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The removal of failed asylum seekers

  • Catherine Phuong (a1)

Abstract

Many human and financial resources are being spent on the asylum determination and appeal processes in order to distinguish those asylum applicants who require protection from those who do not. However, the majority of failed asylum seekers do not leave the country. The lack of an effective removal policy defeats the purpose of having an asylum system at all. In other words, removals of failed asylum seekers are essential to preserve the integrity and credibility of the asylum system. Since forced removals are a crucial component of our asylum system, this paper seeks to examine how they can be made more eflcient and humane. In particular, it examines the recent measures adopted through the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and proposed measures currently debated at the EU level.

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1. One must note that the terminology changes from one country to another. For instance, the term ‘deportation’ as used in French refers mainly to the transfer of people, mainly Jewish, to concentration camps in Nazi Germany. Forced removals are thus referred to as ‘expulsions’.

2. See National Audit Office Improving the speed and quality of asylum decisions, HC 535, 23 June 2004, p 17.

3. See UNHCR Executive Committee Conclusion no 54 on the return of persons found not to be in need of international protection (2003). A/AC.96/987.

4. See M J Gibney and R Hansen ‘Deportation and the liberal state: the forcible return of asylum seekers and unlawful migrants in Canada, Germany and the United Kingdom’ UNHCREPAU New issues in refugee research, Working paper No 77, February 2003, P 2.

5. For more detail, see G Clayton Immigration and asylum law (Oxford: Oxford University Press, 2004) ch 16.

6. See Immigration Act 1971, s 3(5) and (6).

7. See Immigration Act 1971, Sch 2, paras 9 and 10.

8. See Immigration and Asylum Act 1999, s 10(1).

9. See Nationality, Immigration and Asylum Act 2002, ss 77 and 78.

10. As listed in Nationality, Immigration and Asylum Act 2002, s 94.

11. See Home Office Asylum statistics United Kingdom 2003 (London: Home Office RDSD, 2004) table 1.1.

12. See Home Office Control of itnmigration: statistics - United Kingdom, 2003 (London: Home Office RDSD, 2004) table 4.1. This figure refers only to principal applicants.

13. See Home Office, above n 12.

14. See House of Commons Home Affairs Committee Fourth report of session 2002–03 on asylum removals HC 654, 14 April 2003, para 26.

15. See D Stevens UK asylum law and policy (London: Sweet & Maxwell, 2004) pp 291–295.

16. See Home Office Asylum statistics United Kingdom 2003 n1I, table 1.1.

17. See Gibney and Hansen, above n 4, p 8. One can note that the government has a similar obsession with targets in the area of first instance asylum decisions and asylum appeals, but also NHS waiting lists, educational attainments and so on.

18. See House of Commons Home Affairs Committee, above n 14, para 28.

19. Above n 18.

20. See Home Office Home Ofice targets - delivery report February 2003, Cm 5754, P8.

21. See I Bickerton ‘Dutch plan to expel 26,000 asylum seekers’ Financial Times, 17 February 2004.

22. Article 33 of the Convention Relating to the Status of Refugees (hereinafter the 1951 Refugee Convention) 28 July 1951, 189 UNTS 137.

23. See Immigration and Asylum Act 1999, s 65.

24. See Soering v UK (1989) 11 EHRR 439.

25. See Ullah v The Secretary of State for the Home Department [2002] EWCA Civ 1856 at [24].

26. See Cruz Varos v Sweden (1992) 14 EHRR 1, concerning the removal of a failed asylum seeker to Chile. No violation of art 3 was found in that case.

27. See D v UK (1997) 24 EHRR 423. See also comments on the exceptional circumstance of this case in N v The Secretary of State for the Home Department [2003] EWCA Civ 1369.

28. See Rogers, N Immigration and the European Convention on Human Rights: are new principles emerging?’ (2003) European Human Rights Law Review 153.

