The Immigration and Asylum Act 1999: A Missed Opportunity?
| DOI | http://doi.org/10.1111/1468-2230.00328 |
| Published date | 01 May 2001 |
| Date | 01 May 2001 |
LEGISLATION
The Immigration and Asylum Act 1999: A Missed
Opportunity?
Dallal Stevens*
Since 1993, the United Kingdom (UK) Parliament has passed three successive
statutes on asylum and immigration: the Asylum and Immigration Appeals Act
1993, the Asylum and Immigration Act 1996, and the Immigration and Asylum
Act 1999. This last, introduced by a Labour Government, is the most recent
attempt to address a problem which vexed successive British governments
throughout the 1990s: that of asylum. In the early months of 2000, asylum was
further raised in the public consciousness as William Hague’s Conservative
Opposition made political mileage out of three unfortunate circumstances: first, a
sudden escalation in applications with the result that, by the end of December
1999, there were 71,160 applications for that year and 102,870 claims outstanding
overall, the highest numbers ever recorded;1second, the evident failure of the
Home Office to cope with either the rising applications or the backlog; and, third,
the arrival of a hijacked Afghan plane in February 2000, which, it was suggested,
was part of an ‘elaborate scam to claim asylum’.2The political exchanges and
media coverage which accompanied these events ensured that asylum remained to
the fore as an issue of growing public concern.
This review will consider the Immigration and Asylum Act 1999 and
accompanying legislation in the light of recent developments and the wider
political debate on asylum in the United Kingdom. Although the Act covers both
general immigration law and asylum, it is the purpose of this piece not to consider
the statute in its entirety but rather to concentrate on those areas which pertain to
asylum law in particular.
Context
The system for dealing with asylum seekers is expensive and slow – there are many
undecided cases dating back beyond 1993. We will ensure swift and fair decisions on
whether someone can stay or go, control unscrupulous immigration advisors and crack down
on the fraudulent use of birth certificates.3
This pledge by New Labour, in its election manifesto of 1997, was not mere
political rhetoric. Decision-making was indeed slow and, as European countries
struggled to cope with rising asylum applications through restrictive legislation,
ßThe Modern Law Review Limited 2001 (MLR 64:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 413
* School of Law, University of Warwick.
1 Home Office, Asylum Statistics January 2000. These figures are provisional and exclude dependants.
2 See for example, Alan Travis, ‘Straw hard line on hostages’ The Guardian 11 February 2000.
3New Labour – Because Britain Deserves Better (London: Labour Party, 1997) 35.
asylum seekers had been turning increasingly to smugglers and racketeers to gain
access to European Union (EU) states. Legislative initiatives introduced by
previous Conservative governments in 1993 and 1996 were largely unsuccessful in
addressing the problems.4Although perceived by many as unduly harsh, the
statutes failed to achieve one of their avowed objectives: deterrence. From the
relatively insignificant number of applications in 1987 (4,256) to the high points of
1991 and 1995 (44,840 and 43,965 respectively), asylum claims were clearly on
the increase.5Decisions on asylum cases had, by contrast, failed to keep pace:
2,432 in 1987; 6,075 in 1991; 27,005 in 1995.6Only in 1996 did the number of
decisions exceed applications (38,960 to 29,640),7but by then it was arguably too
late in view of the alarming backlog that had emerged (51,800 by 31 December
1997).8
In July 1997, the then Minister for Immigration, Mike O’Brien, announced that
the newly installed Labour government would conduct a comprehensive review of
immigration and asylum in the UK.9Within a year, it had produced two
consultation papers – the Control of Unscrupulous Immigration Advisers and a
Review of Appeals 10 – and a White Paper entitled Fairer, Faster and Firmer – A
Modern Approach to Immigration and Asylum.11 The White Paper introduced a
wide range of proposals and envisaged the need for changes in the law.12 A Bill,
named the Immigration and Asylum Bill and largely reflecting the Paper’s
proposals, was eventually published on 9 February 1999. Whereas previous
statutes had been relatively brief (the 1996 Act, for example, had contained only 13
sections and four Schedules), this new Bill was unexpectedly long and complex:
138 sections and 14 Schedules. In addition, the Bill still made allowance in over
fifty clauses for further secondary legislation. Mike O’Brien, in addressing
delegates at an Immigration Advisory Service conference in March 1999, argued
that secondary legislation gave the Government a chance to ‘listen’. Part of this
listening process was to take place under the auspices of the Special Standing
Committee established to scrutinise the Bill, a somewhat unusual step but one
which had been advocated by Labour in opposition when called upon to debate the
1996 Bill.
The Special Standing Committee first met on 2 March 1999, a few days after the
Second Reading, and its minutes provide a useful source of information on the
major issues of concern for the Home Office and for non-governmental
organisations (NGOs). Over ten weeks and 25 sittings, the Committee examined
a wide range of witnesses, among them leading human rights and refugee/
immigration organisations, the Local Government Association, British Airways,
the Road Haulage Association, the Immigration Appellate Authority, and the
Immigration Service Union, together with members of the Home Office. In
addition, it received written evidence and considered each clause in detail. From a
4 See Dallal Stevens, ‘The Asylum and Immigration Act 1996: Erosion of the Right to Seek Asylum’
(1998) 61 MLR 207.
5Asylum Statistics United Kingdom 1997 (London: Government Statistical Service) Table 1.2 Note:
these figures exclude dependants.
6ibid. Note: recorded decisions do not, on the whole, relate to applications made in the same time
period.
7ibid.
8ibid para 24.
9 Home Office Press Notice 166/97 10 July 1997.
10 Published respectively in January 1998 and July 1998.
11 Cm 4018 (1998).
12 ibid; see 1–4 for summary of proposals.
The Modern Law Review [Vol. 64
414 ßThe Modern Law Review Limited 2001
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