CRC: Reforming support for failed asylum seekers and other illegal migrants

CRCChurches’ Refugee Network:  HOME OFFICE CONSULTATION ON Reforming support for failed asylum seekers and other illegal migrants: 2015 CRC response

We respond to this consultation as an ecumenical network of churches engaged in ministry to asylum seekers and refugees based on our strategic location in local communities across the UK.  We believe that, in our society, collective moral concern must go alongside collective moral responsibility  –  and that Christian social and political reflection is part of the national discernment.

Our starting-point is the theological affirmation that every human being is created in God’s image.  When we treat any one with less than proper dignity and respect, we are guilty of wronging them.  This high evaluation of the worth and dignity of each human being is the indispensable context for evaluating the actions of any State, including the UK.  Each person seeking asylum is an individual, not a number, and each individual’s circumstances and claims needs proper attention.

Both the Hebrew Scriptures and the Christian Bible are, from end to end, a story of migration.  Throughout the writings it is made plain that God has a special concern for the alien and the stranger, not as objects of charity or pity, but as people to be welcomed and cared for, bearing the gift of God’s image.

Before responding to the details of the Home Office document, we must challenge its evident underlying presumptions and the words the Home Office chooses:

Page 2:  The Scope of this Consultation.

1. Not for the first time, we have to challenge the Home Office language which refers to “failed asylum seekers and other illegal migrants”.   Many are not ‘failed’, they are refused   –    too often because British justice and the Government system has failed them.  People with a genuine right to sanctuary are being forced to be ‘illegal’, because it is made almost impossible for a successful claim for sanctuary to be made legally.  The word ‘Kafkaesque’ has become a correct description of the Government’s policy and operation. The Government uses this language because it has turned on its head the traditional British presumption that people are innocent until proved guilty.  Instead people seeking sanctuary (and entitled to do so) are made to prove that they are innocent. The Government should abandon the terminology “failed asylum seeker”; it appears frequently throughout this consultation document.  It is always deployed prejudicially, and intentionally, to influence public attitudes.

2. ‘Public money should not be used…’  We have several times previously identified points at which much public money would be saved by a better operation of the Home Office and Justice systems:  First among these areas of cost saving:

a)     Reduce the use of Indefinite Detention, full stop.  It is a massive waste of public money when almost half of detainees are released without being removed or finally decided.

b)    The current suspension of the Detained Fast Track is already producing lower statutory costs.

c)     Put a time limit / and judicial oversight on length of detention.

d)    Be intelligently proactive in acting upon clinical advice under S.35.

e)     Be intelligently proactive in assessing trauma/PTSD, especially by improving assessment and staff skills in Removal Detention Centres.

The Government has wilfully ignored these recommendations.  If the primary concern is as stated, about saving public money, why does the Government not focus on these real opportunities rather than creating further hardship and injustice for people who have already suffered greatly?

3. “To remove incentives for migrants to remain in the UK where they have no lawful basis for doing so”.  Here, again, the Home Office authors show a fundamental misapprehension of the relationship between support and remaining in the UK.   Sufficient studies have shown that there is little evidence that the availability of public support is a major factor in persuading migrants to attempt arduous travel to the UK or to avoid removal after the UK’s  standard procedural rejection. The simplistic distinction between refugees and economic migrants blurs the true situation today, in which three main categories should be discerned:

(i)                people entitled to asylum under the 1951 Refugee Convention (which British lawyers played a substantial part in drafting after the Second World War) “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”.  This year’s stark drop in the number of Eritreans granted asylum in the UK is based on a Danish report reported as deeply flawed by international NGO’s , and is only one illustration of Britain’s current  resistance to granting asylum. To insist that under European rules (the Dublin rules) people should be returned to seek asylum in their first country of entry ignores both the geography of the Mediterranean region and the inequality of the financial strengths between northern and southern Europe.