29. See Bensaid v UK (2001) 33 EHRR 10, para 47.

30. Bensaid v UK (2001) 33 EHRR 10, para 47.

31. See House of Commons Home Affairs Committee, n 14, para 63.

32. See House of Commons Home Affairs Committee government response to the Committee's fourth report: asylum removals HC 1006, 18 July 2003, 5–6. Under s 49 of the Nationality, Immigration and Asylum Act 2002, the Home Secretary may provide accommodation to a failed asylum seeker.

33. See Gibney and Hansen, above n 4, p 11. There are, however, no figures on the numbers of failed asylum seekers who abscond, see House of Commons Home Affairs Committee, above n 14, para 64.

34. See Immigration Act 1971, Sch 2, paras 16(2) and 21(2).

35. See R Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 104.

36. See The Queen on the Application of Majid Rashid Hwez, Nori Khadir v Secretary of State for the Home Department [2002] EWHC 1597 (Admin).

37. See HM Inspectorate of Prisons An inspection of Harmondsworth immigration removal centre September 2002. The Chief Inspector of Prisons was granted a new power to inspect detention centres under the Immigration and Asylum Act 1999, s 152(5).

38. See art 37(b) of the Convention on the Rights of the Child, GA Res.44/25, 20 November 1989.

39. Upon ratification of the Convention, the UK declared that it: ‘reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.’.

40. See Refugee Council The Refugee Council rerurns policv February 2002, principle C3.

41. See Gibney and Hansen, above n 4, p 12.

42. See art 13(2) of the Universal Declaration of Human Rights, GA Res.217(A), 10 December 1948. See also art 12(4) of the International Covenant on Civil and Political Rights, GA Res.2200A(XXI), 16 December 1966.

43. See House of Commons Home Affairs Committee, n 14, para 57.

44. See Home Office (IND) ‘New agreement on returning Indian immigration offenders’ 30 January 2004: http://www.ind.homeoffice.gov.uk/ind/en/home/news/archive/2004/January/new-agreement-on-returning.html.

45. See I Black and N Watt ‘Britain drops plan to link asylum to overseas aid’ Guardian, 21 June 2002.

46. See eg Gardi v Secretary of State for the Home Department [2002] EWCA Civ 750.

47. See Home Office (Country Information and Policy Unit of the Asylum and Appeals Policy Directorate) Iraq Bulletin 7/2003, August 2003, para 5.2. See also Home Office (IND) ‘Asylum numbers down, new drive on removals - Home Secretary’ 24 February 2004: http://www.ind.homeoffice.gov.uk/ind/en/home/news/archive/2004/february/asylum_numbers_down.html.

48. The sole contract with the Home Office for ‘escort services’ is currently held by Loss Prevention International ltd (preventing the loss of deportees?). See House of Commons Home Affairs Committee, above n 14, para 49.

49. Ibid, para 104.

50. See A Travis ‘Reluctant airlines thwart deportations’ Guordian, 29 January 2003.

51. See A Travis and J Ezard ‘BA holds Zimbabwe deportation’ Guardian, 14 January 2002. Shortly afterwards, removals to Zimbabwe were suspended.

52. HC Deb vol 379 col 297, 29 January 2002.

53. See eg the letter by a German academic who witnessed the use of force against a deportee on a Lufthansa flight and called for a boycott of the airline if it does not change its policy: http://www.deportation-class.com/log/scandal.html.

54. See R Wessel ‘Lufthansa changes deportation policy after asylum seeker's in-flight death’ Wall Street Journal, 30 January 2001.

55. See IATA/Control Authorities Working Group Guidelines on deportation and escort October 1999 (reviewed without change May 2003), para 6.4 (emphasis added).

56. When 21 failed asylum seekers were flown back to Afghanistan on a 390-seat charter plane, there was media speculation that such removals cost over £5,000 per person. See’ We were tied up, claim deported Afghans' Guardian, 29 April 2003.

57. See A Osborn ‘Belgian police guilty of deportation death’ Guardian, 13 December 2003.

58. See Gibney and Hansen, above n 4, endnote 66.

59. See G Noll ‘Rejected asylum seekers: the problem of return’ UNHCR/EPAU, New issues in refugee research, Working paper No 4, May 1999, 5.

