United Kingdom: ERI UPR Joint Submission

UNITED FOR CHANGE (Manchester and Salford)

EDMUND RICE INTERNATIONAL

FRANCISCANS INTERNATIONAL

VIVAT INTERNATIONAL

Submission for the Thirteenth Session of the Working Group

on the Universal Periodic Review: UNITED KINGDOM  (May 2012)

UNITED FOR CHANGE is a coalition of organisations and forums that supports refugees and asylum seeker within Manchester and Salford that take action on issues of destitution and promoting and protecting the human rights of refugees and people seeking asylum.

Represented organisations are: REVIVE, CHURCH ACTION ON POVERTY, WAST (Women Asylum Seekers Together), COMMUNITY PRIDE and CHANGE MAKERS, GMIAU (Greater Manchester Immigration Aid Unit), GAP (Gender and Participation) UNIT, SRF (Salford Forum for refugees and people seeking asylum), MRSN (Manchester Refugee Support Network), BOAZ TRUST, RAINBOW HAVEN, BROUGHTON TRUST, MANCHESTER BME (Black Minority Ethic) NETWORK, EDMUND RICE CHRISTIAN BROTHERS, SALFORD WOMEN’S CENTRE, TRIO, STAR (Student Action for Refugees).

EDMUND RICE INTERNATIONAL is an advocacy organization incorporated in the Republic of Ireland (currently seeking ECOSOC consultative status)

VIVAT INTERNATIONAL is an international advocacy organisation with General Consultative Status.

FRANCISCANS INTERNATIONAL is an international advocacy organisation with General consultative status.

This submission was compiled following consultations with representatives of the membership organisations that were held in Manchester under the auspices of REVIVE who took a lead role in co-ordinating the process. Technical advice was sought from the Geneva-based NGOs and some further support was available from academic sources.

INTRODUCTION

1. This submission addresses the UK government’s use of enforced destitution as a deliberate instrument of public policy in the treatment of asylum-seekers. The policy of making destitute thousands of asylum seekers whose asylum claims have been rejected by the United Kingdom Border Agency (UKBA) is contrary to their human rights under Articles 5, 14, and 22 of the Universal Declaration of Human Rights (UDHR), Articles 2, 3 and 8 of the European Convention on Human Rights (ECHR), Article 27 of the Convention on the Rights of the Child (CRC) Articles 9 and 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 13 of the Revised European Social Charter (CETS No. 163).
2. The United Kingdom was a founding member of the Council of Europe and a key participant in the drafting of the European Convention on Human Rights (1953). The Convention has been very influential in the United Kingdom and its utility was a factor in the mobilisation of popular support for the introduction of domestic human rights legislation. It was fully domesticated into UK law with the passing of the Human Rights Act (1998).^[i] The Act was designed “to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”.^[ii] In its 2008 UPR report the United Kingdom cited the passing of this Act as a significant measure that “introduced explicit protection of human rights into the UK law”.^[iii]
3. In regard to the socio-economic rights that are specifically relevant for the case argued in this submission it is important to note that the United Kingdom ratified in the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1976. Article 11 recognises the right to an adequate standard of living. In the UK and European Courts it has been almost axiomatic that a distinction should be made between civil and political rights and socio-economic rights. However, as early as 1979 the European Court has been disposed to acknowledge that no water-tight division exists between these rights.^[iv] Despite this the UK courts have yet to vindicate socio-economic rights on the basis of ICESCR and the ECHR.
4. Acceptance of the case advanced in this UPR submission provides the international human rights community with an opportunity to enhance the utility and status of socio-economic rights and the interdependence of human rights generally.
5. The issue of enforced destitution for asylum seekers exemplifies the present gap between international human rights discourse and law and actual national practice, and the consequent need for international monitoring mechanisms for refugee law. Unlike other areas of human rights law, there appears to be no means for individuals to challenge the outcomes of national systems directly at the international level. As an extensive legal analysis concludes:

“Refugees and asylum seekers are faced with increasingly restrictive legal regimes which penalise them for the act of seeking asylum. Northern states, in particular, are now openly hostile to the plight of the world’s forcibly displaced. A barrage of devices is in operation to ensure that asylum seekers never reach the North. If they do, states have implemented punitive schemes which include detention and the removal or restriction of welfare entitlements. States are currently scrambling to make themselves appear as unattractive as possible to asylum seekers. The situation is rightly characterised as a crisis that is endangering the future of refugee protection”.

