1. Entering the UK as a refugee

It is not legally possible to apply for asylum from outside the UK. On the other hand, it is often difficult, especially if the applicant is refused a visa, to enter the UK in the first place, at least by lawful means. It follows that illegal entry is therefore commonplace.

Illegal entry is defined by Section 33(1) of the Immigration Act 1971, as amended by the Asylum and Immigration Act 1996, and is where a person unlawfully enters or seeks to enter the UK in breach of a deportation order or the immigration laws; or enters or seeks to enter by means of deception.

Illegal entry does not however invalidate an application for asylum. A person can therefore enter the UK unlawfully and still claim asylum and if refused, notice of refusal with removal directions must then be served on the applicamt, which then automatically gives rise to a right of appeal under section 69 of the Immigration and Asylum Act 1999.

Illegal entry falls into five broad categories. The UK can be entered clandestinely, by avoiding immigration checks. It can be entered in breach of a deportation order. Some enter the UK using forged or false documents. some obtain leave to enter by verbal deception to an immigration officer, for example by giving a false reason for coming to the UK; and finally, those who cannot produce any evidence of lawful entry nor give a credible account of the manner of their entry to the UK such as persons who arrive hidden in a vehicle or who are landed on a beach or at a port or harbour without seeing an immigration officer. If an applicant produces no evidence that they have entered the UK lawfully, they can be presumed to be an illegal entrant.

Illegal immigrants who claim asylum must be served with notice under Section 75 of the 1999 Act at the time of application which must also be served on all members of the applicant's family, including children.

Nevertheless, applications for asylum from those who may have entered the country by illegal means are required by law to be considered on their merits.

Section 69(5) of the 1999 Act also gives an illegal entrant an in-country right of appeal on the grounds that their removal would be contrary to the UK's obligations under the 1951 Convention relating to the Status of Refugees.

The right of appeal is automatically triggered by the setting of removal directions following which the applicant has ten working days in which to lodge a notice of appeal. Any directions for removal must then cease to have effect while the appeal is being considered.

Article 31 of the 1951 Convention on the Status of Refugees (by which the UK is bound) unequivocally states that there can be no imposition of “…penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened… enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".

It may therefore be clearly understood from the foregoing that any person entering the UK, whether or not legally, has a right to apply for asylum and they cannot lawfully be removed without due legal process against which there is a right of appeal.



2. The rights of refugees to remain in the UK

It needs to be further emphasised that a person who enters the UK, whether or not legally, has at all times a right to remain here, if they are either seeking asylum or, if they do not qualify for asylum, if they seek discretionary leave to remain on a temporary basis on humanitarian grounds, and for as long as their legal rights have not been exhausted.

Refugees therefore have complete protection from forced removal once they have made an asylum claim (or leave to remain on humanitarian grounds) and for as long as they are still awaiting a decision either from an original application or on appeal.

Most but not all asylum seekers have a right of appeal to the Asylum and Immigration Tribunal if their claim is refused and are allowed to remain in the UK while they wait for their appeal. However, if an applicant has already unsuccessfully claimed asylum in a safe third country such applicants are usually only allowed to make an appeal following their removal from the UK.

Under their “New Asylum Model” the Home Office now aims for all appeals to be heard within two months of the initial decision, although these timescales are much shorter for cases that have been “fast-tracked” in detention centres. The deadline for making an appeal application after a refusal decision is now very short and asylum seekers are only entitled to Legal Aid if their appeal is considered to have a 50 per cent or more chance of success. This is in itself one of the unfair aspects of such funding. It means that the applicant has in effect to prove the merits of his case twice over; firstly to the Legal Services Commission and secondly, to the Tribunal.

Under NAM, once the appeal has been heard, the decision usually arrives within 2 weeks and it is only possible to make a further appeal on a point of law. The timescale for making an application for a reconsideration is unreasonably short, usually 5 working days.

Even if asylum is granted, it is reviewed after 5 years. Discretionary leave to remain is reviewed after 3 years. Children under 18 are almost always granted discretionary leave to remain which usually lasts until they become of age.



