February 23, 2010

V. Failure to Protect—the Pitfalls of the DFT System for Women

The worst thing is that after all the suffering, the trauma, the detention in my home country, the pain, and finally the escape, I come for safety, but was put in detention like a criminal. I am not a criminal, criminals did things to me. — Alicia B., a torture and rape survivor from Cameroon, June 8, 2009.

Speedier decision making must be balanced against the UK’s obligations under international human rights and refugee law.[94] States are entitled to control their borders, but they are obligated to ensure that individuals in need of international protection have access to fair refugee status determination procedures. In other words, asylum seekers have a fundamental right to a full and fair consideration of their claims.[95]

Liam Byrne MP, then Minister of State for Borders and Immigration, wrote in 2007: “The DFT has a focus on high quality decision-making, with access to high quality legal advice through a panel of duty solicitors.”[96] Unfortunately however, in its quest to rapidly process certain asylum applications, the UK has sacrificed fairness for supposed efficiency. Human Rights Watch’s research suggests that the safeguards that are in place to prevent the detention of vulnerable persons and to grant protection to those who need it are neither sufficient nor are being properly followed. As a result, women’s human rights to protection and nonrefoulement (which prohibits the UK from returning refugees to countries where they have a well-founded fear of persecution) are at risk of being violated.

Since the DFT procedure for women was introduced in 2005, 2,055 women have been routed into it.[97] The percentage of claimants recognized as refugees in the fast track system is drastically lower than those whose applications are processed through the standard asylum procedure (where most are also rejected.) In the DFT procedure in 2008, four percent of the 515 women held in Yarl’s Wood in 2008 were granted asylum in first instance. Only nine percent of those who appealed were successful.[98] In the first quarter of 2009, three percent of claimants at Yarl’s Wood were recognized as refugees at first instance.[99]

Around 26 percent of the women in the Detained Fast Track procedure were taken out of the procedure (and detention) in 2008 and routed into the standard asylum procedure.[100] While there are no publicly available records of why cases are taken out of fast track, the figures suggest that in 2008 about one quarter of cases were judged to have been wrongfully screened and inappropriately placed into DFT.  According to UKBA, this reassessment is usually done by the caseworker after the initial asylum interview if they consider the claim to be too complex or the claimant not suitable for detention.[101]

The high refusal rates and the fact that a quarter of women in DFT are routed back into the standard asylum procedure are interpreted differently by the Home Office and by legal practitioners and NGOs. The Home Office claims that the statistics show the fast track system is working.[102] It claims that “the fact the AIT [Asylum and Immigration Tribunal] generally up-holds the initial decision does indicate that the case owner had made the correct decision in the first instance”.[103] According to the UKBA, the fact that case owners are identifying cases to be taken out of fast track means that the safeguards against incorrect processing of claims are working.[104]

UNHCR, NGOs working with persons passing through the DFT system and solicitors providing legal representation have a different view. Solicitors and NGOs, for example, claim that women are taken out of fast track because of action by a solicitor and a gathering of evidence by NGOs rather than proactive reassessment by caseworkers.[105] UNHCR has expressed concern that structural features of DFT may affect quality of decisions:

Whilst noting some examples of good practice, the findings from the QI [Quality Initiative] audit indicate that DFT decisions often fail to engage with the individual merits of the claim. Decisions made within the DFT often incorrectly apply and inaccurately engage with refugee law concepts and adopt an erroneous structural approach to asylum decision making. UNHCR is concerned that the speed of the DFT process may inhibit the ability of case owners to produce quality decisions.[106]

Human Rights Watch’s research encountered a lack of serious investigation of claims at the initial asylum decision stage as well as to some extent at appeal. Our view is that there are sufficient flaws within the system to mean that high refusal rates are likely to be a consequence of the speed and structure of the process and weaknesses of gender awareness impacting on applicants being able to make claims effectively, as well as the low merit of some cases.