60. The family was removed to Germany under the terms of the Dublin Convention (see below). Their asylum application had been rejected, but Germany had granted them temporary protection. It was subsequently held that their removal should not have been enforced because the Home Secretary wrongly certified their human rights claim to be'manifestly unfounded’ under s 72(2) of the Immigration and Asylum Act 1999, see R (Ahmadi) v The Secretary of State for the Home Department [2002] EWHC 1897 (Admin). The family was, however, not allowed to return to the UK for their appeal hearing, see V Dodd and R Prasad’ Deported Afghan family cannot return to Britain for appeal hearing, judge rules' Guardian, 13 September 2002.

61. See Immigration and Asylum Act 1999, s 94(5) and Nationality, Immigration and Asylum Act 2002, s 18(2).

62. See House of Commons Home Affairs Committee Asylum and Immigration (Treatment of Claimants, etc.)Bill, First report ofsession 2003–04 HC 109, 16 December 2003, para 67.

63. See House of Lord/House of Commons Joint Committee on Human Rights Asylum and Immigration (Treatment of Claimants, etc.) Bill, Fifth report of session 2003–04 HL paper 35/HC 304, 10 February 2004, paras 37–40.

64. See M Taylor ‘Asylum policies make 10,000 people destitute a year’ Guardian, 9 February 2004. See also’ The impact of section 55 on the Inter-Agency Partnership and the asylum seekers it supports' February 2004 http://www.refugeecouncil.org.uk/downloads/rc_reports/iap_s55_feb04.pdf.

65. See Nationality, Immigration and Asylum Act 2002, s 55(10).

66. See Re Q and others' v Secretary of State for the Home Department [2003] EWCA Civ 364 and Re T v Secretary of State for the Home Department [2003] EWCA Civ 1285. For more detail, see P Billings and R A Edwards ‘Safeguarding asylum seekers' dignity: clarifying the interface between Convention rights and asylum law’ (2004) 11 Journal of Social Security Law 83. The sheer number of cases brought against decisions made under s 55 has led the President of the Administrative Court to publish ‘Guidance on s 55 cases handed down by Mr. Justice Maurice Kay’ 28 October 2003.

67. The Home Secretary announced on 17 December 2003 that those asylum seekers who can give a credible explanation of how they arrived in the UK within the last three days would be considered to have made their claim as soon as reasonably practicable. A reconsideration process has also been introduced whereby any decision to refuse support can be reconsidered where individual circumstances have changed, or if the asylum seeker is ‘really destitute’ and could be regarded as being close to being subject to degrading and inhuman treatment within the meaning of art 3 ECHR.

68. See Secretary of State for the Home Department v Limbuela, Tesema and Adam [2004] EWCA Civ 540.

69. See proposed new s 108A (esp. para (2)(e)) of the Nationality, Immigration and Asylum Act 2002, to be inserted by original clause 10(7).

70. See House of Commons Home Affairs Committee above, n 14, paras1 15–118.

71. See proposed new s 108B of the Nationality, Immigration and Asylum Act 2002, to be inserted by original clause 10(7).

72. See above n 71.

73. See V Bogdanor’ Strike out the clause that makes a mockery of our basic rights' The Times, 9 January 2004. See also House of Lords/House of Commons Joint Committee on Human Rights, n 63, paras 57–71; and House of Commons Constitutional Affairs Committee Asylum and Immigration Appeals, Second report of session 2003–04 HC 211–1, 26 February 2004, paras 47–71.

74. See s 2(4)(c).

75. See F Nicholson’ Implementation of the Immigration (Carriers' Liability) Act 1987: privatising immigration functions at the expense of international obligations' (1997)46 International and Comparative Law Quarterly 586.

76. See Home Office (IND) ‘Tackling asylum abuse - moves to deal with undocumented passengers' 19 January 2004: http://www.ind.homeoffice.gov.uk/ind/en/home/news/archive/2004/january/tackling_asylum_abuse.html.