2. The detention of refugees

It is contrary to law for any person to be detained arbitrarily, without charge or trial and it is the fundamental right (under Article 5 of the European Convention) for all such detainees to challenge the reasons for their detention.

Theoretically, the UK government only detains asylum seekers where they consider that an asylum application can be dealt with expeditiously under the so-called “fast-track” process and/or where they consider that there is a realistic possibility that the applicant will otherwise abscond.

In practice, the use of detention and compulsory removals has escalated in recent years.

Essentially, the Rule of Law has increasingly been removed from the asylum process creating a two tier legal system where asylum seekers do not have equal access to justice and are clearly discriminated against even in the exercise of their Human Rights under the European Convention.

Legal aid is wholly inadequate and for example, public funding for representation is denied during the initial, crucial interview, where statements are taken down in English by the immigration officer who will make the initial decision, usually through an interpreter since the applicant will rarely understand English. The scope for deliberate misinterpretation to suit the disposition of the interviewing officer is obvious. By not being allowed the means for independent representation at this stage, the applicant cannot be advised against the possibility of self-incrimination by which his asylum application might be jeopardised whereas conversely, the interviewer will often avoid asking pertinent questions where the answers to which might assist the applicant to establish a right to asylum. The Legal Aid rules relating to applications for Judicial Review of failed asylum seekers are such that legal representatives are exposed to considerable personal financial risk if the application fails, which thereby discourages legal challenges to decisions that are often fundamentally perverse and wrong. For example, an Amnesty International report in 2004 stated that Home Office asylum decisions were often based on “inaccurate and out of date country information” and “unreasoned decisions about people’s credibility” leading to 14,000 wrong initial decisions in 2002, with one in five refusals being overturned by costly appeals. In 2004, the government attempted to remove the right of appeal from asylum decisions and would have succeeded had it not been for vigorous protest from members of parliament, jurists and human rights organisations.

Refugees from the age of 14 upwards have been detained for as long as two years, for entering the country without documents. Children are held in detention centres despite breaches of the international convention relating to the rights of the child to which this gives rise. HM Inspector of Prisons observed in her July 2003 report on Dungavel “that the welfare and development of children is likely to be compromised by detention, however humane the provisions, and that this will increase the longer detention is maintained.”

Legally, the UK government is sailing very close to the wind whenever it seeks to lock up asylum seekers yet continues to do so. The European Convention requires such measures to be proportionate and essential and the position under the Article 31, paragraph 2 of the 1951 Convention prohibits restriction on the movement of refugees “other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country.” .


3. The right of refugees to private and family life

Firstly, the freedom for people to travel within the EEA is a fundamental right though this does not yet apply to non-EEA nationals residing within the Communityt. There is also a European Convention right under Article 8, to private and family life.

In 2004, the European Parliament held that the right to respect for family life is a fundamental right belonging to everyone and one which is secured by a number of international legal instruments, such as the Universal Declaration of Human Rights (Article 16) and the European Convention on Human Rights (Article 8), the European Social Charter (1961), the revised European Social Charter (1996) and the European Convention on the Legal Status of Migrant Workers (1977), as well as the United Nations Convention on the Rights of the Child (1989), under which all State parties to the European Convention are under an obligation to promote the right to family reunion.

By “family reunion” is meant a situation in which members of a family come to join one of its members who is lawfully resident in another country.

The right to family reunion in the European Union also applies to nationals of non-EU states and may be exercised, at least in principle, by migrants lawfully resident in a member state, incuding persons having obtained refugee status according to the 1951 Geneva Convention, as well as persons “having been granted complementary or subsidiary protection”.

In 2004, the European Parliament and also the Committee of Ministers reiterated their view that any member state’s immigration policy has a duty, in accordance with the declarations made at the Tampere European Council of 1999 to uphold the principles of equal treatment between nationals of non-EU member states having legal status and citizens of the European Union and must consequently seek to ensure treatment on an equal footing with nationals. They therefore observed with dismay that the EU Council Directive on the right to family reunification (2003/86/EC) fell short of recognising the right to family reunion for persons granted subsidiary protection, for example, a temporary right to remain in a country that falls short of asylum.

