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.

After registering as asylum seekers, claimants must present their case for protection under the 1951 UN Convention to the Immigration and Nationality Directorate of the Home Office. They have to show that ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ they are ‘unable or, owing to such fear, unwilling to avail themselves of the protection’ of their country of origin. To do this, they need a solicitor. But legal resources for asylum cases have been radically reduced.

In February 2004, the Constitutional Affairs Committee observed that ‘it is hard to overemphasise how far Home Office procedures would have to improve to reach a standard where they could command such confidence that legal help to applicants could be cut.’ At that point there were no limits on legal aid, though professional guidelines recommended around 15 hours for an initial claim and 12 for an appeal. But since April last year, three months after the committee’s report was published, solicitors claiming legal aid for initial asylum claims have been funded for a maximum of five hours’ work per case. The Legal Services Commission (LSC) will allow further funds if necessary, but proving this is itself costly and time-consuming.

Declan O’Dempsey, a barrister with extensive experience of presenting asylum cases at all levels, estimates that a solicitor will usually need to spend three hours or so with a client to complete a Statement of Evidence Form, which most asylum seekers have to fill in before they are interviewed about their claim. ‘Sometimes it might be as much as five hours, but solicitors will record only three on the file,’ he told me, ‘because of fear that the Legal Services Commission won’t accept it. If they take longer than that,’ he said, ‘they’ll be criticised on audit. Of course it takes longer when an interpreter is involved.’

Completing the form is only one part of the process of preparing an asylum claim, which also involves interviewing the client to clarify the details of their story, gathering written evidence (such as proof of membership of a political party), and where necessary commissioning reports from medical experts and experts on the claimant’s country of origin. The LSC’s internal guidelines acknowledge that the preparation of initial claims can take up to 17 hours and that preparing appeals may regularly take up to 13 hours.

Wesley Gryk runs one of the leading law firms in the field of immigration and asylum; the firm wins between 80 and 90 per cent of its immigration appeals. During the consultation period on the Department of Constitutional Affairs’ new five-hour limit on legal aid Gryk used a sample of his cases to demonstrate that he spent between ten and twenty hours on the preparation of an initial claim, and between twenty and thirty hours on an appeal. Since the new rules came into force, Gryk’s firm, like several others, has withdrawn from legal aid work, dramatically reducing the availability of good legal advice.

And asylum claimants need all the help they can get: last year, the Home Affairs Committee told the Home Office to improve its performance in asylum cases. Roughly 20 per cent of asylum refusals are overturned on appeal. In 2004, the figure was 44 per cent for Somalis and 40 per cent for Sudanese.

Soumaro (not his real name) is from Côte d’Ivoire. He is 28 years old and married with two young children. In 1999 he joined the Rassemblement des Républicains (RDR), one of the country’s main opposition parties, and began arranging meetings and demonstrations. He was arrested and imprisoned for ten months. In jail, he was beaten with batons and whips, hung from his wrists, burned with matches and cigarettes, and raped.

When he came to the UK in 2002, he was taken to Oakington Reception Centre, where the Immigration Service processes the claims of people it believes, usually on the basis of their nationality, to have cases ‘straightforward’ enough to be dispatched within ten days. Almost all Oakington cases are refused. The letter informing Soumaro of his refusal stated that the home secretary found it ‘unlikely’ that he had been targeted and tortured as he claimed because he was a ‘low level activist’ and therefore not likely to be ‘of interest’ to the authorities in Côte d’Ivoire. He appealed twice and lost.

In the summer of 2003 Soumaro found a new solicitor, who put in a fresh application for asylum on the grounds that there was enough new evidence about his membership of the RDR, and about his rape and torture and consequent mental disturbance, to make what was effectively a new claim. The solicitor commissioned a report from a psychiatrist, who diagnosed Soumaro with post-traumatic stress disorder and severe depression. The doctor observed that he had been severely mentally ill throughout his time in the UK, including during his asylum interviews.

It took a year for the Home Office to respond to the new application. It was then refused, on the grounds that the medical evidence of torture and letters from the RDR secretary-general in Côte d’Ivoire confirming Soumaro’s active membership did not amount to new evidence.

