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A GUIDE TO THE ASYLUM AND

IMMIGRATION ACT (TREATMENT

OF CLAIMANTS, ETC) 2004


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A GUIDE TO THE ASYLUM AND

IMMIGRATION ACT (TREATMENT

OF CLAIMANTS, ETC) 2004

Dr Satvinder S Juss, FRSAReader in Law,

Kings College LondonBarrister-at-Law, Grays Inn


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First published in Great Britain 2005 by

Cavendish Publishing Limited, The Glass House,

Wharton Street, London WC1X 9PX, United Kingdom

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Juss, S 2005

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British Library Cataloguing in Publication Data

Juss, Satvinder S (Satvinder Singh)

A guide to the Asylum and Immigration Act (Treatment of Claimants, etc) Act 2004

1 Great Britain. Asylum and Immigration Act (Treatment of Claimants, etc) Act 20042 Emigration and immigration Great Britain

3 Asylum, right of Great Britain

I Tile

342.4'1082

Library of Congress Cataloguing in Publication Data

Data available

ISBN 1-85941-982-8

ISBN 978-1-859-41982-3

1 3 5 7 9 10 8 6 4 2

Printed and bound in Great Britain


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An Act to make provision about asylum and immigration (22 July 2004)

Some asylum seekers do beat the system, but then who does not? Many of ushave done so over the centuries, and those who colonise other countries have notrefrained from doing so either. I want to suggest that while desperate people

struggling to outsmart the system deserve to be restrained, they must also beapproached with a certain measure of compassion. Our asylum policy must befirm but compassionate. [Per Lord Parekh (Hansard, HL, vol 659, No 53, 15 March2004, at cols 8081)]

Aristotle remarked that it is essential, in passing good law, for legislators to gohome and be subject to the laws they have made. Not many people in this Househave been asylum seekers. When we listen to those who have, we hearimmediately a wave of comprehension that we do not get from many of thespeeches here. [Per Earl Russell, (Hansard, HL, vol 659, No 53, 15 March 2004, atcol 81)]


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PREFACE

When, on 27 October 2003, the government announced its intention to passlegislation for a balanced approach in asylum and immigration policy, it wasembarking on its third asylum Bill in four years. The ink was barely dry on theNationality, Immigration and Asylum Act 2002. Indeed, much of that Act

remained unimplemented. It was a staccato approach, rather than a carefullycrafted response to asylum policy.

The Bill had no preceding White Paper, no consultation and no pre-legislative scrutiny. It was criticised by highly respectable organisations such asthe Immigration Advisory Service, which bluntly stated that: There is no needfor further legislation. These asylum driven reforms will have a massive andunwelcome impact on immigration cases, family visit visas, students and workpermits. This was paradoxical given that, ostensibly, the Act has the avowedaim of forming and being part of a wider immigration strategy, namely, that of

encouraging managed, legal migration, including from the EU accessioncountries, working internationally to address the global problems of refugees atsource, while strongly preventing abuse of the asylum system and illegalmigration. In the long term, border controls are to be moved to the Continent, sothat what has been already done in France has now been extended to Belgium.Thus, the use of biometrics on visas and at ports can be extended and, inagreements with other countries, can be used to return failed asylum seekers.The government had already met with a measure of success in halving thenumber of asylum claimants from 8,700 in October 2003 to 4,000 in September2004. In 2003 as a whole, applications fell by 41%, being four times as much as

the rest of the EU. Applications for state support also fell by 60% in the last threemonths of 2003, compared with the same period in 2002, as a direct result of thefall in new claims. The number of cases awaiting an initial decision also stood atits lowest for a decade and 80% of decisions on applications are made andserved now within two months. However, the governments intention was nowto make still better provision for speed and finality in the immigration system.To that end, the central part of its legislative framework was to create a unifiedappellate structure for asylum and immigration appeals whereby a single-tiersystem would target delay and reduce abuse in the system, thus reducing what

is currently a 62-week process to an 18-week-process (see per Lord Falconer inHansard, vol 659, No 53, 15 March 2004, at cols 4950). However, there is littleevidence of managed migration in the Act. Although it has taken 50 years forthe legislature to be able meaningfully to distinguish between skilled primarymigration, economic migration and asylum seekers, this Act does not reflect this.Doctors and IT specialists come to the UK fully trained. To train a doctor fully inthe UK would cost 285,000. There are 8,000 doctors who come fully trainedfrom the Indian sub-continent to the UK. If Britain had to train the same numberof doctors in the UK, it would be at an astronomical cost of 900 million. Intruth, the governments plans for managed migration form no part of the Act atall.

If the governments concern was with long delays and long drawn-outappeals, then arguably this Bill was not necessary, given the overriding interestin the maintenance of the rule of law. This is because the imposition of non-suspensive appeals, juxtaposed controls, new visa regimes, introduction offinger-printing in Sri Lanka and its proposed extension to the countries of EastAfrica, together with an impending enlargement of the EU (which removes


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many of the countries from the list of those producing asylum seekers), wouldall lead to a substantial drop in the numbers who seek asylum in the UK. Ofcourse, the numbers of undocumented arrivals is doggedly refusing to go down,being a particular problem at Terminal 2, where the majority of entrants from

under-developed countries land, but proposals for carriers to copy thedocumentation held by a passenger at the time of boarding, thus allowing for hisidentity to be established by comparing his photograph in the document copywith the undocumented passenger himself, when he arrives, could have animpact on such arrivals. In the meantime, given that two out of every threeasylum seekers are still in-country applicants, the governments deterrentstrategy will not bring the numbers down any lower than they otherwise wouldbe.

Sir Duncan Ouseley, the President of the IAT, in giving his evidence to the

Select Committee on Constitutional Affairs, said that the system that thegovernment had supported enthusiastically two years ago, namely, that ofstatutory review as enshrined in s 101 of the Nationality, Immigration andAsylum Act 2002, and which had been operating for less than a year, was nowbeing consigned to the dustbin, along with the existing tribunal system,although with applications for statutory review of leave to appeal to the tribunalbeing made at a rate of 35 a week, the system appears to have been workingtolerably well.

The Act does nothing to improve the quality of initial decision-making,which is the root cause of the malfunctioning of the immigration system. As theSelect Committee on Home Affairs commented in its report: The real flaws inthe system appear to be at the state of initial decision-making, not that ofappeal. Its recommendation was that any reform in the direction of a newasylum appeals system should be contingent on a demonstrably significantimprovement in initial decision-making. If the initial decisions were morereliable, then many more people would accept the adjudicators decision (after afirst appeal), not least because fewer applicants would get leave to appeal to thetribunal, and the overhaul of the existing immigration system (which had onlyjust begun to take shape after the 2002 reforms) would be unnecessary.

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 waspassed by royal assent last summer on 22 July 2004. The preamble describes thisas An Act to make provision about asylum and immigration. The Act brings inmajor new changes of a both procedural and substantive nature. For example, itcompletely revamps the existing nature and structure of immigration appeals. Italso introduces new approaches to fact-finding by a tribunal of inquiry (such ashow findings on an applicants credibility are to be made). As such, the Act islikely to present considerable problems to practitioners, both in terms of itsunderstanding and usage, as well as in terms of avoiding and challenging its

potential pitfalls. Thus, during the final stages of its passage through Parliament,Lord Lester said: Although I practise at the bar, I regard it as a misfortunewhenever legislation is passed in a form so defective that judges and lawyershave to come to the rescue. That does no one any good not even in the legalprofession ... This is not an ordinary Bill. It is one that affects the rights of one ofthe most vulnerable groups of people in this country I hope this is the lastoccasion in the lifetime of this government, or any future government, that

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something of this kind happens. When it does, we let down the parliamentaryprocess and ultimately we must resort to litigation, which is a great misfortune(Hansard, HL vol 639, col 722, per Lord Lester).

Whereas these are broader long term policy aims, the purpose of this book is

to provide an extensive and detailed discussion of the individual provisions ofthe Act so that practitioners faced with an application of its various provisionscan better understand the background to them, together with a sense of theirintended application.

Grateful acknowledgment is made to The Stationery Office for grantingpermission to reproduce the statutory materials included in this book.