The Dublin Convention (since superceded by the Dublin II Regulation of 2003) is a European Community initiative for harmonising of the application process for refugees seeking political asylum under the Geneva Convention and its purpose is to clarify which member state is responsible for any particular asylum seeker so as to ensure that at least one member state deals with the application. One of its chief aims is to prevent an applicant from submitting concurrent applications in more than one member state. Under these arrangements, a person seeking asylum is required to apply in the EU member state first entered.


4. The burden of proof in asylum cases and the Home Office culture of denial

As is usual, an application for asylum was refused because the applicant's evidence of persecution was disbelieved. For example, the Home Office did not believe that he was able to escape from detention (in the Democratic Republic of the Congo) by bribing a prison officer, even through the DRC is one of the world's most corrupt countries and prisons are so dilapidated, escapes are notoriously easy to arrange and very frequent (though most escapees are former regime officials serving sentences for human rights abuses). Whenever international donors to the Kabila regime start grumbling about the country's appalling human rights record, the regime will often arrest, convict and imprison those responsible for the most scandalous abuses. They almost always "escape" afterwards.

Also, the Home Office did not consider that the applicant was sufficiently important to the regime that he would pose a threat if he returned. To be granted asylum, the threat has to be individualised. If the difficulties that a returnee is likely to face are no worse than the generality of the population, no matter how appalling these might be, then this is not sufficient grounds for ayslum to be granted (though such conditions would normally be sufficient grounds for discretionary leave to remain).

In another case, a refugee from Darfur, had his asylum application turned down because he claimed that he had received medical treatment in the prison hospital where he was detained, for a broken finger which he had sustained whilst being tortured during a routine interrogation. This act of basic humanity was enough to discredit the applicant's evidence. If they had sliced his finger off with a blunt and rusty shears, it would presumably have helped the “credibility” of his application.

The basic attitude of the Home Office is to disbelieve anyone who says that they have been arrested and tortured e.g. "We do not believe you were arrested and tortured because if you had, you would now be dead." This has all the baroque logic of trial by ducking stool. If you survive torture, then you cannot have been persecuted enough so as to justify your claim for asylum. If you had died, then you would obviously have been entitled to asylum.

A person may have been dragged out of bed in the middle of the night, hooded and handcuffed, bundled into the back of a van by masked men that he doesn't ever see and taken to a secret detention facility where he is, beaten, deprived of sleep and starved for days so that he has absolutely no idea where he is or, after a while, how long he has been there. Yet the Home Office will expect him to remember the exact date and time of his abduction, to describe those responsible, to be able to identify his abductors and what state agency had engaged their services, describe the make and colour of the vehicle, state exactly where he was taken and even be asked to name the governor of the prison, and the circumstances of his release. If the applicant cannot give such information they will consider that his evidence is "not credible". If he escapes, this is also "not credible". If he is released, this too, will be regarded as evidence that he poses no real danger to the regime from which he has fled and not therefore at risk of further persecution.

In yet another case, the applicant produced expert medical evidence from a specialist in the treatment of victims of torture, stating that certain marks about his body were entirely consistent with the applicant's account of having been tortured and that there was therefore a probability that it was true. To this the Adjudicator replied: "On the other hand, there is a possibility that it might not be." Such blatant prejudice, bias, unfairness and injustice is typical.


5. Welfare support for asylum seekers

Asylum seekers are not allowed to work unless they have been waiting for a decision on their application for more than a year through no fault of their own. They are not entitled to any mainstream welfare benefits except those provided by the National Asylum Support Service (another Home Office agency) and of course medical care under the National Health Service.

At the basic level, whilst waiting for their application for asylum to be decided, a refugee is provided with accommodation with no choice as to location. This means they could be moved to the other end of the country forcing them to change their legal representative and thereby completing disrupting and jeapordising their asylum claim. A very small amount of cash is also provided for food and other basic necessities on which it is in fact impossible to survive without additional assistance from charitable organisations.