1. Both the failure of the policy of enforced destitution and its incompatibility with UK’s obligations under international human rights conventions were extensively addressed by Amnesty International in its 2006 report. The issues have still not been resolved by the UK Government.^[v]

THE PROBLEM: DESTITUTION OF ‘FAILED ASYLUM SEEKERS’

1. In the UK roughly 75 per cent of asylum seekers become ‘failed asylum seekers.’ In 2010 only 17 per cent were granted refugee status at initial decision.^[vi] The last available estimate of the numbers of failed asylum seekers in UK by the National Audit Office (2005), was 283,500. The number is likely to have increased.^[vii]
2. It is the experience of the Manchester and Salford groups making this submission that the overall quality of UKBA decision-making is poor. Decisions rely on crude and formulaic ‘credibility’ tests, and result in extensive injustices which it would take another submission to explain. This view is supported by numerous independent critiques which have raised serious concerns about the quality of UKBA ‘fast track’ decision-making, the odds stacked against genuine refugees, and the pervading ‘culture of disbelief’ instilled into UKBA officials.^[viii] Since 2004 the UN Refugee Agency’s own audit reports have sought to persuade the UK government to address such concerns. Asylum seekers, and the voluntary sector organisations offering them support, have lost trust in the system’s ability to deliver a fair hearing. The UNHCR ‘s own fifth audit report (July 2011), focusing on asylum decision-making in detention centres, concluded that emphasis on ‘fast-track’ decision-making does not allow caseworkers to reach well-reasoned decisions on individual cases.^[ix] The ‘caseowners’ who make the decisions operate under politically-driven imperatives to maximise the volume of refusals. ‘Country of Origin Information’ is often inaccurate, out-of-date, and selectively used.^[x] These issues are compounded by the inadequate and diminishing availability of legal aid. In many cases asylum seekers have had poor or no legal representation, and most are unable to obtain it at the appeal stage.^[xi] Drastic cuts to legal aid provision mean that asylum-seekers face Home Office officials, lawyers, and tribunal judges without representation or advice, often in a language which is not their own and without adequate translation services. The system of legal aid funding deters legal advice charities from taking the most difficult or complex cases to appeal or fresh submission.
3. The concern here is the outcome for the 75 per cent of asylum-seekers whose case is rejected. While awaiting a decision asylum seekers receive so-called Section 95 support, which consists of ‘no choice’ dispersed accommodation and a weekly allowance currently equal to 52 per cent of the mainstream benefit for the unemployed.^[xii] When their case is rejected, single adults and childless couples are evicted from their accommodation and all benefits are withdrawn. The UK Parliament’s own Human Rights Committee concluded (2007) that there is a deliberate policy of reducing failed asylum seekers to destitution as a means of driving them into returning and of deterring further asylum applications: destitution has become an instrument of immigration policy^[xiii].
4. Before evaluating the policy’s incompatibility with UDHR and ECHR it needs to be understood that the policy fails even within its own terms. Typically asylum-seekers have fled in extremis from civil war, inter-ethnic conflict, political or religious persecution, or widespread human rights abuses. The most frequent countries of flight are Afghanistan, Democratic Republic of Congo, Eritrea, Somalia, Iran, Iraq, Sudan, Uganda, Guinea, and Zimbabwe.^[xiv] Return means return to persecution, arbitrary violence, imprisonment, torture, or death, or, at the very least homelessness and poverty.
5. Destitution does not drive asylum-seekers into returning because destitution in the UK has become preferable to, and less life-threatening than, destitution in the country of origin.^[xv] Moreover, in general, failed asylum-seekers do not have the resources or travel documents to return.^[xvi] The UKBA’s own attempts at forcible deportation often fail because home governments contest the returnees’ national identity and refuse to admit them.^[xvii] The last available Audit Commission analysis of the work of UKBA reported that the current system has not produced an increase in the number of removals, largely because of the lack of travel documents and the refusal of destination nations to recognise returnees as their own nationals. 70 per cent of forced removals are cancelled, often after lengthy detention.^[xviii] The number of removals, rather than matching government targets, is declining. The Government recognises that its removal targets are ‘not achievable.’^[xix] In some cases when asylum seekers are returned they are immediately imprisoned on landing. The reality is that most failed asylum seekers are unreturnable and remain in the UK in a state of homeless and penniless ‘limbo’, with no welfare or employment rights, and no means of support. In the words of the current multi-coalition human rights campaign, they are Still Human Still Here.^[xx]
6. Both the failure of the policy of enforced destitution and its incompatibility with UK’s obligations under international human rights conventions were extensively addressed by Amnesty International in its 2006 report.^[xxi] The issues have still not been resolved by the UK Government.

