Examination of Witnesses

Immigration Bill – in a Public Bill Committee at 2:00 pm on 22nd October 2015.

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Peter Grady, Karl Pike and Andrew Hewett gave evidence.

Q 270

Photo of Peter Bone Peter Bone Conservative, Wellingborough

We will now hear evidence from the Office of the United Nations High Commissioner for Refugees and the British Red Cross. I am afraid that for this session we only have until 3.15 pm. Will the witnesses introduce themselves for the record?

Peter Grady: I am Peter Grady, legal officer at UNCHR.

Karl Pike: I am Karl Pike, the refugees and asylum policy and advocacy manager at the British Red Cross.

Andrew Hewett: I am Andy Hewett, the refugee development manager at the British Red Cross.

Q 271

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

I have three questions. What types of non-asylum cases would be affected by the repeal of section 4(1) of the Immigration and Asylum Act 1999 and can you quantify the number of cases potentially affected?

Andrew Hewett: I do not have the exact figures but our understanding is that the majority of people on section 4 are asylum cases. We could come back to you with some figures and an update on that if that would be helpful.

Peter Grady: I do not have figures for you but it is our understanding that stateless persons could also be affected by the section 4(1) revisions.

Q 272

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

What could the consequences be?

Peter Grady: For stateless persons, if they are denied support?

Peter Grady: They could be driven to destitution. There is that risk, just as there is for others. One of the concerns we outlined in our briefing is that there appear to be no replacement support provisions for stateless persons under section 95A, for example. There is a concern that if section 4 is withdrawn, there would not be a replacement form of support or a dedicated support that could benefit stateless persons in the UK.

Q 273

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

So there would be no other avenues for them?

Peter Grady: There might be other forms of support, as we heard recently, through local authorities in their obligations to individuals, including on human rights grounds, but not through section 4.

Q 274

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

What obstacles to leaving the UK do refused asylum seekers and other irregular migrants face? Which of those should justify eligibility for the proposed section 95A support?

Andrew Hewett: We see examples every day. The British Red Cross supports over 7,000 destitute people a year, some of whom will be able to apply for section 4 support. Some of them will then experience real practical barriers to leaving the UK. I have got some examples. One real, very recent example: a Palestinian male claimed asylum in 2004. He became appeal rights-exhausted the following year, 2005. He applied for assisted voluntary return through the voluntary return scheme; he applied for section 4 support. He was not able to progress his application for voluntary return because there is no direct route into Palestine. Therefore, he was not eligible for section 4 support. He cannot find a solicitor to make a stateless application, so he is really stuck. He has literally spent the last 10 years homeless and destitute in the UK, having pursued every legal avenue. So there are some real practical barriers with challenges to returning people from particular countries that have no embassies in the UK or those with no viable route of return or other practical challenges with documenting or proving their nationality. Where people have proved that they have done as much as they possibly can to effect their own voluntary departure and there are some obstacles in their way, absolutely that needs to be considered.

Q 275

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

The Bill allows extension of support where there is a genuine obstacle, so how do you think genuine obstacles should be defined in the Bill?

Andrew Hewett: We can provide some examples, but I think it would be more useful for the Home Office to consult on what the genuine obstacles should be and define them. At the moment, genuine obstacle is not really defined anywhere, so it is open to interpretation and we see some cases approved, but others are refused because they have not met that threshold. We need further clarification, but certainly where people have tried to pursue voluntary return and there is a bureaucratic or embassy issue, that is one credible example. There are others and we can come back to you with those, but that is the one that springs to mind.

Karl Pike: There is a list of countries where assisted voluntary return is not possible, which I imagine you have seen. It is fairly extensive—there are quite a few countries on it. That would be a good place to start for the people who should definitely get support. There is also a common problem that Andy knows quite a lot about, which is embassies that will not provide travel documents to a person on the basis that they no longer have original ID. Ethiopia is one.

