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Transcript: Annual Harrell-Bond Lecture 2008

Transcript of Sir John Waite's 2008 Annual Harrell-Bond Lecture.

It is an honour and a pleasure to be asked to talk to the Refugee Studies Centre. You are a body proved, by all I have read and heard about you, to be at the leading edge of research in the refugee field – with an impressive gift for harmonising the many different approaches which so complex and diverse a subject demands.

There is something amiss with the asylum system in this country, and it affects every branch of our constitution. For Parliament, it means (as confirmed by all the MPs including three former Home Secretaries who gave evidence to our commission) that asylum problems are the most frequent topic at all constituency surgeries; for the judiciary it means a heavy, often overwhelming, burden on the court lists for judicial review and appeal; for the executive it has involved the promotion of a fresh Immigration Act almost annually in the last decade, bringing confusion and bewilderment to an area where, of all areas, simplicity and clarity are needed. What exactly lies at the root of the problems? In what respects is the system too harsh – or too lenient? How far is it understood, or misunderstood, by the public? Does it occupy the crucial centre ground in politics, or has it been banished to the periphery? How far should it have a place in politics at all?

There was a time when questions such as these would have been dealt with by a public inquiry – usually a Royal Commission. But such inquiries seem to be out of favour these days. That may be because they take too long, or are too expensive; or because modern governments do not like surrendering initiatives to independent third parties, preferring to maintain the iron hand of departmental control beneath a covering of focus groups, seminars, consultation documents and green and white papers. This evening I want to talk about an attempt to fill that vacuum with an initiative beginning, as the best initiatives so often do, at the grass roots. It started in quite a small way when a coalition called South London Citizens, made up of churches, mosques, schools, trade unions and other civil society groups, became sufficiently alarmed by the conditions at Lunar House, Croydon, the reception centre for asylum claimants, to appoint a team of Commissioners to hold an independent “Citizens’ Inquiry”. The result was a report so sensible and pragmatic that the Home Office, far from being able to find any fault with it, accepted – and has since implemented – virtually all of its recommendations.

This local success encouraged the parent organisation, Citizens’ Organising Foundation, to set up a nation-wide Commission to investigate the asylum system in its entirety. Such a Commission would need to be truly independent, both in its membership, and in its freedom from dependence on government funding.

The idea was ambitious – perhaps in some eyes pretentious. But in a remarkably short time support was promised from a number of charities, and a small but skilled staff was recruited. Twelve commissioners were appointed, including parliamentarians, academics, and representatives of the churches and NGOs. They were chaired jointly by myself and Ifath Nawaz – who somehow manages to combine the upbringing of her three young children and her job as a lawyer in local government with the presidency of the Association of Muslim Lawyers.

If we were to function truly as a Citizens’ Inquiry, we would need to get close to the grass roots from which our authority had sprung. So we sat in public, receiving evidence not only in the London area but also in Birmingham, Manchester, Leeds, Cardiff, Glasgow and Belfast. In addition to testimony from relevant agencies such as police, NGOs, charities, lawyers and doctors we listened to the personal histories related by asylum-seekers themselves. Many of these were intensely moving.

We also sat in private to receive evidence from MPs, officials (including highly placed members of the Home Office department now known as the United Kingdom Border Agency and abbreviated as UKBA) and by representatives of the many voluntary organisations who work so hard with and on behalf of asylum-seekers. We were invited to Lambeth Palace for a two hour session with Archbishop Rowan Williams. Migration Watch gave us their evidence. We had access to valuable research from the information centre ICAR. In exploring comparisons with the asylum model in Canada, we had very useful help from their High Commission.

