Closing the door on change

The Government's latest proposals to reform the immigration system are fatally flawed, believes Richard Dunstan. Richard Dunstan is secretary of the immigration law sub-committee at the Law Society. No one with any experience of immigration and asylum work would dispute the Government's assessment of the current system as “a shambles”.

Indeed, in sharp contrast to its Conservative predecessor, the Labour government is blessed with a situation in which all credible commentators agree that fundamental reform is urgently needed.

One might have expected government ministers to take advantage of this unprecedented unanimity to grasp the nettle which, for all their tough rhetoric, the Conservative party simply left to flourish.

Sadly, the modesty and opaqueness of the White Paper and consultation paper on immigration and asylum appeals are profoundly disappointing, (not to mention the failure of the Government to build upon the numerous constructive proposals put forward in recent years by a range of concerned organisations).

The proposals in respect of immigration and asylum appeals in particular are so vaguely worded, and so poorly supported by statistical information and analysis, that a full understanding of their intent and likely impact is rendered impossible.

As far as the proposals can be understood, they appear to offer limited scope for improving the fairness and speed of the appeals system. Similarly, the scope, tone and content of the White Paper are deeply discouraging.

There are a number of potentially positive proposals, such as the introduction of “judicial oversight” of decisions to detain under Immigration Act powers, and the re-introduction of a form of appeal for would-be visitors refused a visa. However, most issues are skirted around with qualifications and provisos.

Moreover, the White Paper contains a number of much less welcome proposals that, if implemented, would serve to increase both the unfairness and the inefficiency of the current system. These include the worrying proposals:

to forcibly move asylum seekers away from the existing concentrations of support services and legal advice providers;

to maintain the system of discriminatory employer checks introduced under the Asylum & Immigration Act 1996;

to give enhanced powers of search and arrest to inappropriately-trained and insufficiently accountable immigration officers; and v to strengthen the deterrent effects of the Immigration (Carriers' Liability) Act 1987.

These and other proposals undermine the Government's claim that its approach to immigration control reflects a “wider commitment to fairness”. It is hard to envisage how such measures – some of which the current Home Secretary, Jack Straw, has previously condemned as “unworkable” and “inhumane” – will contribute to a faster and more efficient system.

Both papers exhibit an astonishing complacency about the poor quality of the Home Office's first-instance decision-making (most particularly in asylum cases), which – outside the Home Office – is universally regarded as a key determinant factor in the evident inefficiency of the system as a whole.

Since May 1997, there has been a significant (and welcome) increase in the proportion of asylum applicants granted either asylum or exceptional leave to remain. In recent weeks this has been proclaimed by ministers as a sign that all is well with the Home Office's decision-making.

But the fact that a change of government alone can produce such an increase in the recognition rate – for nothing else has changed – says a great deal about the nature of the decision-making involved.

It is equally astounding – and disturbing – that the two papers should have nothing positive to say about the role of legal representation in immigration and asylum cases.

Outside the Home Office there is consensus that effective legal advice and representation from the outset greatly facilitates the fair and efficient determination of individual applications, thereby diminishing the necessity of correcting errors through the (expensive) appeals system.

The new papers not only fail to address the now overwhelming case for an extension of legal aid to cover representation at appeal hearings, but appear to positively relish the much-reduced access to legal aid solicitors that will result from the Legal Aid Board's introduction of an exclusive contracting regime and capped budgets for civil advice and assistance work, due in August 1999.

Accordingly, it is arguable that a period of further research and analysis, including more meaningful consultation than the present exercises allow, might better inform both the design and the subsequent implementation of the necessary legislation.

It must be hoped that the Home Secretary will listen carefully to the concerns that have been expressed by a wide range of organisations, and that he will reflect on whether Labour really is set to deliver fair, fast and firm procedures.