FECL 57 (March 1999):


The end of February saw a flurry of immigration related activity with the Home Office's (Interior Ministry) continuing efforts to erode refugee rights highlighted by several controversial measures. Debate on Britain's new Immigration and Asylum Bill was repeatedly punctuated by Home Secretary Jack Straw's pronouncements of the imperatives demanded by the "public concern about bogus asylum seekers in Britain and criminal trafficking (of immigrants)". Of particular note are measures dealing with refugee aid, support, and legal rights.

Apparent throughout Secretary Straw's agenda is a strong assault on the level of basic rights and services currently available to refugees, with the most prominent feature of this being a plan to replace cash disbursements to refugees with vouchers. Other significant items include: taking fingerprints of those "illegally" entering the UK; wider powers of search and arrest for immigration officers, and enhanced powers of detention. But perhaps most telling is the proposed elimination of all support benefits for refugees seeking to mount a High Court challenge to decisions barring them from Britain.


Denial of justice

Highlighting Mr. Straw's ambitions as regards asylum seekersí legal appeals, The Times (of London) noted, "Jack Straw is to impose the 'no accommodation, no voucher' rule after plans to ban asylum-seekers from having any right to launch judicial review proceedings were abandoned". This decision was included in a recently released Home Office paper discussing the workings of the new Asylum Support Directorate.

The Home Office has contended this measure is vital to combat instances where "legal aid is being misused by asylum-seekers bringing court actions to spin out their applications." It is worth that the facts show about 2,000 applications to the High Court in 1997, with many of these being legal aid funded. But the Home Office does acknowledge that many cases are currently refused leave to seek judicial review by the courts, thereby illustrating the effectiveness of existing safeguards.

The British Refugee Council has blasted the Home Office decree claiming it will "effectively mean a denial of natural justice." Further, refugee and legal experts have warned the Home Office that it could breach the European Convention on Human Rights if it scraps benefits for asylum seekers who appeal to the High Court against decisions to deport them.

A spokesman for the Refugee Legal Centre highlighted how "people seeking redress because their rights have been infringed will not be able to do so because they will have been left destitute by the lack of state support. In that instance, campaigners would try and take a test case to the European Court."


Home Office loses High Court case

As an interesting footnote to these developments, this same week, the Home Office lost a High Court case brought by a 36-year-old asylum seeker from Kashmir who argued that he would face a seven-year prison sentence if he was sent back to his country. Of particular significance here is both the inherent commentary upon the importance of High Court appeal, as well as the precedent the case sets as regards where the burden of proof lies in cases of potential repatriation.

A panel of three appeal judges overturned an Appeals Tribunal decision which ruled that, due to a change in the political party currently in power in Azad Kashmir, it was safe for Mohammed Arif to return home and appeal his conviction. Arif had been tortured by police while awaiting his initial trial, but the Appeals Tribunal had found he was no longer under any threat of persecution.

Acting as a spokesman for the panel finding for Arif, Lord Justice Simon Brown noted that the burden rests with the Government to show that the appellant could safely be returned home with no reasonable likelihood of being persecuted. Lord Justice Brown went on to note, "[f]or purely political reasons [Mr Arif] was falsely accused and then for good measure tortured awaiting trial. The evidence may have been made to appear invincible. To say he may succeed on appeal seems to leave too much to chance. It is up to the Secretary of State to satisfy us... I am wholly unsatisfied".

Arif's solicitor noted that, "it will be up to the Home Secretary to prove rather than assume that the political climate is safe in countries like Ethiopia, Somalia, Turkey and Nigeria." Effectively then, this ruling in the Arif case has meant that "Home Secretary, Jack Straw, may be forced to cancel up to 50,000 deportation orders".

At the same time, however, the BBC has noted a crackdown on immigration law firms. A few asylum lawyers have had their practising certificates suspended.

Concern over "legal aid fraud" by Ministers is quoted as one reason for such activity, and Home Secretary Straw had previously announced plans to force all immigration and asylum advisers to register in an effort which he stated was aimed at curbing legal abuse.