77. See Home Office (IND) ‘Increased use of biometrics to tackle asylum abuse’ 21 January 2004, http://www.ind.homeoffice.gov.uk/ind/en/home/news/archive/2004/january/increased_use_of_biometrics.html. These countries are Djibouti, Eritrea, Ethiopia, Tanzania and Uganda. Such countries have been selected because it appears that a number of their citizens come to the UK and claim asylum on the basis that they are Somali.

78. Such a discussion is beyond the scope of this article, but see ‘Prepared to be scanned’ Economist, 4 December 2003.

79. See Convention determining the state responsible for examining applications for asylum lodged in one of the member states of the European Communities 15 June 1990 (OJ 1997 C 254/1) (hereinafter the Dublin Convention); and Council Regulation no 343/2003 of 18 February 2003 establishing the criteria and mechanism determining the member state responsible for examining an asylum application lodged in one of the member state by a third country national (OJ 2003 L 50/1) (hereinafter the Dublin Regulation). The Dublin Convention was applied between 1997 and 2003.

80. See arts 5 to 12 of the Dublin Regulation.

81. See art 13 of the Dublin Regulation.

82. See C Faria (ed) The Dublin Convention: between reality and aspirutions (Maastricht: European Institute of Public Administration, 2001).

83. See Council Regulation 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (OJ 2000 L 316/1).

84. See Council Recommendation of 30 November 1994 concerning the adoption of a standard travel document for the expulsion of third-country nationals (OJ 1996 C 274/ 18); Council Recommendation of 30 November 1994 concerning a specimen bilateral readmission agreement between a member state and a third country (OJ 1996 C 274/20); Council Recommendation of 24 July 1995 on the guiding principles to be followed in drawing up protocols on the implementation of readmission agreements (OJ 1996 C 274/25); and Council Recommendation of 22 December 1995 on concerted action and co-operation in carrying out expulsion measures (OJ 1996 C 5/3).

85. See Council Decision 97/340/JHA of 26 May 1997 on the exchange of information Concerning assistance for the voluntary repatriation of third country nationals (OJ 1997 L 147/3).

86. See Joint Action 99/290/JHA of 26 April 1999 establishing projects and measures to provide practical support in relation to the reception and voluntary repatriation of refugees, displaced persons and asylum seekers, including emergency assistance to persons who have fled as a result of recent events in Kosovo (OJ 1999 L 114/2). This instrument is no longer in force.

87. See art 5 of the Joint Action.

88. See Council Decision 2000/596 of 28 September 2000 establishing a European Refugee Fund (OJ 2000 L 252/12).

89. See art 3 of the Council Decision.

90. See Presidency Conclusions ofthe Tampere European Council 15/16 October 1999.

91. See Green Paper on a Community return policy COM(2002) 175 10 April 2002.

92. See A Community return policy on illegal residents COM (2002) 564, 14 October 2002 and Council doc 14673/02, 25 November 2002.

93. See Integrating migration issues in the European Union's relations with third countries COM(2002) 703, 3 December 2002.

94. See Council Directive 2003/110 of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ 2003 L 321/26). See also Initiative of the Italian Republic with a view to adopting a Council Directive on assistance in cases of transit through the territory of one or more member states in the context of removal orders taken by member states against third-country nationals (OJ 2003 C 223/5). The Italian proposal will not be adopted in its current form and has been replaced by draft Council Conclusions, see Council doc 15998/1/03, 12 December 2003.

95. See Initiative of the Italian Republic with a view to adopting a Council Decision on the organization of joint flights for removals of third-country nationals illegally present on the territory of two or more member states (OJ 2003 C 223/3).

96. See Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and to the Treaty establishing the European Community (adopted at Amsterdam).