Others also claim that the numbers refusals do not illustrate the success of the procedure but simply show how easily asylum seekers are refused in DFT. One solicitor who works on fast-tracked cases described it as follows:

I have seen many cases [in DFT] where the woman’s story was simply ignored and dismissed because the Home Office did not believe her, based on assumptions. The figures show a lack of interest in these women, not a successful asylum system.[107]

Speed and quality of decision making, especially in the complex field of refugee law and protection, are rarely a matching pair. As said by the Council of Europe’s Commissioner for Human Rights, “Accelerated procedures that may lead to a reduction in quality of examination of asylum claims and of decision-making may not be regarded as efficient.”[108]

Accelerated procedures should only be applied to cases within the scope of UNHCR’s EXCOM Conclusion No. 30 which are “clearly abusive” or “manifestly unfounded”, and preferably not in detention.[109] The Council of Europe’s Parliamentary Assembly recommends: “[L]imit the use of accelerated procedures to cases which are clearly well founded (i.e. those whose claims are quickly deemed to merit refugee status), allowing a swift positive decision on the asylum application, or those cases which are clearly abusive or manifestly unfounded.”[110] The fast track procedure in the UK is being used for a far broader range of cases.

Case History: Lisa O. from Kenya

Lisa O. is a 23-year-old woman from Kenya who lived with her grandmother in a village in Siaya, a district in the west of Kenya. In violence following the 2007 elections, a gang terrorizing their village came to her grandmother’s house and ordered them to leave.

Lisa says she went to the police but did not get any help. Instead, they told her to go to Nairobi. There, in the displacement camp where she lived, she met a man who promised to help her get a job and a place to live. Instead he stole her documents and possessions, imprisoned her in his house, raped her repeatedly, and threatened to kill her if she left. He was a member of the Mungiki group[111]and made it clear that he expected her to be circumcised.

This man decided to leave Kenya when a conflict arose between him and other group members and he forced Lisa to go with him. He controlled the journey and her belongings, and in May 2009 she arrived in the UK with him. He then disappeared, leaving her destitute.

Disregarding the complexity of her case, her application for asylum was deemed to be a straightforward case and she was placed into the DFT. Her application was refused at all stages, and her final request for judicial review was pending at the time of writing (November 2009). She told Human Rights Watch:

They didn't give me a reason,  just that my case will be quick. They wrote everything down from the interview but made many mistakes, they got my town name wrong, my religion, and even said South Africa instead of Kenya when they refused me. They think I didn't tell them the truth, said I should have gone to the police [in Nairobi], but I was scared and couldn't leave [the man I was with] ... It is so stressful to stay in detention, the fast track is so fast, there is no time to think. I told them the truth ... I cannot think about going back.[112]

 

Case History: Fatima H. from Pakistan

Fatima H.’s story is another of the lack of protection by the state against abuse by non-state agents.

She is a 28-year-old woman from Pakistan who says she was a victim of sustained domestic violence by her husband, a wealthy and powerful figure in her region. He imprisoned her in her house, abused and attacked her because she did not become pregnant, or simply because he was in a bad mood. She was terrified to go to the police because she was aware that her husband was close to them.

She eventually managed to escape with the help of an “agent” but when she arrived in the UK, seeking protection, she was placed in the DFT procedure. Her claim was refused because of her apparent lack of credibility and because she “could seek gender specific protection at a women only police station” in Pakistan.[113] However, there are only a few of these stations in Pakistan and these lack resources and training (see Quality and Use of Country Information below). Moreover, there are none in the region where she comes from.  Fatima was scheduled to be removed to Pakistan and on October 5, 2009.  She wrote to Human Rights Watch just before that:

If I go back, my husband and my family kill me. No one to collect me on airport, and  you know in Pakistan women are not secure...If there [is] in this world a little bit of humanity or you can say human rights, please protect me from them. If no then allow me to kill myself as a right of human who have nothing in this world, not a little place where I live safe.[114]

Screening: Putting Women into DFT

UKBA policy is crystal clear: torture victims are categorically unsuitable for inclusion in the DFT. However, in practice significant numbers of torture victims—including many women who have survived horrendous sexual abuse—are winding up in there. We know this because our doctors play a key role in documenting evidence of their abuse.
— Sonya Sceats, the Medical Foundation for the Care of Victims of Torture, February 10, 2010.

