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Asylum Policy in EU and member states. Question It is commonly argued that the UK has pursued a two-pronged approach to asylum policy, in erecting barriers to entry and reducing the in-country entitlements of asylum seekers. What has been the impact of government legislation upon the welfare entitlements of asylum seekers in Britain since the early 1990's?
Unit Title - Asylum Policy in EU and member states Question It is commonly argued that the UK has pursued a two-pronged approach to asylum policy, in erecting barriers to entry and reducing the in-country entitlements of asylum seekers. What has been the impact of government legislation upon the welfare entitlements of asylum seekers in Britain since the early 1990's? “asylum seekers ... (are) ... one of the most vulnerable and impoverished groups in the UK, are now excluded from entitlement to most social security benefits. They are also excluded from access to public housing ...” Pamela Fitzpatrick, Child Policy Action Group, UK The asylum policy of the United Kingdom of Great Britain and Northern Ireland (UK) is widely considered to be broken and in bad need of reform. Since the early 1990s, the situation seems to have gone from bad to worse. Media coverage of this policy for at least a decade has mostly been negative. The policy is generally criticised as being unnecessarily harsh, restrictive and contradictory with respect to other social policies. Some refugee advocates claim that the policy is so limited and distorted that it is legitimate to question the UK’s commitment to the principle of asylum.1 Problems or shortcomings exist with both the government’s policy and the administrative machinery that exists to execute the policy. Several negative aspects of the policy may be highlighted. First, the UK’s asylum application process is complex, time consuming and very demanding in the sense that it places on the asylum seeker the burden to establish the veracity of his or her claims. This is a heavy burden since the asylum seeker often arrives to the UK with few if any material possessions, let alone a well-stocked filing cabinet with polished evidence carefully documenting the bad deeds of his or her persecutors! Not surprisingly, the failure 1 See USCRI (no date). 29 April, 2010 Page 1 of 22 rate of asylum applications in the UK is high. During 1996, the refusal rate was a shockingly high ninety-four percent.2 Second, since most asylum seekers lack independent means of support, they are particularly dependent on welfare payments. Yet the UK government, since the 1990s has moved to significantly restrict welfare benefits to asylum seekers and their ability to work. Initially, the restrictions on welfare benefits were motivated mainly by economics – the government aimed to decrease expenditure. The British embassy in Washington explained in 1996 that: "The purpose and intent of this ... legislation was to deter ... migrants from abusing both the asylum and social security systems. The Act will affect nearly 50,000 claimants in a full year which, prior to the Act, would have cost the United Kingdom something in the order of £200 million."3 Third, even if an asylum seeker is successful and eventually allowed entry with full refugee status, the rights of that individual remain permanently less than those of citizens since a refugee in the UK does not have the right to vote. In addition to abovementioned policy shortcomings, the administrative infrastructure that exists in the UK to process asylum seekers has for many years been inadequate and creaking under the strain. Negative commentary on the UK’s asylum policy increased significantly during the 1990s, and continues to this day, as the government began to codify and develop its asylum policy in several pieces of legislation, including the : Asylum and Immigration Appeals Act (1993) Asylum and Immigration Act (1996) Immigration and Asylum Act (1999) Nationality, Immigration and Asylum Act (2002) These new laws have generally been labelled unsympathetic to the plight of asylum seekers. Some have provoked court challenges. They have significantly worsened the overall position 2 In 1996, out of a total 38,960 new asylum applications decided, only six percent were granted refugee status. See sections 3 and 4 below. 3 USCRI (no date) www.refugees.org/countryreports.aspx?id=903 29 April, 2010 Page 2 of 22 of asylum seekers, decreasing their prospects of being granted refugee status and progressively decreasing their access to welfare benefits and their ability to work legally. This essay discusses these issues, focusing specifically on the abovementioned asylum legislation and its consequent impact on asylum seekers particularly with respect to welfare benefits. It begins by defining the terms asylum seeker and refugee, carefully distinguishing between the two. Next, a brief summary of the asylum application procedure is provided. The essay then provides metrics that quantify the restrictive impact that followed the introduction of the new asylum legislation starting from the 1990s. Finally, the essay closes with a summary and its conclusions. 