Andrew Hewett: If you are an Eritrean national and the Home Office contests that you are from Eritrea—perhaps it says that you are from Ethiopia—you would be expected to attend both the Eritrean and Ethiopian embassies and almost go through the process of applying for a passport. Then the Home Office would want to see written confirmation from that embassy as to why it cannot issue you with a passport.

Practically, you could make an appointment at the embassy, go down there and go through the process, but neither of those embassies currently provides any written  confirmation. So some of those people are in positions where they have to take an independent witness with them and then that person provides a witness statement to say, “Yes, the person did attend. This is what happened at the embassy” because there is no viable way of getting that confirmation from the embassy. The Home Office does not commonly accept those witness statements. These people are in an incredibly difficult situation. They have done everything humanly possible and followed every instruction, but there is some other barrier preventing them from meeting that very high threshold.

Q 276

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

So, for clarity, you think that that needs defining either in guidance or in the Bill?

Andrew Hewett: Absolutely, it needs crystal clear clarification and definition.

Karl Pike: We would like “genuine obstacle” to be defined in the legislation rather than allowing it to be subject to the regulations after the Bill has been voted on.

Q 277

Photo of Rebecca Harris Rebecca Harris Conservative, Castle Point

I want to ask you the question that I missed the opportunity to ask this morning. We have a lot of problems with our immigration service—it sounded terrible at some stages this morning—and I wondered whether you had any relative knowledge of immigration procedures and enforcement in other countries. How do we compare with some of our European partners?

Peter Grady: Which aspect of immigration and enforcement procedures?

Photo of Rebecca Harris Rebecca Harris Conservative, Castle Point

Poor decision making, slow decision making, labyrinthine—does anyone know of an exemplar European nation that does things well?

Karl Pike: There are so many different parts of it. To be fair to the Home Office, certainly the speed of decision making is potentially better than in some European countries. France is an obvious example. People often say that countries such as Sweden have better processes of return and support for asylum seekers, particularly for assisted voluntary return. It is a bit of a mixed bag.

Peter Grady: I agree. To credit the Home Office as well, here—from UNHCR’s perspective at least—the quality of asylum policy is generally of a high standard. As Karl has mentioned, it is certainly a mixed bag when looking at other national asylum systems—whether of pros or cons.

To give just one example, credibility assessment is something we have worked on with a number of states. It is absolutely fundamental to asylum decision making. There are positive aspects of how it is conducted here, in terms of some of the infrastructure and policy that I mentioned before, but there are still issues for us and we need to work with the Home Office to develop training and strengthen decision making in the area. It is not unique to the UK—credibility assessment is, across the board, in a number of different countries, a challenging area for asylum decision making. So it is a mixed bag and it is hard to pull out one state and say, “This is the perfect state for asylum decision making.”

Q 278

Photo of Mims Davies Mims Davies Conservative, Eastleigh

Earlier today, we heard that cases are getting more complex—the rules are more complex. Does that really just affect the  people who are caught up in the system having more complex issues? You have described people unable to get paperwork, because they are caught up in the politics between countries.

Karl Pike: Those are not new issues. Obviously, potentially we are going through a unique period in the movement of people, so the numbers of decisions that the Home Office is having to make are gradually increasing. It is not like the level of the early noughties, but it is certainly increasing. In a lot of these countries, sometimes the systems that they have clash with the systems that we have, and that seems to cause the Home Office difficulties.

I will just give you an example about a Syrian national which someone told me about a couple of days ago. It is a family reunion case, and they were trying to bring a child over. The Home Office wanted a birth certificate; the family did not have a birth certificate, so they had to go to a local civil organisation in Syria to get a new one, but the way in which they issue those in Syria means that they date them from the date of issuance, so the Home Office said it must be bogus, because it was dated 2015. Silly little cultural things such as that often get in the way, and that is what we mean by complexity, because that is just one example of one person from one country, and there are hundreds.