Preface ix


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CONTENTS

Preface vii

Table of Cases xv

Table of Legislation xvii

COMMENTARY ON THE ACT 1

Section 1: assisting unlawful immigration 5

Section 2: entering the UK without a passport 5

Section 3: immigration documents forgery 7

Section 4: trafficking people for exploitation 7

Section 6: supplemental 8

Section 8: claimants credibility 9

Section 9: failed asylum seekers withdrawal of support 15

Section 11: accommodation for asylum seekers local connection 16

Section 12: refugees back-dating of benefits 17

Section 13: integration loans for refugees 17

Section 14: immigration officers powers of arrest 18

Section 15: fingerprinting 18

Section 16: information about passengers 18

Section 17: retention of documents 18

Section 18: control of entry 19

Section 19: England and Wales 20

Section 20: England and Wales supplemental 21

Sections 21 and 22: persons subject to immigration control proceduresfor marriage Scotland and supplemental 21

Sections 23 and 24: persons subject to immigration control proceduresfor marriage Northern Ireland and supplemental 21

Section 25: application for permission under s 19(3)(b), 21(3)(b) or 23(3)(b) 22

Section 26: unification of appeal system 22

Section 27: unfounded human rights for asylum claim 31

Section 28: appeal from within the UK 31

Section 29: entry clearance 32

Section 30: earlier right of appeal 33

Section 31: seamens and aircrews right of appeal 33

Section 32: suspected international terrorist bail 34

Section 33 and Schedule 3: removing asylum seekers to a safe country 34

Section 34: detention pending deportation 36

Section 35: deportation or removal co-operation 37

Section 36: electronic monitoring 37

Section 37: provision of immigration services 38

Section 38: Immigration Services Commissioner power of entry 38

Section 39: offence of advertising services 39


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Section 40: appeal to Immigration Services Tribunal 39

Section 41: professional bodies 39

Section 42: amount of fees 40

Section 43: transfer of leave stamps 40

Section 48: commencement 40

Schedules 40

LEGISLATION

THE ASYLUM AND IMMIGRATION (TREATMENT OFCLAIMANTS, ETC) ACT 2004 43

OFFENCES1 Assisting unlawful immigration 43

2 Entering United Kingdom without passport, &c 43

3 Immigration documents: forgery 46

4 Trafficking people for exploitation 46

5 Section 4: supplemental 47

6 Employment 48

7 Advice of Director of Public Prosecutions 49

TREATMENT OF CLAIMANTS8 Claimants credibility 49

9 Failed asylum seekers: withdrawal of support 51

10 Failed asylum seekers: accommodation 52

11 Accommodation for asylum seekers: local connection 54

12 Refugee: back-dating of benefits 55

13 Integration loan for refugees 56

ENFORCEMENT POWERS

14 Immigration officer: power of arrest 57

15 Fingerprinting 59

16 Information about passengers 59

17 Retention of documents 59

18 Control of entry 59

PROCEDURE FOR MARRIAGE

19 England and Wales 60

20 England and Wales: supplemental 6021 Scotland 61

22 Scotland: supplemental 62

23 Northern Ireland 62

24 Northern Ireland: supplemental 63

25 Application for permission under section 19(3)(b), 21(3)(b) or 23(3)(b) 64

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APPEALS

26 Unification of appeal system 64

27 Unfounded human rights or asylum claim 69

28 Appeal from within United Kingdom 70

29 Entry clearance 71

30 Earlier right of appeal 72

31 Seamen and aircrews: right of appeal 72

32 Suspected international terrorist: bail 72

REMOVAL AND DETENTION

33 Removing asylum seeker to safe country 73

34 Detention pending deportation 73

35 Deportation or removal: cooperation 7336 Electronic monitoring 75

IMMIGRATION SERVICES

37 Provision of immigration services 77

38 Immigration Services Commissioner: power of entry 78

39 Offence of advertising services 80

40 Appeal to Immigration Services Tribunal 81

41 Professional bodies 81

FEES

42 Amount of fees 82

43 Transfer of leave stamps 83

GENERAL

44 Interpretation: the Immigration Acts 83

45 Interpretation: immigration officer 84

46 Money 84

47 Repeals 8448 Commencement 84

49 Extent 84

50 Short title 84

SCHEDULES

Schedule 1 86

Schedule 2 88

Schedule 3 97

Schedule 4 103

THE ASYLUM AND IMMIGRATION TRIBUNAL (PROCEDURE)RULES 2005 105

STATEMENT OF CHANGES IN IMMIGRATION RULES(HC 302) FEBRUARY 2005 131

Contents xiii


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THE IMMIGRATION (EUROPEAN ECONOMIC AREA)(AMENDMENT) REGULATIONS 2005 135

THE ASYLUM AND IMMIGRATION TRIBUNAL (FAST TRACKPROCEDURE) RULES 2005 137

DIRECTIONS UNDER PARAGRAPH 7 OF SCHEDULE 4 TO THENATIONALITY, IMMIGRATION AND ASYLUM ACT 2002 151

PRACTICE DIRECTIONS 153

Index 173

xiv A Guide to the Asylum and Immigration Act 2004


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Adimi JudgmentSee R v Uxbridge Magistrates Court ex p Adimi

Al Ameri v The Royal Borough of Kensington and Chelsea[2004] UKHL 4; [2004] 2 AC 159; [2004] 2 WLR 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Arshad v SSHD [2001] EWCA Civ 587 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22Asif 2002 SLT 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Befekadu [1999] Imm AR 467 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Borissov v SSHD [1996] Imm AR 524 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Chiver [1997] INLR 212, EAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 11

Eleilmaran (00/TH/01369) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Horvath [1999] INLR 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Jakitay (12658) unreported, 15 November 1995, IAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Mahmood (10629) unreported, 3 February 1994, IAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Oleed v SSHD [2003] INLR 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Osmani v The London Borough of Harrow[2004] UKHL 4; [2004] 2 AC 159; [2004] 2 WLR 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

R v IAT ex p Gba (CO/4185/1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

R v IAT ex p Khan [1983] 2 WLR 759 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

R v IAT ex p Hussain (CO/1990/95) unreported, 25 April 1996, QBD . . . . . . . . . . . . . . . .12

R v Uxbridge Magistrates Court ex p Adimi

[2000] 3 WLR 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 7

Vincent Guine (13868) unreported, 9 September 1996, IAT . . . . . . . . . . . . . . . . . . . . . . . . . .12

Warsame (Somalia Adjudicators Questions)(AS/50871/2003) SW [2004] UKIAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 13

Ye v Canada (Minister of Employment and Immigration) [1992] FCJ 584 . . . . . . . . . . . . .15

TABLE OF CASES


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Anti-terrorism, Crime and SecurityAct 2001s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

Asylum and Immigration Act 1996

s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

British Nationality Act 1981 . . . . . . . . . . . .31

Children Act 1989s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15s 20 . . . . . . . . . . . . . . . . . . . . . . . . .4, 5, 15

Civil Procedure Rules . . . . . . . . . . . . . . . . .23

Criminal Justice Act 2003s 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

European Convention on theProtection of HumanRights andFundamental Freedoms . .12, 16, 31, 35Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . .5, 15Arts 6, 8 . . . . . . . . . . . . . . . . . . . . . . . . . .2Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

EU Council Directive 2002/90/EC . . . . . . .5

EU Council Framework Decision2002/946/JHA . . . . . . . . . . . . . . . . . . . .5

EU Council Regulation 343/2003/EC(The Dublin Convention) . . . . . . . . . .35

Forgery and Counterfeiting Act 1981

s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Housing Act 1996 . . . . . . . . . . . . . . . . . . . . .17s 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Human Rights Act 1998 . . . . . . .5, 15, 22, 38s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

Immigration Act 1971 . . . . . . . . . . .18, 19, 33s 3(5), (6) . . . . . . . . . . . . . . . . . . . . . . . .36

s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5s 25C(9)(a) . . . . . . . . . . . . . . . . . . . . . . . .5Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . .18Sched 3 . . . . . . . . . . . . . . . . . . . . . .36, 37

Immigration Act 1988 . . . . . . . . . . . . . . . . . .1

Immigration and Asylum Act 1999 . . . . . .17s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

s 11 . . . . . . . . . . . . . . . . . . . . . . . . . .3436s 12 . . . . . . . . . . . . . . . . . . . . . . . . . .34, 35s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6s 84 . . . . . . . . . . . . . . . . . . . . . . . . . .38, 39s 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39s 86(9)(a), (b)(ii) . . . . . . . . . . . . . . . . . .39s 87(3)(d), (f) . . . . . . . . . . . . . . . . . . . . .39s 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38s 91(3)(7) . . . . . . . . . . . . . . . . . . . . . . .39s 92A . . . . . . . . . . . . . . . . . . . . . . . . . . .38

s 92B . . . . . . . . . . . . . . . . . . . . . . . . . . . .39s 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16ss 115, 123 . . . . . . . . . . . . . . . . . . . . . . .17s 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . .18Sched 5 . . . . . . . . . . . . . . . . . . . . . . . . .38