One problem for Home Office caseworkers is the quality of the information they are given concerning an asylum seeker’s country of origin. The in-house source, the Country Information and Policy Unit (CIPU), was the subject of a heavily critical report published in September 2004 by the Immigration Advisory Service (an NGO which offers legal support for asylum seekers and other immigrants). Of the 23 reports examined, 12 were found to contain misleading information and therefore ‘could not be described as objective or impartial’. The report on Nigeria contained positive assessments of police behaviour and asserted that the government’s use of the armed forces against its own people had diminished, while all the sources it cited stated the opposite. IAS concluded that the Nigeria report was not a reliable document.

In an earlier study, IAS found that the country reports displayed a tendency to ‘take information supplied by the governmental bodies of the countries and legislation at face value’. This tendency can also be seen in some asylum decisions. According to Amnesty, in Algeria torture is repeatedly used by the security forces on activists arrested at anti-government demonstrations. But a letter sent in 2003 rejecting an asylum claimant who said he had been raped and tortured in detention in Algeria stated that ‘the secretary of state … does not accept’ that rape and torture are ‘evidence of persecution within the terms of the United Nations Convention. The secretary of state further notes that the Algerian government does not condone such violations.’

In July last year, the Independent Race Monitor, who reports annually to Parliament on whether immigration staff are discriminating on grounds of nationality, ethnic or national origin, observed that Home Office caseworkers can become ‘case-hardened by nationality’. This, she added, might explain the high rate of success on appeal of claims from Somalia, Eritrea, Ethiopia and Zimbabwe that had initially been refused. A Home Office caseworker interviewed for a report on asylum decision-making published by Amnesty last year said:

If I’m dealing with a difficult country I may have to grant status, but run-of-the-mill countries, I know what to expect … For an Algerian case, I’ll read the Country Assessment and Operational Guidance Notes and then I’ll decide to refuse. I’ll check to see if there are any standard paragraphs and insert these together with anything else on credibility and general paragraphs … After a few cases, I don’t tend to refer to the Country Assessment or the OGN anymore and I just use the standard paragraphs.

‘Credibility’ is an important word in asylum casework. An assertion that a claimant is not ‘credible’, based on assumptions about aspects of his account unrelated to the claim itself, will typically be used to dismiss it. This approach was formally endorsed by the 2004 Asylum and Immigration Act. Caseworkers considering statements made in support of claims are now required to take into account ‘behaviour’ that is thought to be ‘damaging to the applicant’s credibility’. These include not claiming asylum somewhere else first. There is nothing in international law that says someone fleeing persecution should claim asylum in a particular country, nor is it reasonable to expect them to do so, since many people are brought by traffickers straight to the UK.

Once a claim has been refused, and most are, the next stage is to appeal the refusal. Last year’s cuts mean that only four hours’ worth of legal aid can now be claimed for an appeal. I asked Declan O’Dempsey about the effects this had had on solicitors:

Firms have gone out of business. These changes have made what is a sensitive area of work much, much more difficult, unless you are prepared to do it at a less than cost-effective rate. The statistics show that there is a problem at the first level of decision-making, that the Home Office is making push-button decisions … you get such classics as the wrong country being considered. You can’t appeal against the lack of logic in a decision letter, the adjudicators treat them as if a decision hasn’t been made. You may have to do a lot of research into the country and the facts of the area to prepare an appeal effectively. You might have to show that either the person’s case was in tune with what the Home Office knew already (because they had failed to read their own reports properly) or you have to go to other sources – which means a couple of hours on the internet. The statistics show that appeals do succeed in sufficient numbers to make it worrying that the kind of work that needs to be done on them now can’t be.

I asked him what he thought the long-term effects might be. ‘The politicians will get better stats on appeal: wins will go down because cases that could succeed on appeal will simply not be taken.’

Even in cases where a solicitor is willing to take a case to appeal, there are other new difficulties. Barbara (not her real name) worked on a white farm in Zimbabwe and was smuggled to the UK by an associate of her employer in 2001 after she was assaulted and her life threatened by Zanu PF supporters. Telling the Home Office interviewers what had been done to her was difficult: ‘I didn’t want to talk, it makes me cry, I couldn’t talk about it, it was very painful.’ Her claim was rejected. She told me that when she went to sign on at the police station after the refusal – asylum seekers have to do this at regular intervals – she was told to ‘come back tomorrow, there will be a plane at eight o’clock in the morning, you will go home.’