So there was a lot of material to assimilate. In planning our report on it, we needed to bear in mind that you get nowhere these days with any scheme of social reform unless you have the attention of at least some of the media; and you get nowhere with proposals to change the asylum system without the support of the Home Office. To win the confidence of UKBA we adopted a strategy of publishing first an interim report, to which UKBA would be invited to provide a detailed response which we promised to set out in alongside the conclusions in our final report. As for the media, our findings - thanks to the expertise of our co-ordinator Jonathan Cox - received a reasonable degree of coverage in the press, and David Ramsbotham, one of our commissioners, maintained (as one would expect from a former general) unflinching courage in the face of fire from John Humphries on the Today programme.

We began with a general finding about attitudes to asylum. Thanks to the generosity of our supporting charities, we had been able to conduct a widespread inquiry into perceptions of asylum in the public mind. The result (which is set out in the first instalment of our final report) was to confirm dramatically what many in this room must have known or suspected already. There is a cloud of misunderstanding surrounding asylum in many minds. Some misconstrue the word itself, associating it in some way with mental health. Many more lump asylum together with issues of migration generally, drawing no distinction between the economic migrant and the suppliant for sanctuary. A campaign is needed to educate the public about this distinction, with a new terminology to drive it home. The word asylum, we have suggested, should be replaced by the word “sanctuary”, as being a term which better reflects the distinctiveness of refugee status and at the same time evokes memories of our country’s traditional respect for that status down the centuries. Another area of public misunderstanding stems from the fact that asylum claims have a high failure rate. The major reason for this is the rigour of the definition of “a refugee” in the UN Convention of 1951 as a person who has “a well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership of a social group”. That remains an extremely narrow definition, even when interpreted in the slightly more generous light of Article 3 of the European Convention on Human Rights. Thousands come here seeking to escape intolerable conditions at home – including famine, civil war and devastation by marauding gangs of militia. But their claim fails because their sufferings, however terrible, are found to stem from dangerous circumstances rather than from persecution. As one of the law lords trenchantly put it in a recent appeal relating to conditions in Darfur, “There is a sense in which you can say that the victims of persecution are the lucky ones”. There is nevertheless a widespread misconception – encouraged by some newspapers – that the high failure rate occurs because most asylum claims are bogus – i.e. false stories trumped up by those who in reality are economic migrants in the hope of obtaining entry as refugees. It is time that this misconception was forcefully dispelled.

I now come to deal with our findings under the thematic headings we chose – treatment of the claim, treatment of the claimant, and treatment of those who have failed. Time only allows me to deal with the highlights, and I begin with

The Treatment of The Claim

In every asylum application the burden of proof lies on the applicant to establish that his or her story is true. This rule is unobjectionable in principle, but when applied to vulnerable people who often have difficulty in doing themselves justice, there is a danger that an interviewer, under pressure to speed his way through an overwhelming case-load, may be attracted to the formula “I do not find your story believable” as a convenient means of closing the file.

Here is a summary from my notes of the evidence given at our hearing in Leeds, by Germain Naruhana from the Democratic Republic of Congo.

He had taken part, with his father, in a demonstration protesting against the abuses being perpetrated against the civilian population by the Congolese army. When his father was arrested and summarily beheaded for this conduct, he fled to another area with his sister and his wife and young family. He and his sister were tracked down, arrested and placed in jail where he was beaten daily and sexually assaulted. He was compelled to witness the raping of his sister. A catholic priest procured their release for medical attention and got them onto an aeroplane. The destination (though they did not know it) was Heathrow, where they arrived and found themselves alone and unable to speak a word of English. An interpreter was found for him, but at interview the case owner said his story would be rejected on the ground that it was not credible. By the time he was notified of a hearing date for the appeal from that refusal, he was in hospital, receiving treatment for the effects of the physical abuse he had received in the Congo. Denied an adjournment, he dragged himself to the hearing, where the immigration judge was so alarmed by his appearance that he ordered his immediate return to hospital by ambulance. When the appeal hearing did finally take place, however, he was met with the same rebuff: “Your story is not credible”. He later learned from a report in a Congolese paper that his mother had been raped and executed. His wife and children had been abducted and he had no idea of their whereabouts.

