February 23, 2010

I. Summary

Military came to our house and started to beat us. We didn't understand why ... They took my parents and siblings to different prisons. The prison I was taken to was underground and close to an airport. I was there for around six months and raped every day ... I am scared it will happen again if I return.
— Roseline X., Human Rights Watch interview July 3, 2009

Roseline is a soft spoken young woman from the Democratic Republic of Congo (DRC). She says she does not know where her family is, with the exception of one sister who lives in the UK. She says she was continuously raped while in prison in the DRC. After escaping, she had to support herself as a sex worker. With the help of one of her clients, in April 2009 she travelled to the UK. She then claimed asylum through the Home Office at the Croydon public inquiry office. The UK Border Authority (UKBA) decided at a screening interview that her case was suitable for processing in the Detained Fast Track (DFT) procedure, which for women is run out of the Yarl’s Wood Immigration Removal Centre near Bedford.

DFT is an accelerated procedure for assessing asylum intended for claims by men or women that, according to the UK Border Agency, can be decided “quickly.” It is inherently unsuitable for complex cases—and the cases of both men and women can be complex. Indeed, more men than women are referred into the procedure. However, this report focuses on the use of DFT to process claims by women because claims that involve gender-related issues can be particularly complex, especially when they involve persecution by private individuals and the state’s failure to provide adequate protection, and assessing them fairly can involve practical challenges.

After a woman is referred into the procedure, her claim is decided within two or three days. If refused—and in 2008 96 percent of claims were refused on first instance—she has two working days to appeal. This has to be heard within 11 days, meaning from start to finish the whole process takes around two weeks. All this time she is kept in detention, where she will remain pending deportation should her appeal fail. Since May 2005 over 2,000 women have been detained by the UK Home Office in Yarl’s Wood while their claims were assessed. In 2008 91% of appeals were refused.

The system is not rigorous enough to meet basic standards of fairness. This report focuses on its particular shortcomings as regards women, especially when it comes to properly assessing complex gender related claims. On this issue even the Home Office’s own quality team agrees: in 2006 it concluded that the DFT procedure was not sufficiently “robust” or substantive to enable it to identify such claims. However, complex gender related claims are still regularly referred into the procedure.

In this report, Human Rights Watch is not assessing the merits of the claims made by the women we interviewed. But their asylum claims all had complex gender-related dimensions to them and involved consideration of the state’s failure to provide them with protection—yet the cases had been placed in DFT.

Take the case of Fatima H. from Pakistan, who says her locally powerful husband, a man with close links to the police, subjected her to a sustained regime of domestic violence from which she had no way of escaping in Pakistan. Or Xiuxiu L. from China, who says she was trafficked into the UK after being held as a sex slave for five years. Or Aabida M. from Algeria, who said her affair outside of marriage led to threats from her family to kill her. Or Omar B., from Pakistan, a female to male transgender person, whose relationship with a woman led her father to assault him and his family to abandon him. Or Lisa O. from Kenya who says she was displaced in violence following elections in 2007, enslaved and raped by a man initially promising her shelter, and then forced to travel with him to the UK where she was abandoned.

Some of these individuals were eventually granted asylum (in most cases on appeal against an initial refusal or after a lengthy judicial review). But others were rejected—and all were considered by UKBA officers to have cases that could be decided quickly.

Many women who claim asylum in the UK base the claim on violence and persecution by non-state actors like family members or their husband, which raises immediately the complex issue of lack of state protection. Organizations working with asylum-seeking women report claims because of trafficking for sexual or labor exploitation, forced marriage, forced sterilization, domestic violence, female genital mutilation, threat of “honor” killings and rape. Some estimate that more than half of women applying for asylum are victims of sexual violence. 

The UK is entitled to control its borders and to remove people with unfounded asylum claims, but is obliged to ensure that individuals in need of international protection have access to fair refugee status determination procedures.

A fundamental problem that permeates each stage of the DFT is failure to follow the UKBA’s own gender guidelines, a comprehensive document containing important safeguards for women in the asylum process. These point out the complexity of many women’s situations and the factors that UKBA officers need to take into account. Implementation of the guidelines, however, is neither consistent nor universal.

This compounds the challenges to fairness inherent in the DFT procedure as a whole. Problems start with the initial screening interview. This is the first point of contact between a UKBA officer and an asylum-seeker—the point at which an applicant applies for asylum. This interview does not involve any substantive questions about why an applicant is claiming asylum. Nevertheless, an assessment of her immigration history and credibility is made and the UKBA officer decides how the case should be routed. Many complex cases are inappropriately routed into the DFT as opposed to the general asylum procedure, despite the stated intention that DFT is there to deal speedily with straightforward (or “quick”) claims. 

Once in the DFT procedure, women are on a fast-moving treadmill with structural features inhibiting or even preventing them from making their cases effectively. When women arrive at Yarl’s Wood, they will often have their asylum interview the next day. Most only have an opportunity to consult their duty solicitor in a short conversation over the phone. There is little opportunity to build trust, and women, especially in cases involving rape or abuse, may only reveal relevant information late in the process, or not at all. There is limited opportunity to access expert evidence, such as medical reports. The UKBA officer who conducts the asylum interview, known as the case owner, decides whether or not asylum should be granted.