For all except a small minority of firms, the decision to appeal on legal aid no longer rests with the solicitor, but with the LSC, which applies a ‘merits test’, judging the likelihood of success, and grants or withholds legal aid accordingly.* Barbara’s solicitors applied to the LSC for funding, and the threatened removal was averted. But the funding was refused, and her solicitor abandoned her file without informing her. Barbara arrived at her court hearing to find no one there to represent her. ‘I went to the court and I was on my own. But I knew what had happened to me, I thought – I’ve got nothing to fear now, I’m going to tell my story.’ She lost the appeal.

The LSC declined to fund Barbara’s solicitors for the appeal on the grounds that she could have moved elsewhere in Zimbabwe to escape danger and seeking asylum in the UK was unnecessary. This argument, which has been used to reject other applications from Zimbabwe, is considered absurd by Zimbabwe experts, given the state of the country at that time. But perhaps more important than the quality of the argument is who is making it. Now that the LSC, and not asylum seekers’ legal representatives, usually decides whether a case has enough merit to be taken further, appeals are being decided by a funding body, not a court.

Until recently, if a claimant did manage to bring a case to appeal but lost it, she could appeal that decision in the Immigration Appeal Tribunal (IAT). But the 2004 Asylum and Immigration Act replaced this arrangement with the single-tier Asylum and Immigration Tribunal (AIT), whose decisions may be sent to the High Court for review only if there is thought to have been an error in law. The High Court may then send the case back to the tribunal for reconsideration: it cannot itself reverse the decision. Of the cases brought before the IAT in 2002, a third were granted leave to appeal the decision of their first appeal. Of those, almost 60 per cent were won or referred back to the original adjudicator for reconsideration. This doesn’t increase one’s faith in the judicial safety of the new single-tier structure.

And from next month, if an asylum seeker wants a tribunal decision reconsidered, the legal aid funding arrangements will be such that the claimant’s representative will not know, until after the case has been sent back by the High Court and reconsidered by the AIT, whether or not they have been funded for the review application: if it is successful, and the original tribunal decision is revised, or if it is unsuccessful but is deemed to have had a ‘significant prospect of success’, funds will be granted. If not, the solicitor will not be paid. In effect, a tribunal judge can decide that legal aid was not justified even in a case a High Court judge has deemed worthy of reconsideration. This arrangement has been criticised by the Joint Committee on Human Rights and senior judges on the grounds that the potential for financial disaster for solicitors is so great that people with strong claims will not be able to find representation.

Two months after Soumaro lost his appeal, he was arrested by immigration officials and put in a police cell for three days. He was then sent to Tinsley House Removal Centre near Gatwick, to be flown back to Côte d’Ivoire. The day before he was due to go, he was told the flight had been cancelled; there were to be no more flights to Côte d’Ivoire for the foreseeable future because of the civil war. But he was not released. After a month in Tinsley House, he was transferred to a removal centre in Dover, where he spent another month. He was not told he could apply for bail, and his solicitor never applied on his behalf. Bail for Immigration Detainees (BID), a small charity that takes on such cases, tried to help him. The Immigration Service did not allow him to attend any of the hearings, and all BID’s applications were refused.

The latest statistics, published by the Home Office in February, show that there are 1515 asylum seekers and ex-asylum seekers in Immigration Service detention. Government policy is to expand capacity to around three thousand places. (In 1993, there were 250.)

The 1971 Immigration Act provides the Immigration Service with the power to detain immigrants in order to check their identity, if there is reason to think they will abscond, or if they are shortly to be removed from the country and are waiting for travel documents. In practice, the use of detention is more or less indiscriminate. There is no statutory time limit on it and no automatic judicial oversight. An asylum seeker can be detained at any stage in the process, and detention is increasingly being used from the beginning of an asylum seeker’s claim as part of the policy to ‘fast-track’ more cases.

Once they are locked up by the Immigration Service, asylum seekers not only don’t know when they are going to be let out; very often, they don’t know why they have been detained. The 1998 White Paper ‘Faster, Fairer, Firmer’ recommended that ‘written reasons for detention should be given in all cases at the time of detention and thereafter at monthly intervals,’ but in a report published in April 2003, the Prisons Inspectorate stated that ‘reviews of detention, if they took place, were not effectively communicated to detainees.’ Detentions can be lengthy: a sample of BID’s files from the first half of 2002 showed an average of four months’ detention without scrutiny by a court, and a total average period of detention of five months.