Even though technically it precedes entry into the DFT system, the initial screening interview marks the start of procedural weaknesses in fast-track. The screening interview takes place either when entering the country or at the asylum screening unit in Croydon.[115] As already indicated elsewhere in this report, the initial interview is not intended to elicit detailed information about the validity of the claim, but to obtain basic information about the applicant.  However, it is at this point of the process that a UKBA officer takes a decision on how an asylum claim will be processed, including whether a claim is suitable for the detained fast track procedure.

As the Immigration Law Practitioners’ Association has stated, “it is a mystery of the fast track process how the straightforwardness of claims can be accurately assessed when the screening interview elicits no or virtually no information about the substance of the claim.”[116] In truly Kafkaesque fashion, the information needed to assess suitability of a case for fast track is only available at the asylum interview, which takes place after the woman is already in the DFT procedure.

If an asylum seeker does not immediately provide testimony or evidence to support her claim, she can be placed into detention without the full extent of her claim being known. Yet she is not asked to provide this evidence. In cases that require material evidence such as doctor’s reports or expert testimony, most refugees are not able to gather such information before they arrive in the UK (and putting her into detention makes gathering such evidence more difficult, see below.) UNHCR has stated that, “Often ... an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.”[117]

Human Rights Watch encountered cases that could and should have been identified as complex at the screening interview, but that were still placed into fast track. In these cases, UKBA ignored their own Gender Guidelines as well as their intake instructions. Our research suggests that the assessment of whether a case can be decided quickly is often simplistic and ineffective in identifying specific gender-related cases that do not belong in DFT. The referral mechanism is not robust enough to ensure complex cases are kept out.[118] 

Omar B. is a transgender person (female to male, not biologically male) from Pakistan, who was placed into the DFT and eventually spent four-and-a-half months in detention.[119] At the screening interview at the asylum screening center in Croydon, he identified himself as a lesbian because his appointed solicitor told him that was what “was wrong with him”.[120] A medical examination concluded that he was female. Omar told Human Rights Watch: “I had no idea what was happening in my body, all I knew was that I was in love with a girl and that I felt like a boy and man my whole life”.[121]

Disregarding his confused sexual identity, the threat of the father of his girlfriend to kill him, as well as the fact that he had already been severely assaulted by the father and abandoned by his own family, his case was deemed straightforward and suitable for fast track.[122] That this was an inappropriate referral as well as, subsequently, an incorrect refusal of his asylum claim was confirmed by the High Court in August 2009 in a judicial review of the case. Judge Mark Ockelton indicated that he had "real difficulty" in understanding why the Home Office immigration authorities were still defending their decisions to refer Omar’s case to fast track and to refuse the asylum claim, despite "strong evidence" in the asylum seeker’s favor.[123] A fresh claim was made and he was eventually granted asylum in August 2009.

Laura A. from Sierra Leone said she experienced serious gender-related abuses in combination with severely traumatizing events, including witnessing her father’s beheading, being raped several times, being imprisoned, being  forced to have an abortion by having her stomach cut open, and being trafficked into the UK.[124] None of these issues were identified during the screening interview, and she was placed into fast track. Laura A. told us “the screening officer at the center in Liverpool was aggressive and said ‘why do you come to this country that doesn’t want you?’ and I was told I was a liar.”[125] In this instance, after significant interventions by NGOs the case owner recognized that Laura was incorrectly in DFT and transferred her out of fast track. Eventually she was given refugee status.

One of the situations where an officer is clearly required by the DFT intake instructions to consider the claimant’s case in the general procedure is when it is foreseeable that translations are required in respect of documents presented by an applicant.[126] Even this requirement is not always adhered to in practice.