PROMOTION AND PROTECTION OF HUMAN RIGHTS

1. As an instrument of public policy the reduction of asylum-seekers to a condition of destitution crosses the threshold of inhuman and degrading treatment under Article 5 of the United Nations Universal Declaration of Human Rights and Article 3 of the European Convention, and denies further rights under Articles 14, 22, and 25 of the Universal Declaration.
2. In every society there are people who become destitute through systemic injustices, unfortunate circumstances, or their own life choices or follies, but here the issue is refugees, exercising their rights under international law, and law-abiding in the UK, reduced to destitution by deliberate government policy.
3. The British Red Cross defines someone who is destitute as: “A person who is not accessing public funds, is living in extreme poverty and is unable to meet basic needs, e.g. income, food, shelter, healthcare, and who is forced to rely on irregular support from family, friends, charities or illegal working to survive.”^[xxii] UK legislation defines destitution as a condition in which a person does not have and cannot obtain both adequate accommodation and adequate food and other items.^[xxiii] On either of these definitions, this is the situation to which failed asylum-seekers are reduced, as we substantiate below.
4. Right to not be subject to torture or to cruel, inhuman or degrading treatment or punishment

16.The UK government denies its responsibility for these homeless, cashless, demoralised and vulnerable human beings on the basis of judicial rulings in UK courts which hold that withdrawal of support is not in itself an imminent breach of Article 3 of the European Convention, as incorporated into UK law by the 1998 Human Rights Act. The UKBA contention is that Article 3 is engaged only if the threshold is crossed between destitution, in the usual sense of lack of accommodation and financial means, and inhuman and degrading treatment within the meaning of Article 3. The UK government’s argument is that ‘inhuman and degrading treatment’ within Article 3 refers to a level of suffering more intense than being homeless and penniless.

1. Our submission is that the Article 3 absolute prohibition on ‘inhuman and degrading treatment’ covers a range of possible state-sponsored actions. State –sponsored torture, violence, or racial discrimination, for example, would be the worst possible examples of ‘inhuman and degrading treatment’. But acts or omissions of the state which expose people to other forms of suffering inconsistent with their human rights, welfare, and dignity, are also ‘inhuman and degrading treatment’. Asylum seekers are persons exercising their rights under international law to seek asylum. A policy of deliberately reducing them, almost immediately after their claim is refused, to a condition of homeless and penniless destitution is a form of ‘inhuman and degrading treatment’. It causes suffering and extreme vulnerability and it is humiliating. The absence of recourse to legal representation exacerbates the situation.
2. The 2010 Red Cross study of destitute failed asylum-seekers found that 6 out of 10 respondents had been destitute for a year or more, some for over 5 years.^[xxiv] The 2011 Oxfam study indicated that many have been destitute for more than 6 months and a significant proportion for more than 2 years.^[xxv]
3. The condition asylum seekers are placed in when their claim is rejected is one no human being should be subjected to in a civilised state. We instance below in the numbered paragraphs which follow (paragraphs i to x) ways in which government policy reduces ‘failed asylum seekers’ to a condition which is inhuman and degrading. The Court ruled that the UKBA had subjected a man suffering from mental illness to inhuman and degrading treatment in an immigration detention, detaining him unlawfully for a period of five months.^[xxvi]
4. Right to an Adequate Standard of Living

20.Short of sleeping rough and begging, ‘failed asylum seekers’ are totally dependent for shelter and food on the goodwill and accident of friends and faith groups, and on food parcels and night shelters provided by charities and voluntary sector relief organisations. Human beings in affluent societies with developed systems of welfare for those in need are reduced to living on Red Cross food parcels. So far as its resources allow, the British Red Cross distributes food parcels to destitute asylum seekers in the UK in the same way that it responds to hunger and homelessness in humanitarian emergencies in other parts of the world: “Giving food to destitute asylum seekers here is not very different from handing out food from the back of lorries in the Sudan. The humanitarian need is the same.”^[xxvii] This is a government-imposed ‘humanitarian emergency.’

