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UNHCR Comments on the
2005 Immigration and Nationality Bill
Introduction
The Office of
the United Nations High Commissioner for Refugees (“UNHCR”)
welcomes the opportunity to comment on the Immigration and Nationality
Bill 2005 (“IAN Bill 2005”). We would like to do so
in line with our mandate of providing international protection to
refugees worldwide and our supervisory role under Article 35 of
the 1951 Convention relating to the Status of Refugees (“the
1951 Convention”), which obligates Contracting States to cooperate
with UNHCR in the exercise of its functions. UNHCR commends the
government for the introduction of Clause 39 ("Inspection of
detention facilities") as an important step towards a more
effective monitoring system for immigration detention facilities.
Indeed, UNHCR believes that regularising HM Chief Inspector of Prisons'
existing voluntary oversight of immigration short-term holding facilities
and escort arrangements by placing it on a statutory footing will
not only work to create a more expansive monitoring system, but
also enhance the credibility of the detention and removal process
as a whole. However, it is in the same context that UNHCR would
like to express concern over the current policies regarding the
detention of asylum seekers, particularly those related to asylum
seekers’ right to access judicial review, and the detention
of vulnerable persons amongst this group.
UNHCR’s
view is that the detention of asylum seekers is inherently undesirable,
and that there must be a presumption against its use. UNHCR's Executive
Committee (“ExCom”) – the UNHCR governing and
policy-setting body of which the United Kingdom is a member - has
stated in ExCom Conclusion No. 44 (XXXVIII) that detention measures
taken in respect of asylum seekers should be subject to judicial
or administrative review. Furthermore, in ExCom Conclusion No. 85
(XLIX), the Executive Committee stated that it “deplores that
many countries continue routinely to detain asylum seekers (including
minors) on an arbitrary basis, and for unduly prolonged periods.
"
Individuals
fleeing persecution have a right to seek international protection
from the United Kingdom, and it is UNHCR’s position that the
detention of such individuals should be resorted to only exceptionally
and where such action would be proportionate to the intended objectives.
UNHCR emphasises that alternatives to detention for asylum seekers
should always be considered – and commends the UK Government
for recent steps that it has taken to explore possibilities in this
regard.
In conformity
with ExCom Conclusion No. 44 and UNHCR Guidelines on Applicable
Criteria and Standards relating to the Detention of Asylum-Seekers
(“UNHCR Detention Guidelines”), if no alternatives are
available, the detention of asylum-seekers may be resorted to for
the minimum period of time necessary to:
1) Verify Identity;
2) Determine the elements on which the claim for refugee status
or asylum is based;
3) In cases where asylum seekers have destroyed their travel and/or
identity documents or have used fraudulent documents in order to
mislead the authorities of the State, in which they intend to claim
asylum;
4) To protect national security and public order.
UNHCR also considers
that there are certain categories of people who should never be
detained, due to their particular vulnerability. Those include:
1) Children
Minors who are asylum seekers should not be detained. Where possible
they should be released into the care of family members who already
have residency within the asylum country. Where this is not possible,
alternative arrangements should be made by the competent child care
authorities for unaccompanied and separated minors to receive adequate
accommodation and appropriate supervision. All appropriate alternatives
to detention should be considered in the case of children accompanying
their parents.
2) Other Vulnerable
Persons
Victims of torture, persons with a mental or physical disability,
unaccompanied elderly persons, families with children, and other
individuals with similarly vulnerable backgrounds and characteristics
are also of concern to UNHCR in the context of detention. In the
event that individuals falling within these categories are detained,
UNHCR’s view is that this should only be on the certification
of a qualified medical practitioner that detention will not further
adversely affect their health and well-being.
Current Practice
In December 2001, the United Nations Human Rights Committee, the
body of independent experts that monitors implementation of the
International Covenant on Civil and Political Rights (‘’ICCPR’’)
by its State parties, issued its report on the United Kingdom. In
its concluding observations, the Committee expressed concern that
“asylum seekers have been detained in various facilities on
grounds other than those legitimate under the ICCPR, including reasons
of administrative convenience. ”
UNHCR understands that under current legislation any asylum seeker,
including minors and other vulnerable persons, may be detained at
any stage of their asylum claim, that there is no maximum period
an individual may spend in detention, and that continued detention
of any one individual is subject to internal administrative review
conducted by IND caseworkers and immigration officers only. UNHCR
recognises that an individual is free to apply for bail at any time
during their detention, but also notes that unless an application
for bail is heard in court, an individual’s detention and
the reasons behind it are not subject to judicial scrutiny.
UNHCR further
notes the continued practice of detaining vulnerable individuals.