(ii)             economic migrants seeking a better life for themselves and their families  –  as so many British people have done  and still do , overseas and still do today in considerable numbers, both in Europe and across the globe.   British economic migrants, too, often draw on the support of the countries where they have chosen to reside; they may contribute to the well-being of that country. Where they are in circumstances which entitle them to draw on the financial support of that country, then the British Government should take into account the fact that it is relieved from using its own public money to give them support.  A proper calculation of ‘public support’ should not be one-sided nor demonise migrants in Britain while suppressing the truth of similar British people overseas.  There is no reason not to treat economic migrants with dignity; in the UK, as with British migrants abroad, economic migrants have a long history of contributing valuably.

(iii)           thirdly, the category which might properly be called ‘survival migrants’.  These are people who, though not technically entitled to asylum under the terms of the 1951 Refugee Convention quoted above, nevertheless are desperately fleeing the circumstances of their homeland.  Some of these will be escaping the dramatic impact of climate change in their homeland  –  whether persistent drought, more frequent storms or fires, extensive flooding, rising sea-levels.  Others will be escaping the chaos brought by conflict  –  in Libya, Syria, Afghanistan, Iraq and many other places.  In many of these situations (both climate change and conflict), failures of British foreign policy have contributed to the desperation of such people.  Would not those responsible for framing Home Office policy on support for Migrants act similarly were they and their families caught in such dreadful situations?  While the Government chooses to focus on “people-smugglers”, the fact remains that many migrants have made long and desperate journeys before they reach the hands of people-smugglers, wishing to find a country where they believe that they will be secure and where the rule of justice flourishes; a minority of these from ex colonial/ ex-occupied countries choose to come to Britain because they are already familiar with the language.

4. In Paragraph 6     “….those whose asylum claim has failed and who have established no lawful basis to remain in the UK”.  This sentence conflates two realities:

(a)     an asylum claim may have been failed by the Court, but sufficient numbers of such refusals  (41 %) [1]are subsequently overturned for there to be more caution about this statement.  Furthermore, Analyses of AITs and of Mental Health/Employment Tribunals have shown that the reduction in access to legal aid now means that far fewer people are allowed proper legal support for their appeals;[2] [ M.Adler, Edinburgh; Tribunals ain’t what they used to be’     [3] Hazel/Yvette GENN, Q.Mary’s College, UCL, Effectiveness of legal representation, see Ch.2….]. The difference in outcomes between represented and unrepresented appellants is 20% – 38% . The Home Office should also be aware of the clear account of the inadequacies of initial decision-making, published by Amnesty International and Still Human, Still Here, in 2013 under the title “A Question of Credibility. Why so many initial asylum decisions are overturned on appeal in the UK“.

(b)    the strict terminology about “no lawful basis to remain” ignores the fact that, for many people, the refusal of their claim does not mean that it is safe for them to return to their own country.  The Home Office is well aware of the list of countries for which, at present, return is not a possible option.  Those caught in this limbo should not be allowed to become destitute. To them, and to those who are Stateless, a form of temporary or permanent Leave should be granted which entitles them to function socially, eg. in accordance with the UN Guidelines  on Statelessness; the Home Office has now  recognised this.[4] That entails the right to work and study like other citizens.

5. In Paragraph 7   “This is wrong in principle and sends entirely the wrong message…”  The basis of this sentence is contradicted by our response to Paragraph 6.  Furthermore, there is again an inappropriate conflation of language:  “sends entirely the wrong message” presumes, wrongly, that this message is sent, and further that it is received.  Despite the Home Secretary’s public statements, studies have shown little evidence that people desperate for asylum are aware of (let alone, influenced by) the knowledge that some minimal level of support is available in the UK for people whose claims for sanctuary have been refused. 

6. Also in Paragraph 7  “It also undermines public confidence in our asylum system”.  Clearly it is important that the public should have confidence in the UK’s judicial and administrative systems, but it is wrong to focus lack of confidence on the 15,000 people which, in paragraph 5, the Home Office estimates to be the total number receiving support  –  at least some of whom, as we have indicated in our previous paragraph, continue to be entitled to that support.  A far greater concern for public confidence is the lamentable record of the Home Office and the Judicial system under this and previous Governments.  Repeated reports by independent inspectors have shown systems not fit for purpose, politicians making undeliverable promises, and contracted agencies treating vulnerable people in unacceptable and apparently unaccountable manner.   Public confidence is also related to the lead given by the Government, and has not been helped by the impression that the Government discourages the public’s ability to offer a good welcome to migrants.  Instead, using  the anti-immigrant main media, the Government desperately positions itself to gain favourable headlines through pledges and statements shown to be hollow. 