29 April, 2010 Page 3 of 22 1. Asylum Seekers and Refugees – A Significant Distinction In terms of international diplomacy and immigration law, there is a clear distinction between an asylum seeker and a refugee. This distinction is important for purposes of this essay. An asylum seeker is someone who has fled their own home country and applied to the government of another prospective host country for protection as a refugee. An asylum seeker is not granted permission to live in the UK unless that person: satisfies the definition of refugee provided in the United Nations Convention and Protocol relating to the Status of Refugees (in short, the Refugee Convention)4, and that the UK has an obligation to extend that asylum seeker protection The Refugee Convention regulates the legal status of refugees at the international level. It is a basic document of international law. It was adopted on 28 July 1951 and entered into force on 22 April 1954. In practice, it is considered to set only minimum standards that may not always be sufficient. According to the Refugee Convention (Article 1), a refugee is someone who is outside their own country and cannot return due to a well-founded fear of persecution because of their: race religion nationality membership of a particular social group political opinion The onus is on the asylum seeker to establish the relevant facts. This is often a frustrating burden since the diminished economic condition of most asylum seekers leaves them in a very handicapped position to document their persecution. The origins of the Refugee Convention date back to 1951. As at 1 August 2007, one hundred and forty-seven (virtually all) of the one hundred and ninety-one or so members of the United Nations (UN) had signed the Refugee Convention or its 1967 Protocol, including the UK.5 4 A copy of this fundamental document is available at UN Refugee Agency (2007). 29 April, 2010 Page 4 of 22 Under the Refugee Convention, the UK is committed to assist and protect refugees and to respect the principle of non-refoulement (that is, not to return them to a country where they may be persecuted or, more generally, their human rights infringed). The UNHCR explains this critical principle as follows: “Certain provisions of the Convention are considered so fundamental that no reservations may be made to them. These include the definition of the term “refugee,” and the so-called principle of non-refoulement, i.e. that no Contracting State shall expel or return (“refouler”) a refugee, against his or her will, in any manner whatsoever, to a territory where he or she fears 6 persecution.” A nation’s observance of this non-refoulement principle generally requires it to allow asylum seekers to enter the country, assessing whether they constitute a genuine refugee and then granting them permanent residence status. Importantly, an asylum seeker has a lesser legal standing than a refugee and is not entitled to the same level of legal protection and other benefits from the host country as compared to a refugee. Officially recognized refugees are also in a superior position to asylum seekers because they enjoy the protection of the United Nations High Commissioner for Refugees (UNHCR).7 An asylum seeker is any person claiming refugee status. If a country determines that an asylum seeker meets the definition of a refugee, that country is obliged under the Refugee Convention to provide that person with protection.8 The precise nature of that protection is not defined by the Convention and varies from country to country according to national laws. In short, an asylum seeker has a tenuous legal standing in the prospective host country until the application by that asylum seeker has been decided. The asylum seeker lives in a legal limbo, lacking clear standing, being essentially stateless. This ill-defined status makes the formulation of social welfare policy in respect of asylum seekers that much more difficult. 5 See UN Refugee Agency (2007). 6 See UN Refugee Agency (2007). United Nations Convention and Protocol relating to the Status of Refugees, Introductory Note, page 5. 7 The Office of the UNHCR was created by the UN General Assembly on 14 December 14, 1950. It is absed in Geneva, Switzerland. Its main responsibility is to protect the rights and welfare of refugees. It implements and manages international initiatives to resolve refugee issues. It also has responsibilities for stateless people. It is a substantial organisation with a staff of over 6,000 people in more than 110 countries and currently assists about thirty-four million people. 