Aabida M. claimed asylum based on a threat by her family in Algeria after they found out about her relationship with a man who was not her husband.[127] Her sister sent her a letter in Arabic telling her that she should not come back as her family would hurt or kill her.[128] She showed this letter to officials as soon as she claimed asylum in Croydon. The officer told her to “leave the letter for now” but to show it at her asylum interview.

At her asylum interview at Yarl’s Wood, she again presented the letter and was told they could not accept it because it was in Arabic. When she subsequently referred to the letter at her appeal hearing, the judge said she should have presented it at her interviews. Aabida wrote about this to her caseworker: “I told about my letter first time, not the last minute as you said in court.”[129] Human Rights Watch is in possession of several requests by Aabida M. requesting a translation of this crucial letter, but at no stage was the process adjourned to allow it to be translated.[130] She stated that, “Fast track is just a factory for sending people away ... I think I did everything right, even without lawyer, but they do not care ... I am so scared”.[131] Aabida is certain her family will find her and harm her if she is forced to return to Algeria. The morning after Aabida M. told us this, she was taken out of Yarl’s Wood to an airport and put on a flight to Algeria. Human Rights Watch has not been able to contact her since she was deported.

The UK has recently ratified the Council of Europe Convention against Trafficking in Human Beings.[132] The then Home Secretary Jacqui Smith stated on the day of ratification: “Ratifying this convention helps us [to turn] the tables on traffickers and providing victims with protection, support and a voice in the criminal justice system.”[133] Yet trafficked women are still frequently found among those in the Detained Fast Track procedure. The Poppy Project, an organization that provides expert evidence and housing for women who have been trafficked into prostitution, manages to get some women who have been sex trafficked removed from the fast track system, but no specific organization is funded to provide evidence on behalf of victims of other forms of trafficking, such as for domestic work or forced labor.

In May 2009 the House of Commons Home Affairs Committee raised its own concerns about women who are trafficked and the negative consequences of ending up in the fast track system:

We are concerned that the Government's laudable aims of deterring fraudulent applications for asylum and speeding up the decision processes for genuine asylum seekers may disadvantage the often severely traumatised victims of trafficking.... Removing people from the Fast Track does not mean that their cases would be examined less rigorously; it just means that there would be more time in which evidence of trafficking might be adduced.[134]

Xiuxiu L., a 27-year-old woman from China, said she was trafficked into the UK and immediately claimed asylum upon arrival, but could not provide evidence of her abuse and trafficking.[135] When Xiuxiu L. was 17, she said, she was arrested because her father was accused of selling drugs. She was held at a police station for a week, and then handed to a man she didn't know. She was taken to a bar and told to have sex with customers. She was held as a sex slave and when she refused to have sex, she was severely beaten. She was sold to three other bars over a period of five years. Finally, she befriended a customer who saw her bruises and managed to “help” her escape. He brought her to an airport and gave her a Chinese passport. She left China and travelled for 16 months, always accompanied by different people. Upon arrival in London she claimed asylum. She barely spoke English and was placed into detained fast track because her claim of trafficking and being held as a sex slave were not believed without documentation.[136]

Sensitivity to gender-related issues is important in identifying vulnerable cases and keeping complex gender-related claims out of the DFT, and must therefore be integrated into any intake criteria. This sensitivity is sometimes flagrantly absent. As one NGO explained to Human Rights Watch:

The decision to detain is made before the state knows whether the woman was a victim of sexual violence, because those questions aren’t asked. So the woman has to present on her own initiative expert evidence that she has been tortured or abused, which of course she isn’t able to do most of the time.[137]

Fanita M. from Cameroon claims she left the country because she had lost a daughter to an infection after the child underwent female genital mutilation (FGM), at the insistence of Fanita M.’s husband[138]. She desperately wanted to protect her youngest daughter from the same fate and so she fled from Cameroon with the child.  She was placed into fast track because she was educated and was therefore seen as able to move to another part of Cameroon, find work and provide for herself and her daughter. Her husband, however, works for the police and so would be easily able to locate her should she return to Cameroon.