1. Such dependence can lead to a complete loss of personal dignity. The Oxfam Report found such loss of human dignity particularly acute in the many asylum -seekers who are highly motivated, well educated and technically skilled. Destitution is dehumanising: ‘for many asylum seekers destitution is not simply a technical or legal term to describe a lack of resources: it is about the denial of any hope for the future and the possibility of rebuilding a life.’^[xxviii] As the Amnesty International Report (2006) puts it: ‘Living off the charity of others stripped them of their dignity: having nothing and having to ask for everything. Many appeared to have given up hope of ever being able to live a normal life’.^[xxix]
2. Many destitute individuals are not able to access sufficient provision from friends or charities and consequently suffer from real malnourishment. The problems of malnutrition associated with destitution are increasing, and sleeping rough or in abandoned or poorly heated or damp houses causes ill health.^[xxx]
3. Failed asylum seekers have no money at all. They are literally penniless. If charitable sources do not provide resources, survival choices appear to reduce to begging, stealing, or illegal work. Failed asylum seekers lack even the money to travel to report, as required, at Immigration Reporting Centres. The Manchester Reporting Centre, Dallas Court, may be eight to ten miles distance across the city from any temporary lodging or shelter failed asylum seekers may obtain. Though required to report, sometimes daily, sometimes weekly, they are not provided with any cash for travel or any means of transportation. They must either walk, whatever the conditions, travel illegally without paying, or beg the fare.
4. Right to Liberty and Security of the Person

24.The experience of destitution is exacerbated by the constant anxiety of reporting and the possibility of instant detention. Manchester and Salford asylum seekers face long reporting queues without shelter: heavily pregnant women have to stand in rain and snow.

1. Asylum seekers have committed no crime but are subject to administrative detention. Any attendance at an Immigration Reporting Centre may terminate in being handcuffed and transferred in a prison van to detention in quasi-prison conditions in one of thirteen Immigration Removal Centres. Detention continues for indefinite periods pending forcible deportation. Evidence recently submitted to a Parliamentary committee confirmed that considerable numbers of failed asylum seekers are detained for more than twenty nine days, some for over a year, and examples were given of over four years. In a recent case, the High Court ruled that the UKBA had subjected a man suffering from mental illness to inhuman and degrading treatment in an immigration detention, detaining him unlawfully for five months.^[xxxi]
2. Right to Health

26.Failed asylum seekers continue to receive NHS primary health care on a discretionary basis, i.e. if general practitioners are willing to take them, but have no entitlement to secondary (hospital) care. Failed asylum seekers who receive either Section 95 or Section 4 support and unaccompanied children are exempt for charges for secondary healthcare, but all other failed asylum seekers are chargeable, despite the fact that the vast majority will have no money. ^[xxxii]

1. Men and women who have fled torture and persecution frequently suffer from a range of mental health problems, including post-traumatic stress disorder and disorientation. Destitute conditions and street homelessness exacerbate vulnerability and stress, create a sense of rejection and isolation, and cause further physical and mental deterioration. The combination of previous trauma with the stress of destitution can result in severe psychological distress. All research and experience shows that exclusion and destitution, after all the suffering, danger, and hope which goes with the flight of a refugee, can have a prolonged and devastating effect on individuals and cause serious mental health consequences. Hope and aspiration decline and health deteriorates. Some become suicidal.
2. Right to Work

28.Asylum seekers are not allowed to work. This is in itself contrary to human dignity and fulfillment as formulated and guaranteed in international human rights conventions. When unable to depend on social networks or charitable resources, asylum seekers may be forced into illegal work as a survival strategy, with low pay, long hours, poor working conditions, and constant fear of UKBA raids. Illegal working means exposure to exploitation and abuse.^[xxxiii]

1. 29.    The Right to Protection from Economic and Sexual Exploitation

29.Research for the 2011 Oxfam Report concluded that enforced destitution creates additional vulnerability to exploitative relationships and to physical and sexual violence. ^[xxxiv] Some resort to exploitative illegal employment, working for £1-£3 an hour cash-in-hand or even less. ^[xxxv] Some enter into exploitative agreements to provide house-help, childcare, or other forms of domestic labour in return for shelter and daily necessities.^[xxxvi] For reasons of survival some enter relationships they would otherwise not enter and some enter transactional or coercive sexual relationships, including sex for food and cash, and prostitution. ^[xxxvii]