Even this meagre support is discontinued after an application for asylum has been refused and appeal rights exhausted. The applicant can then be eligible for a reduced level of support with an even lower standard of accommodation and food vouchers that can only be used in specific supermarkets. This support is generally conditional upon an applicant’s agreement to voluntarily return to their country of origin.

However, the practice of withdrawing food and shelter from failed asylum seekers has been found by the courts to amount to inhuman and degrading treatment contrary to Article 3 of the European Convention if it reduces someone to homelessness and destitution and where a failed asylum seeker faces such a situation, they will generally succeed in obtaining an injunction order from the High Court to prevent their being evicted, if only they can find a lawyer who is willing to make the application.

The view of Mr. Justice Collins, one of the most senior (and generally more sympathetic) High Court judges, disappointingly, is that failed asylum seekers could avoid infringement of their Article 3 rights by agreeing to leave the country and this had been his own decision in the Court of Appeal case of “Nigatu”. Yet the response to this surely needs to be that the prohibition against infringing Article 3 was absolute and that preconditions for not doing so could not therefore be lawfully imposed. In the "Limbuela" case, the House of Lords conceded that for a public authority to inflict destitution and homelessness on anyone would in most instances amount to inhuman and degrading treatment but this judgment unfortunately fell short of stating that this would be so in every situation. However, it has been a step in the right direction and is a very useful precedent.

Ernst & Young's economic forecasting body (which uses Treasury models) has recently estimated that immigration had brought in an extra £12bn to £18bn in tax since 1998 and that Eastern European workers were reducing the UK's trade deficit by an extra £1bn every year. It discredits once and for all, the hoary claim that refugees are cunning parasites who have come to this golden paradise called the United Kingdom in the expectation of living off the state for as long as possible.


6. The injustice of current immigration policy

The cost of most consumer goods is in real terms a tiny fraction of what they were 30 years ago. This is just as well. In real terms, UK salaries are a tiny fraction of what they were then. Because such goods are more often than not made under conditions of slave labour where most Europeans would become terrorists before submitting to anything similar, the globalisation of business has been enormously profitable.

At the very outset, the example of Chile under Pinochet showed us that the ethics of globalisation depend upon an unregulated private sector backed up by all the repressive forces of a paramilitary Police State. It is no coincidence that China, with its totalitarian tradition, is the country that has most benefited from globalisation.

But for there to be a level playing field and a genuine free market, there needs also to be complete mobility of labour. This is the last thing on earth that our major corporations want because their unconscionable profits are absolutely dependent upon a system of slave labour reinforced by the coercive power of the modern security state.

The corporate media, of which the Murdoch empire is perhaps one of the most insidious, has a vested interest in promoting increasingly intolerant, racist and discriminatory immigration controls, losing no opportunity to exploit the xenophobic insecurities of the poor and diminished middle classes who feel threatened by the continuing influx of immigrants.

Europe’s liberal democracies are likewise fearful of the growing appeal of right-wing nationalist parties throughout Europe and much of the anti-immigrant legislation that is now being introduced is largely because our governments have felt it necessary to appease these people whereas these neasures can only serve to legitimise them.

Immigration certainly results in a considerable outflow of skills from those societies most in need of them. But the limitless demand for resources mean that for example, China will buy whatever Africa has to offer and African regimes can thereby afford to ignore the opinions of the international community whereas China’s ability to support these regimes is in turn a direct consequence of globalisation. Globalisation has moreover been funded by the savings of ordinary people who are thereby complicit in their own eventual impoverishment.

In 1997, there were just 32,505 applications for political asylum in the UK. In 2002, the year following 9/11 and the unleashing of the Bush doctrine of unbridled violence and aggression upon the rest of the world, the number of asylum applications in the UK reached 84,136 and there is currently understood to be a backlog of over 400,000 cases on which decisions are still awaited. Significantly, a large number of asylum applications have been from China which was the first country to decide that it would model its economy on that of Chile under Pinochet, followed by Zimbabwe, the DRC, Sudan, Iraq and Afghanistan.