I should say in passing that, thanks to the help given us in the recording of testimony by Human Rights TV, you can view that evidence for yourselves, either by going to our own web-site and clicking on “hearings” or going to the humanrightstv (all one word) web-site and clicking on Leeds.

The official guidelines given to case owners and immigration judges for the assessment of credibility are impeccably fair in directing that applicants should be given the benefit of any doubt and allowed full opportunity for explanation. Nevertheless we found ourselves faced with so many case histories of the kind I have just quoted that we felt compelled to state our interim finding that “a culture of disbelief exists among decision makers which coupled with inadequate qualifications and training is leading to some perverse and unjust decisions”. UKBA in its response drew attention to the steps that have recently been taken to improve the grade and training of case-owners, but in our final report we stated that there was still a long way to go in that direction. The Canadian model is valuable in this regard. Their case-owners are highly trained, well qualified and well paid, and their career structure allows an opportunity for promotion in due course to membership of their appeals tribunal.

Good representation for the applicant on appeal from a refusal is of course essential to the fair disposal of any claim. Given the current restrictions on legal aid and the shortage of immigration lawyers, we had to recognise that our primary recommendation that “No asylum claimant should ever, for want of affordable representation, appear before a tribunal unrepresented” might not be achievable in practice. We therefore added that if qualified legal representation is not available, appropriate lay support should be encouraged through the involvement of citizens, the voluntary sector, and a wider use of the role of the ‘McKenzie Friend’ – that is to say someone who, without formally representing a claimant, is encouraged to sit beside them, help them with their papers and assist both tribunal and claimant in the need that either may have for clarification.

The Treatment of The Claimants

Our research into public attitudes to asylum had established a near-unanimous view that people seeking sanctuary should be treated fairly and humanely, should have access to support and public services, and should make a contribution to the UK if they are able. May I read you my note of the evidence given at our Cardiff hearing by Romeo, from Cameroon

I am disabled, needing crutches to walk. After screening at Heathrow I was sent to accommodation near Croydon – unsuitable because of many stairs. Told I must await dispersal. Asked for a wheel chair but was told that this also must await dispersal. I had an accident on the stairs which required my admission to hospital. There I was lent a wheel chair. Then I was dispersed to Cardiff. No disabled accommodation there. I had to make friends quickly. You learn to do that when you are a disabled refugee. When Social Services declined to give me any support, a lawyer helped me to challenge that refusal successfully in court. Then I had another accident. Although my claim was still pending, I was put on vouchers, until my solicitor successfully challenged that decision also – after which I was given cash but required to produce a receipt for everything. When the GP advised that my wooden crutches needed replacement I was told that they could not be supplied under the NHS. My present crutches are a gift. With a good lawyer I won my appeal against refusal of my asylum claim, and now await formal leave to remain. I have been given a TV set, but how can I afford a licence on cash of £40 per week? I have had to fight for everything, but I worry about those who cannot fight.

I don’t want to say any more about disability and access to health care, because Romeo’s words say everything, and this aspect is fully covered in our report. The three areas that I want to talk about under the head of treatment are detention, destitution, and children.

Detention

We received a lot of information about detention centres and the varying conditions within them, and in our final report, in the chapter called Deserving Dignity, we make proposals to mitigate the harshness of the detention regime. We felt it to be our duty, however, to adopt a more fundamental approach and confront the question whether detention is justifiable at all. Having become convinced ourselves that it is not, we proposed that the government should undertake a root and branch re-appraisal of the detention issue, proceeding from the starting point that it is appropriate only for those who pose a threat to national security or in cases where there is absolutely no alternative means of enforcing the return of those whose claims have failed.

I do not need to highlight the reasons for that view. Detention is objectionable in principle because it robs people of the very liberty they have come here to seek, treats people as criminals who have committed no offence, and imposes a huge burden on the taxpayer. The notion that it is necessary to prevent applicants from absconding is absurd when you are dealing with people who well know that by going on the run they would forfeit all prospect of success in their asylum claim. In Canada, where there is virtually no detention of asylum- seekers beyond the small and obvious exceptions already indicated, the absconding rate is negligible.