Clarence, a Zimbabwean, was bailed by BID after spending seven months in a removal centre. He arrived in Britain on his own passport in 2001 and claimed asylum at the airport. He was detained immediately on the grounds that he was ‘liable to abscond’, even though he had not been in the country before and was not known to the Immigration Service. There is no legal requirement to provide surety for release on bail, yet Clarence’s release was at first opposed on the grounds that he had a cousin who lived in London who had failed to come forward as a surety.

At a later bail hearing, the Home Office argued that, since his asylum appeal had been dismissed and he was awaiting a decision from the court, Clarence had no incentive to stay in contact with immigration officials. But the Immigration Service’s own instructions state that an outstanding decision is an incentive to keep in contact. Clarence was finally released at his second hearing.

In 1998, the UN Working Group on Arbitrary Detention reported to the Home Office on how it could prevent its immigration detentions from being arbitrary. There should be ‘an absolute maximum duration’ of detention ‘specified by law’, and ‘prompt, independent and impartial’ reviews of each decision to detain. The group made it clear that detention should be a last resort, and used for the shortest possible period. On these terms, the use of detention in this country could still be defined as arbitrary, seven years after the recommendations were made.

When a detainee tries to get bail, a major part of his legal representative’s or charity’s work when preparing the bail application is to extract the reasons for detention from the Immigration Service before the hearing. Inquiries are routinely stonewalled, but sometimes there is inadvertent disclosure: when BID was investigating the detention of a man in Oakington, an immigration officer revealed that he was held because he was a ‘young, single male with no ties in the UK’. This description fits the majority of asylum seekers, and bears no relation to the reasons for detention set out in the 1971 Act that gives the Immigration Service their right to detain. Nor does it represent the ‘strong grounds for believing that a person will not comply with conditions of temporary admission’ that the Immigration Service officially requires for detention to be justified.

Despite UNHCR guidance, adjudicators will often not allow release on bail without thousands of pounds’ worth of surety. As a result, many, perhaps most, solicitors representing detained immigrants will not handle bail applications for their clients. People can be, and are, locked up in detention centres without ever getting an opportunity to seek their liberty.

And since October 2001, the UNHCR’s ‘unequivocal opposition to the detention of children seeking asylum’ notwithstanding, a policy change has made children liable for detention along with their parents. In July 2002 Lord Filkin of the Department for Constitutional Affairs observed that where immigration is concerned the ‘Convention on the Rights of the Child is not binding on the UK … and there is therefore no requirement to make the best interests of the child a primary consideration.’ In December, 25 children were being held in immigration detention. The Chief Inspector of Prisons, Anne Owers, states that it is HMIP policy that detention of children should be an ‘exceptional’ measure, yet the Home Office opened a 232-bed family unit at Yarl’s Wood Removal Centre in January, more than doubling the total number of family detention spaces. Owers also recommends that children should not be detained for more than ‘a matter of days’. Presumably she didn’t mean the 129, 143 and 165-day periods that three families helped by BID spent in removal centres in the past year.

The Immigration Service defends detention on the grounds that a significant proportion of the immigrants treated this way, including pregnant women and families with children, would run away if released. It has not commissioned research on absconding rates, and the only research done in this country, published by South Bank University in June 2002, found that 90 per cent of immigration detainees bailed in the past year had complied with the conditions of their bail. A much larger sample taken by the Immigration Service’s counterpart in the US gave similar figures.

BID and other organisations have shown that secret ‘special exercises’ targeting specific nationalities have in the past formed part of detention policy. In a research paper dealing with the way the decision to detain immigrants is made, published in 2000, immigration officers described how they worked: ‘If there has been a particular influx from that country – perhaps as a deterrent factor … we have been told in the past to detain all Chinese asylum seekers until further notice. If we’re told to do that, we’ll do it.’ BID believes that an exercise of that sort was mounted against Zimbabweans from the end of 2000 to the beginning of 2002, at the height of British media coverage of the human rights abuses of the Mugabe regime.