She was eventually granted asylum after appeal, but she was initially considered a quick refusal case. The difficulties she would face as a single woman living apart from her husband having refused to allow her daughter to undergo FGM appear to have been completely disregarded. Fanita M. spent more than a month in detention with her young daughter.[139] Her solicitor said that in her experience:

[W]hen women are not verbal they are considered liars and not granted asylum. When they are educated and verbal they should be able to live by themselves no matter what the circumstances, and are also refused asylum initially.[140]

Solicitors and other practitioners told Human Rights Watch that it is not at all clear what the criteria for placing someone into the Detained Fast Track procedure actually are. The referral form only gives “case can be decided quickly” as a reason. The most commonly used reasons according to solicitors (who hear this from clients or from immigration officers) are the perceived lack of credibility of the person, whether bed space is available at immigration detention centers, the country of origin, and whether the officer thinks the claimant could safely relocate somewhere else in her country of origin (in other words, persecution can be avoided by exercising the so-called “internal flight alternative”).[141]

The fact of the matter is, as UNHCR has reported to the government, that many unsuitable cases are being routed to the Detained Fast Track procedure due to the lack of clear guidance as to which cases may be “decided quickly” and are therefore suitable for an accelerated process, combined with the lack of sufficient information to be able to assess the complexity of a claim.[142]

UNHCR considers that the screening of asylum applicants ... [is] often not operating effectively to identify complex claims and vulnerable applicants. As a result, UNHCR is concerned that inappropriate cases are being routed to and remaining within the DFT. [143]

As an NGO that works with people in the detained fast track put it to Human Rights Watch like this:

First, a decision is taken that someone’s case is simple, and frankly that means ‘easily refused’, before the state knows whether there was gender based violence. Women are supposed to tell an officer straight away, but often aren’t capable to because of shame, fear. Then in the system, when they tell the caseworker about their experience they are often not believed if they haven’t said this in the screening interview. So these figures just show that women are not believed, it does not show they do not have a valid claim.[144]

Even the Home Office’s own New Asylum Model quality team concluded in 2006 that the fast track mechanism was not sufficiently implementing its own gender guidelines.[145] In an evaluation of the implementation of the gender guidelines, it concluded that:

There does ... appear to have been a problem with the referral mechanism to the detained fast track, at least in relation to the early identification of gender-related claims. The mechanism does not appear to be sufficiently robust or substantive to enable it properly to identify complex gender-related claims.[146]

So while the Home Office itself already identified problems with referral of gender-related persecution claims four years ago, the procedure is still routinely used to process such claims, often resulting in violations of women’s right to a full and fair asylum procedure.

The discretion of immigration officials should be guided by specific and precise legislation to make sure no complex cases or vulnerable groups are routed through the fast track. The Council of Europe’s Commissioner for Human Rights noted the failure to clarify the criteria, stating that:

It is of concern that the criteria and details of asylum seekers’ DFT are not contained in law (primary or secondary legislation) but in an internal, administrative manual of immigration officers.... In addition, the criteria under which the aforementioned manual allows administrative detention are not characterized by precision, a fact that may lead to an excessive use by immigration officers of their discretion to detain asylum seekers.[147]

Assessment of credibility

Assessment of an applicant’s credibility is, of course, a critical part of the functioning of the entire asylum system, from the initial screening interview onwards. UNHCR has repeatedly highlighted concerns regarding the way in which UK decision makers assess credibility and establish the facts in asylum claims.[148] A clear understanding of gender and cultural differences must be built into the system. An accurate and gender sensitive assessment of credibility is crucially important for the determination of asylum cases. Women may react differently to questioning than men and differently according to their cultural backgrounds. There can be a misunderstanding of body language, such as looking away during an interview, or a failure to make eye contact, which in some countries is considered a sign of respect from women, rather than evasiveness. Despite guidelines, practice falls short.