7. In Paragraph 8, “The United Kingdom has a proud record…”  This has become wishful thinking.  For centuries it is true that the United Kingdom had a proud record.  That record is no longer proud.  It has been wantonly squandered by recent Governments, both by deliberate policy and by incompetent management. The Government’s exploitation of the anti-migrant rhetoric of some political parties by proposing its European referendum has led it to resist a collective role alongside fellow EU member states in responding to the large numbers of people who are reaching Europe to escape the conflicts and chaos in the Middle East and sub-Saharan Africa. There have been numerous other  instances of British failure to honour that once-proud record. We note with disapproval the refusal of sanctuary to Army interpreters who risked their lives and families by working for Britain in the Afghanistan and Iraq military actions. [5] 

8. In Paragraph 9, “Failed asylum seekers are illegal migrants and are no more deserving of welfare support than any other migrant in the UK unlawfully”. ‘Rejected’ does not/must not equal ‘failed’.  To insist on using tendentious  –  and often factually deficient  –  legal interpretations is disingenuous language, used to denigrate people’s usually quite objective fears of return . 

9. In Paragraph 10, “….how we can best work together with our partners in local government and elsewhere to conclude cases as quickly as possible, ensure the departure from the UK of those migrants with no lawful basis to remain here and minimise burdens on the public purse.” There are two problems apparent in this sentence:

(a)     the Government’s policy of devolving more and more responsibility to ‘partners’ in local government has been accompanied by the financial ‘austerity’ pressure to reduce the deficit. Local authorities have been forced to make difficult choices within their own centrally-controlled budgets.  This has resulted in cuts, or wholesale abolition, of services which could have supported vulnerable people including asylum seekers.   At the same time, the voluntary agencies (including many church organisations) have experienced considerable reduction in their own funding so that they can no longer provide the support which it was once supposed could be found from the now unfashionable ‘Big Society’.

(b)    This devolution of responsibilities to local government hampers the nationwide overview of needs: it  results in a piecemeal,  costly, and inefficient approach to care. Unless Local Authorities receive central government budget support to do this, (highly unlikely), the Government is merely dodging accountability for problems which are part of our international obligations.

(c)     Furthermore, it is important to record that for a good number of years the Churches and other voluntary organisations have borne a large share of the cost of supporting migrants who find themselves in difficulty, not only financially but pastorally and socially.   Across the country, large numbers of people volunteer to give friendship, help, support and welcome to migrant people, a task made increasingly difficult by Government welfare/ financial policies.  For the Home Office to refer to “minimising burdens on the public purse” implies enlarging the current civil contributions, ignoring the substantial input made, not grudgingly but recognising people’s desperation, by the purses and pockets of many members of “the public”.

10. In Paragraph 11,

(a)  we welcome the Home Office pledge that it will “continue to provide protection to those who have a genuine need for it”.   However, as shown previously, the civic  interpretation of those who have a genuine need differs substantially from that as understood by the Home Office.

(b)    Note the recent judgement on the Detained Fast Track system.[6]

(c)     We are glad to see that the Home Office wishes to “support the integration” into “our communities” of those granted leave to remain here.  This would be greatly enhanced if more provision for integration were made at earlier stages for all who come here.  We continue to plead that those who have been here for six months without their claim being determined should be given  an unqualified and  general right to work, not only in the few selected UK shortage occupations which the Home Office lists .