That the trauma of rape can give rise to feelings inhibiting a woman from going to the police is, for example, recognized in criminal court. However, an asylum seeker is expected to immediately tell strangers—UKBA officers and legal representatives—of any violence, including sexual violence, that she has gone through. Solicitors report and refusal letters confirm that delay in mentioning critical facts about sexual violence often leads case owners to conclude that the information is not credible. Women seeking asylum are also disadvantaged by the lack of female interviewers and interpreters which can further inhibit full disclosure of experiences.

Human Rights Watch is also concerned about the incorrect use of information and use of inappropriate information by case owners to support assessments. Our research uncovered examples of apparently medically unqualified case owners, for example, dismissing the conclusions of medical reports. Country of Origin Information (COI) reports are not available for many of the countries from which women in DFT come. For countries that generate fewer asylum seekers COI key documents are prepared—brief country profiles with an indexed list of other sources. These are more difficult to use in the short timeframe available for decision makers. Finally, UKBA case owners have inappropriately used Operational Guidance Notes, brief subjective UKBA summaries of the political and human rights situation in a country, as background information. Decision makers often appear to be uninformed or fail to take into account women’s situations and status in their country of origin.

Women have only a few days to prepare their appeal, often giving them insufficient time to gather expert reports and other evidence that may be needed to support their asylum claim. About one third of women who are refused at first instance find themselves without legal representation at the appeal stage because free legal assistance is only granted to those whose case passes a merits test—an assessment by a solicitor that there is more than a 50 percent chance of success or that the chance of success is “borderline or unclear” but of “overwhelming importance” to the client. Solicitors face a considerable disincentive against taking on what may at first sight appear to be a marginal case–since 2005 the Legal Services Commission has required legal representatives to win 40 percent of their cases if their contract to provide legal aid is to be renewed.

If their claim is rejected, women are in theory then removed from the country. However, some cannot obtain the necessary travel documents, or are not accepted back by the destination for deportation. Such women remain in detention, sometimes for a couple of days, but sometimes for as long as ten to twelve months.

All the challenges to a fair hearing posed by the speed and characteristics of the DFT procedure are exacerbated by the fact of detention. Detention makes the already difficult task of preparing a case more difficult. Detention cuts someone off from the outside world and even though a woman can communicate by phone, there are limits to who she can access and what information she can gather. Beyond the practical difficulties, being in detention does not create the conditions encouraging women to open up about the often very intimate issues behind their claims. Therefore detention should only be used where absolutely necessary, normally to prevent someone who is about to be deported disappearing, and the state authorities should have to show the necessity for it in each individual case.

Speedier decision making needs to be balanced with the state requirements to fulfill their obligations under international human rights and refugee law. The correct test of an asylum system is that those in need of protection receive it. Asylum seekers have a fundamental right to a full and fair consideration of their claims—an obligation not met in the DFT procedure.

The flaws within the DFT procedure—the screening process, the breakneck speed that militates against the effective preparation and presentation of a claim, the limitations on legal representation, the difficulties of accessing expert evidence in the time available, and the very fact of detention itself which makes the whole process of building a case even more difficult—leads Human Rights Watch to conclude that it should be abolished.

In the interim, m ore rigorous procedures should be put in place to ensure complex claims do not get routed into the DFT procedure. These should include a dding complex gender-related persecution claims, such as alleged sexual violence and domestic violence, to the list of “claims unlikely to be accepted into fast track” in the suitability guidance note for routing into DFT. The criteria for routing a person through DFT should be clarified, including the factors that permit a claim to be decided “quickly”. The asylum interview should (in line with the successful Solihull pilot) allow time for the gathering of evidence before an initial decision is made, even if this means an added few days before the initial decision is taken. The right to apply for bail should be retained during this process.  

Methodology

This report is based on research by Human Rights Watch in London, Bedford, Croydon, and at the Yarl’s Wood Immigration Removal Centre in the UK which took place from May to July 2009. Fifty interviews were conducted for this report, including with seventeen women with direct experience of the Detained Fast Track (DFT) system. These interviews took place with women while they were either going through  DFT at Yarl’s Wood, after they had gone through the procedure, when they were taken out of the detained fast track procedure, or when they were being removed from the country. Human Rights Watch also conducted interviews with solicitors and barristers providing legal advice and assistance to women in the fast track procedure. Interviews were also conducted with nongovernmental organizations (NGOs), representatives of the United Nations High Commissioner for Refugees (UNHCR) to the UK, social workers, and volunteers. In addition, Human Rights Watch interviewed three employees of the UK Border Agency (UKBA).

All interviews were conducted in English. They were conducted in the visitor’s room at the detention center or at places convenient to the interviewees, and always in a private setting.  No compensation or any form of remuneration was offered or provided to any person interviewed for this report. In three cases, Human Rights Watch reimbursed women for the costs incurred in travelling to the place of interview.

All participants were informed of the purpose of the interview and the way in which their stories would be documented and reported. Participants were informed of their right to stop the interview at any time. All participants gave their verbal consent to be interviewed and all names have been changed to protect their identity.

This report does not aim to determine whether the asylum claims discussed were valid or not, but rather whether the detained fast track procedure fully and fairly examines these claims.