In the DFT procedure, there is little time to assess the overall credibility of an applicant. Credibility is particularly difficult to establish if the assessment is based on a screening interview that does not include substantive questions. If a woman’s claim is not seriously investigated because of an initial negative assessment of her credibility during the screening interview, dismissing the entire claim violates her right to a fair asylum procedure.[149] A credibility assessment generally requires an examination of the facts and accelerated procedures militate against this.[150]

The inability to openly discuss sexual violence is often used to challenge the overall credibility of an applicant. This is recognized by the Home Office itself, in its guidelines on “Gender Issues in the Asylum Claim”, which states:

If an applicant does not immediately disclose information relating to her claim, this should not automatically count against her. There may be a number of reasons why a woman may be reluctant to disclose information, for example feelings of guilt, shame, concerns about family dishonour ... Demeanour alone is an unreliable guide to credibility.[151]

However, Human Rights Watch has come across several cases where this provision was disregarded. Jane S. was told her accounts of being raped and the killing of her family in Sierra Leone was not believed because “It is not plausible that you would not remember these dates when it was a significant date in your motivation to leave”.[152] This was decided despite the UKBA Gender Guidelines which acknowledge that “women who have been sexually assaulted may suffer trauma. The symptoms of this include persistent fear ... and memory loss or distortion”.[153]

Commonly assessments of credibility are based on the view of a caseworker or judge who has no particular expertise in assessing such cases nor of what would constitute rational or reasonable behavior in a given situation, including in cases dealing with gender based violence. Mesi C. from Malawi said she was raped by her uncle, but the case owner told her that her rape was fabricated, because “it is very strange that she did not tell anyone in her family about the rape by her uncle”.[154] Sexual violence and rape are often taboo subjects and can bring about feelings of shame. When perpetrated by a family member, the emotional and social complexity can be extreme. Women who have been subjected to sexual assault may be shunned by their community and family if they admit to this and therefore may not disclose it.[155] Indeed, this is recognized by UKBA in its own gender guidelines.[156]

Shame and the emotional distance women create from their experiences have a detrimental impact on their ability to tell their story, which demonstrates the need for immigration procedures to be sensitive to these issues.[157] As Laura A. told us:

I was in shock, weak, but I should have told the man who told me I was lying, that if I would get my mother and sisters back I would happily leave ... I loved my old life, people came to my country [Sierra Leone] in the past you know ... I am a fighter, I am used to fight to live, but to be told ‘you faked your life’ is a little like death.[158]

Barriers that inhibit women from telling their stories in their own words, a hostile environment, and the tendency to regard factors such as late disclosure, narrative inconsistency, and the lack of demonstrative emotion while recounting traumatic events as indications of a lack of credibility can seriously undermine women’s asylum cases.[159]

In refusal letters, references are often made to the overall credibility of women claiming asylum, making general assumptions about their intentions. Yuan C. is a Chinese woman who said she was beaten and abused by her husband who also stole her passport and threatened to report her to the police because she is a Falun Gong follower.[160] She was found in a brothel in the UK. Because she did not immediately report to UKBA (because, she alleges, she was forced to work as a prostitute) she was told in her refusal letter: “It is considered that your application is an exaggerated, opportunistic application.”[161]

The appeal ruling in relation to Fatima H. from Pakistan, whose story was described above, focused on her credibility and raised issues such as the cost of her taxi ride from Heathrow Airport into London. The judge did not believe her and, reasoning that “[i]mmigration judges are appointed because of their experience of life,” suggested that the fare should have been higher, despite the fact that he did not know to where she was taken.[162] The appeal judgment further reads: “The Tribunal’s view is that the Appellant invented [her abuse] ... during the course of cross-examination to seek to pull the wool over the eyes of the Tribunal.”[163]

Quality and use of country information

To assess an asylum claim, UKBA caseworkers and judges require access to sources of information on the country of origin of the claimant to verify elements of her claim. The quality of the country information, as well as how this information is used, is an important barometer of how seriously asylum claims are assessed. As this information often forms the basis of a refusal or acceptance of a woman’s claim, it must be sensitive to women’s rights issues in countries of origin. The UKBA officers who initially decide a claim are required to take several sources into account to check the accuracy of the asylum seeker and to reach a conclusion about the outcome of the claim. It is important, especially in the fast track procedure, that the decision maker has access to accurate and up to date information about the country of origin of the claimant.