Local Government Act 2000s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Marriage Act 1959 . . . . . . . . . . . . . . . . . . . .21

Nationality, Immigration andAsylum Act 2002 . . . . . . . . . . . . . . . .1, 4s 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4s 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17s 77 . . . . . . . . . . . . . . . . . . . . . . . . . .35, 36s 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35s 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

s 92(3) . . . . . . . . . . . . . . . . . . . . . . . . . .31s 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35s 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33s 103 . . . . . . . . . . . . . . . . . . . . . . . . .23, 26s 103A . . . . . . . . . . . . . . . . . . . .23, 24, 26s 103A(4)(b) . . . . . . . . . . . . . . . . . . . . .25ss 103B, 103C . . . . . . . . . . . . . . . . . . . .23ss 103D, 103E . . . . . . . . . . . . . . . . . . . .24s 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . .33Sched 1 . . . . . . . . . . . . . . . . . . . . . . . . . .3

Sched 4 . . . . . . . . . . . . . . . . . . . . . . . . . .3

Race Relations Act 1976s 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

TABLE OF LEGISLATION


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United Nations Palermo Protocol . . . . . . . .9Art 6.3 . . . . . . . . . . . . . . . . . . . . . . . . . . .9

United Nations Convention on theRights of the Child . . . . . . . . . . . . . . .15

United Nations Convention Relatingto the Status of Refugees1951 . . . . . . . . . . . . . . . . . . . . . .12, 3436Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . .6Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . .25

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On 27 October 2003, the government announced its intention to pass legislationfor a balanced approach in asylum and immigration policy. This was only oneyear after the Nationality, Immigration and Asylum Act 2002, breaking the trendof fresh legislation every three years in this area since 1993, although therestriction on rights of appeal began as long ago as the Immigration Act 1988.The governments approach on asylum was to be seen now in the wider contextof managed migration, through which the government would open up routesfor people to enter the UK legally, whilst clamping down on those who enterillegally and make unfounded claims. In passing this Act, the governmentdeclared its intention to set out to tackle two particular problems. The first wasto deal with those applicants who lodged groundless appeals to delay removal.The second was to deal with those asylum seekers who deliberately destroy ordispose of their documents in order to be able to make unfounded claims. Toattain these ends, the government said it would increase the speed and finalityof the appeal system. An efficient and speedy system would provide effectiveremedy, but discourage dishonesty. As a result, no longer would there be a two-

tier system of administrative appeals; instead, this Act would create a single tierof appeals. A single tier would simplify the appeal system and reduce the risk ofpeople seeking to play the system by making unfounded appeals to the State forfinal resolution of their cases. It would replace the current structure with a singleappeal to a new single-tier tribunal, the Asylum and Immigration Tribunal(AIT), headed by a President. The new judiciary would be titled immigrationjudges or senior immigration judges and the vast majority of appeals would beheard and decided by a single immigration judge. He would work closely withmore senior District Immigration Judges. The judicial oversight provided by the

designated senior immigration judge would ensure high quality justice withoutallowing cases to drag on for many months for the legal process. Thegovernment argued that fairness, finality and speed would be the hallmarks ofthe new appeal system. It would abolish the two-tier system, but it would stillsafeguard the right of appeal and provide an effective remedy for those whoseapplications had been refused by the Immigration and Nationality Directorate(IND) or an entry clearance officer. This single system is, however, open tocriticism.

In introducing the new Bill, the government stated that it was in the process

of assessing the race equality impact of its proposals, in line with its statutoryobligations under s 71 of the Race Relations Act 1976 (as amended). Theassessments would consider to what extent the proposals have due regard to theneed to eliminate unlawful discrimination and promote good relations betweenpersons of different racial groups. The government was concerned to ensure thatcommunity relations are not adversely affected by what may be seen in manyquarters as continuing evasion and exploitation of immigration and asylumcontrols at significant cost to the taxpayer. However, it is clear that a number of

COMMENTARY ON THE ACT


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2 A Guide to the Asylum and Immigration Act 2004

these proposals will have adverse impacts on racial questions if implemented.The AIT does not safeguard, as claimed, the right of appeal or provide aneffective remedy for decisions refused by the IND or an entry clearance officer.Neither does it live up to the governments professed aim of helping to promote

communal harmony, as it is likely adversely to affect race relations. This isbecause, whereas the single-tier system may be rightly introduced for thoseasylum seekers who seek to delay their removal and thus abuse the system, itcannot be rightly introduced in respect of application to entry clearanceapplications by family members and visitors from the 10 posts overseas, forwhom delay is anathema. To replace the previous two-tier system with a single-tier system in such cases is not only morally but legally questionable. This isbecause, in the White Paper, Transforming Public Services: Complaints, Redress andTribunals (July 2004, Cm 6243), the government has set out to make a case for amore coherent system of appeals and reviews in the tribunal system generally.The intention is that an administrative appeals tribunal would be available totake on appeals from tribunals in England and Wales where the appeal wouldotherwise lie to the High Court, either by way of statutory appeal or judicialreview. Under these proposals, the new AIT would be an exception to the two-tier structure of administrative appeals on the basis that it has been created as asingle-tier organisation in part to reduce the impact of the abuse of the presenttwo-tier appeal system in asylum cases (see para 7.18).

There are two obvious comments to make here. First, family and visitorapplicants are not asylum seekers. Secondly, unlike those seeking asylum, they

are overseas applicants who cannot be abusing the system by exercising appealrights. Thus, an overseas applicant in a marriage case, arguing Article 8 rights onappeal, would certainly not be abusing the system as he would not be motivatedby delay, this being contrary to the realisation of his family rights. An overseasapplicant would be seeking to say that he is asserting a civil right which shouldgo to a High Court judge, which the new system does not allow, resulting in aviolation both of Article 8 as well as of Article 14 rights (because in the latter casethe applicant is being equated with an asylum seeker). There is no reason whythe old system could not have been run side by side with the new single-tier

system for asylum seekers. Such a system would have avoided detriment to afamily or visitor applicant from overseas, which would be caused not leastbecause the appeal decision for an overseas applicant would not be transparentas it would go to a single review judge (acting on behalf of the High Court),unlike as at present where the applicant can actually go to the second tier. Thischange cannot be defended by the government on the ground that it ismotivated to remove abuse, as there is no abuse here. Nor is it arguable that inremoving a second-tier right of appeal for asylum seekers, the same shouldapply for all other kinds of applicants, on the ground that every potentialimmigrant should be treated alike, because one is not comparing like with likehere. In the circumstances, the removal of a second-tier right of an appeal which has been in existence for over 30 years now would both deprive such anapplicant of an effective remedy and impact adversely on good communityrelations in this country. In the light of these considerations, an Article 6challenge to the new system may well be launched where non-asylumapplicants applying from overseas are concerned.


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Commentary on the Act 3

The present one-tier tribunal system may also be short-lived for anotherreason. The consequences of getting a decision on appeal wrong because thetribunal takes a very legalistic view of the issues can lead to a person being sentto torture or death in his or her own country. The new tribunal system did not

originally have a lay member of the public sitting on it in order to decide factualissues of a non-legal nature. However, the government eventually conceded inthe Commons a House of Lords amendment to ensure the Bills speedy passage(see para 2(e) of Schedule 4 to the 2002 Act, amended by Schedule 1 to the 2002Act, which leaves a lay element), thus providing a good example of theimportance of a second chamber in a democracy. The overwhelming importanceof the lay element on the bench was brought home in the House of Lords, whereit was said that: We must remember that this is the only jurisdiction in thiscountry that has the power of invoking the death penalty that is a verydramatic way of putting it. You can also impose on people an awful prisonsentence. Some of the conditions in the country that asylum seekers come fromare appalling. One needs only someone who is very tired and not quiteconcentrating to make a little mistake. A lay member may just be able to preventsuch a mistake from being made (see Hansard, HL, vol 662, col 45, per theCountess of Mar). Indeed, in its 1999 report, the Council of Tribunals said (atp 11) that: [W]e were troubled by the removal of the lay element from theImmigration Appeal Tribunal. Although we recognise that lay members may beunnecessary in cases concerned solely with issues of law, we believe that theyhave a valuable contribution to make when issues of credibility arise,

particularly in asylum appeals (ibid at col 46). Yet, there are no proposals atpresent for lay members to sit on asylum appeals. Certainly, the two-tier systemhas been strongly recommended in a report published four years ago by SirAndrew Leggatt entitled Tribunals For Users, where he had observed that theappeal body needs to give genuine coherence to the development of the law, andpromote consistency effectively at its own level and in the first-tier tribunals. Itis remarkable that this report underpins the governments forthcomingproposals for reform in this area. Sir Andrew was categorical that matters of factshould be determined separately and that: Many cases would not be suitable for

hearing by a chairman, even legally qualified, sitting alone He declared that:[T]here should be a first-tier immigration and asylum tribunal, within aseparate division, which should be the sole judge of issues of fact (at para 23). Inshort, it would be interesting to see how long the new single-tier system lastsand whether it will even see out the present decade.