The media designation of asylum seekers as ‘bogus’ or ‘genuine’ has been internalised by the system. The growing use of detention legitimises the procedural division of asylum seekers into the honest and the dishonest. Restrictive border controls mean that asylum is one of the few ways people from poor countries can come to the UK, and so it is clearly the case that a proportion of asylum seekers are economic migrants. But the system is constructed on the false premise that a very large number of asylum seekers are ‘abusing the system’. Policy must be consistent with political myth.

When a person puts in a claim for asylum in this country, they submit themselves for judgment to a number of authorities who assess their integrity and draw implicit conclusions about the validity of their asylum claim on the basis of that character assessment, often before the claim even reaches the caseworker charged with taking the decision.

When detention centres were renamed removal centres in 2002, the late Lib-Dem peer Earl Russell proposed renaming them ‘holding’ centres instead. Lord Bassam, who was defending the bill, was asked by another peer why public signposts to some detention centres, and letterheads used by them, already said ‘removal centre’, when the clause that proposed the name change was under debate and the bill still in Parliament. ‘The change was made on the direction of the home secretary,’ Lord Bassam said. Earl Russell withdrew his amendment:

What is the purpose of the clause? Why not delete it altogether if we do not need it? If we do not make the law, what are we all doing sitting here at this time of night pretending that we are trying to change matters that are being altered without so much as a by your leave from any noble lord?

It is absolutely vital that justice should not only be done, but should be seen to be done. That means that when people’s claims for asylum come up for hearing they should believe that whether their claims are successful depends on the evidence that they offer and the legal justice of their case. If people are put straight into places that are labelled removal centres, that argument cannot be made. One cannot claim to be conducting impartial justice because one has announced to the world at large, in capital letters and printed on signs, that one is doing no such thing.

Because many of the rules that govern asylum seekers themselves exist because of the assumption that a significant proportion of those to whom they are applied are up to no good (‘bogus’, dishonest), they operate in such a way as to reinforce that assumption. In the same way, the more space there is in which to lock up asylum seekers ‘liable to abscond’, the more people will be found to fill it, and the less money made available for ‘unfounded’ asylum appeals, the fewer cases will be deemed eligible for the diminished funds.

A month after his transfer from detention in Gatwick, Soumaro was suddenly released from Dover Removal Centre without explanation. When they let him out, the immigration officers gave him the address of the family of one of his fellow detainees and told him to go there. He doesn’t know why they did this, as they knew it wasn’t his address. He protested, but was advised by a security guard to comply because if he didn’t, the officers could put him on the next plane out of the country.

So he left Dover with the travel vouchers he had been given to get him to London. He got to Victoria and slept at the station. The next day, he called his caseworker at the Refugee Council, who met him and gave him £10 and an A-Z so he could get to the address he had been given. It was a family home in Edmonton. The people who lived there were sympathetic, but couldn’t help. Soumaro’s caseworker contacted NASS, who offered him ‘hard case’ support at the Ealing YMCA. This is cashless bed and board and its provision is conditional on the recipient’s agreeing to leave the country. At the YMCA, Soumaro was told to ‘sign to go back’. He did. But then he changed his mind, and was thrown out. He was homeless for about three weeks. Eventually he managed to make contact with a volunteer with the Bail Circle, a group that provides sureties for asylum detainees, who took Soumaro into her home for two months, and helped him find a competent solicitor who prepared a fresh application.

When that application was refused after a year’s silence, Soumaro’s solicitor put in for legal aid for a judicial review in the High Court. In September last year, she got a letter from the LSC declining the funds to pursue the application. Soumaro received a letter that said: ‘It is no longer reasonable for you to receive funding because you are requiring the case to be conducted unreasonably … your legal aid is cancelled and we may seek to recover all legal costs from you.’ Then his solicitor received another letter allowing the costs. She called the LSC for clarification and was told the first letters had been sent out by mistake. Soumaro is now staying in ‘hard case’ accommodation in East London; he is required to sign on each week. He has been told he may lose his accommodation at any time, and he fears arrest each time he signs on.