Sources of Information

The UKBA Country of Origin Information (COI) Service produces several products that decision makers can use. Country of Origin Information reports are provided for the 20 countries which generate the majority of asylum claims in the UK.[164] These reports are summaries compiled from documents produced by a broad range of information sources.  The reports are compiled entirely from material produced by external organizations and do not contain any UKBA opinion or policy. These reports are usually updated three times a year.

According to UKBA “Each report focuses on the main asylum and human rights issues in the country, but also provides background information on geography, economy, and history.”[165] For those countries that generate fewer asylum seekers to the UK, COI key documents are put together consisting of a brief country profile and an indexed list of other sources caseworkers can consult for information.[166] COI bulletins are also produced on an ad-hoc basis in response to emerging events.[167] Finally, the COI Service operates a rapid information request service, providing bespoke research responses, usually within one to two working days.[168]

The body that is specifically mandated to check the content of the COI reports, the Independent Advisory Group on Country Information (formerly the Advisory Panel on Country Information), does not currently examine their use by officials nor look at other documents and sources used to refuse a claim.[169] The actual content of COI reports has improved under the advisory group’s scrutiny, but the use of information and additional sources remains problematic.

There is lack of information on specific women’s circumstances and status in their country of origin as discussed below. Although COI reports provide sections on issues relevant to the consideration of applications from women, most COI key documents rely upon users accessing original source material via the indexed lists of links. Human Rights Watch’s research encountered incorrect use of available information as well as the use of unreliable sources, such as websites and newspapers.

Additional materials used but not monitored

Materials that are sometimes incorrectly used as country of origin information are “Operational Guidance Notes” (OGNs), which are subjective and restrictive views on asylum claims from a certain country from one of the parties in this case—UKBA. Officially:

Operational guidance notes (OGN) provide a brief summary of the general, political and human rights situation in the country and describe common types of claim. They aim to provide clear guidance on whether the main types of claim are likely to justify the grant of asylum, humanitarian protection or discretionary leave.[170]

A skeleton argument is the written summary of a legal argument prepared by a lawyer for a case. In UK asylum and immigration cases, skeleton arguments are given to the judge by the lawyer for the appellant and UKBA. OGNs are effectively the skeleton arguments of UKBA.

Even though they are supposed to be “subjective” policy documents, the OGNs are often used as “objective” information.[171] They should be used in conjunction with COI information. However, case owners have used the OGNs instead of more detailed country information as the basis for their refusal of asylum cases.[172]  

This is a particular hazard in fast tracked cases. First, because there is less time for case owners to assess a case, there might be understandable temptation to look at the simple, straightforward and instructive operational guidance notes.

Secondly, the top 20 countries that produce the most asylum claims do not wholly overlap with the top 20 countries in the fast track system. This means that for many fast track cases, there is no up-to-date COI report and case owners have to rely upon the less user-friendly COI key documents. For example, Kenya, Uganda, South Africa, Malawi, and Sierra Leone are countries of origin of many women in the fast track system and for which there is no available recent COI report.

The quality of information in the narrative section of COI key documents is often not adequate because women and users have to access original source material via the indexed list of links. Kenya is one example of a country where Human Rights Watch believes too little information on women’s rights is provided in the narrative section. The narrative section of the latest COI key documents list for Kenya (April 2008) mentions rape, but not rape by government officials, and only focuses on the adoption of the Sexual Offenses Act, which criminalized rape, as a positive step.[173] The Operational Guidance Note of September 2008 only addresses claims based on fear of female genital mutilation (FGM) and concludes that the government provides sufficient protection.[174] It does not mention rape at all. Human Rights Watch has recently reported incidents of rape by government forces, for example during the joint police-military operation aimed at disarming warring militias in the Mandera region of northeastern Kenya launched on October 25, 2008.[175]