The abolition, or near-abolition, of detention would have another advantage. There is at present a great pool of energy generated by the volunteer supporters who do marvellous work in visiting the detention centres and helping and supporting the inmates. Closure of the detention centres would release those same volunteers to give help on a wider scale – and there can be no doubt that such help will continue to be urgently needed.

Destitution

UKBA has denied that destitution is deliberately used as a lever to encourage unsuccessful applicants for asylum to accept an assisted voluntary return to their country of origin. I would be prepared, myself, to accept the sincerity of that denial, but the fact remains that present levels of support lie at the bare margin of subsistence. It may be technically possible to live for a week on £40 or on the equivalent in vouchers exchangeable only at specified stores. But surely something better than that is needed if we are to fulfil that standard of fairness and humanity which public opinion, according to our survey, has endorsed. Specific suggestions are made in our report as to how the current system of benefit could be made more consistent, more accessible and more generous. This evening I want to concentrate on one of them – the opportunity to take paid employment.

Asylum seekers are not allowed to work. The most dramatic victims of this embargo are the Zimbabweans. There are 11,000 of them here at this moment. Their claims have failed, largely because they could not bring themselves within the narrow confines of the definition of refugee. On the other hand our government accepts that their country is not at present a safe one, and that it would not be feasible at this stage to enforce their return to Zimbabwe. So they exist in a limbo. Their claim has failed, they have nowhere else to go, and they are not allowed to take a job. What a waste! If they were allowed to take temporary work until the government judges it safe to order their return home, they could not only throw off their dependency on subsistence payments, but would also be able to acquire skills that would stand them in good stead when they return to help revive the economy in their stricken country.

The embargo on working may in some cases have another very serious consequence. It may drive some asylum claimants to resort to crime to make ends meet. If they are caught they become offenders liable to deportation. While they await removal they are subject to detention, even after completing any prison sentence imposed on them. The Director of the London Detainee Support Group wrote recently to Private Eye on 3rd October 2008, with a worrying description of ex-offenders still languishing in detention centres with very little prospect of release in this country and (if they come as many do from unsafe areas) with very little prospect of any early return to their own.

I therefore strongly commend to you the recommendation we have made, which is that asylum seekers who have not achieved final resolution of their claims within six months should be entitled to work. By now you will have come to expect me to say how they manage things in Canada. The answer is that in Canada every asylum seeker is free to work from the moment he arrives and makes his claim.

Children

“In all matters concerning children the welfare of the child must be treated as the primary consideration”. Those words have a distinguished history. They first appeared in the chapter on children (drafted by Dame Eglantine Jebb, founder of Save the Children) incorporated in the League of Nations Charter. They were later reproduced as Article 3 of the UN Convention on the Rights of the Child. They are words of uncompromising clarity which ought to provide a ready answer to questions affecting child refugees. Should they be subject to detention, how is their age to be tested, can it ever be right to exclude them from financial support? Until very recently, however, they were not a formula which could be applied in this country, because the UK, when ratifying the Convention in 1991, inserted a reservation excluding its application to children involved in immigration. That reservation was strongly criticised at the time, and has been criticised many times since. When therefore we came to make our own proposals about children, we prefaced them with a strong recommendation that UKBA policy should be based on the primacy of child welfare and that the reservation should be removed. That was made in our final report, published last July. On 10th September, the Foreign Secretary David Milliband announced that on his forthcoming visit to the UN he would be informing the Secretary General that the UK intends to remove the reservation. Of course we cannot, in view of the distinguished protests that preceded ours, claim that it was our trumpet alone that brought down the walls of Jericho, but we can fairly claim to have produced the last toot before they crumbled. I hope the result will be that our proposals for the treatment of children will now be acknowledged as incontrovertible. Time does not allow me to give more than a summary of those proposals. They are that children should never be placed in detention, never excluded from benefit payments, always be independently represented before tribunals and at interview, and, in cases where their age is in doubt, should be protected by an independently supervised code of practice for resolving age-disputes which takes full account of the complex medical, ethical and child welfare issues involved.