There also needs to be far greater encouragement for people arriving here to engage in communities and in volunteer activities  –  to do so may require a level of support greater than the minimum.  Various studies have shown that the failure to help people integrate into communities at an early stage has a considerable cost to the economy in terms of health and social care.  Organisations working with the Churches Refugee Network have received evidence from those caring for trauma victims which documents the damage done to future economic and social integration for those driven to mental breakdown by past history compounded by the  UK asylum procedure’s deficiencies.  The Government needs to look more holistically and long term at the financial implications of many of its policies.  Similarly the Government needs to include honest estimates of the financial contribution which is made to the British economy by those who come to live here.  Too often the Government makes unsubstantiated, and even dishonest, claims about “benefit tourism” .There is no reputable research verifying these claims;  the true situation is very different.…..

11. In Paragraphs 14 to 16, “we propose to repeal section 4(1) of the 1999 Act” in relation to accommodation for those released from immigration detention.  We strongly urge the Home Office to read again The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom, produced in March 2015 by the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration.  The situation of many people coming out of Detention is that they have been through very difficult experiences, some quite traumatic.  Although the Home Office says in Paragraph 16 that they can access support if they are destitute, it is not necessary to be technically destitute to be seriously in need of this accommodation support at a critical time.  Particularly this is so for those who have been held for an unnecessarily and indeterminate long time in detention in what the Joint APPG’s  on Migration and on Refugees  [7] describe as “prison-like conditions”.  Thus the Home Office proposal also means that those in detention who have not been granted a bail address and who have not claimed asylum are unable to apply for a independent  review of their detention. This will lead to an increase in numbers waiting for determination, and put further pressure on the adjudication system with more costly, time-wasting litigation.  There is no evidence that making people destitute increases the numbers of people leaving the UK; but rather that  it leads to greater mental disorder, instability, chaotic lifestyles and increases minor offending.  It is in the Home Office’s and all our  interests to promote more stable conditions in which people can more calmly make decisions whether to leave the country or to continue to seek leave to remain.

12. In Paragraph 19   “The problem with section 4(2) is that it provides an avenue for support simply on the basis that the person is in the UK and has previously made a failed asylum claim”.  We have explained that there are reasons why such persons may need to have continuing support.  We do not accept that the correct approach is to start by identifying this as “The Problem”.  The prior problem is, as shown by the Home Office wording of Paragraph 18, that the 4,900 human beings (N.B. not “failed asylum seekers”) receiving an estimated £28 million have been seized upon as an easy target for government austerity saving.

13. Paragraphs 14 to 21: Section 4 support is itself woefully inadequate  –  way below the national minimum wage which itself has been recognised even by the Government, as being insufficient. Many working-people on the minimum wage are entitled to further income support.  How much more so those who are limited to Section 4 support?

14. In Paragraph 28 “…..unsatisfactory because they place the onus on the Home Office to establish that the failed asylum seeker is not taking the necessary steps to leave before support can be ceased”.   We do not accept that onus should be removed from the Home Office. It is the proper responsibility of Government to ensure that those in this country are adequately cared for, and not to remove support until the Government is satisfied that such people will not be left in destitute conditions.  Moreover, often those who have not “taken all steps to leave” include people who cannot do so because they are stateless or because they have been supplied with British documents which are not recognised in their country of origin (e.g. are from British Overseas Territories)

15. Also in Paragraph 28 “Section 103 of the 1999 Act also allows a right of appeal against any decision to cease support. This sends entirely the wrong message and makes the process of stopping support more complicated and lengthy than it needs to be”.  Paragraph 28 is unclear.  Which is it that sends “entirely the wrong message”: the onus placed on the Home Office? or the right of appeal allowed by section 103?  If it is the onus, we have commented on this in the previous paragraph.  If it is the right of appeal, (a) we do not believe that having a right of appeal under British justice can be described as “sending entirely the wrong message” and (b) we believe that, once again, the Home Office statement makes a clumsy conflation:  it is not that a right of appeal makes “the process of stopping support” more complicated; it is that the present process of coming to a right judgement on the facts may be more complicated and lengthy than it should be. We would point out again, that this occurs because  those seeking support are denied the legal advice and support which should assist a more speedy resolution of their claim.  British justice should be a system in which all people are given proper rights of appeal.   Where there are complaints about complication and length, bureaucracy should first look to remove the mote in its own eye.