97. See Council docs 14595/03, 11 November 2003 and 15325/03, 27 November 2003.

98. See J M Brown ‘EU will charter flights to take illegal migrants back home’ Financial Times, 23 January 2004.

99. See Council doc 14205/03, 31 October 2003.

100. See Council Directive 2001/40 of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals OJ 2001 L 149/34. According to art 3, ‘expulsions’ in EU language refer to both judicial and administrative removals in the English legalsense.

101. See A Community return policy on illegal residents, above n 92, pp 17–20.

102. Ibid, p 19.

103. See original clause 10 of the Asylum and Immigration (Treatment of Claimants, etc.) Bill as analysed above.

104. See A Community return policy on illegal residents, above n 92, p 20.

105. See Criteria for the identification of third countries with which new readmission agreements need to be negotiated, Council doc 7990102, 16 April 2002.

106. See Bouteillet-Paquet, D, ‘Passing the buck: a critical analysis of the readmission policy implemented by the European Union and its member states’ (2003) 5 European Journal of Migration and Law 359 at 371.

107. See Council Decision 2004/80 of 17 December 2003 concerning the conclusion of the agreement between the European Community and the Government of the Hong Kong Special Administrative Region of the People's Republic of China on the readmission of persons residing without authorization, OJ 2004 L 17/23.

108. See Schieffer, M, ‘Community readmission agreements with third countries -objectives, substance and current state of negotiations’ (2003) 5 European Journal of Migration and Law 343.

109. Ibid, 356.

110. See A Community return policy on illegal residents, above n 92, p 24.

111. See Phuong, C, ‘Enlarging “Fortress Europe”: Eu Accession, Asylum, and Immigration in Candidate Countries’ (2003) 52 International and Comparative Law Quarterly 641.

112. See eg Mrabet, E A Readmission agreements - the case of Morocco’ (2003) 5 European Journal of Migration and Law 379.

113. See A Community return policy on illegal residents, above n 92, p 24.

114. See Presidency Conclusions of the Seville European Council, 21–22 June 2002, para 36.

115. See Bouteillet-Paquet, above n 106, 373.

116. See eg Proposal for a Regulation establishing a programme for financial and technical assistance to third countries in the area of migration and asylum, COM (2003) 255, 11 June 2003.

117. See A Community return policy on illegal residents, above n 92, pp 21–23.

118. See HM Inspectorate of Prisons An inspection ofOukington reception centre, March 2002, p 29.

119. See eg Home Office (IND), ‘HMS Daedalus', 3 February 2004, http://www.ind.homeoffice.gov.uk/ind/en/home/news/archive/2004/february/hms_daedalus.html.

120. See Noll, G, ‘Visions of the exceptional: legal and theoretical issues raised by transit processing centers and protection zones’ (2003) 5 European Journal of Migration and Law 303.

121. See UK paper, New international upproaches to asylum processing and protection, 10 March 2003.

122. See eg Amnesty International UK, Getting if right - how Home Office decision making fails refugees, 9 February 2004.

123. See House of Commons Home Affairs Committee, above n 14, paras 71–75.

124. The Home Office presented this measure as’ clearing the decks for tough new asylum measures', see Home Office press release, 24 October 2003, http://www.ind.homeoffice.gov.uk/ind/en/home/news/archive/2003/october/clearing_the_decks.html.

125. See E MacAskill and A Travis ‘Tanzania camp plan for refugees refused UK home’ Guardian, 25 February 2004.

126. See European Council on Refugees and Exiles (ECRE) Position on returns, October 2003, para 80.

127. See House of Commons Home Affairs Committee, above n 14, para 48.

128. See eg European Council on Refugees and Exiles (ECRE) Position on returns October 2003; and Refugee Council The Refugee Council returns policy.

129. See Refugee Council The Refugee Council returns policy, principle D1.

130. Around 60% of asylum applications lodged in 2002 had a final negative outcome. See Home Office Asylum statistics United Kingdom 2003, above n 10, p 16.

* This article was written while the author was on research leave at the University of Michigan Law School. Financial support from the Center for International and Comparative Law is gratefully acknowledged.

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The removal of failed asylum seekers

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