The government has also defended its attack on undocumented passengers.It has said that the deployment of high-tech freight screening equipment atFrench and Belgian ports and moving UK border controls to France are alreadypreventing undocumented and inadequately documented people fromtravelling to the UK. That, however, still leaves the problem of undocumentedasylum seekers who deliberately destroy or dispose of their documents. Thegovernment proposes that those who fail to provide documents without a goodexplanation or who have travelled through a safe third country or who make alate claim would have this taken into account in considering the credibility oftheir claims. It has stated that: These measures would require the decision-maker and the appellate bodies to take account of the above situations when


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assessing the credibility of statements made by such persons in support of theirasylum claims. However, one does not have to legislate for this. As the Countessof Mar, who has been sitting in the Immigration Appeal Tribunal (IAT) for manyyears, reminded the government: In all the 19 years that I have done the job, I

have never needed to be told how to assess a claimants credibility. One does itfrom experience and knowledge of the situation (see Hansard, HL, vol 661,col 686). In fact, the jurisprudence of the tribunal and of the courts haddeveloped a much more sophisticated and nuanced approach to assessments ofcredibility over the years, which this simplistic legislative stricture endangers(see Chiver [1997] INLR 212, IAT).

The government went further, however. It proposed to create two newcriminal offences. The first offence, that of being undocumented withoutreasonable explanation, would apply to anyone (subject to certain exceptions:

EEA nationals, for instance) arriving at a UK port without adequatedocumentation to satisfy immigration control. The second offence would be offailing to co-operate with the redocumentation process where someone arriveswithout documentation and the government is trying to piece together his or herantecedents. This would impose a duty on those with no right to remain in theUK to co-operate with their redocumentation process. Prosecution would followwhere it could be established that a person did something which had the effectof frustrating, obstructing or otherwise interfering with the re-documentationprocess. Another proposal is that a person will not be able to challenge his or herremoval to certain safe third countries on the basis of the way he or she will be

treated. A person would not be able to challenge such a removal. Thegovernment will set down designated countries which will be those where it issatisfied that an individual would be neither persecuted nor subjected to tortureor inhuman or degrading treatment or punishment. Its argument is that thiswould facilitate fast removal from the UK, consistent with our internationalobligations. Accordingly, the Act contains in Schedule 3, three sets of lists of safecountries to which a person is removable. The combined effects of theseprovisions is bound to lead to legal challenges being launched.

The government has also set out to restrict family support contained in s 54

of the Nationality, Immigration and Asylum Act 2002. Under that Act, it waspossible to withdraw National Asylum Support Scheme (NASS) support fromfamilies with dependent children who have had their asylum claim determinedif they have failed to comply with the removal direction. The governmentproposes now that the Act should be amended so that support for familieswhose claim for asylum has been rejected and who have no remaining avenue ofappeal will end as soon as it is confirmed that the family is in a position to leavethe UK. It states that: This would provide an additional incentive to leave theUK promptly, either via the Immigration Service or via a voluntary assisted

return and would reduce the waste of public funds when such a family stays tocomply with the removal direction. This is also highly suspect, as the litigationunder the 2002 Act makes only too clear. The government has suffered onedefeat after another. Nevertheless, under the new law, if asylum support iswithdrawn from a family in this way, other forms of support, including thoseprovided under s 2 of the Local Government Act 2000, would no longer beavailable. The only support that will be available would be under s 20 of the


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Children Act 1989. This may lead to arguments in relation to the allegedviolation of Article 3 rights under the Human Rights Act (HRA) 1998, so as toamount to inhuman and degrading treatment.

Finally, there is a new criminal offence of advertising or offering to provide

immigration advice for services by someone who is unqualified. The office of theImmigration Services Commissioner would be able to enter the private orbusiness residence of anyone suspected of providing immigration advice orservices from those premises when unqualified to do so, subject to obtaining acourt warrant. This is because the Immigration Services Commissioner wasconcerned about a number of unqualified advisers evading regulation by settingup false supervision arrangements with solicitors. On the face of it, this is awelcome provision.

Section 1: assisting unlawful immigration

This section enables the Secretary of State to make an order in respect of anoffence on assisting unlawful immigration to a Member State, provided onlythat it is necessary for the purpose of complying with the UKs obligationsunder the Community treaties. The amendment is necessary to comply with theEU Council Directive (2002/90/EC) and EU Council Framework Decision(2002/946/JHA), both of which require Member States to create the offence ofassisting a person who is not a national of a Member State to enter and live in aMember State in contravention of the laws of that Member State. This sectionaccordingly amends s 25 of the Immigration Act 1971, which creates an offenceof facilitating the commission of a breach of immigration law. The MemberStates are those States that are known as the section 25 list of Schengen AcquisStates, including Norway and Iceland. The references to Member State andimmigration law in sub-s (9)(a) of s 25C of the 1971 Act have the same meaningas in s 25.

Section 2: entering the UK without a passport

Those who travel to the UK will not always have a valid passport available tothem. There is now an obligation on those travelling on false passports to behonest about this fact and to disclose it. Section 2(4) allows a defence to anindividual travelling on a false passport. This is provided that such a personretains a passport to protect him or herself from committing an offence. A personwho travels on a false passport that he then destroys or disposes of will not beable to rely on that specific defence. He or she may still seek to rely on thedefence of reasonable excuse for not being in possession of a valid document orthat of never having had a valid document. In such a case, the government

expects the person to establish that it was indeed the false and not his or hervalid passport that he or she destroyed or disposed of and to explain why he orshe disposed of it. The offence, according to the government, is designed tocapture the mischief of destroying or disposing of immigration documents enroute to the UK. It would not target those who have never had any immigrationdocument during their journey. However, problems will arise in the operation ofthis provision, which is likely to encourage recourse to litigation. Do people


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have to prove to the government when coming to the shores of the UK that theyhave used those documents throughout their journey? Do they have to provethat they used the documents for all stages of their journey, from their country oforigin, or do they only have to prove that they used those documents only for

that leg of the journey from where they came into this country? How will thosepeople be able to prove when and where they started to use the particulardocuments? What kind of proofs will the government accept as valid? Forexample, it is well known that there are two million Zimbabwean refugees inSouth Africa. Some of them attempt to come to the UK on false South Africanpassports. The documents that they use to travel on from Zimbabwe to SouthAfrica, however, would be lost in the mists of time. One question is whether thedocument that is in issue is the one on which the person travels for the last leg ofthe journey. Even if that is the case, how does one actually prove that that wasthe document used to board the aeroplane in Johannesburg? It seems thatwhenever a person does not provide a valid document, that person will be askedto explain how he or she managed to arrive in the UK with no passport or with afalse one.

