged. If asylum support is withdrawn from a family in

this way, other forms of support, including that provided under

section 2 of the Local Government Act 2000, would no longer be

available except to the children under Section 20 of the Children Act

1989.

The Office of the Immigration Services Commissioner

The Immigration Services Commissioner's Annual Report for 2002-3< p/="">suggested there was scope for improving the effectiveness of the

regulatory scheme he administers. The Commissioner expressed

particular concern about the activities of those non-legally

qualified advisers who do not come forward for regulation. He was

also concerned by these unqualified advisers evading regulation by

setting up false supervision arrangements with solicitors.

Furthermore, the Commissioner in his Annual Report, continued to be

concerned about the handling of complaints by certain designated

professional bodies (DPBs). In addition, the Commissioner's statutory

duty to provide the Secretary of State, in his Report, with his

opinion as to the extent to which each DPB had provided effective

regulation of its members in the provision of immigration

advice/services was limited by their lack of co-operation in

providing necessary information. Following dialogue with the

Commissioner, we are minded to introduce the following measures.

We are considering making provisions extending the Commissioner's

current powers under paragraph 7 of Schedule 5 to the Immigration and

Asylum Act 1999 so that, when investigating a complaint, a member of

his staff would be able to enter a solicitor's office, require the

production of relevant documents and an explanation of them. We are

also looking at making provisions enabling the Commissioner, when

investigating a complaint of suspected sham supervision of an

unqualified immigration adviser by a solicitor, to enter the

solicitor's office and seize material, subject to obtaining a court

warrant.

We are also considering placing a duty on designated professional

bodies to provide timely information to the Commissioner and to

co-operate fully with any reasonable request from his staff so that

he can fulfil his statutory duties. Under these proposed measures, in

order to deal with those who are suspected of flouting the regulatory

scheme, thereby committing a criminal offence under section 91 of the

Immigration and Asylum Act 1999, the Commissioner would be empowered

to enter the private or business residence of anyone suspected of

providing immigration advice or services from those premises when

unqualified to do so, subject to obtaining a court warrant. There

would also be a new criminal offence of advertising or offering to

provide immigration advice or services when unqualified. The

investigatory powers set out in paragraph 7 of Schedule 5 to the 1999

Act would be extended to those advisers to whom the Commissioner has

granted an exemption certificate. The Commissioner would be empowered

to enter a private residence being used by a registered or exempted

adviser for the purposes of providing immigration advice or services,

subject to obtaining a court warrant.

Race Equality Impact

We are currently in the process of assessing the race equality impact

of these proposals, in line with our statutory obligations under

Section 71 of the Race Relations Act 1976 (as amended). These

assessments will consider to what extent the proposals have due

regard to the need to eliminate unlawful discrimination and promote

good relations between persons of different racial groups. As part of

this process we would therefore welcome comments on the proposals

from a race equality perspective. The Government is concerned to

ensure that community relations are not adversely affected by what

may be seen in many quarters as continuing evasion and exploitation

of immigration and asylum controls at significant cost to the

taxpayer. A strengthened and credible immigration and asylum system

that treats all applicants fairly and with integrity will increase

public confidence in the system and help to preserve good community

relations.

Responses

We firmly believe that we need to take action in these areas as a

matter of urgency and intend to introduce legislation at the earliest

opportunity. We would th erefore welcome your comments on these

proposals as soon as possible, to be received by 17 November 2003.

Your comments should be emailed to

INDLegislation@homeoffice.gsi.gov.uk or alternatively addressed to

the IND Legislation Unit at the following address:

IND Legislation Unit

Room G19

Horseferry House

Dean Ryle Street

London

SW1P 2AW

A copy of this letter can be found on the IND website at

www.ind.homeoffice.gov.uk and the DCA website at www.lcd.gov.uk.

Copies of this letter are also being placed in both Houses of

Parliament. Please notify us if you would prefer your comments to

remain confidential as all comments may otherwise be published. A

list of consultees can be found at Annex B.

Home Office

Department for Constitutional Affairs

October 2003

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