8 In some cases, a person may not meet the Refugee Convention definition of a refugee, but may nevertheless face significant human rights abuses (such as torture) if returned to the country of origin. In some countries, the main protection available to such people is to contact the minister for immigration and request the minister exercise any personal discretion that may be available to the minister under national immigration law to issue a visa allowing residency. If this discretion exists it is generally non-compellable and non-reviewable and is therefore an inadequate safeguard to protect people from refoulement. 29 April, 2010 Page 5 of 22 Despite their much diminished standing, asylum seekers are given protection of basic human rights under the Refugee Convention and other documents of international law. 2. Human Rights of Asylum Seekers – Protected by International Law The UK has an obligation to protect the human rights of all asylum seekers as a result of the mere fact that they are on UK territory or otherwise subject to the UK’s jurisdiction. Importantly, this obligation exists whether or not an asylum seeker meets the definition of refugee. It exists regardless of how or where the asylum seeker arrives to the UK and whether the asylum seeker arrives with or without a visa. This obligation to protect the human rights of all asylum seekers exists under the Refugee Convention, the International Covenant on Civil and Political Rights (Articles 6 and 7)9 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 3)10 as well as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. 9 See Office of the United Nations High Commissioner for Human Rights (1966). Article 6 of this Covenant provides that: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Article 7 of that Covenant provides that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” 10 See Office of the United Nations High Commissioner for Human Rights (1984). Article 3 of this Covenant provides that: “No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” 29 April, 2010 Page 6 of 22 3. Asylum Application Procedure in the UK – Brief Overview The asylum application process is a technically detailed and legalistic process – some would say circuitous and labyrinthian. Applicants are invariably advised to secure professional expert advice. The summary provided in this section recognises that it is merely a basic summary of the essential elements of the process and is in no way comprehensive. An asylum seeker that successfully applies for asylum is granted refugee status. A refugee is allowed entry into the UK, in the first instance, for only a limited time period. Specifically, a refugee is initially granted leave to remain for four years. After those first four years a refugee is usually, but not necessarily, granted indefinite leave to remain, a permission known as settlement. This permission is approved if the refugee’s behaviour remains satisfactory and if new information contradicting the refugee’s original application does not become available. A refugee and a person granted exceptional leave to remain (ELR)11 has equal rights with British citizens, except the right to vote (unless the applicants originate from country forming part of the British Commonwealth). Clearly, this permanent disenfranchisement from the political process is a significant negative for refugees relative to other citizens. A rejected asylum applicant, except one that is rejected on safe third country grounds12 has the right of appeal. The appeal process involves several stages. First, an asylum appeal is heard by a panel of independent adjudicators within forty-two days for regular cases or seven days for fast-track cases. Second, if the panel of independent adjudicators decides that a case has merit, the rejected applicant may apply for leave from the Immigration Appeal Tribunal or the Court of Appeal. Finally, if an asylum applicant receives a negative decision from either of those bodies, the applicant may appeal to their decision to be reviewed by the Court of Appeal.13 11 An ELR decision is a form of temporary permission to remain. It protects an asylum seeker form being deported. An ELR allows an asylum seeker to remain in the UK for one year with the possibility that this permission may be extended. An ELR is granted on grounds that the asylum seekers home country is suffering widespread disruption and turmoil causing humanitarian issues. 12 As discussed in Section 5.4 below. 13 See USCRI (no date). 