Soumaro does not know how his attempt to find refuge in the UK will end. His case has been remitted for a fresh hearing but his psychiatrist believes he is ‘not fit to be cross-examined, as he continues to show suicidal tendencies when under stress’. For many asylum seekers, the long and wearing process culminates in removal. For all the home secretary’s pugnacious talk of brisk removals, there are thousands of claimants whose cases are in limbo because they have been refused asylum, but cannot be sent back because they would be in danger. Under the provisions of the 2004 Asylum and Immigration Act, they must do unpaid community service in return for bed and board. If they don’t, they go hungry.

The bill that was the basis of this act had only a three-week consultation period; nine weeks fewer than the period recommended by the Cabinet Office. On 8 June last year, the community service requirement was introduced to the bill along with other provisions as a late amendment; so late that the bill could not go through the usual parliamentary procedures. The final Commons debate was subject to a guillotine motion that limited it to five hours, and royal assent was given on 22 July 2004. Six months later, with an election in sight, we are being presented with more ‘fast-track’ procedures which do not allow lawyers enough time to prepare cases, and the continuation of forced returns to countries including Somalia, Iraq and Zimbabwe. All this, presumably, is intended to fulfil Tony Blair’s election pledge: ‘your country’s borders protected.’ The experiences of Soumaro, Ibrahimi and Barbara with the asylum system may yet come to seem relatively mild.

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Vol. 27 No. 7 · 31 March 2005

Katharine Fletcher’s account of the ‘obstacles to seeking asylum’ in Britain is misleading in important ways and places (LRB, 17 March). We know there is torture and persecution going on in the world. We know the victims find their way to Britain – and we are proud that they see it as a place of refuge. This pride turns to shame when we think of them spending months on minimal benefits trying to convince a cynical bureaucracy of their suffering. They deserve better.

But saying they deserve better is different from saying that making it harder for them to qualify for benefits, or increasing the burden of proof, are likely to stop them applying. And yet the striking effect of these changes over the last couple of years has been not on how many claims or appeals succeed but on how many applications are made in the first place.

If the policy is taken at face value, as motivated by a genuine desire to reduce unfounded claims rather than merely to buy off the right-wing media, then rather than being ‘self-defeating’ it actually looks like a success. Moreover, rather than being a mere ‘political strategy’ it looks like a government doing what governments are obliged to do: ensure the law is applied and taxpayers’ money is going to the people who are entitled to it.

Similarly, the distinctions between bogus/ genuine or honest/dishonest asylum seekers cannot be dismissed as mere ‘media designations’. True, there are different shades of ‘dishonesty’ here. They range from, at one extreme, the pretty disgraceful practice of claiming asylum benefits in two EU states simultaneously, or claiming them in one state having been granted refugee status in another; to, at the other, the much more excusable practice of claiming asylum without benefits purely to buy some breathing space to find illegal work.

You wouldn’t guess from the right-wing media that it is the second rather than the first kind which is typical. But in trying to correct this impression we shouldn’t imply that the second kind of case is completely harmless. True, these are not bad people. At bottom they are trying to do what governments around the world exhort young people to do – seek out opportunities and work to better their lot. They are not spongers: often they don’t even apply for the benefits they are entitled to. If they don’t pay tax either, this is usually down to their employer. Overall they probably make a positive contribution to the economy, working in jobs which are hard, often dangerous and badly paid.

But their admirable motives and hard work can’t justify ignoring the fact that they are seeking an unfair advantage over those who apply to come here legally, that they are freeloading by using public services without paying taxes, and most important, that they are abusing the immigration system. Now, many who criticise asylum policy from the left would like to see that wider system relaxed. But conflating that question with the question of whether, until that happens, the current laws should be enforced, is wrong both in principle and in practice. A more sophisticated tack would be to concede that the government’s reforms are not just about stinginess or pandering to the mob but are motivated at least partly by the entirely proper desire to eliminate injustice, but then argue that the price of doing so is to create a greater injustice, that of genuine refugees being turned away.

There must be some kind of trade-off between ensuring genuine refugees are given protection, and eliminating abuse of the system. Fletcher’s case studies remind us of the individual cost of changes in policy or its application, but by their nature cannot tell us anything about the aggregate effects for which governments are rightly held responsible. We need some sense of the numbers, and here Fletcher lets us down. How, for example, are we supposed to square her claim that ‘the system is constructed on the false premise that a very large number of asylum seekers are “abusing the system"’ with her acknowledgment that ‘it is clearly the case that a proportion of asylum seekers are economic migrants.’ Are we simply meant to infer that this ‘proportion’ does not count as ‘very large’?