Any deciding authority will need to be satisfied that the quality of the forgedpassport is such that a person could realistically have got through immigrationcontrol. The burden of proof is on the asylum seeker. A person would need to besure that he or she had used a false passport for the whole duration of his or herjourney to rely on the new defence. If a person travels from a country where thegovernment knows that immigration controls are limited and from where it is

possible to leave without a valid passport (for example, from Sudan, where aperson could not have anything that could be recognised as a travel document),the government would take that into account when listening to the explanationoffered by the applicants on arriving in the UK without a valid passport.However, there could be difficulties with this. If a person is travelling undersome duress (as is often the case with asylum seekers from China, whosejourney is facilitated by snakeheads), he may be required to destroy a traveldocument. For the defence to operate, however, the government expectstravellers to continue to hold on to their documents. Section 2, therefore, is

clearly of inordinately and unrealistically wide application. It is a catch-allprovision. Under this provision, asylum seekers risk being prosecuted ratherthan protected when they arrive seeking sanctuary and safety in the UK. Theprovision does not, moreover, take children out of the scope of prosecutionaltogether. The result is that a person fleeing the persecution in his or her owncountry could acquire a criminal record at the outset of his or her life abroad.Such a consequence is likely to be in infringement of Article 31 of the RefugeeConvention. To have any proper chance of success, the government will have toissue detailed guidance on how this section is to be used for the prosecution ofasylum seekers.

The guidance could deal with two classes of offence that a person maycommit in relation to his or her entry and residence in the UK. The first is inrelation to an offence specified in s 31 of the 1999 Act or s 2 of this Act. Thesecond relates to any other offences, such as obtaining an advantage where thepresumptive refugee should not be prosecuted while his or her application isstill in play because of the Adimi judgment (where Simon Brown LJ famouslysaid that that some element of choice is indeed open to refugees as to where


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they may properly claim asylum: see R v Uxbridge Magistrates Court ex p Adimi[2000] 3 WLR 434). The government has given both an undertaking that theguidance will indeed be issued and an undertaking that it will indeed instructimmigration officers to consider whether a person has a reasonable excuse for

having no document. In most cases, a person who does not have a document, fora reason other than destroying or disposing of it, will have a reasonable excusefor it. The government also accepts that there will be rare circumstances inwhich even if the person has destroyed or disposed of a document, he or shewill have a reasonable excuse. Immigration officers will thus need to considerthe broader question of whether, in the circumstances, a person has a reasonableexcuse for destroying or disposing of his or her documents, not solely whetherthey suspect that to be the case. Section 2(9) makes such a person liable to a fine.However, it is absurd to levy fines on somebody who came here as an asylumseeker and had spent the last few months of his or her time in custody as he orshe will obviously will not have any resources out of which he or she could paysuch a levy.

Section 3: immigration documents forgery

There have already been criminal prosecutions of asylum seekers using forgeddocuments. Section 3(2) deals with forged immigration documents by extendings 5 of the Forgery and Counterfeiting Act 1981. The reference to immigrationdocuments is a reference to cards or stickers or other instruments which are

either (i) designed to be given to persons who have been granted leave to enterand which carry information about leave, or (ii) given to persons to confirmtheir right to enter or reside in the UK. Instead of ink stamps, it will be cards andstickers that will be increasingly used in the future so that the possession of afalse card or sticker will be an offence. This will circumvent the problem where,for example, in Central Africa, young boys conscripted for fighting from the ageof 11 or 12 will hardly have anything that resembles a proper passport on whichan ink stamp can be imposed. Some of them will get stuck on the way and neverarrive in this country. However, if they come to the UK, it is not just a question

of whether their documents have been stamped on the way. Often, they wouldnot be stamped because there is hardly anything to stamp. In most cases, theywill have only a very small scrap of paper, which would be a pasteboard. Tryingto record a passage could be extraordinarily difficult in these circumstances andthe use of cards and stickers could go some way (but maybe not the whole way)in addressing the problem of forged documents.

Section 4: trafficking people for exploitation

To be guilty of trafficking under this section, a person must arrange or facilitatethe arrival of another person in the UK. He or she must either intend to exploitthat person or he or she must believe that another person intends to do so. Willthe section cover the situation where a request or inducement, force, threat ordeception is made to person A, but person B is exploited? Children may not besubject to treatment amounting to slavery or forced labour. They could thereforenot satisfy the definition of exploitation in s 4(4)(a). Children may not be


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trafficked for their organs; thus, they may not satisfy the definition in s 4(4)(b).As for s 4(4)(c), the threat of violence may not be made to the child; the parentmay be told that the child will be harmed. With regard to sub-s 4(b), not allchildren are exploited or deceived; they may not understand what is being done

to them. This section is not, therefore, about defining trafficking for the purposesof protecting its victims it is about coming up with a definition to ensure thatthose who exploit others can be prosecuted. Consequently, the concept ofexploitation is the key to s 4 offences as, without it, there is only the facilitationof travel which, in itself and in the absence of a breach of immigration laws, isnot morally repugnant or worthy of criminal sanction. To secure a convictionunder s 4, the prosecution will therefore have to prove that the accused arrangedor facilitated the travel of his or her victim and that he or she intended to exploitthe victim or believed that another person was likely to do so. The section doesnot cover a situation where a person has the intention of exploiting a child if thatpersons conduct towards a child does not actually fall within the definition ofexploitation.

Section 6: supplemental

Under this section, there are new criminal offences of trafficking people into,within or out of the UK for the purpose of exploitation. The use of illegalmigrant labour has captured the public imagination following the tragedy in2004 at Morecambe Bay. This provision takes action against unscrupulous

employers who profit from the exploitation of illegal workers and are sometimesfound to have links with organised crime. First, the section imposes increasedfines on those who employ illegal workers in the most serious of cases. Thegovernment amendment here related to s 8 of the Asylum and Immigration Act1996, which is the main statutory control on illegal working. Secondly, it makesit an offence to employ a person subject to immigration control if that person hasnot been granted leave to enter or remain, or if that persons leave is not validand subsisting or is subject to a condition precluding him from taking up theemployment. The offence is currently triable summarily only and the current

maximum penalty is a fine of 5,000 in respect of each person employed illegally.The governments amendment does make s 8 offence triable either way, which isto say on indictment as well as summarily. The maximum fine on summaryconviction would remain 5,000 but, in the most serious cases, the ImmigrationService would be able to pursue a prosecution in the Crown Court, where thereis no limit on the level of fine that can be imposed following conviction onindictment. Thus, an offender could be subject to imprisonment of up to 14 yearsor to a fine or to both. The governments amendment also made a consequentialchange to the time limit for prosecutions that can be brought under s 8. Theamendment reflected the general legal principle that offences that are triableeither way may be prosecuted at any time. This aspect of the amendment wouldnot, however, result in any change to enforcement practice and the governmentdid not expect employers to retain employee records for longer than three years.To show its seriousness, the government increased the number of illegalworking enforcement operations and related prosecutions. Thus, the purpose ofthe amendment is to provide the government with the flexibility to pursue themost serious cases in the Crown Court, where there is no limit to the level offines that can be imposed.


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The experience of workplace enforcement officers makes it clear that illegalworking is most prevalent in sectors characterised by low skill and short termemployment involving chains of subcontractors. The most effective sectorsprobably include contract cleaning, agriculture, food processing, hospitality and

construction. These areas are targeted enforcement activity areas. In April 2002,there were approximately 1,677 staff involved in in-country enforcement activitynationally. By November 2003, the figure had risen to 2,463. That figure includedoperational and case work staff. In 2003, the Immigration Service reportedcarrying out 446 illegal working enforcement operations, compared with just 301in 2002. The number of prosecutions brought over the past three years has alsoincreased. During that time where data is available, namely 200002, there were17 prosecutions and six convictions. However, it is difficult to establish any kindof deterrence when the chance of someone being proceeded against is about 1 in100,000. Trafficking, accordingly, will not decrease or be ended unless there aremany more successful prosecutions. Trafficking in Britain only became noticedin 1995. Today, some 300,000 people every year may be trafficked westwardsfrom or to Eastern Europe. West Africa and Asia are other sources. African childcases have recently increased. They are often masked by informal, non-registered fostering, which may cover as many as 10,000 children. Social Servicesdo not always realise that they are dealing with victims of organised crime. Theydo not always distinguish between smuggling and trafficking. Women who havesuffered abuse in their own families are also very likely to be trafficked. A recentsample showed that some 50% have been raped before being trafficked and 77%

have been beaten before escaping or being released. Some 92% of the sampletaken suffered some form of mental illness or acute distress. Some 27% havedeveloped a sexually transmitted disease and 65% have continuing physicalproblems. This information is confirmed by the two serious studies intotrafficking into the UK, namely by ECPAT UK and the Poppy Project, both ofwhich reported in 2004.