RECOMMENDATIONS

1. That the Home Office of the UK Government grant temporary renewable protection to asylum-seekers whose application has been rejected and who cannot return to their countries of origin.
2. That the Home Office of the UK Government grant temporary renewable protection to those asylum-seekers who are fleeing armed conflict or endemic violence, or to those who are at serious risk of systematic or generalised violations of their human rights, who are unable to establish that they are individually at risk.
3. That the UK Government, in the case of asylum-seekers whose application has been rejected and who are unable to leave the UK, permit them to remain on financial support and accommodation under Section 95 of the Immigration and Asylum Act 1999, or to find employment.
4. That the UK Government provide access to legal aid and legal representation to all asylum-seekers whose applications have been refused.
5. That the UK Government grant permission to obtain employment and to earn a livelihood to all asylum seekers who have been in the UK for more than six months, and to those whose application is refused and who comply with reporting instructions, but who are unable to return to their country of origin.
6. That the UK Government, in line with Recommendation 81 (b) of the Special Rapporteur on the human rights of migrants[xxxviii], provide free access to both primary and secondary health care to all asylum-seekers, including those whose applications are refused, until removal, voluntary return, or the granting of leave to remain
7. That the UK Border Agency (UKBA) improve its decision-making procedures in determining refugee status, in line with the recommendations made to them by the UN High Commission on Refugees (July 2011).

APPENDIX

Failed asylum seekers are not ‘overstayers’ or ‘illegal immigrants’ but refugees exercising their rights under international law. They are not ‘absconders.’ They are registered with UKBA, report regularly to UKBA, their movements are under UKBA control. They either cannot return or remain deeply fearful of return: return will place their lives or liberties at risk. The UK government cannot or does not return them, yet deliberately places them in a condition of penniless street destitution.

The situation of failed asylum seekers in UK is well summarised in the words of the UK Parliament’s own Joint Committee on Human Rights and by the independent social policy think-tank, the Centre for Social Justice, established by the Rt. Hon Iain Duncan Smith MP:

1. “We have been persuaded by the evidence that the government has indeed been practising a deliberate policy of destitution of this highly vulnerable group. We believe that all deliberate use of inhumane treatment is unacceptable. We have seen instances in all cases where the government’s treatment of asylum seekers and refused asylum seekers falls below the requirements of the common law of humanity and international human rights law.” (Parliamentary Committee on Human Rights, 2007).
2. Further in the report of The Centre for Social Justice we find: The evidence gathered for this report shows that the welcome offered today falls far short of our traditional standards. When persecuted people arrive in the UK they are all too often met by a bureaucratic system that treats them like cattle, does not believe their stories and spits them out to face a life of homelessness, crime, illegal working and destitution in the UK. (Centre for Social Justice).

The most recent full-scale report into the condition of destitute asylum-seekers is the Oxfam Research Report, published in February 2011. The organisations comprising ‘United for Change’ wholly endorse the Report’s conclusions:

1. c.   It is not acceptable for asylum seekers to continue to live in destitution, and the government has a responsibility to ensure that the human rights of asylum seekers are upheld. The humiliating and degrading strategies adopted by destitute asylum seekers to survive and avoid deportation reflects the need for changes to government and civil-society policy and practice. All aspects of the asylum system – including the flawed asylum-determination process that often leads to wrongful denial of asylum, and policies that deny access to resources (such as the right to work and access to welfare support) – must be urgently reviewed to ensure that all asylum seekers are able to secure a sustainable and dignified livelihood.
2. The survival strategies adopted by destitute asylum seekers are a consequence of asylum policy in the UK. That hundreds of thousands of people would rather live in poverty and in constant fear of deportation – reliant on friends, transactional relationships, commercial sex work or low-paid illegal work – rather than return to their country of origin, suggests the failure of government policy. The government should accept the growing body of evidence that shows that destitution does not lead refused asylum seekers to return to their country of origin. The risks associated with continuing to pursue this approach are enormous, with significant implications for wider society. The evidence collected during the course of this research suggests the need for an entirely new policy approach – one which recognises both the human rights of asylum seekers and also their right to be human. Being human means having access to the resources needed to survive on a day-to-day basis with dignity. It also means having hope for the future.

This ‘United for Change’ submission from refugee support organisations in Manchester and Salford is in line with the findings and objectives of the Still Human Still Here campaign, a broad coalition of more than 40 organisations including Amnesty International, the Refugee Council, Refugee and Migrant Justice, the Migrants Rights Network, the Joint Council for the Welfare of Immigrants, the Red Cross, Oxfam, Student Action for Refugees, the Boaz Trust, the Catholic Bishops Conference of England and Wales, the Archbishops’ Council of the Church of England, Church Action on Poverty, Citizens Advice Bureau, Doctors for Human Rights, Jewish Social Action Hub, Quaker Peace and Social Witness, the Diana Princes of Wales Memorial Fund. Extensive evidence is available on www.stillhuman.org.uk.