29 April, 2010 Page 7 of 22 4. Asylum and Immigration Appeals Act (1993) Prior to 1993, the UK lacked any legislation specifically focused on asylum matters. That changed with the passage of the Asylum and Immigration Appeals Act (1993).14 That legislation codified the UK’s policy with respect to asylum matters for the first time. In addition, as its name suggests, it provided asylum seekers a right to appeal. One of the measures it introduced was the so-called fast-track appeals procedure. This procedure was designed to help clear the backlog of asylum appeals. Its provisions were successful in that regard, doubling the number of appeal decisions rendered from 1993 to 1996. In 1993, the panel of independent adjudicators decided only 18,165 asylum appeals in contrast to 38,690 decisions in 1996. However, that increased decision-making speed was achieved at the expense of asylum seekers. For example, following passage of this legislation in 1993, the combined refusal rate for asylum applications that were denied and then were also denied an ELR increased dramatically from thirty percent in 1993 to a staggering eighty-one percent in 1996.15 Poor decision-making by asylum case officers as a result of legislative or regulatory imperatives to arrive at quick decisions, seemingly without regard to quality, has been a recurring issue negatively impacting asylum seekers in the UK. Independent authorities such as the UNHCR have documented its existence and highlighted it remains an issue today.16 14 Office of Public Sector Information (1993). 15 See USCRI (no date). 16 See UN Refugee Agency (2008). 29 April, 2010 Page 8 of 22 5. Asylum Immigration Act (1996) The Asylum Immigration Act (1996) was first introduced as a bill by the Conservative government during an election period. The opposition Labour party was critical of its provisions and indicated that, if elected, a Labour government would substantially revise the bill. In particular, the shadow Home Secretary, Jack Straw, indicated provisions relating to the following initiatives would be removed: the safe (white list) countries concept the withdrawal of welfare benefits from asylum seekers the sanctioning of employers if they hired illegal immigrants However, once the Labour Party won power, the bill was progressed through parliament virtually unchanged. The new government cited lack of time and continued to pledge its plan to substantially reform the law. At the Immigration Advisory Service Annual Conference, the Parliamentary Under-Secretary of State, Mike O’Brien, stated that on 19 July 1997 that the new government wanted to review all aspects of the 1996 legislation. A review was eventually announced on 21 August 1997. 17 The Asylum Immigration Act (1996) received the Royal Assent on 24 July, 1996. It was the second act to be passed on asylum matters in three years. Its passage indicated that there was, to borrow from Shakespeare, something rotten in the world of asylum matters since it followed so quickly on the heels of the 1993 legislation. The act was widely seen as an attack on the right to seek asylum. It made several significant changes to the asylum determination process, including: restriction of an asylum seekers' entitlement to housing and other public benefits extension of the fast-track or accelerated appeals procedure introduction of the concept of a safe (or white list) country of origin removal of certain in-country appeal rights All these measures were considered negative for asylum seekers. Each of these four points is considered in more detail below. Given the focus of this essay, most attention is given to the withdrawal of welfare benefits. 17 See Stevens Dallal (1998). 29 April, 2010 Page 9 of 22 5.1 Removal of Housing and other Public Benefits In 1996 the UK government moved to restrict its expenditure on asylum seekers. Its first action was taken in February of that year by amending the Social Security Miscellaneous Amendment Regulations 1996. Those regulations had the effect of immediately excluding about 8,000 asylum seekers from welfare payments of one kind or another, including housing entitlements. The affected asylum seekers included both those that failed to apply for asylum immediately upon arriving in the UK as well as those who were appealing against a negative decision. Those regulatory changes were widely seen as insensitive if not unduly hard-fisted. In particular, their application to newly arrived asylum seekers was widely condemned since many of those people cannot speak English and, even if they can, are highly unlikely to be familiar with the asylum seeking process. Professional refugee advocates organised a legal challenge to those regulations. The action was successful. On 21 June 1996 the Court of Appeal ruled that the regulations extended beyond the government's legal power. In announcing the decision, the judge opined that the regulations "necessarily contemplate for some a life so destitute that to my mind no civilized nation can tolerate it."18 The government’s response to the Court of Appeal decision was to clarify its intention for the judiciary by introducing the changes via legislation rather than mere regulation. The government took virtually the same wording that had been used to alter the abovementioned regulations and inserted that wording in the Asylum and Immigration Act (1996). 