The government has signed the Palermo Protocol of the United Nations andwill ratify it soon. Article 6.3 of the Palermo Protocol states as follows: Eachstate party shall consider implementing measures to provide for the physical,

psychological and social recovery of victims of trafficking. Although thegovernment has now made all forms of trafficking for exploitation seriousoffences, there was an opportunity here to implement the Palermo Protocol inour own legislation so as to provide for the protection of victims of trafficking.For example, those who could successfully prove that they had been traffickedshould not then be penalised for their illegal presence in the country, and norshould they be required to leave. Furthermore, those who wish to make acomplaint should not be returned pending the conclusion of proceedings.Unfortunately, the government did not take the opportunity to ratify thePalermo Protocol in the Bill. This will seriously detract from its avowedintention to clamp down hard on those employing illegal labour.

Section 8: claimants credibility

This is the most subjective clause of the Act because it provides that: [T]hissection applies to any behaviour by the Claimant that the deciding authority


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thinks (see s 8(2)). What the deciding authority thinks can be meresubjective judgment. The deciding authority is defined in s 8(7) and (13) toinclude the Secretary of State, immigration officers, adjudicators and the AIT.Such an authority has to take account, as damaging credibility, of any behaviour

to which this section applies. The behaviour to which this section applies is setout in sub-ss (2), (3), (4), (5), (6) and (9) and includes wide-ranging matters. Forexample, s 8(3)(e) states that the failure without reasonable explanation toanswer a question asked by a deciding authority will be treated in such as waythat it shall be treated as designed or likely to conceal information or tomislead. The risk here is that an assessment of credibility can be based as muchon the cultural background of the deciding authority as on the culturalbackground of the person being interviewed. Consequently, the late Earl Russelldeclared that many applicants come from countries in which what is taken for areasonable explanation is very different from what is taken as one here(Hansard, HL, vol 659, No 53, 15 March 2004 at col 81). This is not like theexamination of an objective fact, such as in s 8(3)(a), which concerns itself with afailure to produce a passport on request to an immigration officer. This isbecause, unlike a situation where a person does not, without reasonableexplanation, produce a passport or a document, or explain why he or she hasdestroyed it, which is a concrete matter, the failure without reasonableexplanation to answer a question is not a concrete situation at all. It is bound tobe ridden with problems. Moreover, a person may not be answering directly ormay be concealing information for reasons of trauma, cultural

misunderstanding or sheer prudence that an answer might cause problemselsewhere. The government has, however, accepted that the provision will haveto be applied with sensitivity and care. Lord Bassam stated:

[W]e accept that some claimants may have some cultural distance from theexperience of responding to questions and that some claimants may find itpainful to recount the details of their experience. Obviously, it depends verymuch on the circumstances. It is possible that the circumstances could provide areasonable explanation for a claimants earlier reluctance, or reticence, to providea full story or to be entirely truthful. We fully understand the need for sensitiveevaluation to take place we see that as a requirement [ibid at col 687].

However, it is interesting to note that any other reasons which an appellateauthority may have for disbelieving a claimant are still preserved intact by sub-s(12). Thus, credibility could be taken into account by a deciding authority onthat basis.

Interestingly, since this provision came into effect in January 2005, the HomeOffice has not relied on it as much as one would have expected. This is telling. Itis good indication of the way in which s 8 is likely to apply, despite its strictwording. The following observations can be tentatively made about is

application and effect as it currently stands. First, it is clear that whereas thissection applies to all assessments of credibility, including those arising in respectof an appeal from a pre-1 January 2005 decision caught by this section, it isconfined at present to asylum and human rights appeals and not to otherimmigration decisions. Secondly, it is also clear that whilst its application ismandatory, it does not require disbelief of a claim. It merely requires thespecified conduct to be taken into account. This suggests a distinction between


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reliability and credibility. A deciding authority can find a story presented by aclaimant as lacking in credibility, but still find the claim to asylum status aspresented to be reliable. For example, asylum seekers from Somalia can be saidto be lacking in credibility because of what they said about how they got their

travel documents or how they effected their escape from Somalia, but once it isaccepted that such claimants are Kibajuni speakers from Koyoma, one of thesmall remote islands off mainland Somalia, then it is open for the decision-maker to hold that the evidence for the claim is reliable. Thirdly, what isrequired of the decision-maker, however, is that conduct in question isspecifically referred to in the determination in all cases which are allowed on thebasis of credibility, failing which the losing party will be entitled to an appeal. Inparticular, there will need to be a specific reference in all decisions where apositive assessment of credibility is made. This means that the general positionas it applies to tribunals of fact is now stricter in respect of asylum and humanrights decisions taken by a deciding authority. Such an authority cannot justhope that in cases where it has allowed a claimants appeal, that its reasons fordoing so are apparent from a general reading of its decision. Authorities mustspecifically deal with any conduct that can be taken as damaging credibility.Fourthly, in this respect the position is different from that set out by the Court ofAppeal generally in respect of tribunal decision-making where, in R v IAT ex pKhan [1983] 2 WLR 759, Lord Lane CJ explained that:

The important matter which must be borne in mind by tribunals in the presenttype of circumstances is that it must be apparent from what they state by way of

reasons first of all that they have considered the point which is at issue between theparties, and they should indicate the evidence upon which they have come to theirconclusions ... a party appearing before a tribunal is entitled to know, eitherexpressly stated by the tribunal or inferentially stated, what it is to which the tribunalis addressing its mind. In some cases it may be perfectly obvious without anyexpress reference to it by the tribunal; in other cases it may not The appellant isentitled to know the basis of fact upon which the conclusion has been reached. Once againin many cases it might be quite obvious without the necessity of expressly statingit, in other cases it may not [emphasis added].

What this suggests is that under s 8 it will, therefore, be open to the decision-making authority to allow a claimants appeal, after making a positiveassessment in a case where that section applies, provided only that it is clearfrom the determination that the decision-maker has taken the conduct intoaccount as damaging credibility. This suggests that decision-makers mustneither be over-zealous nor under-zealous in assessments of credibility. Fifthly,this means that what they must do is look at the picture in the round. For thosenot already applying it, this means a refocusing on the well-known decision inChiver [1997] INLR 212, IAT, where the IAT explained that with regard toassessment of the appellants credibility:

It is perfectly possible for an adjudicator to believe that a witness is not telling thetruth about some matters, has exaggerated the story to make his case better, or issimply uncertain about some matters but still to be persuaded that the centre piece ofthe story stands [emphasis added].

Sixthly, what the section does, therefore, is to penalise a decision-maker forallowing a claim simply because he or she has liked the applicant. For those


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decision-makers who were already following a structured approach to theanalysis of evidence, it will make little difference. Seventhly, credibility findingsare now of heightened importance for a decision-maker hearing an asylum orhuman rights claim. This does not mean that earlier dicta by the courts and

tribunals cautioning against a disproportionate use of the credibility issue arenot relevant. In fact, practitioners should make a point about raising these dictabefore a deciding authority where appropriate. Thus, in Befekadu [1999] Imm AR467, Scott Baker J said that great care must be taken before making findings ofcredibility in asylum cases. In Jakitay (12658) unreported, 15 November 1995,IAT, the IAT said that to ask or expect coherent and consistent stories and judgecredibility against relatively minor discrepant versions can be questionable andcalls for careful evaluation. In Vincent Guine (13868) unreported, 9 September1996, IAT, adjudicators were warned of the over-zealous use of credibility, withthe IAT warning that a decision which concentrates primarily on findings ofcredibility for its outcome is in general more likely to be found to be flawed .However, credibility findings are increasingly now to be regarded as crucial tothe findings of a deciding authority and are therefore unlikely to be ignored.This has been made quite clear by the IAT in a recent decision which is likely tohave considerable bearing on s 8 determinations under the new regime createdby the 2004 Act. Much of the decade-old jurisprudence of the British courts,which emphasised that credibility assessments are not an end in themselves,while still true, will have to be reappraised in the context of the 2005 Act. Thus,in R v IAT ex p Hussain (1996; CO/1990/95), Turner J in the High Court had said

that: Credibility depends on a number of factors: honesty, accuracy, and theability fully to recollect. Credibility is not a valid end to the function of anadjudicator ... This has sometimes been read as implying that credibilityfindings can be of secondary importance in an asylum claim. In Warsame(Somalia Adjudicators Questions) (AS/50871/2003) SW [2004] UKIAT, thePresident of the IAT in February 2005, referring to the comments of Turner Jexplained that:

Findings of credibility are one of the primary functions of the adjudicator, sincethey lead to the establishment of much of the factual matrix for the determination

of the appellants case. In some cases, but by no means all, the issue of credibilitymay be the fulcrum of the decision as to whether the appellants claim succeedsor fails. Therefore, it would be a misdirection to say that findings of credibility arenot an important element upon which the adjudicator should concentrate and forwhich the adjudicator should provide appropriate reasons. Turner J was right topoint out that an assessment of credibility is not the ultimate focus of anadjudicators determination. In an asylum or human rights case, that focus is thepotential breach of either Convention which will usually involve an assessment ofthe nature and risk to an appellant of his removal. An appellant who is partly oreven wholly disbelieved may still be at a real risk eg for his ethnicity. He may have lied

to bolster a true case. Yet that does not remove or even undermine the need to establish,the appropriate standard of proof, the factual basis for the consideration of risk. Thecitation of what Turner J said in Hussain has been too often used as an invitationto ignore credibility and its importance [emphasis added].

