Last Updated: Tuesday, 16 September 2014, 13:37 GMT

Representations to the Social Security Advisory Committee on the "Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1995"

Publisher UN High Commissioner for Refugees (UNHCR)
Author BO London
Publication Date 10 November 1995
Cite as UN High Commissioner for Refugees (UNHCR), Representations to the Social Security Advisory Committee on the "Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1995", 10 November 1995, available at: http://www.refworld.org/docid/3ae6b31daf.html [accessed 17 September 2014]

INTRODUCTION:

1.         The Office of UNHCR is charged with the. international mandate for the protection of refugees worldwide. This onerous responsibility requires it to work in close. cooperation with States signatory to the 1951 Convention relating to the Status of Refugees (the Refugee Convention). In Western Europe UNHCR is concerned to ensure that States recognise the importance of their Treaty responsibilities to uphold the humanitarian object and purpose of the Refugee Convention. On the other hand, UNHCR is fully cognisant of the difficulties faced by most Western European States in responding to these treaty commitments in the face of increasing numbers of asylum-seekers and in a climate of competing social welfare demands and decreased government spending. We also recognise that Governments must take difficult decisions in prioritising how social welfare funds will be allocated to those in need of assistance.

2.         Against this background, it is our firm conviction that despite the apparent difficulties faced by governments, a fair and humane response to all asylum-seekers is still possible and, indeed, required in terms of the Refugee Convention. This response has a legal and a social welfare component. States must provide fair and effective legal access to refugee status determination procedures. The procedures for identifying who is, or is not, a refugee must themselves, be fair and reasonable. In tandem with these legal responsibilities is the need to ensure that asylum-seekers are treated in a sensitive, fair and humane way whilst their claims are being assessed. It is trite to note that legal entitlements may be rendered ineffective if individual asylum-seekers are unable to sustain themselves physically during the sometimes lengthy period in which their status is determined.

3.         UNHCR is of the opinion that within the humanitarian spirit of the Refugee Convention lies a State's obligation to ensure that asylum-seekers enjoy basic subsistence support to sustain them in dignity during this waiting period.

4.         UNHCR recognises that the number of applications for asylum in the United Kingdom has increased in the past decade. At the same time, the recognition rate of refugees and those given exceptional leave to remain has steadily decreased. UNHCR is very concerned that these factors may be inappropriately interpreted as evidence of two emotive conclusions:

-           that the UK has become the unwelcome attraction as a "soft touch" to huge numbers of illegal immigrants.

-           that the vast majority of those who seek asylum in the United Kingdom are "bogus" and are simply economic migrants.

5.         In our view, the rise in asylum claims may be more rationally seen as a consequence of unprecedented scale of global conflict which produce refugee flows. Moreover, refugee recognition rates must be analysed with considerable caution. A country's recognition rate of refugees may more often reflect the narrowness or liberalness of that state's application of the refugee definition than the legitimacy or otherwise of individual claims. There are dangerous shortcomings in any assumption that the low refugee recognition rate in the United Kingdom is evidence of the extent of `bogus claimants`. In our experience, such simplistic terms are emotive and undermine an appropriate perception and response to the problem of refugees. These unsound assumptions are frequently cited as justification for further restrictive measures. For example, a narrow application of the refugee definition and tighter grants, on exceptional leave to remain will reduce the number of successful applicants. The lower figures are then tendentiously used as evidence that `bogus` claims are increasing, thereby justifying further restrictive measures. We believe there are many dangers in such a selfjustificatory and circular analysis.

6.         As a general comment on the proposed legislative changes to the social security entitlement of asylum-seekers, UNHCR is concerned that they form part of an increasingly restrictive package of measures aimed at deterring asylum-seekers from coming to and remaining in the United Kingdom. They tend to be arbitrary and indiscriminate in that they do not address the inevitable hardship that they will impose upon all asylum-seekers (amongst whom are a not insignificant number of bona fide refugees and those who will, in the fullness of time, be granted humanitarian exceptional leave to remain).