19 Once again, asylum seekers mounted legal challenges against the government’s new legislation. The action produced a measure of victory when on 8 October the High Court, citing a law passed in 1948, ruled that local councils were required to help needy people by supplying them with shelter, warmth and food. In announcing his decision, the High Court 18 See USCRI (no date). 19 Using the terminology of the act, only "port applicants" were to be entitled to welfare benefits and income support. Of those who applied during 1996, 12,440 applied at ports of entry and 15,435 applied within the country. See USCRI (no date). 29 April, 2010 Page 10 of 22 judge said that he did not believe that the government intended that asylum seekers "should be left destitute, starving, and at risk of grave illness and even death."20 The withdrawal of welfare benefits from asylum seekers by the Asylum and Immigration Act (1996) was a major negative for asylum seekers. It is difficult to overstate its detrimental effect on their economic condition, particularly since many of them do not have the right to work legally. Evidence of its impact includes, starting in December 1996 for the first time since 1947, the distribution by the Red Cross of food parcels, mainly to asylum seekers, without any funding support from the government. Additionally, in that same year, the British Refugee Council opened a night shelter and day centre for asylum seekers who had become destitute following introduction of the new legislation.21 5.2 Accelerated Appeals Expanded Building on the seeming success of the fast-track appeals procedures, introduced by the 1993 legislation, to clear the back-log of asylum applications, the Asylum and Immigration Act (1996) further expanded the fast-track process. Unfortunately, this action failed to recognise the poor-decision-making produced by the fast- track procedures. As a result, the expansion of fast-tracking served to compound the negative appeal outcomes already being produced for asylum seekers. 5.3 Safe Country of Origin Concept and the White List The Asylum and Immigration Act (1996) introduced the concept of a white list of safe countries of origin. The legislation required the secretary of state, subject to parliamentary approval, to define certain appropriate nations as white list countries if they did not generally giving rise to a serious risk of persecution. The concept was introduced to expedite the processing of asylum applicants. The basic idea was that a white list country had, in effect, been pre-vetted by the UK government and found to be a low risk of persecuting its citizens on a systematic or widespread basis. An asylum seeker arriving to the UK from a white list country was therefore allowed only ten days to substantiate persecution claims. If this substantiation was established, the asylum seeker would remain in the UK. If substantiation was not established, the asylum seeker was deported back to the white list country of origin. 20 See USCRI (no date). 21 See USCRI (no date 29 April, 2010 Page 11 of 22 The first seven countries placed on the white list were Bulgaria, Cyprus, Ghana, India, Pakistan, Romania and Poland. At the time, those countries were the origin for a large number of asylum seekers seeking refuge in the UK. In 1996, the number for asylum seekers (excluding family members and dependents) applying for refugee status in the UK from these countries was Bulgaria (295 applicants), Cyprus (615), Ghana (675), India (1,795), Pakistan (1,640), Romania (445) and Poland (809). India and Pakistan were particularly large sources of applicants seeking asylum in the UK during 1996 with India representing the second largest and Pakistan representing the fourth largest number of asylum applicants in that year. Collectively, the seven white list countries represented the country of origin for twenty-three percent of asylum applications in the UK in 1996. The white list concept generated immediate concerns that it would prevent a genuine asylum seeker from gaining refuge in the UK. The act was accordingly amended so as to require an asylum seeker to meet a less stringent test to avoid being immediately returned to the white- list country of origin. The less stringent test required an asylum seeker to establish only a reasonable likelihood that he or she had been tortured in the white list country. 