A Minimum of Charity

Katharine Fletcher

Alongside cutting crime, hospital waiting-lists and taxes, cutting the number of asylum seekers can be depended on to rank high among pre-election promises. This year, the Tories’ cap on refugee numbers has jousted with the home secretary’s proposals to remove the right of recognised refugees to remain in Britain unconditionally, to lock up more asylum seekers while their claims are considered, and to allow the return of unaccompanied children to their countries of origin.

In 2003, 180,000 people, with their dependants, entered Britain to work, 319,000 came to study, and 49,000 claimed asylum. Last year, 33,930 people claimed asylum (full immigration statistics for 2004 are not yet available). Proportionate to other immigrants, asylum seekers are a small group. But theirs is, as it has been for a long time, the most politically provocative immigrant category by far.

The 1951 UN Convention on Refugees imposes a legal duty on states not to ‘expel or return a refugee … to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. This means that asylum cannot be subject to the same state control as other kinds of immigration. Short of following the legally fraught Tory route of seceding from the convention, no government can get the numbers down if the numbers of those who fit the terms of the UN Convention are not diminishing. This in part accounts for the obsessive hold asylum has on the imagination of a press and a public wary of immigration.

The usual government strategy for dealing with the tension between international obligation and public unease has been to accept the terms of the media discussion. Hence the endless talk of ‘abusive’ applicants and the endless promises of clampdowns: the only way to be seen to be bringing the numbers down without being seen to be sending refugees back into danger is to assert that asylum seekers in general are lying.

As a political strategy this is self-defeating, because, to be effective, it relies on the impossibility of satisfying the public’s appetite for crackdowns: the more the government tells people that the great majority of those seeking asylum do not need it, the more asylum seekers it will be expected to remove or prevent from arriving, and thus the more work it will give itself which it cannot complete in a way that satisfies both international law and public opinion. This is one reason why three major asylum acts have been passed in six years.

For most asylum seekers, the difficulties begin on arrival. Ibrahimi is a 29-year-old Kurd from Iran. He is stocky, with dyed blond hair which is gelled and styled, and a small beard. I met him at the Refugee Council in Brixton, where he does drawings for the charity’s campaign leaflets. He talked quietly and rather shyly through an interpreter. He told me that he came to the UK from Iran hidden in a succession of lorries. He paid a number of agents to organise his passage. He was dropped off in a street in South London in April 2003 and told to tell a policeman he was seeking asylum. He walked around, exhausted and dazed – he hadn’t eaten for three days – and tried to find out from passers-by where to go to ‘ask asylum’. Someone told him how to get to Lunar House, the Immigration Service’s main office, in Croydon. He made his way there on foot, arriving three or four hours after he had been dropped off. He had two interviews at Lunar House: one to take down the basic details of his asylum claim, the other to determine his eligibility for subsistence support from the National Asylum Support Service (NASS).

He then spent three months in emergency accommodation awaiting a decision on whether he would be allowed the 70 per cent of Income Support that NASS offers. Eventually, the decision came: a refusal under Section 55 of the Nationality, Immigration and Asylum Act 2002. ‘The Home Office didn’t believe I had come to UK that day, they thought I had been here longer,’ Ibrahimi said. ‘I did not know I should claim asylum immediately. I couldn’t find where to go … they didn’t believe me.’

Section 55 had come into force on 8 January 2003: asylum seekers who did not apply for asylum ‘as soon as is reasonably practicable’ after arriving in the country would no longer be entitled to food and shelter. In 2003, 9410 people were told they were ineligible for NASS support because they had failed to claim asylum ‘as soon as is reasonably practicable’. Many of these decisions were challenged, and in 67 per cent of the cases submitted for reconsideration by the Inter-Agency Partnership, a group of charities, the initial refusal was judged to have been wrong.

When Ibrahimi received his letter refusing support, the staff at the emergency shelter where he had been staying told him he had to leave. His solicitor said there was nothing to be done. ‘I slept for two nights outside, my solicitor gave me money and a blanket. I slept in a train station and a park.’ Another solicitor, found for him by the Refugee Council, put in for an injunction against the decision to refuse support. It failed, and Ibrahimi was once again on the streets, ‘for fifteen, twenty days’, until he met another Kurdish man, who let him sleep on his floor. He started going to the Refugee Council offices in Brixton because they gave him meals, blankets and clothes. Since 2002, asylum seekers have been forbidden to work, so without NASS, people like Ibrahimi have to rely on whatever charities or religious and community groups can spare.

Ibrahimi became destitute because NASS caseworkers did not believe he had arrived in the country when he said he had. People like him who entered clandestinely were frequently denied support because, in the absence of evidence, caseworkers decided not to believe that they had arrived when they said they had. Many others were refused support because, although NASS accepted that they had applied for asylum soon after arrival, it was not deemed to have been soon enough. What was intended to be a sanction against migrants claiming asylum in order to prolong illegal stays was used against people who had been in the country only a couple of days before asking to be considered as a refugee. ‘Reasonably practicable’ tended to be interpreted to mean that anyone making a claim more than one day after passing through a port of entry was too late.

There are good reasons for asylum seekers not to state their claim on entry: many fear they might be put straight back on a plane out. Others want advice from lawyers or community members before they make an application. The Home Office’s asylum statistics show that a majority of those granted refugee status are ‘in-country’ (i.e. not ‘at port’) applicants. Section 55, at least initially, operated in such a way that it penalised asylum seekers for behaving like ‘genuine’ refugees.

Reports on Section 55’s effects describe people sleeping rough in bins and phone boxes and on pavements outside charities. It was subject to legal challenges throughout 2003, most of which turned on whether the deprivation caused by denying support amounted to ‘inhuman or degrading treatment’ in terms of Article 3 of the European Convention on Human Rights. In December 2003, after a campaign by NGOs against the policy, the home secretary declared that ‘as soon as reasonably practicable’ could be defined as up to three days after arrival; but this was still unreasonable, given that new arrivals are probably anxious and ignorant of the demands of the system.

The judgment that finally disabled the policy was given in the Court of Appeal in May 2004. The court ruled that the government would have to make sure that asylum seekers had an alternative source of support before it withheld NASS money, since a failure to do so would infringe the asylum seekers’ human rights by depriving them of food and shelter. The ruling effectively killed off Section 55: in the last quarter of 2004, all applications for NASS support were granted.

It was a rare defeat for the government: other curbs on asylum seekers’ rights have been more successful. Because most refugees have to travel on false documents to escape the countries where they are persecuted and to get through border controls, Article 31 of the 1951 Convention on Refugees states that they should not be penalised for being in a potential host country illegally as long as they ‘present themselves without delay to the authorities and show good cause for their illegal entry or presence’.

But the Asylum and Immigration Act passed last year stipulates a prison sentence of up to two years for anyone who when first interviewed by an immigration officer doesn’t have any travel documents ‘without reasonable excuse’. One of the most common reasons that asylum seekers don’t have documents is that they are instructed to destroy them by the agents who bring them into the country. This is not, however, recognised as a ‘reasonable excuse’. Between September and the end of January, 172 people were arrested and charged under the provision.

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[*] Around thirty firms are still allowed to decide for themselves whether legal aid is justified. The basis for inclusion on this list isn’t entirely clear: some good firms are included, but so are others with less impressive reputations. The cap on legal aid applies to these firms too and so even they have had to reduce the work done on appeal cases.