CONSEQUENCES OF THE PROPOSED LEGISLATIVE CHANGES:

(a)   On the Right of Appeal:

1.         In 1993, the United Kingdom properly introduced an automatic legislative right of appeal for all asylum seekers whose claims for admission and/or refugee status had been declined by the Home Office. This right of appeal was in harmony with UNHCR's suggested guidelines and with the understanding reached by the EU Ministers in London in 1992.

The right of an effective appeal is an important safeguard in any procedure, but more particularly so where the consequences or an error of judgment can have such serious consequences as refoulement to face persecution.

It is axiomatic that an appeal right bestowed by law should also be accessible and effective in fact. If this were not the case, then the appeal right is rendered nugatory. Principles of natural justice and administrative fairness will be compromised.

2.         UNHCR is therefore gravely concerned as to the practical consequences of the withdrawal of welfare support to asylum-seekers who seek to exercise their legitimate right to appeal against a negative primary decision. Most asylum-seekers do not have financial independence to support themselves and their families during the often lengthy delays of the appeal process. Again, it should be noted that such delays are not caused by the appellants but by the inadequacy of resources dedicated to the process. UNHCR is unable to see how a legal appeal right can be fairly accessed if the appellant is not given the assistance necessary to sustain him or herself in that period. The appeal right is rendered ineffective. This in turn undermines the ability of the United Kingdom to meet its regional and international treaty obligations.

3.         In our opinion, it is no satisfactory answer to argue that the vast majority of appellants are not successful at appeal. This is based on the unreliable assumptions that the refugee status determination procedures are accurate and effective in identifying all refugees and the circular argument referred to in paragraph 5 of the introduction to these representations. It also introduces an unwarranted presumption that appellants, simply by appealing at all, are in some way exploiting the procedures; and that in any event, they are generally doomed to failure in their appeals. The view is also somewhat disingenuous, for whilst financial concerns are politically important domestically, they ought not be used to undermine international obligations freely entered into.

(b)   Effect on Criminality.

1.         UNHCR. is concerned that asylum seekers may be forced into unlawful exploitative conditions to support themselves whilst exercising their appeal rights. It is difficult to speculate on the range of illegal activities that increasingly desperate persons may resort to, but these are likely to include unlawful employment, dishonesty offences and perhaps more serious criminality involving drugs, prostitution or violent crimes. Such activity could, bring them into conflict with the law and undermine the delicate balance of reciprocity that. exists between the State offering asylum and the asylum-seeker. Confronted with these choices even genuine but desperate refugees might be compelled to return to face persecution in the country of origin, rather than remain in an impossible position in the United Kingdom. In our opinion, this could amount to "constructive refoulement" and may place the United Kingdom in violation of its obligations, under the Refugee Convention.

(c) Effect on Particularly Vulnerable Groups.

Children:

1.         Children seeking to exercise their appeal rights, either as part of a family unit (accompanied) or in their own right if unaccompanied, will be adversely affected by the proposed changes.

2.         In this context, UNHCR refers to the United Kingdom's express treaty obligations under the Convention on the Rights of the Child, 1989. In particular we refer to:

Article 2(1) which places on States a commitment to ensure that all children in the territory enjoy the Convention rights without discrimination on various grounds, including status.

Article 2(2) requires that "...States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status ... of the child's parents..." (emphasis added)

Article 3 requires that in "...all actions concerning children, whether undertaken by public or private ... institutions .... or legislative bodies, the best interests of the child shall be a primary consideration..." (emphasis added)

Article 22 requires states to "take all appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee..., whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights ... in the Convention ... or in any other international human rights or humanitarian instrument..."

Articles 24, 26 and 27 refer to certain other welfare and social security rights that a child in need is entitled to receive. We particularly draw your attention to Article 26 which enjoins all States party to take the ....... necessary measures to achieve the full realisation of this ... [sic. right to benefit from social security] right".

3.         The net effect of these various provisions bestows on all children the equal right to receive such protection and humanitarian assistance as is necessary to enhance their best interests. We note that the United Kingdom in its recent report to the Committee on the Rights of the Child affirmed that Article 22 was applicable in the United Kingdom and that a reservation entered did not impact upon that provision.