5.4 Removal of In-country Appeal Right – the Case of Safe Third Country The Asylum and Immigration Act (1996) removed the right of an asylum seeker in the UK to appeal a negative asylum outcome decided in a so-called safe third country. This action was viewed as a measure to lighten the cased load of asylum officers. Prior to the 1996 legislation, an asylum seeker who had come to the United Kingdom from a third country that is party to the Refugee Convention and that has considered and rejected that applicant's asylum claim used to have the right to appeal that country’s decision in the UK. That right was terminated as of 1 September 1996 by Section 3 of the Asylum and Immigration Act (1996). The legislation permits the UK to immediately deport, without appeal, an asylum seeker that has arrived to the UK following refusal of asylum by a safe third country. The legislation also expanded the list of safe third countries to include not only the European Union but also Canada, Norway, Switzerland and the USA. 29 April, 2010 Page 12 of 22 This loss of the right of appeal was seen as a significant negative for asylum seekers. The UNHCR estimated that as many as forty percent of safe third country appeals made in the UK prior to the 1996 legislation were successful. Moreover, refugee advocates expressed concern that loss of the right to appeal may contravene the UK’s obligation, as specified in the Refugee Convention, not to force refoulement on an asylum seeker. 5.5 Metrics Quantifying Negative Impact of the Asylum and Immigration Act (1996) Several measures all confirm the Asylum and Immigration Act (1996) generated significant negative impact on asylum seekers. First, the total number of asylum applications decreased. For example, in 1996, only 27,875 people (excluding dependents) applied for asylum, a forty-seven percent decrease from the prior year's total.22 Second, the rate of asylum approvals decreased. For example, in 1989 thirty-one percent of asylum applications were approved. In 1996, only six percent were granted refugee status (out of a total of 38,960 decisions). Third, the proportion of rejected asylum applications that were granted an ELR also decreased. From 1984 to 1993, fifty-four percent of all decided cases were granted an ELR. In 1996, only 19 percent of the decided cases were granted an ELR.23 Fourth, a large proportion of rejected asylum applications were also denied ELR in 1996 despite the applicants’ home countries experiencing widespread unrest at that time. Sri Lankan asylum seekers were a case in point. Only a very small proportion of Sri Lankan asylum applications (less than three percent)24 were granted either refugee status or an ELR, even though there was well-documented violence in their home country. By contrast in 1993, before the Asylum and Immigration Appeals Act began to fully impact, virtually all (about 98 percent) of Sri Lankan asylum seekers were permitted to remain in the United Kingdom. Similarly, virtually all (about 98 percent) of asylum applications from Sierra Leoneans and 22 Note that as at 1996 year end, there were 55,635 new applications for asylum awaiting an initial decision. Given that 27, 875 new applications were lodged that year, the ratio of these two figures (that is, 55,635/27875) suggests that the average time required for a decision on an application was two years. 23 1996 was the fourth year in succession during which the number of ELRs decreased, reflecting the impact of the fast-track appeals decision making procedure introduced by the 1993 legislation. 24 In terms of absolute numbers, a total of 1,260 new asylum applications were lodged by Sri Lankans in the UK in 1996 (see Appendix 1). Only five of these asylum applications were granted refugee status and only twenty-five denied applications were granted an ELR. 29 April, 2010 Page 13 of 22 virtually all (about 95 percent) from Zaire, Angola and Turkey (mostly Kurdish people) were refused any form of refuge in 1996. 29 April, 2010 Page 14 of 22 6. Immigration and Asylum Act (1999) The Immigration and Asylum Act (1999) was authored by the New Labour government. It received Royal Assent on 11 November 1999. The act was intended to significantly overhaul the existing asylum system. That system was acknowledged as being inefficient and overly complex, with many asylum claimants waiting several years before their cases were resolved. The new system aimed to introduce faster decision-making to resolve the backlog of cases. The act was draconian in its effect on the welfare and housing entitlements of asylum seekers. The act ended all cash welfare payments to asylum seekers. As a replacement, it introduced a food voucher system. This measure was aimed at reducing abuse of the welfare system. The act disallowed an asylum seeker any discretion whatever regarding the location of public housing to be provided. Moreover, the overall level of welfare support granted to asylum seeker was linked to a willingness to geographically relocate away from London and south- east England, in line with the government’s desire to reduce the existing high concentration of asylum seekers in these regions. The objective was to disperse asylum seekers around the country. The act also created a new safety net support scheme for asylum seekers in genuine need. The new scheme was to be funded by the Home Office ending the funding burden previously carried by local authorities. In 2000, the National Asylum Services (NASS) was created to administer the new system. The Act