Three observations may be made about this dictum: first, the recognition thateven an appellant who is wholly disbelieved may still be deemed a meritoriousclaimant, because asylum status is perfectly in line with the IATs previousruling in Horvath [1999] INLR 7 at 71E, where the IAT affirmed that:


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Credibility findings can only be made on the basis of a complete understandingof the entire picture. It is our view that one cannot assess a claim without placingthat claim into the context of the background information of the country of origin.In other words, the probative value of the evidence must be evaluated in light ofwhat is known about the conditions in the claimants country of origin.

Secondly (and notwithstanding the above), the decision of Ouseley J in Warsameis instructive in reminding practitioners and tribunals that assessments ofcredibility of individual applicants remain important in an asylum or humanrights claim. How that assessment is to be undertaken, however, is still likely tobe a matter of some consternation and confusion for them. An article byProfessor Audrey Macklin for the Immigration and Refugee Board of Canada(and in the possession of the UNHCR) is worth quoting at length in this regard:

Credibility determination is hard. It is frequently difficult to articulate in rational

terms why one does, or does not, believe another ... The stereotype goessomething like this: truth-tellers look us in the eye, answer the questions put tothem in a straightforward manner, do not hesitate, show an appropriate amountof emotion, are neither too laconic, nor too verbose. Liars do not look us in theeye do not say too much ... are neither too demonstrative ... or lacking in affect However, as we all know (or should know), culture, gender, class, education,trauma, nervousness and simple variation among humans can all affect howpeople express themselves. It is dangerous at best, and misleading at worst, torely on a uniform set of cues as demonstrative of credibility, or lack thereof[reproduced at Hansard, HL, vol 661, No 85, 18 May 2004, col 686].

This confirms the importance of Lord Bassams recognition in the House ofLords that some claimants may have some cultural distance from the experienceof responding to questions. Whilst recognising that this depends very much onthe circumstances, he did accept on behalf of the government that individualcircumstances could provide a reasonable explanation for a claimants earlierreluctance, or reticence, to provide a full story or to be entirely truthful. Thisstatement should not be ignored in appropriate cases, if a correct assessment ofcredibility is to be made, and nothing in Warsame militates against it. This isconsistent with the UNHCR Handbook on Procedures and Criteria for Determining

Refugee Status (hereafter the UNHCR Handbook) which provides, at paragraph203:

After the applicant has made a genuine effort to substantiate his story there maystill be a lack of evidence for some of his statements. As explained above[para 196], it is hardly possible for a refugee to prove every part of his case and,indeed, if this were a requirement the majority of refugees would not berecognized. It is therefore frequently necessary to give the applicant the benefit ofthe doubt.

Thirdly, the recognition that decision-making should be culturally competent is

one that deserves to be widely appreciated. Judges have to make findings ofcredibility in much the same way as they have to find facts. The process is arigorously disciplined process which, if found wanting, can be still furtherappealed to a higher judicial body. However, it is not an infallible process.Lawyers have been criticised for pursuing this task. As Jean Giraudaux oncesaid: No poet ever interpreted nature as freely as a lawyer interprets the truth.However, it is salutary to remember that the legal process is not to do with thepursuit of truth. Lawyers are there to help the court decide an issue and the


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judge is there to decide that issue. However, [t]he man on the bench is not adetective A court of law is not a fact finding commission. It is there to try anissue In a criminal case, it must decide whether the Crown has shown,beyond any reasonable doubt, that the accused is guilty. If it has not, he must be

acquitted. In civil cases comparable rules apply (see Sheriff Dobie, Plain Talesfrom the Courts, 1957, Green, at 13738). When the court finds facts, it does so onthe material available to it. Too often, courts and tribunals are criticised for notmaking the right decision. However, the failing is often of the legalrepresentatives who have not put the right material before them. A decision-maker can only work with what is before him or her. As Lord McClusky hasstated: [t]he facts are a creation of the court using the material provided in theevidence. Facts can be established in a number of ways, for example byadmission or agreement, by inference drawn from other facts, by judicialknowledge, as well as by the normal method of the courts accepting as a factthat which a reliable witness swears to. But, when making findings of fact, thedecision to hold a particular fact established must be based on a consideration ofthe whole evidence (see Lord McClusky, Criminal Appeals, at 7374).

Where the cultural competence of the decision-maker comes into issue,however, is in the consideration of the whole evidence. In immigration andasylum cases in particular, if cultural handicaps are not taken sufficiently intoaccount, there is scope for error in the fact-finding process. For example, at itssimplest, it is well known that accounts evolve (see Eleilmaran 00/TH/01369)and they are likely to evolve considerably with illiterate and traumatised

individuals whose recollection of events is patchy. At a more complex level, theappellant may actually be embellishing an account, even where he has a genuineclaim. In an earlier case, Judge David Pearl cautioned against this when he said:[I]t is always important to remember in cases of this kind that witnesses oftenlie Quite often they are nervous or confused. In many cases they have beenadvised to answer questions in a certain way by friends who simply do notunderstand the importance of telling the truth But just because the witnesstold lies in one aspect of a case should not inevitably lead to the conclusion thatthe burden of truth has not been discharged (see Mahmood (10629) unreported,

3 February 1994, IAT).It is in this context that cultural jurisprudence in decision-making may well

be needed so that the cultural dimension inherent in the claim can be integratedinto the fact-finding process (see Juss, SS, Discretion and deviation in theadministration of immigration control (with a foreword by Sir Louis Blom-Cooper QC), in Modern Legal Studies (1997, Sweet & Maxwell) at 67, 2635). InAsif(2002 SLT at 307), the Inner House of Court of Session said that: weaccept, without reservation, that credibility is an issue which must beapproached with care and with sensitivity to cultural differences and the very

difficult position in which the applicants escaping from persecution often findthemselves for a variety of reasons. Such sensitivity, especially in immigrationappeals, may well lead to the realisation in the fact-finding process thatincongruity in factual accounts is not fatal to a claim. In fact, incongruousaccounts may well be perfectly natural. Thus, it has been well recognised that[d]iscrepancies are of course an inevitability where, often after long events, andoften in a language that is foreign to the applicant, an explanation comes to begiven (see R v IAT ex p Gba (CO/4185/1999)).


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Similarly, in the Canadian case of Ye v Canada (Minister of Employment andImmigration) [1992] FCJ 584, the Federal Court of Appeal warned against theassessment of credibility by the Refugee Division in an appeal concerning aChinese appellant. The court referred to the risk of imposing Western concepts

on a subtle oriental totalitarianism and of interpreting Chinese law enforcementin the light of the more linear Western model, when the social control exercisedby the Chinese State is omnipresent. In a subsequent case, the Federal Courtcriticised the use of North American logic and experience and the assessmentof demeanour by the application of Canadian paradigms. Lord Bingham MRwas most explicit in this respect when he declared that: No judge worth his saltcould possibly assume that men of different nationalities, educations, trades,experiences, creeds and temperaments would act as he might think he wouldhave done or even which may be quite different in accordance with hisconcept of what a reasonable man would have done (see Sir Thomas Bingham,The judge as juror (1985) Current Legal Problems 38).