Q 279

Photo of Mims Davies Mims Davies Conservative, Eastleigh

We heard earlier on from the director of Migrants’ Rights Network—I hope I quote him correctly. We talked about complexity and potential abuses in the system. He said that there are flaws with the system and people want to exploit that. Is it your experience that people are trying to exploit this lack of knowledge between countries and the complexity of laws and nations? Or is it really, as you say, that there is a significant change in the way in which people are living or trying to group together and that countries are trying to catch up with that?

Karl Pike: The only thing that I would say to that is, from my experience of meeting people in the system, it is not fun. It is an incredibly difficult experience to go through and being destitute is not fun, and it is a problem that is getting worse. I have not personally encountered anyone in the course of our work, or in previous work, who was obviously gaming the system.

Andrew Hewett: Operationally, we support more than 14,000 people a year through 56 towns and cities in the UK, offering information and support to asylum seekers and refugees. The vast majority do not exhibit behaviour that would lead us to be concerned that they were exploiting the system. They present with genuine needs, and there are real issues. If the cases are becoming more complex, it is possibly because conflict is becoming more complex. We are moving away from state declaring war on state to a much more complicated, multifaceted situation involving different factors and different factions within regions. It becomes much more difficult for asylum seekers to prove who is persecuting them, where they are being persecuted and whether or not they could be safely returned to a region of their country, because the situation is so complex and so rapidly changing. We are perhaps seeing an increase in the complexity of cases, but it is being driven by what is happening on the ground and it reflects the nature of those conflicts.

Q 280

Photo of Mims Davies Mims Davies Conservative, Eastleigh

In terms of the Home Office, we have heard two different things. One is that it is catching up and doing quite a good job where it is able to make the right decisions with the right paperwork, and that things are speeding up. The other was a criticism this morning about templating. There was, perhaps, a perception that situations in certain countries were being stamped on other individuals from that country to make decisions easier. What do you think is the reality of the situation?

Andrew Hewett: My understanding is that the Home Office still looks at every case on a case-by-case basis. It looks at the evidence that that case presents, and it makes a decision based on that evidence. I echo Peter’s remarks. The Home Office has made great improvements in clearing the backlog of cases that it has historically been dealing with and making more effective decisions more quickly. The big challenge for us is what happens to people at the end of the asylum process, particularly if their cases are refused. There is a challenge to them returning to their home country, because the current legislation means that they are commonly left destitute and homeless. That leaves them with little option other than to go underground, because there is no official means for them to support themselves.

Karl Pike: The decision making goes directly to the appeals issue in the Bill, particularly asylum support appeals. If you look at the stats, there is bad decision making. Well over 60% of cases for asylum support are granted on appeal, or the Home Office changes its decision on the way to appeal.

Q 281

Photo of Mims Davies Mims Davies Conservative, Eastleigh

But is that because more evidence comes to light, or is it because you are saying that there is bad decision making?

Andrew Hewett: We have plenty of examples where somebody applies for asylum support and their application is refused because the Home Office does not believe that they are destitute. What tends to happen is that that person will approach a charity and ask them to write a letter of support to say that, yes, they have seen this person and they can confirm that they are street homeless or destitute. That letter is normally enough to win the appeal. It does not make any sense; if that letter was available earlier on, the case might not have had to go to appeal. There is an awful lot of time and resources wasted in those cases. I urge the Home Office to undertake a deep-dive assessment of the cases that have gone to an asylum support tribunal and that have been overturned on appeal, and to look at the reasons why. Is there any opportunity to change or amend policy to prevent more similar cases from going to appeal? If 60% of cases are being overturned, or are being withdrawn by the Home Office, we cannot credibly sit here today and tell you the reasons why that may be, but it seems as though work has to be undertaken to enable us to understand that.

Q 282

Photo of Mims Davies Mims Davies Conservative, Eastleigh

In that case, if this is a complex situation and is getting more complex, and people may or may not end up destitute, are you as an organisation making it clear to people that once they get into the process, they could end up on the wrong side of it? That is, if they can go home—if there are reasons why they should not be here—should there be some onus on all the groups supporting that situation to say, “This is not as easy as you think, and it may end up causing more harm to you and your family than good?” Can you explain that at that point?