made changes to the asylum appeals system mainly technical in nature. The new legislation came under sharp attack from a number of sources including professional refugee advocate bodies, the media and from within the Labour party itself. For example, the Refugee Council said that the food voucher scheme would stigmatise and demean one of society's most “vulnerable groups". The effort to geographically scatter asylum seekers was seen as unwise and likely to fail. In practice, the system suggested that asylum seekers would be relocated directed to empty 29 April, 2010 Page 15 of 22 public housing units most of which were available in areas suffering economic slowdown, urban poverty, remote isolation or high levels of crime and violence. This violence was often directed at asylum seekers themselves, made more vulnerable by the lack of local support and legal representation. The Joint Council for the Welfare of Immigrants concluded that: “These policies are not only discriminatory against one of the most vulnerable sections of our community but also one of the worst kinds of social engineering, which is destined to fail." In response to widespread criticisms, the government quickly back-pedalled. Within two years of the act's introduction, the new home secretary, David Blunkett, announced at the Labour party 2001 conference that the Home Office would yet again rethink the asylum system. 29 April, 2010 Page 16 of 22 7. Nationality, Immigration and Asylum Act (2002) The Nationality, Immigration and Asylum Act (2002) received Royal Assent on 7 November 2002. In so far as asylum seekers are concerned, the main impact of the Act is to make provisions for the supply of public housing, as well as various other forms of support, for their benefit. It also makes provisions relating to detention and the appeals process. The Act divides into eight parts; parts two, three and four focus on asylum seekers. Part 2 contains provisions for the support of asylum-seekers in multi-family accommodation centres, built or adapted to accommodate and provide services for a number of asylum- seekers and their dependants on one site. Part 3 provides for the introduction of various support arrangements for asylum-seekers as well as other assistance. Part 4 contains provisions relating to detention, temporary release and removal. Part 5 contains provisions on asylum (and immigration) appeals. 29 April, 2010 Page 17 of 22 8. 11 September 2001 Terrorist Attacks on the USA It is worth mentioning that the position of refugees in the UK has generally worsened as a result of restrictions imposed specifically in response to the 9/11 terrorist attack on the USA. The UK passed anti-terrorism laws in late-2001 that reduced the rights of refugees in several important ways including extending greater access to their personal data by law-enforcement agencies and making it easier for the government to detain and deport foreigners. Around 2003, the UK also took action to segregate asylum seekers. Their children will now be educated separately in asylum centres. The UK also denied asylum seekers the right to work and further restricted benefits to them. 29 April, 2010 Page 18 of 22 9. Administrative Infrastructure Inadequate The UK’s ability to process asylum seekers has been, for many years, severely strained due to inadequate administrative capacity and continuing high flow of new asylum seekers. One the supply side, this inadequacy reflects both an inadequate quantity and quality of resources. On the demand side, it reflects the UK consistently receiving one of the highest flows of asylum seekers of most other nations. For example, in 2002, the UK recorded the second largest number of new asylum applications of any country in the world.25 Similarly, in 2009, the UK ranked fourth in the world with about 29,800 new asylum applications.26 In 2004, the Home Office began to work with the UNHCR to remove some of the bottlenecks and improve the overall processing of refugee status determination (RSD) in a project known as Quality Initiative (QI). The project was still in place as at October 2008. Under the QI scheme, UNHCR staff work with the UK Border Agency (UKBA) and other government representatives to audit asylum decisions and the effectiveness with which case asylum case officers assess the credibility of asylum seeker claims. They also look at application of the correct refugee law concepts by case officers. The latest UNHCR report highlights serious concerns about the fast-track RSD process as it is applied in the Yarl's Wood and Harmondsworth detention centres. UNHCR audit staff found that the emphasis on quick decision-making does not always allow case officers to reach well- reasoned decisions. The short time allowed for some decisions – sometimes as little as three days – does not always allow all relevant factors to be identified and then given adequate consideration to be given to all relevant factors. 