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Conflict prone binary thinking:the Home Office’s obsession with detaining asylum seekers (9 March 2015)

Date: 09/03/2015
Duncan Lewis, Public Law Solicitors, Conflict prone binary thinking:the Home Office’s obsession with detaining asylum seekers

Since the late 1980s, as the overall number of asylum-seekers has risen* the U.K has responded with an increasingly restrictive policy of deterrence.

A series of policies beginning in 1993 started the uncomfortable trade off between the UK’s duty to accommodate refugees under the 1951 Geneva Conventions and the need to manage migration.

The then Secretary of State, Kenneth Baker, stated; “I believe that the rapid rejection of a large number of unfounded claims…will play a major part in deterring further abuse of the process...”.

The asylum process could then be made more stringent, with restrictions placed on the right to claim asylum so as to catch out the ‘abusers.’ The introduction of Fast Track procedures; the limits on the rights of appeal; the cuts to legal aid are all examples. With this shift in policy, an institutionalised culture of mistrust and hostility has emerged. In many cases it translates into a rigid and punitive application of policy, criminalising and stigmatising asylum seekers with serious consequences for very vulnerable individuals.

Secretary of State Theresa May’s recent comments in a drive to push her new immigration bill unashamedly admit to the intention of creating a “hostile environment” for illegal entrants. However, the law deems anyone a criminal, and therefore illegal, for “knowingly entering the UK…without leave” (s.24(1)(a) Immigration Act 1971) or using a false passport (s.3 Forgery & Counterfeiting Act 1981) as examples. In most cases, asylum seekers who have fled their own country enter without leave, and without documentation.

Whilst there are some allowances for asylum seekers who can show good cause for this “criminal” behaviour (under s.31 Immigration and Asylum Act 1999), the Home Office still adopts an unreasonable, rigid application of policy that criminalises asylum seekers, and justifies ongoing periods of detention and increasing removal rates without necessarily considering a nuanced narrative of these individuals, that takes into consideration the complexity of their experiences.

For example, as a victim of serious torture and sexual violence, a client of ours (who has requested to remain anonymous) fled Sierra Leone. He was refused asylum and removed on two occasions. Local officials then sent him back to the UK, after he managed to convince them he was not from Sierra Leone. Due to the serious trauma he had suffered in his home country, he was diagnosed with chronic Post-Traumatic Stress Disorder, psychopathology anxiety, agro-phobia and depression. Due to his unwillingness to be returned (for the third time), he did not actively co-operate with UK officials in obtaining an emergency travel document from the High Commission of Sierra Leone for his return. He was therefore deemed to have committed a criminal offence under s.35 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, despite his genuine fear or return that presented a reasonable excuse for his behaviour. He was charged with this crime. This “criminal” behaviour was used as a reason for the Secretary of State to serve a Deportation Order and maintain detention pending his “imminent” removal.

Two and a-half years later he was released. We issued a Judicial Review application against the Secretary of State for his unlawful detention which is deemed by medical professionals to have worsened his already serious mental health problems - as an indicator, in our Judicial Review we are seeking damages that amount to £110,000 for the almost irreversible trauma it has caused him. This hyper-securitised response and punitive application of policy that labelled him a criminal failing to consider his individual reasoning, served to wrongly justify the maintenance of an unlawful detention.

The criminalising treatment of asylum seekers is further reflected in the hostile attitude of detention staff and the humiliating way in which people are detained. They are, essentially, ambushed when going to sign at Immigration Enforcement Units - required so as not to be charged with another criminal offence; absconding. They are then effectively imprisoned. The architectural infrastructure of detention centres resembles prison, immigration removal centres, like Dover, are actually run by Her Majesty’s Prison Service; I have heard asylum seekers referred to as “prisoners” by Detention Centre staff. Furthermore, allegations of violence and racism by staff are widespread. The welfare of those detained is also of serious concern. The medical department in detention seems to fail to adequately assess and treat mental illness, including the failure to pick up on suicide attempts, and there is a tendency of making unfounded presumptions of a fitness to fly. “Why do I deserve this?” becomes a hard question to answer.

With technical legal expertise, we can draw attention to, question and challenge this hostile application of policy, in cases where the Secretary of State’s actions are no longer lawful. For example, we have successfully challenged a series of unlawful removal decisions taken by the Secretary of State in attempt to return our clients to Afghanistan. Following the case of Secretary of State for the Home Department v Javad Ahmadi [2013] EWCA Civ 512 the Secretary of State has not “followed the rules” when in haste, they issue a refusal to vary leave to remain alongside a decision to remove the claimant.

We have brought a number of successful Judicial Reviews against the unlawful s.47 Immigration, Asylum and Nationality Act 2006 decisions to remove our clients to Afghanistan. The period of detention pending their removal is therefore also unlawful, and we will be issuing false imprisonment claims against the Home Office for this.

The idea is that, by challenging unlawful actions, we may one day be able to encourage a change in the relationship between the state institutions and this social group. We can use our legal expertise to not only ensure justice for the individual but to challenge the institutional antagonisms that fuel increasing counterproductive security measures and further conflict prone binary thinking; “us” Brits vs. “them” immigrants, in the hope of encouraging instead, a relationship based on individual understanding and empathy.

Tamara Smillie, the author of the article, currently works as a caseworker in Duncan Lewis’ Public Law Department.

Notes

* Dr Scott Blind, “Briefing: Migration to the UK: Asylum” The Migration Observatory, 23/07/2014 http://www.migrationobservatory.ox.ac.uk/sites/files/migobs/Briefing%20-%20Migration%20to%20the%20UK%20-%20Asylum_0.pdf.

Secretary of State for the Home Department (Mr. Kenneth Baker), House of Commons Debate, 02 July 1991, vol. 194 c165.


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