Andrew Hewett: Absolutely. From our perspective, we do a great degree of what we call parallel planning. When we meet people who are in the asylum process, we work with them to ensure that they understand what could happen to them if they get a positive decision on their case, and what could happen to them if they get a negative decision. It becomes very hard for us to continue to engage with people after they get a negative decision if the policy makes them homeless and destitute. Ideally, we would want some time to go through it with them, because we may have built up an element of trust. We could perhaps do more to explain some of the difficult choices that people have, but it becomes increasingly difficult if a person becomes homeless. Maybe they have a friend who can put them up somewhere in a different town or city, and they end up sofa surfing. We tend to lose contact with them—the Home Office certainly loses contact with them—and that cannot be in anybody’s interest.

Q 283

Photo of Mims Davies Mims Davies Conservative, Eastleigh

But we heard from some organisations yesterday that sometimes the first conversation about the fact that it can go wrong happens after it has gone wrong. That is why I am asking the question about such a good organisation as yours—to ensure that the whole round is explained to people.

Andrew Hewett: I can absolutely confirm that that is our position. I also believe that that is the position of most organisations in the sector.

Q 284

Photo of Byron Davies Byron Davies Conservative, Gower

I have sat here for two days listening to people say that so many things are wrong with the system as it is at the moment, some of them picking faults with the Bill. I understand that UNHCR, for example, thinks that discontinuing support is unlikely to encourage people to go home. I do not know whether the panel shares that view. If you can justify that, I would like to hear your comments. Secondly, what therefore is the panacea for this?

Peter Grady: Sorry, what was the second part of that question?

Photo of Byron Davies Byron Davies Conservative, Gower

What is the answer to this? What is the solution?

Peter Grady: That might be a bit more difficult. Jumping to the first question, on whether the proposed changes will meet their objective, it was noted in our evidence that we had concerns whether removing support would meet the objective of encouraging return, or disincentivising staying, particularly for families of refused asylum seekers. I know that that has been discussed in some detail in this Committee, for example the section 9 pilot that was undertaken, so I will not go into that, but it is also UNHCR’s own experience, in exchanges and general discussions with colleagues and in some of the studies that we have conducted in the past.

To go back to some of the work that we have done on alternatives to detention, we have also looked at some of the drivers for compliance and issues surrounding absconding. There was a study, to go back a bit to 2006, in which that issue came up.

Q 285

Peter Grady: It was a global study conducted by Ophelia Field for UNHCR. It looked at a range of countries, but in that context, it was the Netherlands,  which had introduced a measure to withdraw support after 28 days. It was observed that in that context, people would go underground immediately before the 28 days ended. It was not encouraging contact with the authorities, which undermined their efforts to return those people.

Karl Pike: I think we would agree that withdrawing support in the way proposed would not lead to people leaving. I will not go over the previous pilot, but the evidence from that is quite clear. On solutions, we are looking to propose some and work with the Government. For instance, if you lengthened the grace period beyond 28 days for families, it might allow people longer to consider their options—

Q 286

Karl Pike: Well, when is it more likely that someone is going to disappear—if they are supported for longer so that they can talk about what they are going to do, or if support is completely withdrawn? The evidence from the last pilot was that more people absconded.

Peter Grady: May I add something, Chair?

Photo of Peter Bone Peter Bone Conservative, Wellingborough

May I just say that we are going to run out of time and Members are not going to be able to ask their questions? But carry on.

Peter Grady: Very briefly, in terms of solutions it is worth looking at the family returns process. As far as we have observed, as least, it is an effective way of engaging with those at the return end of the spectrum. It has been seen to be successful, and increasingly so over the years. From the statistics I have looked at, more recently, at least, in 2012 to 2014 we had 76% of people leaving without an ensured return, up from 50% from the period of 2011 to 2012. It is worth considering.