27 25 See UN Refugee Agency (2008). 26 The UK ranked behind the USA (49,000 new asylum applications), France (42,000) and Canada (33,000). The UK and these three nations and the UK received about 40 per cent of all asylum seekers globally in 2009. The United States has been the main destination country for the past four successive years. 27 See UN Refugee Agency (2008). 29 April, 2010 Page 19 of 22 10. Conclusion It is reasonable to conclude that the UK has pursued, partly by design and perhaps also by default, a two-pronged approach to asylum policy that has erected entry barriers and decreased welfare benefits for asylum seekers. The government has erected barriers to entry by: limiting the bases upon, or avenues through, which an asylum seeker may apply for entry failing to provide adequate administrative resources, in terms of both quantity and quality, to adequately process the number of asylum seekers by establishing and expanding administrative procedures (particularly the fast-track appeals process) that have consistently worked to produce negative outcomes for asylum seekers For example, the removal by the 1996 legislation of the in-country right of an asylum seeker to appeal a negative asylum decision by a safe third country significantly narrows the grounds upon which an asylum seeker may seek entry into the UK. The UK government has also, on several separate occasions (particularly the 1996 and 1999 legislation) to decrease and otherwise restrict the level and range of welfare benefits extended to asylum seekers. The negative impact of this two-pronged approach, from the perspective of asylum seekers, is reflected in a levelled-off number of annual asylum applications as well as a worsened (increased) rate of application refusals. It is also reflected by long-standing and widespread criticism of the government’s asylum policy and legislation from a wide variety of sources including not only asylum seekers but also the public media, professional refugee advocates, academics, international jurists and diplomats and aid workers. 29 April, 2010 Page 20 of 22 Appendix 1: New Applications for Asylum Lodged in the UK, 1996 Country of Origin Number Comments Top Six Nigeria 2,540 India 1,795 Inaugural white list country Somalia 1,780 Pakistan 1,640 Inaugural white list country Turkey 1,420 Sri Lanka 1,260 Selected Others Poland 809 Inaugural white list country Ghana 675 Inaugural white list country Cyprus 615 Inaugural white list country Romania 445 Inaugural white list country Bulgaria 295 Inaugural white list country All Others 14,601 Total 27,875 29 April, 2010 Page 21 of 22 References Fitzpatrick, Pamela (2003), Poor, Excluded and Forgotten: Asylum Seekers and the Welfare State, Poverty 115, Summer, Child Poverty Action Group, London, United Kingdom: available at http://www.cpag.org.uk/info/Povertyarticles/Poverty115/asylum.htm, first accessed by author on 22 April 2010. Office of Public Sector Information (1993), Asylum and Immigration Appeals Act 1993, London, United Kingdom, www.opsi.gov.uk/ACTS/acts1993/ukpga_19930023_en_1; accessed by author on 29 April 2010. Office of Public Sector Information (1999), Immigration and Asylum Act 1999, London, United Kingdom, www.opsi.gov.uk/acts/acts1999/ukpga_19990033_en_1; accessed by author on 29 April 2010. Office of Public Sector Information (2002), Nationality, Immigration and Asylum Act 2002, London, United Kingdom, www.opsi.gov.uk/acts/acts2002/ukpga_20020041_en_1; accessed by author on 30 April 2010. Office of the United Nations High Commissioner for Human Rights (1966), International Covenant on Civil and Political Rights, Geneva, Switzerland, www2.ohchr.org/english/law/ccpr.htm; accessed by author on 30 April 21010. Office of the United Nations High Commissioner for Human Rights (1984), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December, Geneva, Switzerland, www2.ohchr.org/english/law/ccpr.htm; accessed by author on 30 April 21010. Stevens, Dallal (1998), “The Asylum and Immigration Act 1996: Erosion of the Right to Seek Asylum”, Modern Law Review, March, volume 61, number 2, pp 207-222. UN Refugee Agency (2008), “UNHCR and UK Work to Improve Refugee Status Determination”, United Nations High Commissioner for Refugees Official Website, 27 October, Geneva, Switzerland, www.unhcr.org/4905e1d44.html; accessed by author on 29 April 2010. UN Refugee Agency (2007), Convention and Protocol Relating to the Status of Refugees, United Nations High Commissioner for Refugees Official Website, 1 September, http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf; accessed by author on 29 April 2010. USCRI (no date), “Helping People Flee Persecution for more than Half a Century”, Mission of the US Committee for Refugees and Immigrants, Washington DC, USA, www.refugees.org; accessed by author on 29 April 2010. 29 April, 2010 Page 22 of 22
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