The Nationality, Immigration and Asylum Act 2002: Secure Borders, Safe Haven?

AuthorDallal Stevens
DOIhttp://doi.org/10.1111/j.1468-2230.2004.00502.x
Publication Date01 Jul 2004
LEGISLATION
The Nationality, Immigration and Asylum Act 2002:
Secure Borders, Safe Haven?
Dallal Stevens
n
INTRODUCTION
Following Royal Assent on 7 November 2002, Beverley Hughes, the then Min-
ister for Citizenship and Immigration, ushered in the Nationality, Immigration
and Asylum Act 2002: ‘This Act is the most radical and far-reaching reform of
the UK’s immigration, asylum and nationality systems for many years and pro-
vides us with a foundation on whichto build con¢dence and trust in the integrity
of our systems.
1
W|thin months, parts of the Act were encountering an unusually
high degree of judicial censure in the High Court and the Secretary of State,
David Blunkett, was alluding to the need for further legislation.
2
By the time of
the Queens Speech, on 26 November 2003, the Government was said to be
committed to the maintenance of an e¡ective asylum and immigration system.
Legislation will therefore be brought forward to establis h a single tier of appeal
against asylumdec isions, toreduce the scope for delaycaused by groundless appeals,
and to put in place a range of other measures to tackle abuse of the system and frau-
dulent claims.
3
The following day, a new Bill was published, entitled the Asylum and Immigra-
tion (Treatment of Claimants, etc) Bill.
4
Many of its measures were radical,
including a provision to allow the children of failed asylum seekers to be taken
into care, the abolition of the Immigration Appeal Tribunal (IAT), and the
removal of the right to appe al or apply for judic ial review to the higher courts.
Such haste tolegislate yet againon asylum and immigration raises seriousques-
tions about the e¡ectiveness of the Nationality, Immigration and Asylum Act
2002. This review examines some of the major changes introduced by the 2002
Act in relation to asylum and assesses the extent to which it has lived up to the
ambitiousclaims made on its behalf by government ministers.
n
School of Law,University of Warwick.
1 B. Hughes,‘IND Brie¢ng on Nationality, Immigration and Asylum Act 2002’, available at:
www.ind.homo⁄ce.gov.uk (Last visited 13 May 2004)
2 Home O⁄ce Press Release,‘Asylum applications down by a third’,22 May 2003.
3 Que en’sSpeech, 26 November 2003.
4 Bil l 5,27 November 2003.
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(20 04) 67(4) M LR 616^ 631
THE ACT
One of the more surprising features of the 2002 Act was its precipitate arrival.
Only three years earlier, the lengthy and cumbersome Immigration and Asylum
Act 1999 had come into law after extensive discussion and debate.
5
Despite this
Act’s overhaul of UK legislation, the Government published a White Paper in
February 2002 entitled Secure Borders, Safe Haven ^ Integration with Diversity in Mod-
ern Br itain.
6
This laid out yet further changes to UK immigration and asylum law
and o¡ered, accordingto Home SecretaryBlunkett, a holistic approachto nation-
ality, managed immigration and asylum.
7
The White Paper considered a broad
range of important issues: citizenship and nationality, working in the UK, asy-
lum, people tra⁄cking, illegal entry and illegal working, border controls, mar-
riage and family visits, and war criminals.
The subsequent Bill and ¢nal version of the 2002 Act incorporated the major-
ity of theWhite Paper proposals and re£ected the high pro¢le given to asylum
and immigration during the 1990s.
8
Whereas the ¢rst asylum-speci¢c statute
passed in 1993, the Asylumand Immigration Appeals Act, containedonly 16 short
sections and two schedules, the 2002 Act extended to164 sections and nine sche-
dules. There are eight Parts: 1 (Nationality),
9
2 (Accommodation Centres), 3
(Other Support and Assistance), 4 (Detention and Removal), 5 (Immigration
and Asylum Appeals), 6 (Immigration Procedure), 7 (O¡ences) and 8 (General).
Many provisions are dependent on secondary legislation for their further clari¢-
cation and implementation. At the time of writing, in March 2004, six com-
mencement orders have been published, bringing numerous sections into force,
though many remain outstanding.
10
This reviewwill address the following areas: thesupport o f asylum seekers, the
regulation of asylum seekers, and appeals.
5 Se e D. Stevens, ‘The Immigration and Asylum Act 1999: A missed opportunity?’ (2001) 64:3
ML R 413.
6Cm5387.
7 HC Deb vol 379 col1027 7 February 2002.
8 For discussion of the developments in asylum law in the UK, see D.Stevens, UK Asylum Law &
Policy:Historical an d ContemporaryPerspectives (London: Sweet & Maxwell, 2004);P.Shah, Refugees,
Racea ndthe L egalConcept of Asylum in Britain (London: Cavendish, 2000); C. Harvey, SeekingAsy-
lum in the UK (London: Butterworths,20 00).See for the practitioner’s viewpoint M. Symesa ndP.
Jorro,Asylum Law & Practice(London: LexisNexis/Butterworths, 2003).
9 For a discussion of changes to nationality law see R. Shah,‘Being British: rites of passage’(2003)
17:4 IANL, 250^254.
10 The Nationality, Immigration and AsylumAct 2002 (Commencement No.1)Order SI 2002/2811;
The Nationality, Immigration and Asylum Act 2002 (Commencement No. 2) Order SI 2003/1;
The Nationality, Immigration and AsylumAct 2002 (Commencement No.3) Order SI 2003/249;
The Nationality, Immigration and Asylum Act 20 02 (Commencement No. 4)(Amendment of
Transitional Provisions) Order SI 2003/1040; The Nationality, Immigration and Asylum Act
2002 (Commencement No. 4)(Amendment)(No. 2) Order SI 2003/1339;The Nationality, Immi-
gration and AsylumAct 2002 (Commencement No.4)(Amendment)(No.3) Order SI 2003/2993;
The Nationality, Immigrationa ndAsylum Act 2002 (Commencement No.4) Order SI 2003/754;
The Nationality, Immigrationa ndAsylum Act 2002 (Commencement No.5) Order SI 2003/1747;
Nationality, Immigration and AsylumAct 2002 (Commencement No.6) Order SI 2003/3156.
Dallal Stevens
617rThe Modern LawReview Limited 2004

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