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UK - The worst law yet: the Nationality, Immigration and Asylum Act 2002

28 March 2012

In a test case in February 2003 brought by a number of destitute claimants, the High Court ruled that the government's denial of all support to late asylum claimants was illegal and breached their fundamental human rights. David Blunkett immediately complained that the judges were frustrating his policies and parliament's intention and making a proper asylum policy impossible. An appeal against the decision was rushed forward and was heard on 3 and 4 March.

The test case was brought by a number of refugee organisations against provisions of the Nationality, Immigration and Asylum Act 2002 which came into force on 8 January 2003. Under the new law, adult asylum seekers deemed to have applied for asylum late get nothing at all to keep them alive, unless they have children under 18. The result of the new law was asylum seekers, some physically injured or psychologically disturbed, having to queue for hours in the bitter cold outside the Home Office, and then having to sleep rough because NASS refused to provide them with support on the ground that they should have applied at the port. On the first day of the measure's operation, three people were taken to hospital with hypothermia.

Section 55, which penalises late claimants, was one of a number of ever more draconian measures introduced by government amendment as the Bill went through parliament. The normal process of negotiation resulting in compromise and softening or withdrawal of the tougher provisions was reversed, as the government used the parliamentary process to make a harsh law harsher. Other late amendments disentitled refugees resident elsewhere in Europe, and EU nationals, from social service assistance and support; re-introduced the notorious "white list" of "safe" countries of origin abolished in 1999; and for the first time removed in-country appeal rights from asylum claimants whose claims the Secretary of State deems "clearly unfounded".

Since the "white list" provisions came into force on 7 November 2002, asylum seekers whose claims are deemed 'clearly unfounded' by the Home Office have no right of appeal before removal from the UK. Asylum claims from countries on a list must rebut a presumption that they are clearly unfounded in order to obtain an in-country appeal. The list comprises the ten "accession states" of central and eastern Europe accepted for membership of the EU in 2004 - including the Czech and Slovak republics, Hungary, Poland, Slovenia, Estonia, Latvia and Lithuania. The government argues that the countries on the list are safe and democratic and so no-one coming from them is expected to be a genuine refugee - despite the fact that the Roma populations in at least four of the accession states are the most persecuted group in Europe, enjoying (according to a January 2003 UNDP report) a sub-Saharan standard of living, with one-sixth of them starving and one-third of their children unable to complete primary school, and suffering (according to a UN report) "degrading treatment" by police.

"White list" nationals are detained at Oakington, where they are processed within seven days and can be removed from the country in ten. In one of the first legal challenges under the new regime, the Court of Appeal upheld the Secretary of State's contention that rape of a Roma woman by Czech police was not enough to rebut the presumption that her asylum claim was ill-founded. In February 2003, in response to a sustained anti-asylum seeker campaign by the Sun and the Daily Mail, David Blunkett, the Home Secretary, announced an extension of the "white list" to Albania (where politics can resemble gang warfare), Bulgaria, Jamaica (where the biggest threat is from organised crime), Macedonia, Moldova, Romania (with its large, persecuted Roma population) and Serbia/Montenegro (where ethnic tensions are bubbling and minorities continue to be at risk).

Support and control

The asylum support provisions of the Act further refine the control exercised by NASS (the National Asylum Support Service, the branch of the Home Office responsible for the support of asylum seekers), and blur further the distinction between welfare and policing functions. All asylum seekers who are not detained can be required to go to an induction centre for a fortnight when they make their claim. There they are photographed, fingerprinted, and told what is expected of them during the asylum process. In a recent pilot, 5,000 asylum seekers in an induction centre were subjected to screening for TB - although revealingly, the tests showed up no TB but gunshot, whipping and beating injuries.[1] Asylum seekers may not work (in summer 2002 the government withdrew the concession allowing them to work if the claim took over six months to determine), they are told where to live, and are obliged to report to immigration officers on specified dates on pain on having their claim deemed withdrawn.

Regulations will enable NASS to dictate that the price of support is isolation from refugee communities: asylum seekers will no longer be allowed to opt for cash-only support to enable them to stay with friends or relatives, but will have to accept the whole support package, which means going into NASS accommodation - whether the slum inner-city housing, or the new "accommodation centres" to be set up under the 2002 Act. These are large 750-bed camps with their own on-site educational and health facilities, which will isolate destitute asylum seekers further, prevent their integration into local communities and make removal at the end of the process easier. Disciplinary rules will make unauthorised absence from the camps lead to disqualification not just from support but from the entire asylum process.