Q 287

Photo of Rebecca Harris Rebecca Harris Conservative, Castle Point

On that point, if support were withdrawn only if people refused to engage and they were therefore encouraged to continue to engage, would you support that? Would you support a policy in which people are ensured continued financial support provided they are engaging?

Peter Grady: Yes, I would think so. Obviously we would need to look at the details, but at least from what we have seen it is a core element that there is continued engagement with authorities. That can be undermined if you withdraw support, because they then look elsewhere for it.

Q 288

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

We will be looking at amendments in the next couple of weeks, and you have all of us sitting in front of you now. If you could be granted one wish for an amendment, what is the primary thing you would say we should amend in the Bill? You never know, it might happen.

Karl Pike: Appeals should be allowed for section 95A. In cases where it is refused, we should have the right to appeal. The appeal success rate is so high at the moment that not having it is clearly going to hide very bad decision making, and those people will come to us because they will not have food or clothing.

Andrew Hewett: I am going to take my wish, as well, so we have two as the British Red Cross. For me, it is the grace period. If you really want to engage people in  some of the difficult and complex decisions you might have to make, people will need to be fed and have a roof over their heads while they are considering those. It is very difficult to do all that within 28 days so we will be supporting a move towards a longer grace period of 90 days, to enable those discussions and consultations, and explore and exhaust all possible avenues during that time.

Peter Grady: If I had my one wish, to step away from this issue—although I would argue that it is within the scope of the Bill—it would be for the introduction of a time limit on detention. There are detention provisions there. We see that as being an area where it would help to ensure compliance with what UNHCR views as being international standards relating to detention. That is something we would strongly welcome.

Q 289

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I will try to do this in one question. I want to draw together some of the examples you have given to make sure that I have understood the evidence. This is about the appeals for support. Let us say you have a case where there is a genuine obstacle to removal—for example, an Eritrean person who, for one reason or another, cannot get the right document to put before the Home Office. They are considered not to be destitute when they are, so the decision is made that they are not going to be given support. They then come to see you and you, the charity, provide them with a letter, so they have something that is almost certain to win on appeal, and they will at least get their support. If this Bill goes through, they are exactly the kind of person who will be stuck with a bad decision and no support, notwithstanding the fact that they are destitute and have a genuine obstacle to removal. It is simply tough on them.

Karl Pike: Yes. It might help you to know that Eritreans are the largest single group of destitute people this year.

Q 290

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

But it is just tough on them. We made the wrong decision, and though they have a piece of paper that means they would win on appeal, it is just tough. That is the effect of the Bill.

Karl Pike: Yes.

Andrew Hewett: They will be made homeless and destitute. That makes it even more difficult if they want to progress to a voluntary return programme.

Q 291

Photo of Kelly Tolhurst Kelly Tolhurst Conservative, Rochester and Strood

You mentioned that you think the removal of support will drive people underground. Can you explain to me what you regard to be underground and how that works?

Karl Pike: From the pilot, people absconded. I do not know whether the Home Office followed it up with any further research as to where they had gone, but people often assume it means they can end up working illegally somewhere and potentially being quite badly exploited. This Bill creates an offence of illegal working as well. If all the provisions are the same, some people might end up absconding and end up in prison for illegal working six months later.

Q 292

Photo of Kelly Tolhurst Kelly Tolhurst Conservative, Rochester and Strood

So having that description and taking into consideration the other parts of the Bill that focus on illegal working, do you think that that measure  might aid individuals being able to continue to engage, rather than being driven underground because of the threat from the other parts of the Bill?

Karl Pike: I do not know. It is hypothetical.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Order. I am so sorry; we have run out of time for the Committee to ask questions. Can I suggest to the two organisations that if they want to put anything in writing to the Committee—anything you do not think we have got round to discussing—feel free to do so. Thank you for coming.