Vouchers instead of cash benefits for asylum seekers

These events occurred against a backdrop where, instead of being able to claim social security benefits, asylum seekers will be given accommodation and support through vouchers for food and other essentials. The Government claims cash benefits act as a draw to 'economic migrants', especially from eastern Europe.

These moves by the Government drew strong criticism from its own backbenches. Labour MP Jeremy Corbyn noted that cash benefits were the "cheapest and most humane way" to provide aid, and added that the voucher approach, when first introduced by the Tories, was viewed by many Labourites as an "act of spite and vengeance against refugees". Another Labour MP warned that the nature of the proposals was such as to leave small groups of asylum seekers as "sitting targets for racist attacks".


160,000 islanders eligible for British citizenship

In related developments, Foreign Secretary Robin Cook won a battle with the Home Office to offer British citizenship to the 160,000 residents of the last remaining British colonies, including Bermuda, the Cayman Islands and the British Virgin Islands. In the meantime, the Cabinet decision was announced in a Government White Paper, which restores automatic rights to settle in Britain which were withdrawn in 1962.

Secretary Cook not only triumphed over objections from the Home Office, but also overcame resistance from Alistair Darling, the Social Security Secretary, over the possible increased cost in the welfare budget if an influx of fresh immigration were allowed. Most observers, however, agree that a measure benefiting no more than 160,000 people is quite unlikely to entail a significant increase in immigration.

The apparently peaceful evolution of the Hong Kong question has also muted the importance to the Home Office of the "access issue". It had been concerned over issues posed by the approximately three million BOCs (British Overseas Citizens) in Hong Kong who were given reduced rights under the last Conservative Government. Thus, the Foreign Office was able to manage its final victory by championing the issue for the 160,000 BOC's in the remaining colonies.

However, in this context, particular note does need to be taken of a case referred by the British High Court to the European Court of Justice (ECJ), involving the issue of BOCs having "rights of movement across the European Union". Should the appeal in this case be upheld, it could rekindle the heated issue of citizenship claims by former Hong Kong nationals.


Controversy erupts over immigrant smuggling

Home Secretary Jack Straw stands in the forefront of a hotly debated Home Office campaign aimed at curtailing the smuggling of illegal immigrants into Britain. As part of this effort, the new Immigration and Asylum Bill contains provisions aimed at fining lorry drivers found carrying illegals. Further undertakings include increased cooperation between British and French authorities, and Home Office Immigration Minister Mike O'Brien recently commented on some of these joint operations already in place. Speaking at the end of January, O'Brien noted that seven people were arrested and successfully prosecuted for "facilitating illegal trafficking in people" as a result of information provided by the Immigration Service in Dover and the French police in Calais, during the last three months. O'Brien added, "[o]ur aim is to get at the people traffickers who organise and profit from illegal immigration."

Over the past year, 2,000 illegal immigrants bound for Dover were intercepted by French police in Calais. However, an undercover investigation by the Road Haulage Association (RHA) offers a different perspective. Blasting port security in Calais, lorry drivers termed existing security measures as "farcical" and claimed that smuggling gangs were provided "virtually unlimited" access to their vehicles. Among the items the Association charges are negligible police patrols, unstaffed police control booths, and "evidence that smuggling gangs were able to get into almost all areas of the port". Condemning what they term a "reluctant" response by French police and customs to port problems, the RHA "managed to film a group of at least 10 suspected gang-members trying to break into the back of lorries".

The British lorry drivers' action was precipitated by the Government's plans to impose hefty fines and confiscate the vehicles of drivers caught bringing illegal immigrants into the UK. The RHA wants the focus of efforts shifted to improved port security, and away from the potential penalization of innocent haulers. An RHA spokesman fumed that it was almost "as if the French were encouraging the gangs to use the port of Calais as a way of removing illegal immigrants...How much are the French authorities going to be fined for every illegal immigrant they allow past their farcical border controls?"


Sources: BBC News, 23.2.99, 17.2.99; The Independent, 23.2.99, 19.2.99; Evening Standard, 19.2.99; The Times (London), 18.2.99; NNC News Service, 17.2.99; PA News, 23.1.99, 21.1.99.