When she does give us numbers, too often they are out of context. She believes immigration officials are being overzealous in applying the new law against destroying travel documents and passports before claiming asylum. Fletcher cites the 170 people charged in the first four months – but fails to put this in context of the thousands who could potentially have been charged. A prosecution rate of 5 per cent is not by itself evidence that the law is being applied unreasonably. Similarly, she takes her figures on the time asylum seekers are detained – between 129 and 165 days – from the organisation Bail for Immigration Detainees, who naturally concentrate on those detained the longest. In fact, only 10 to 20 per cent of asylum seekers are detained for the kind of time Fletcher presents as typical.

Matt Cavanagh
Former Government Adviser on Asylum and Immigration, London SW1

Vol. 27 No. 8 · 21 April 2005

Matt Cavanagh writes that the majority of ‘abusers’ of the asylum system are trying ‘to buy some breathing space to find illegal work’, and that ‘there must be some kind of trade-off between ensuring genuine refugees are given protection, and eliminating abuse of the system’ (Letters, 31 March). Most failed asylum-seekers are, in fact, people in need of protection, but who do not meet the stringent requirements of the UN Convention on Refugees. Many of my clients come into this category: the 21-year-old Roma woman, for instance, who claimed asylum because the systematic discrimination she suffered in her own country left her unemployed, marginalised and frightened to walk down the street; or the woman from Sierra Leone who watched her four-year-old daughter bleed to death after her hands had been chopped off, and wanted to work to take her mind off the memory. The former was refused asylum because the discrimination she had suffered did not reach the level of persecution required by the Convention, and the latter because the civil war in Sierra Leone was over, and there was no future risk from which she needed protection. Neither woman was a refugee according to the UK’s interpretation of the Convention, but they weren’t straightforward economic migrants either. One’s confidence in the asylum system is not increased when a former government adviser oversimplifies the issues involved in the way that Cavanagh does.

There cannot be ‘some kind of trade-off’: this is a matter of Britain’s legal obligations. As government policy stands – with off-shore controls preventing people from reaching the UK, and officials slapping visa requirements on nationals as soon as it becomes clear that large numbers will require protection (as in the cases of Colombia, Zimbabwe and Jamaica) – any trade-off is not favouring those Cavanagh calls ‘genuine refugees’. Next to nothing has been done to ensure that they are ‘given protection’. The government resettled only 60 of a promised 500 refugees in the first year of the Gateway Protection Scheme. It has ignored calls to fast-track those likely to be ‘genuine’ refugees and instead concentrated on increasing capacity to fast-track those it thinks unlikely to have well-founded claims. It has pumped money and effort into tweaking and tightening the appeal structure, rather than improving the shockingly bad standard of initial decisions.

Natasha Carver
Immigration Advisory Service, London SE1

Vol. 27 No. 9 · 5 May 2005

Matt Cavanagh says that the number of applications for asylum in the UK has been reduced as a result of the government’s asylum policies (Letters, 31 March). The UNHCR, however, reports that the number of asylum seekers has fallen by 40 per cent since 2001 in fifty industrialised countries, and that the movement of refugees is in decline everywhere. While the number of asylum applicants entering the UK has fallen, the proportion granted refugee status has stayed more or less constant, showing that stricter border controls keep out those who are in need of protection as much as those who are not.

Cavanagh implies that I question whether ‘the current laws should be enforced’ at all. But my concern is rather with the proliferation of new laws that inflict arbitrary sanctions on asylum seekers, regardless of the status of their claim. I don’t think, for example, that officials are being ‘overzealous’ in their application of the new law which penalises asylum seekers who don’t have any travel documents when they’re first interviewed by the Immigration Service. I was criticising the law itself (rather than the way it is applied) because it designates as criminal something that is legitimate according to international refugee law.

It is worrying that Cavanagh, a former government adviser, accepts that the case studies I cite ‘remind us of the individual cost of changes in policy or its application’, yet continues to defend those policy changes. I suppose the man who was made homeless by a law that contravened the European Convention on Human Rights, or the survivor of torture who was locked up without adequate explanation by the Immigration Service and whose asylum claim was rejected twice in the face of compelling evidence to support it, are instances of Cavanagh’s ‘trade-off’ between protecting human rights and ‘eliminating abuse of the system’.

