Background
The Asylum and Immigration (Treatment of claimants, etc.) Act 2004 sought to continue the changes introduced in the 1999 and 2002 Acts. In particular the Government changed the previous two tier appeal structure to a single tier. The 2004 Act became law on 22 July 2004.
Undocumented arrivals
Section 2 of the 2004 Act makes it an offence not to have immigration documents establishing identity and nationality when entering the UK, or within three days of such documents being requested at an in-country asylum interview. Offences under Section 2 carry a maximum two year prison sentence. Defences under Section 2 include demonstrating that immigration documents were never used whilst journeying to the UK or that false immigration documents were used. The stated aim of the Government in introducing Section 2 was to stop people destroying documents on arrival in order to frustrate removal.
This measure raises serious concerns about the criminalisation of asylum seekers. In particular there are concerns in relation to Article 31 of the Refugee Convention which states that asylum seekers should not be penalised for seeking entry using false documents in order to pursue an asylum claim. Nevertheless in 2005, 346 people were convicted under this legislation and served an average sentence of three months in prison. In R v Soe Thet on 19 October 2006, the Lord Chief Justice ruled that under Section 2 an offence would only have been committed if the documents destroyed had been valid immigration documents. It is therefore not an offence under Section 2 to destroy false immigration documents. The Lord Chief Justice described Section 2 as ‘ill drafted but not ambiguous’. As a result of the judgment, it is possible that many cases brought under Section 2 resulted in wrongful convictions and persons convicted should seek legal advice.
Inferences of credibility
Section 8 of the 2004 Act lists sets of behaviours which should be taken into account when assessing an asylum seeker’s credibility for the purpose of their asylum application. The behaviours include failure to produce a passport on request, producing a false passport as if it were valid, destroying passports and travel documents and not claiming asylum while in a safe country. Section 8 was the first time that asylum decision-makers had been compelled by law to draw particular conclusions from particular behaviours. The provision also raises concerns that decisions about protection needs are being judged against applicants’ behaviours whilst travelling to and/or in the UK rather than their experiences in countries of origin.
Withdrawal of support from families
Section 9 extends the Government’s ability to withdraw support from families with children. The 1999 Act, which guaranteed support for families while in the UK, was amended by the 2002 Act so that unsuccessful applicants with families could have support withdrawn once removal directions had been issued against them. The 2004 Act allows support to be withdrawn earlier than this by making cooperation with the removal process a condition of support. If support is withdrawn, the children of affected families may be taken into care by local authorities. This provision raised considerable opposition from both refugee and children’s agencies and has so far only been pursued on a pilot basis. Although Section 9 is not being actively implemented (as of April 2007) the Government has yet to repeal it.
Community service for refused asylum seekers
Refused asylum applicants may be provided with basic board and lodging under Section 4 of the 1999 Act, known as ‘hard cases’ support. Section 10 of the 2004 Act allows the Government to make such support conditional on the performance of unspecified community activities, the principle of which has been likened to that of community service. This provision has not been implemented.
Post-dispersal housing: local connection
Section 11 of the 2004 Act overturns an earlier House of Lords decision by establishing, for the purposes of housing legislation, a local connection between a successful asylum applicant and the area to which he or she was dispersed by the Home Office. This means that someone who needs council housing after being recognised as a refugee will be expected to stay in their dispersal area in order to be eligible for social housing or assistance under homelessness legislation.
Abolition of backdated payments
Section 12 repeals Section 123 of the 1999 Act which required the UK government to reimburse refugees the difference between asylum support and mainstream benefits accrued from the date their asylum claim was made to the date of recognition. This runs counter to provisions in the 1951 Refugee Convention, which state that refugees should not be treated any differently to nationals in terms of welfare provision. Section 13 of the 2004 Act allows the Government to provide integration loans to newly recognised refugees in place of backdated payments.
New single tier asylum appeals
Section 26 made significant changes to the appeals system. It replaced the previous two tier system, made up of immigration adjudicators and the Immigration Appeal Tribunal, with a new single tier tribunal, the Asylum and Immigration Tribunal (AIT). The Government had wanted AIT decisions to be final and free from oversight by the judiciary. However, because this was likely to be defeated in the House of Lords, it backed down and agreed to retain judicial oversight. Though the Government has accepted such oversight in principle, it has put in place significant procedural and practical barriers that effectively undermine it.
Some applicants whose cases are rejected by the AIT can go to the High Court to request the AIT reconsiders its decision. If the case raises important legal issues it may go to the Court of Appeal. Applications for reconsideration review must be made within five days of an AIT refusal. However, Section 103 also gives the Secretary of State for Constitutional Affairs the power to apply a merits test to public funds entitlements. Under these regulations, entitlement to public funds for reviewing and reconsidering applications is determined by a judge retrospectively and effectively amounts to a ‘no win, no fee’ system.
Safe third country removals
Section 33 and Schedule 3 contain several lists of safe third countries to facilitate the Government’s removal targets. The first list designates the 26 EU countries as safe for the purposes of asylum and human rights. This means that an applicant cannot argue that removal to one of these countries undermines their rights because, for example, that country interprets the Refugee Convention differently.
The second list of countries allows applicants to be removed to states (currently unspecified) with which they have no connection. Removal could occur before their cases have been decided. It also designates a list of countries considered to respect both asylum and human rights laws.
The third list of safe countries (currently unspecified) allows applicants to be removed, as above, but countries are designated safe only for the purposes of the 1951 Refugee Convention. Schedule 4 also allows the Government to designate a country as safe for an individual.
New offence of non-cooperation on removals
Section 35 of the 2004 Act requires applicants to cooperate with the removal process and makes non-cooperation a criminal offence, punishable with a maximum two year prison sentence. By April 2007, there has been little evidence of the application of this power but it is one that the Government is intending to use more widely.
Tagging
Section 36 of the 2004 Act provides the Government with the power to carry out electronic monitoring of asylum seekers. The options for this are ‘tagging’, satellite tracking and voice recognition. Tagging is of particular concern since it is highly intrusive and stigmatising because of its associations with criminal activity. In the six month period between January and June 2006, 184 people were tagged.
Additional powers for OISC
Section 38 of the 2004 Act provides the Office of the Immigration Services Commissioner (OISC) with additional investigative powers to regulate immigration advice providers.