The Treatment Of Those Who Fail

May I read these excerpts from the evidence we heard in Glasgow:

Mary (from Uganda)

I came here, with my two children aged 2 ½ and 4, fleeing from persecution. My claim was refused, and I was denied legal aid for judicial review. I was accommodated in Glasgow pending removal. There was an early knock at the door. I was ordered out with the children and put in a van, without being allowed to take clothes for myself or them. My mobile phone was taken. Placed in Dungavel. One child became ill there – vomiting because he was unused to the food or meal times. Then I needed to go for a hospital check-up myself, for which I had an escort of three security officers. After help from lawyers and neighbours I was allowed to make a fresh asylum application. But meanwhile I am locked out of my former home and destitute. My children are traumatised after all this moving from place to place.

Kathleen Marshall – Children’s Commissioner for Scotland:

The Dawn Raids have a serious effect. Though the Home Office assures us that no return is ever ordered to an unsafe place , there is no monitoring, and children tell me that they never hear again from friends who have been removed. These children are full of fear, although they have been here long enough to develop a Glasgow accent so thick that you could cut it with a claymore.

Euan (Head Teacher Glasgow Primary School)

I have many children in my school from asylum-seeking families, They are hard workers with a good attitude, and have achieved well under very difficult circumstances. There has been severe traumatising of these children when they or their friends are removed. There is also a marked effect on the Scottish-born children when class-mates and friends are suddenly removed.

I should add that we learned, while in Scotland, of one Afghan girl who had done so well at secondary school that she was offered a place at this very University of Oxford. She could not of course take it up, because as a member of an asylum-seeking family she was not eligible for state support for any University fees.

That description really covers it all – the greater the time lapse, the more disruptive the effect of removal. Our survey into public attitudes showed that people are very alert to this, and take the view that once a decision has been made, the UK should act swiftly and effectively either to assist integration or to arrange a safe and sustainable return for those who have had a fair hearing and been refused sanctuary.

We followed that approach in our own proposals. While a voluntary return is always to be preferred to an enforced one, there are dangers in waiting too long for a disappointed seeker of sanctuary to return voluntarily. There are times when it is kinder to be firm. But firmness does not mean resort to the dawn raids of the kind described by Mary. They are clearly unacceptable. We emphasised the potential we see here for the voluntary sector, in giving direct personal support to the sad and frightened people who are forced to board an aircraft back to their home country. Such volunteers could be of invaluable help, also, in making good the defect in the system to which the Scottish children’s commissioner had drawn attention – the absence of monitoring to keep track of the fate of unsuccessful claimants after their return. The volunteers, having won their confidence, would be encouraged to keep in touch with those in whose removal they had been involved. By that means a series of case histories would be built up and used to verify and update the country of origin information on which interviewers and appeal tribunals so heavily rely.

There you have, in broad summary my account of what it is that the Commission heard and decided. Our task is over, and it will now be for others to consider and (if they approve) implement our proposals. There are already some encouraging moves in that direction. Substantial charitable support has been pledged for an organisation specifically brought into being, under the general supervision of the Citizens Organising Foundation, to carry forward our Commission’s proposals. It will be called “Citizens for Sanctuary”, and it will be conducting a three year campaign, beginning on the first of next month.

For me, personally, involvement in the work of the innovative form of inquiry which the Commission embodied has been an interesting and moving experience. I would now just like to add, in closing, some thoughts and reflections of my own, prompted by that experience. They concern the Home Office on the one hand and the voluntary sector on the other, and involve some consideration as to how each might be brought to function more effectively in co-operation with the other.