Section 9: failed asylum seekers withdrawal of support

The governments argument here appears to be that if the parents, as failedasylum seekers, refuse to depart voluntarily when they reach the end of theappeal process, then they (the parents) are putting the children at risk. Thisappears to be an attempt by Parliament and the State to abdicate responsibilityto the children of failed asylum seekers. If so, then there would be a breach of

both the UN Convention on the Rights of the Child and of the Human RightsAct 1998. If parents are asking for support to keep their families together, andsocial workers believe that it is in the childs best interest, this is support thatought to be provided, but s 8 prevents this from happening. The AsylumSupport Adjudicator has no power over decisions that are made by the localauthority. The matter cannot be appealed. To describe the infliction of destitutionon families with children as a system for voluntary departure is unfortunate.The families who will be deprived of support are not only those who havereached the end of the line, but all people who are likely to benefit from the

backlog clearance procedure. If support is withdrawn from failed asylumseekers who have failed to leave the UK voluntarily, this would lead to a breachof Article 3 of the European Convention on Human Rights (ECHR) which isabsolute (see Hansard, HL, vol 661, col 692, per Lord Lester). The government hasdefended itself by stating, however, that this section does not exclude thepossibility of support being provided to the child under ss 17 and 20 of theChildren Act 1989. However, in both cases, this requires the consent of theparents. Therefore, this is likely to present further problems. The governmenthas, in turn, further explained that before a decision is made to withdrawsupport, the family would be offered an interview. This is where the familymembers can explain why they have not yet left the country and what steps theyare taking to do so. If there are particular reasons why they have not taken stepsto leave, then they have the opportunity to inform and advise the government ofthose reasons. In this way, each case would be assessed on its individual merits.The government has said that: It is worth clarifying this: where people are co-operating, support will not be withdrawn. We are after co-operation that iswhat we are trying to achieve (ibid, Hansard, col 701, per Lord Bassam). After


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1 May 2004, those from the Accession State countries have ceased to be eligiblefor support unless a failure to provide support would breach ECHRconsiderations. It is worth repeating the concession drawn from the governmentby Lord Lester when he said: I wish to make it clear beyond doubt that the

Government are saying that there is an absolute duty under the EuropeanConvention, even for a failed asylum seeker who has not been co-operating andwho has no reasonable excuse for being here not to withdraw support if to doso would expose that person or his family to inhuman or degrading treatment.The government stated that this is government policy (see ibid, Hansard,col 702, per Lord Bassam).

Section 11: accommodation for asylum seekers local connection

Homelessness legislation prescribes that there is a duty on a local authority tosecure accommodation for an asylum seeker in whose area that person has alocal connection. In two cases, however, the Law Lords, sitting as the AppellateCommittee, held in Al Ameri v The Royal Borough of Kensington and Chelsea and inOsmani v The London Borough of Harrow [2004] UKHL 4; [2004] 2 AC 159; [2004] 2WLR 354 that, under the homelessness legislation as currently drafted, residencein an area, which is pursuant to the provision of accommodation by the HomeOffice under s 95 of the Immigration and Asylum Act 1999, is not capable ofestablishing a local connection with that area because it is not the residence ofchoice. Under government policy, however, residence in an area where an

asylum seeker has been dispersed by the Home Office will automatically lead toa local connection being established. There is one exception to this. Asylumseekers will not establish a local connection with an area if they areaccommodated in an accommodation centre. This is because accommodationcentres will provide a move-on advice service to assist successful applicantswith relocation. It should also be noted that, as far as Scotland is concerned, themain homelessness duty in England and Wales, namely s 193 of the Housing Act1996, would not apply in the case where a former asylum seeker had beendispersed in Scotland and, subsequently, made an application in England or

Wales, unless he or she had established a local connection somewhere inEngland, Wales or Scotland.

The governments policy under s 11 is that local authorities in other areas canrefer former asylum seekers to the local authority in the area where they aredispersed, if they are owed a main homelessness duty and have not establishedthe local connection for any reason in the area where they are making theirhomelessness application. It is intended that asylum seekers should establish alocal connection with the area to which they are dispersed but, generally, notwith an area where they are provided with emergency or interim

accommodation. Dispersal areas are selected for their capability to support longterm integration of former asylum seekers. However, emergency or interimaccommodation is not necessarily in an area which has the infrastructure tosupport a dispersal. Further, much emergency and interim accommodation islocated in London and the south-east, where the pressure on social housing andother local government services is most severe. It should also be noted that if anasylum seeker were to establish a local connection with an area prior to dispersal


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for example, where he or she was provided with emergency accommodation ina district in London and then, following a positive decision on his or herasylum claim, he or she became a refugee and sought homelessness assistance inthat London district, the housing authority in London would be unable to refer

the case back to the housing authority in the dispersal area. That is because oneof the conditions for referral of a homelessness case is that the applicant has nolocal connection with that district or the authority to which the application hasbeen made.

Section 12: refugees back-dating of benefits

This provision ensures that back payments will cease for all those who arerecorded as refugees after this section comes into effect, irrespective of when

they made their claims for asylum. Thus, it will be irrelevant whether theapplication is covered by the 1999 Act or the 1996 Act. Accordingly, thisprovision will reverse s 123 of the Immigration and Asylum Act 1999, whichallowed a person who was recorded a refugee, and who has not been entitled toany of the benefits specified in s 115 during the period when his claim forasylum was under consideration, to claim back payment of the amount ofbenefits of various kinds to which he would have been entitled but for theprovisions of s 115.

Section 13: integration loans for refugeesThis provision allows the Secretary of State to draft regulations enabling him tomake loans to refugees. In doing so, he will in addition to other mattersappearing to him to be relevant, take into account a number of matters, such asa persons income or assets, a persons likely ability to repay a loan, or the lengthof time he or she was recorded as a refugee. Unfortunately, the provision doesnot take into account the refugees family responsibilities, such as whether he orshe is responsible for a child or a dependent adult. It does not take intoconsideration whether a refugee has a partner or a spouse with assets or income

that can properly be taken into account. In the case of a larger loan, thegovernment has accepted that when a persons financial circumstances changefor the better shortly after the award of the loan, it may make instalmentpayments or staged payments to the applicant. However, one negative effect ofthe provision is that where a person has been kept on the lowest possible incomebecause of s 55, he or she is likely to be denied a loan because the Secretary ofState will be doubtful of his or her ability to repay. Such a person would havelost out twice. He or she would first have been deprived of support during thewhole period of his or her application and then, on an application for a loan, he

or she will be refused because his or her ability to repay will be in doubt. Theloans fund is limited because the loan scheme will be funded solely from savingsmade from the abolition of back payments. The government has indicated thatat the point when the loan is made, the following questions will be asked: Whatare the persons assets and income? What does he want the loan for? Is itconsistent with the regulations? Is it for the purpose of refugee integration? (seeHansard, HL, vol 663, col 47, per Lord Rooker).


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Section 14: immigration officers powers of arrest

This section provides immigration officers with the power or arrest in respect ofa number of specified offences. However, this power is only available where an

immigration officer forms a reasonable suspicion that one of the specifiedoffences has been committed in the course of exercising a function under theImmigration Act 1971. What this does mean is that immigration officers mustuncover the evidence of the offences in the course of their usual dutiesinvestigating immigration matters; only then can they be said to have beenacting on some suspicion of specified offences. Under s 14(3), certain powers ofentry, search and seizure which immigration officers already have in relation tooffences under the Immigration Act 1971 shall also apply to the specifiedoffences.

Section 15: fingerprinting

Under this section, s 141 of the Immigration and Asylum Act 1999 is amended toallow fingerprints to be taken from specified persons during certain specifiedperiods. Fingerprinting is permitted in respect of any person for whom the olddirections have been given, provided it is between the time the directions aregiven and the time when the person is removed or deported. Directions are nowset at the end of the enforcement process because there is no longer a right ofappeal in respect of the setting of removal directions. As a result, there is now

only a short period of time within which fingerprints can be taken. Under thisprovision, fingerprints can be taken at the beginning of the enforcement process,despite the fact that removal directions will not be set until the end of thatprocess. This provision accordingly amends s 141 of the 1999 Act.

Section 16: information about passengers

This section amends paragraph 27B of Schedule 2 to the Immigration Act 1971.An immigration officer may ask a carrier to provide a copy of a document that

relates to a passenger containing passenger information. Any owner of a shipor aircraft which is expected to arrive in the UK could be requested to provide acopy of the bio-data page of the passport which contains the photograph of theholder of each passenger to be carried to the UK on that ship or aircraft. Underthis provision, an officer may ask for copies of documents relating to a particularship or aircraft of the carrier, or all of the carriers ships or aircraft. The requestmust be made in writing and must state the date on which it will cease t

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