According to Cavanagh, ‘the government is ensuring taxpayers’ money is going to the people who are entitled to it.’ But last month a Refugee Survival Trust report, funded by Oxfam, found that ‘administrative errors and procedural delays within the National Asylum Support Service’ are a major cause of destitution among asylum seekers. If Cavanagh was really worried about taxpayers’ money, he wouldn’t support the arbitrary detention of increasing numbers of asylum seekers, a policy which is both expensive and unnecessary. Unjustly punitive policies and incompetent government agencies are the real waste of public resources.

Katharine Fletcher
London SE5

Vol. 27 No. 10 · 19 May 2005

Katharine Fletcher draws attention to the role of ‘incompetent government agencies’ in the application of punitive government policies (Letters, 5 May). As someone frequently called on to produce expert witness reports in regard to the claims of asylum seekers from Africa and the Middle East, I have noticed that Home Office case workers and adjudicators are overworked and often have very little time in which to prepare their cases. Melanie McFadyean, writing in the Guardian on 24 November 2004, quoted one adjudicator as saying that ‘typically … adjudicators get case papers at 10 a.m., hear appeals at 11 a.m., and then have only one day in which to consider four cases.’ Under these circumstances, they are obliged to rely on the Home Office Country Information Policy Unit (CIPU) reports. Often these are simply quoted verbatim, irrespective of their relevance or otherwise to the case in question.

Given this reliance on secondary material (few of the case officers or adjudicators appear to be familiar with the real conditions in the countries from which asylum seekers have fled), it is worrying that the CIPU reports are often woefully inadequate. In an analysis of a range of CIPU reports published in October last year, which Fletcher discussed in her original piece (LRB, 17 March), the Immigration Advisory Services (IAS) expressed ‘serious doubts’ about their validity. They also drew attention to the ‘particularly problematic’ use of ‘out-of-date material’. The government announced measures to improve the standard of country reports, but the effect of this remains to be seen. Furthermore, the number of reports has been reduced from 35 to 20. For the many other countries from which people seek asylum, there is no single up-to-date and accurate source of information for overburdened Home Office officials.

The lack of real knowledge or understanding of the conditions prevailing in many countries from which people are seeking asylum, combined with strong political pressure to reduce the number of those granted asylum, often results in crude and essentially punitive decisions. Many of these are then upheld, often in the face of strong contradictory evidence, resulting in unjust outcomes and in untold harm to those individuals who are sent back. Sometimes, these crude decisions, based on inadequate but ‘acceptable’ reports are, rightly, subject to appeal and further legal proceedings, all of which consume significant public resources. While some of these appeals are successful, of course many are not. But it is by no means clear that the eventual outcomes, taken as a whole, truly reflect the balance between cases where there are real risks of harm to the asylum seeker and those where the risks are limited. The frequent failure to determine the outcome of asylum cases on the basis of adequate, up-to-date information, carefully evaluated by an adjudicator with both the relevant expertise and the time to do the job properly, means that it is hard to argue with any confidence, as Matt Cavanagh does (Letters, 31 March), that ‘tax-payers’ money is going to the people who are entitled to it.’

David Seddon

Vol. 27 No. 18 · 22 September 2005

Natasha Carver of the Immigration Advisory Service in Britain writes that ‘as soon as it becomes clear that large numbers will require protection (as in the cases of Colombia, Zimbabwe and Jamaica)’, United Kingdom officials impose visa requirements (Letters, 21 April). There is simply no basis for the suggestion that large numbers of Jamaican nationals are in need of refugee protection. Nor is there any basis for her uninformed speculation that Jamaican nationals ‘will require’ such protection in the future.

To be sure, Jamaica’s human rights record could be improved, and there are continuing efforts to achieve this. But, as far as the criteria for refugee protection are concerned, there is little scope for the view that individuals face persecution on grounds of their political or other opinions, membership of particular social groups, race, or other factors mentioned in the Refugees Convention and Protocol (to which Jamaica is a party). The number of Jamaican nationals who have sought refugee protection since the country’s independence over forty years ago does not, to my knowledge, enter double figures.

A.J. Nicholson
Attorney General and Minister of Justice Kingston, Jamaica

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