'Nuts and Bolts' of new proposals and a request from the Home Office for 'Comments' on same with a dead line of 17th November 2003
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Department 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 claims. 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
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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 current 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 already 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 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 therefore 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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