Asylum seekers forced into utter destitution, excluded by law from any and all support, will clearly be reduced to beggary or crime to survive. But those who steal must beware: under further provisions of the 2002 Act, refugees and asylum seekers who commit offences for which they are sentenced to two years imprisonment are to be deemed a danger to the community, with the result that their refugee status can be revoked or their claim discontinued.

Information-gathering

The 2002 Act contains further policing powers for immigration officers and information gathering by the Home Office. The Tories introduced fingerprinting for asylum seekers in 1993, as part of the pan-European control of asylum claimants through the 1990 Dublin Convention - designed to prevent asylum seekers claiming in more than one EU member state, and the Eurodac Convention enabling exchange of fingerprint data to prevent multiple claims. Under the new Act, Labour takes the principle further, by enabling immigration officers to require asylum seekers and others to provide iris imprints. The 1999 Act allowed Home Office officials to compel airlines to provide passenger lists and details of flights carrying non-EEA passengers, registrars to disclose "suspicious marriages" between EEA nationals and non-EEA nationals, the Post Office to disclose redirection notices for asylum seekers' mail (to ensure they had not moved from the dispersal addresses). Now, an "authority to carry" scheme under the new Act requires carriers to seek advance authorisation before allowing passengers to board aircraft. Regulations under the 2002 Act will allow the Home Office to require carriers to key in details of all passengers in advance, to obtain Immigration Department authorisation to bring them into the country, and to prevent passengers boarding if the authority to carry is not given. Operational measures not put into legislation allows the screening of all asylum seekers for "terrorist" connections, which gives security services a central role in visa, asylum and residence applications - the very same police and security services who are collaborating with their counterparts in torturing countries like Turkey, Algeria, Sri Lanka, Pakistan, India, Egypt, Saudi Arabia and Morocco.

Detention upheld

The 2002 Act also gives immigration officers all the powers of police officers to make arrests of those believed to be in breach of conditions, to search people, homes and business premises, to seize material, to use "reasonable force" and to detain on suspicion. Many more asylum seekers, including families with young children, are detained as the government's immigration detention centres continues its four-fold expansion. The 2002 Act renamed detention centres "removal centres" - although detainees are still held for months in grim conditions before being removed. The Act repealed never-implemented provisions for automatic bail hearings for asylum seekers in the 1999 Act, ending the stillborn right to bail for asylum seekers which was meant to give them similar protection to that of criminal defendants.

In October 2001, the High Court had ruled that detention of asylum seekers who were not suspected of wanting to abscond was arbitrary, and a breach of the European Human Rights Convention. A year later, the House of Lords upheld the government's right to detain any asylum seeker in Oakington and similar short-term detention centres for up to seven days to decide their claims. As the House of Lords extinguished the last hopes of those who believed that Australian-style detention could not happen here, the Court of Appeal held that there was nothing unlawful about the indefinite detention of foreigners suspected of being "international terrorists" under the Anti-Terrorism, Crime and Security Act 2001. The judges endorsed David Blunkett's declaration that a "public emergency threatening the life of the nation" exists so as to justify derogation from fundamental human rights guarantees which prohibit such open-ended detention, and held that it was perfectly permissible to discriminate against foreigners in doing so. In earlier cases on national security detention, the courts have ruled that the ministers know so much more than they do about the issues that they should not presume to overrule them on what constitutes a threat to national security.[2]

National security and naturalisation

The 2002 Act also brings political criteria into citizenship procedures. To naturalise as a British citizen, candidates must now possess not only a clean criminal record and adequate knowledge of the language, but also an understanding of 'democratic' values assumed to be uniquely British, and British citizens can have their citizenship withdrawn if they do anything the Home Office considers seriously prejudicial to British interests.

No to human rights

In the run-up to Christmas 2002, Beverley Hughes, Home Office Minister, denounced the fact that large numbers of asylum seekers were being granted exceptional leave to remain after their asylum claims were rejected. An "unacceptable" increase in the numbers - mainly Zimbabweans, Somalis and Iraqis - being allowed to stay on humanitarian grounds caused such alarm that the minister announced plans to abolish exceptional leave to remain and replace it with something called "humanitarian protection", which was to be granted only if a person's removal would be unlawful under the UK's international human rights obligations.[3] Even this guarantee of compliance with human rights obligations was questioned in January by Tony Blair, the Prime Minster, unless asylum seekers' numbers came down by half by the end of the summer, the government would consider opting out of fundamental human rights commitments under the European Convention on Human Rights.[4]

Footnotes

1. Guardian 7 February 2003.
2. In Rehman v Secretary of State for the Home Department [2002] Immigration Appeal Reports 98.
3. Guardian 30 November 2002.
4. Guardian 28 January 2003.

This feature first appeared in Statewatch bulletin, January-February 2003

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