Of all departments of state the Home Office must feel itself to be the most beleaguered. It must be demoralising to work in a department whose fitness for purpose was at one time questioned by its own political head. Nor does it help to be so accident-prone in one’s public relations that the rejection of a few visas to Gurkha veterans leads to front page pictures of VCs in wheel chairs celebrating victory outside the law courts. It would be understandable for the officials in such an office to be guarded and defensive in any dealings with the public. Let me tell you that this has not been our experience. Our relations with the UKBA have been excellent throughout. We had no contact with any serving ministers, but our work gave us the opportunity of meeting senior officials, both formally and informally, and discovering that they have a conscientious, even dedicated, awareness of the sensitivities involved in issues of asylum. You will find much evidence of that in the responses which we have reproduced in our reports. Provided that one sticks to dialogue and does not descend into declamation, there is much potential for goodwill when dealing with the Home Office.

As for volunteers, the richness and variety of support coming to the aid of asylum-seekers is immeasurable. We met it everywhere, in the road shows (as they were called) which followed the formal business of our public hearings, and in the contacts which some of us were able to make with centres such as the Boaz Trust in Manchester and the Restore project in Birmingham. You meet it in community initiatives like the Strangers into Citizens campaign, in charities working in specific areas such as bail for detainees, and in the countless individuals who give their time to visiting and encouragement both within and without the detention regime. I do get the impression, however, that all this energy is a little fragmented. There is a need for some over-riding agency which will co-ordinate their activities and provide a voice which gains authority by speaking for them all. Perhaps what we need is a nation-wide organisation with a name like (just to make one suggestion) the Sanctuary Support Service. At various points in this talk I have suggested areas for possible expansion of support from volunteers – in lay representation and assistance in interview and before tribunals for example, and in providing succour at the moment of removal and monitoring thereafter. The achievement of such an expansion might be an ideal role for a Sanctuary Support Service.

It may help, in drawing those thoughts together, to take a brief backward glance at the year 1972, when Idi Amin expelled all Asians from Uganda. 30,000 of them came to this country. There was some resistance at first, particularly from cities that felt themselves to be at risk of being swamped. But early acceptance by government that we had a moral duty to receive them soon became linked with voluntary action to put that ideal into practice. The government established a Resettlement Board which worked with individuals (including people who offered temporary accommodation in their own homes) and with voluntary organisations to provide a welcome for these Asian families. My wife and I and our children became, and remain, good friends with one such family. The father and mother with their two children aged 10 and 8 arrived at Heathrow with nothing except the clothes they were standing in, two suitcases, and their parrot in its cage. The father (who had been a lawyer in Kampala) re-trained and built up his own practice as an English solicitor. The children went to primary school. The girl is now a GP specialising in paediatrics, and the boy (having passed in the top grade of the stock exchange examinations) is running a City investment fund. The Ugandan refugees were of course a special case, and one cannot draw too close a parallel with today’s asylum-seekers. But I do believe that this episode in our history is one in which we are entitled as a nation to take justifiable pride, as a model of what can be achieved by co-operation between government and the voluntary sector. We still need some of that spirit of 1972 today.

If you were to ask me what outcome I would hope for from our work in the Commission, I would of course plead for acceptance of our proposals, particularly the ones that I have emphasised. But I would also hope that it would be found to have played its part in the great shift that is needed in public attitudes to asylum. There are many possible means to that end. It may be through a Sanctuary Support Service on the lines I have suggested, or through the future activities of the new Citizens for Sanctuary campaign, or through the ideas and initiatives of your own prestigious Refugees Studies Centre, or through a combination of them all – worked out at every stage in harmony with the UKBA. But the end itself can never be compromised. That objective must be to isolate the asylum issue from general questions of immigration and place it firmly where it belongs – out of politics and sympathetically established in the minds and hearts of all people of goodwill.

Last updated Jul 25, 2011