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New asylum bill will deny justice to those fleeing persecution

25 February 2004 - Letter to editor published in the Independent

In 1999, the Home Office considered the case of a Turkish Kurd who was suspected by the Turkish authorities of being a separatist. The man had been detained and tortured many times by military police. On one occasion, his back was lacerated 35 times with a bayonet. On another, he was pushed through a glass window and hung out of it, upside down, until he lost consciousness. He was told he would be killed and his death passed off as a suicide.

The Home Office refused the man’s application for asylum. An asylum appeals tribunal upheld the ruling, insisting that he could be safely returned to Turkey. Fortunately, the asylum seeker won the right to take his case to the Court of Appeal. The Court overturned the decision of the tribunal, ruling that it had failed to identify any reason why he would not continue to face persecution if he were sent back.

In recent years senior judges in the High Court, the Court of Appeal and the House of Lords have overturned Home Office decisions in hundreds of such cases. Without the intervention of the courts, those people would have been wrongly returned to face imprisonment, torture or even death.

But the Government’s latest Asylum Bill threatens to remove this legal safeguard. Clause 10 of the Bill creates a new asylum appeals tribunal that is immune from challenge in the courts. This would effectively put the Home Office and the members of the tribunal beyond the law. In doing so, it would erode a legal principle that is fundamental to the constitutional fabric of this country - the right of individuals to challenge decisions of the State.

The right to appeal to the courts is one we afford to all in our society, even those convicted of the most serious crimes. Last month, the Court of Appeal’s landmark ruling on unsafe convictions in infant death cases served as a timely reminder of just how vital this right is. To remove this right from asylum seekers sets a dangerous precedent; it suggests that unpopular minorities should not be treated the same under the law as everybody else.

The rulings of other appeals tribunals, such as those governing employment and pensions, are subject to the higher courts. Unlike the, the new asylum tribunal will deal with matters of life and death. Why then, when the potential consequences of unlawful decisions are so grave, are its rulings being put beyond the scrutiny of the courts?

Judicial scrutiny does not only protect individuals. It also establishes case law, which can in turn save hundreds of future cases from being unjustly dismissed. In a crucial decision in 1999, the Law Lords found that women in Pakistan accused of adultery were entitled to asylum. This landmark ruling clarified one of the most difficult issues in refugee law – namely, what is meant under the 1951 Refugee Convention by ‘membership of a particular social group.’

As the Immigration Law Practitioners’ Association points out, refugee and human rights conventions are ‘living instruments’ – that is, they are meant to be adaptable to a changing world. As new conflicts and human rights abuses arise, the law has to be reinterpreted and our duties to refugees re-assessed. Only the higher courts are qualified, or even willing, to make such judgements. That is why, in a report last month, the Parliamentary Joint Committee on Human Rights said Clause 10 was “inherently objectionable as an attack on an important element of the scheme for protecting Convention rights”.

The Government argues that reform of the asylum appeals system is necessary because abusive and unfounded appeals are causing costly delays. This is certainly not true of access to the courts, which is stringently controlled. Asylum seekers are given leave to have their cases heard in court only when there is compelling evidence that their application has been dealt with unjustly. That’s why in 2002, only nine per cent of those who applied for judicial review won leave to have their cases heard. However, of those 276 cases, one in three resulted in an unlawful Home Office decision being overturned. The number of cases heard in the Court of Appeal is even smaller – last year just five were heard, and three were successful.

Sadly, the Bill fails to address the real cause of costly delays - the often poor quality of Home Office decision-making. At present, one in every five initial Home Office decisions is reversed on appeal. Only last month, an all-party Home Affairs Select Committee criticised the “disturbing” rise in successful appeals, which it said reflected poor standards of decision-making by immigration staff.

It is in the interests of asylum seekers and taxpayers alike that better decisions are made earlier. But this is unlikely to happen if the Government goes ahead with plans to severely restrict asylum seekers’ access to legal aid. This, together with the loss of quality control presently afforded by judicial oversight, will mean the overall standard of decision-making can only further deteriorate.

The public clearly wants an asylum system it can trust – a system that ensures that protection is awarded to those who need it and, after a full and fair examination of their case, deals effectively with those who do not. But this unconstitutional assault on the rights of asylum seekers will not enhance the credibility of our asylum system, nor will it result in significant savings for the taxpayer.

The Bill contains a number of other proposals of concern - in particular, the controversial Clause 7, which would withdraw support from failed asylum seeking families, with the risk that children may be taken into care. Clearly, it is morally wrong to use the children of failed asylum seekers as instruments with which to enforce the removal of their parents. But Clause 10 has even more serious and far-reaching implications for asylum seekers. Furthermore, in undermining the rule of law, it threatens the rights and freedoms of all of us.

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