16. In paragraph 31 “For asylum seekers with dependent children we would expect the grace period to be at least 21 days.  We welcome views through this consultation on how long it should be”.  We are glad to note the Government’s readiness to listen to views on this point.  There are clear International Conventions on the care of children, and many instances where care for children has failed.  For the reasons we have previously advanced, about the difficulties which beset people trying to establish their right to sanctuary in Britain, we would urge

(a)     that the period of grace should be as long as is required, and

(b)    that no child should ever be left in a situation where the child and her/his family is destitute of support.

In addition, we emphasize the vital importance of children remaining with their family wherever possible.  Separating children from their families causes long-term emotional, psychological and sometimes physical damage, and is likely to incur considerable cost to the Public Purse, outweighing any notional saving the Government might make by the abolition of support.  We believe that the onus should remain with the Secretary of State to ensure that all children are properly cared for.  There is too great a risk of bureaucratic incompetence if the onus is put onto the families to convince authorities that they have “taken the necessary steps to leave the UK”.

The Home Office must recall that a government pilot was conducted in 2005 following the creation in the Asylum and Immigration Act 2004 (section 9) of the new category ‘failed asylum seeker with family’. Amidst widespread condemnation of the deliberate targeting of refugee children, and the fear that children would be left destitute or taken away from loving families, this was trialled in three areas. The assessment of the pilots showed that the measures were administratively confused and ineffective. See “The End of the Road” by Barnardo’s 2005 and “Inhumane and Ineffective. Section 9 in practice” by Refugee Council and Refugee Action 2006.

17. In Paragraph 38, “We have sought to frame the proposals to avoid new burdens on local authorities”.  In our Paragraph 9 above, we have expressed our disquiet about the unequal way in which the Government is treating local authorities.  We remain to be convinced that the present proposals will neither (a) avoid new burdens, nor (b) result in further disadvantage to those who are already vulnerable.

18. In Paragraph 42, “There is no general obligation on local authorities to accommodate illegal migrants who intentionally make themselves destitute by refusing to leave the UK in circumstances in which they could do so. We are nonetheless considering whether it might be necessary or helpful to put this beyond doubt”. The meaning of this last sentence is unclear.  We are concerned about the presumptions contained in this paragraph, particularly in the light of the previous Paragraph 41 and its reference to “since any risk of destitution could be avoided by the family’s departure from the UK”.  It is unacceptable to infer that people “intentionally make themselves destitute” when they continue to believe that they have not received due justice in the UK and continue to believe that removing themselves from the UK poses a greater risk to themselves and their families.

8th September 2015.

………………………………………….

The Right Reverend Jonathan Clark,

Bishop of Croydon,

Chair of the Churches’ Refugee Network.

 

St.Matthew’s House,

100 George Street,

Croydon,

CR0 1PE

 


[4] http://www.refworld.org/docid/4f4371b82.html

[5] See endorsement by General DANNATT, of  https://www.change.org/p/david-cameron-mp-protect-all-afghan-interpreters-who-served-with-british-troops?utm_source=action_alert&utm_medium=email&utm_campaign=379436&alert_id=CfZxEdIrrt_pErbrDTk4m8V6E4EhR%2BMO8x%2FVl%2FamzrQTteoRMLnOEM18TD4%2BZnDmovrmCoikbu%2F

[6] R (Detention Action) v UT, FTT, Lord Chancellor & SSHD (Interested Party)

On the 12th June 2015 a decision was handed down by Mr Justice Nicol in the case of Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors [2015] EWHC 1689 (Admin). In that decision the Court held that the Fast Track Rules contained in the Schedule to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and the Tribunal Procedure (Upper Tribunal) Rules 2008 were unlawful and must no longer be applied.

The Order of Mr Justice Nicol took effect on 26 June 2016

[7] https://detentioninquiry.files.wordpress.com/2015/03/immigration-detention-inquiry-report.pdf