4.         In view of that assurance, we believe that the current measures to remove the right of benefit support for all appellants, will place the United Kingdom squarely in violation of several treaty obligations, in particular. Article 22. You will note that Article 22 applies to all children seeking asylum, whether they are alone or part of a family unit.

If the effect of withdrawal of welfare support for the family impacts in a negative way on any child in that family, then the United Kingdom is likely to fall foul of the Children's Convention, inter alia, Article 22.

Other Vulnerable Groups:

UNHCR notes further that the proposals, if implemented in a mandatory and arbitrary way, will negatively affect other vulnerable groups of asylum-seekers exercising their rights of appeal, including pregnant women, single mothers, elderly persons and those with physical or psychiatric disabilities. Although there may not be any express treaty obligation upon the United Kingdom to provide welfare support for such persons by reason only of their disabilities, we believe there is certainly a strong moral and humanitarian argument for a discretion to be built into any eligibility criteria for welfare support.

(d)   Undermining Legal Safeguards.

UNHCR notes the proposal whereby the Home Secretary may make a declaration that an asylum-seeker's country of origin is "experiencing upheaval" whereby, on an exceptional basis, the right to benefits would not be removed. UNHCR notes that to date, the Home Secretary has made no such declaration nor is there any indication as to the criteria upon which such a pronouncement might be based. In the absence of further information and a transparency of criteria, we are not assured that it provides any comprehensive welfare protection to those who may need it.

In any event, it does not overcome the primary objections that we have articulated earlier in these representations.

CONCLUDING REMARKS.

1.         UNHCR has considerable reservations as to the wisdom and efficacy of the proposed measures. Whilst the short term objectives may be to deter asylum-seekers from coming to the United Kingdom at all, they do not redress what UNHCR perceives to be a systemic failure of the present procedures to deal with all claims and appeals in a fair and expeditious manner. Instead, they unduly penalise asylum-seekers through the withdrawal of welfare benefits. This will inevitably expose large numbers individuals, including particularly vulnerable groups, to the worst effects of impoverishment. Of equal importance, is the negative effect that the measures taken in concert with others, will have on the integrity of the United Kingdom's asylum regime as a whole.

2.         In our view, a fair refugee procedure includes a meaningful appeal right and humanitarian welfare to support access to that night. Real deterrence for unmeritorious claimants will only be achieved if a holistic scheme is set in place, which includes the prompt removal of those who do not satisfy a fair procedure. The present measures are only a piecemeal response to a much more complex issue. UNHCR fears that the short term political and economic benefits of the changes are considerably outweighed by the longer term negative impact that they Will have both upon individuals and the integrity of the process as a whole.

RECOMMENDATIONS:

1.         UNHCR firmly believes that appropriate social security measures can only be identified by reference to, and predicated upon, fair and effective refugee status determination procedures. These include the three pillars of any functional asylum regime namely; fair access; fair and expeditious process; and fair and prompt implementation of decisions. UNHCR believes it is inappropriate to introduce the proposed social welfare measures before these three pillars are effectively and fully implemented. This is not currently the case.

2.         Under a functional asylum regime, those identified as refugees or given exceptional leave to remain will be promptly given protection and attendant legal and welfare nights. Those who do not qualify can be fairly and expeditiously removed from the country. This would inevitably diminish the attractiveness of the United Kingdom as a place of asylum for fraudulent claimants, reduce the strain on welfare support systems and yet retain the essential humanitarian character of the regime itself. The present proposals, which deal only in a piecemeal way with this complex issue, will undermine this delicate humanitarian balance.

3.         UNHCR therefore recommends that the present proposals be returned to the Secretary of State for Social Security. A comprehensive study should be conducted into the likely impact and consequences of the measures, both on asylum-seekers (With particular reference to vulnerable individuals), and on the United Kingdom's international treaty obligation to provide a fair and functional refugee procedure.

4.         UNHCR believes that a fair and humane asylum regime can effectively deal with the present challenges faced by the United Kingdom without recourse to the essentially arbitrary and severe measures currently under contemplation.

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