From Home Office statistics, UNHCR understands that on 26 June 2004,
60 children were being held in UK detention centres. Of these, 5
had already spent between 15 and 29 days in detention, and another
5 between one and two months. Available Home Office statistics further
reveal that on 25 June 2005, 70 of those who were detained solely
under Immigration Act powers were recorded as being under 18 years
old. Of those, 45 had been in detention for 14 days or less, 10
for between 15 and 29 days, and the remainder between one and two
months. In his 8 June 2005 report on his visit to the United Kingdom,
the European Commissioner for Human Rights, Alvaro Gil-Robles, commented
that ”it is worrying… to note both the frequency and
the duration of the detention of children in the United Kingdom,
“ and that “the number of children detained… suggests
that insufficient attention has been paid to the examination of
alternative forms of supervision. ” Mr Gil-Robles’ concerns
about children in detention are mirrored in the work of Her Majesty’s
Chief Inspector of Prisons, Anne Owers, who, in her latest report,
concludes that “the detention of children should be an exceptional
measure … lasting only a few days. ”
Automatic Judicial Review
UNHCR is concerned
at the current lack of judicial oversight in detention decisions.
In order to ensure that the detention of asylum seekers is in conformity
with international standards and that no individual is subjected
to arbitrary detention, UNHCR believes that the detention of each
individual held should be submitted to automatic judicial review.
In Part III of the Immigration and Asylum Act 1999, the United Kingdom
previously made provision for such mechanisms after 7 and 35 days
of detention. UNHCR notes with some disappointment that this piece
of legislation was never brought into force, and was eventually
repealed by the Nationality and Immigration Act 2002.
UNHCR disagrees
with the former Immigration Minister Beverly Hughes’ 4 March
2003 comment to the Select Committee on Home Affairs that the procedural
safeguards of automatic bail hearings afforded by the provision
are “an unnecessarily stringent safeguard … that is
actually unnecessary. ” Indeed, UNHCR believes that in respect
of a matter which concerns so fundamental a right as the right to
individual liberty, it is essential that the opportunity to submit
one’s detention to judicial scrutiny be a real and attainable
procedure, and not only a theoretical possibility. This is particularly
so where the asylum seekers so detained have not been charged with
any criminal offence.
Due to language
barriers, past trauma, uncertainty about the future, and stress
caused by detention, detained asylum seekers may be considered to
be in a particularly vulnerable and disempowered situation. Without
English language skills or legal representation, detainees may not
be aware of their right to apply for bail, or may experience difficulties
accessing it. As such, UNHCR considers that the burden – both
substantive and procedural – should be on the immigration
authorities to substantiate the necessity and proportionality of
an individual’s detention, rather than on the asylum seeker
to demonstrate the grounds on which he or she should be released.
In order to
ensure the compatibility of the UK Government’s policy with
international standards, and UNHCR recommendations, UNHCR urges
for the re-introduction of Part III of the 1999 Asylum and Immigration
Act to the IAN Bill 2005 to be considered, or for the adoption of
a similar policy to ensure that a bail hearing is automatically
triggered in relation to any asylum seeker, once a specified reasonable
and proportionate period of time is passed in detention (eg. two
weeks).
Automatic Judicial Review in the Context of Detention of Vulnerable
Persons
UNHCR is further
concerned about the UK Government’s continued practice of
detaining persons whose profiles indicate they are likely to be
extremely vulnerable.
Given the potentially
devastating negative effects of detention on the physical and psychological
well-being of detainees, it is strongly urged that active consideration
of possible alternatives to detention should precede any decision
to detain asylum seekers who fall within the following, non-exhaustive,
vulnerable categories:
1) Children;
2) Torture or trauma victims;
3) Families with children;
4) Disputed minors;
5) Elderly persons;
5) People who suffered incarceration in their country of origin;
6) Persons with a mental or physical disability.
Due to their
particular vulnerabilities, UNHCR believes that, if alternatives
are exhausted and detention must be utilized, individuals belonging
to the above-mentioned categories should benefit from an automatic
right to bail from the very outset of their detention. It is strongly
recommended that the IAN Bill 2005 be amended to make provision
for this requirement.
Conclusion
The detention
of asylum seekers is inherently undesirable. When it is resorted
to, it should be in accordance with UNHCR’s Detention Guidelines.
UNHCR is concerned that the Home Office’s current policy and
practice may lead to the inappropriate use of detention. It is therefore
vital that automatic judicial review be available for all individuals
throughout their detention, and with immediate effect in the cases
of particularly vulnerable individuals. UNHCR would like to recommend
that provisions to implement this be added to the IAN Bill 2005.
October 2005
UNHCR London
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