Jamaica is an example of a country on which the UKBA’s OGN is seriously limited, but where the COI report is more accurate when it concerns women. The operational guidance note states “There is no evidence that lesbians generally face serious ill-treatment in Jamaica and in the absence of evidence to the contrary may be certified as clearly unfounded.”[176] However, Human Rights Watch has found that women who are or are perceived to be lesbians are at a great risk of rape, as they may be targeted for sexual violence based on both their gender and sexual orientation. We reported a lack of protection from the police when such violence is perpetrated by non-state actors.[177] Completely ignored in the OGN, this is reflected in the country of information report.[178]  However, lesbians from Jamaica have been placed into the fast track system.[179]

In 2009 a review by the Immigration Advisory Service of the use of COI reports in the asylum process concluded that “Operational Guidance Notes (OGNs), despite being policy documents, continue to be used as a source of COI as evidenced by their citation in RFRLs [reasons for refusal letters], against UKBA’s own guidance.”[180]

The Use of COI Information

When the Country of Origin Information reports on a certain country includes important information relevant to the claims of women, DFT decision makers, oddly, can come to different conclusions without sufficient analysis of the available COI or the applicant’s particular circumstances. In 2008 UNHCR criticized this practice.[181] 

One year on, Human Rights Watch documented a case where country of origin information on protection from domestic violence in Pakistan was misquoted and wrongfully applied. In the reasons for refusal letter for Fatima H., who was beaten and raped regularly by her husband, the case owner stated:

The objective evidence in relation to state protection for women in Pakistan, including the availability of women police stations is clear (Pakistan COIR: 23.54-23.63) ... it is considered that if you were to return to your home area and experience problems, you could seek gender specific protection at a women only police station.[182]

In fact, the latest COI report on Pakistan available to the case owner in April 2009 stated that although the authorities had expanded the number of women only police stations, these stations do not function adequately due to a lack of resources and appropriate training for policewomen.[183] It highlights the lack of shelters for women who escape domestic violence.[184]

Fatima H. told us, “[my husband] abused me over and over again because I did not have children, my husband knows everyone ... I am scared to death.”[185] She was scheduled to be removed on October 5, 2009.

Information is also used selectively and sometimes incorrectly at the appeal stage. Human Rights Watch found the use of dubious sources of information being at both reconsideration and appeal stages. Omar B., whose case was described earlier, went through an assessment with a consultant psychiatrist at the Royal Hospital for Neurodisability in Putney and other experts. The case owner who ruled on whether a fresh claim, this time on the basis of him being transgender instead of lesbian, could be made relied on www.freedictionary.org to determine whether in fact he is transsexual or transgender.[186] In the refusal letter in the same case, The Boston Globe was cited as one of the sources to prove that lesbians are not persecuted in Pakistan, stating, “The Boston Globe reported that homosexuality is ‘tacitly accepted ... as long as it doesn't threaten traditional marriage.’”[187] This is a very selective quote from the actual article, in which this sentence only refers to one region in Pakistan (where Omar is not from), the Northwest Frontier Province, and the article commences, stating “In the Islamic Republic of Pakistan, homosexuality is not only illegal, it is a crime punishable by whipping, imprisonment, or even death.”[188]

Access to Legal Representation and Expert Reports

Legal Representation

The ability to obtain early access to good quality legal advice is of vital importance to people seeking asylum. Where they are detained and their application is fast-tracked, this access is even more important as they will require advice about bail as well as their asylum application.
— Carolyn Regan, Chief Executive of the Legal Services Commission, January 2008.

For women with complex cases, legal representation is crucial to effectively pursue their asylum claims. It is the most important practical safeguard to ensure women are not lost in the system and sent back without an opportunity to fully argue their case. The rules governing publicly funded legal aid and practices in the detained fast track lead to two particular concerns, which in turn could lead to a violation of the right to protection.

First, lack of legal representation for women at the appeal stage due to a merits test creates a lack of equality of arms in court since the Home Office is almost always represented. Secondly, Human Rights Watch is concerned about reports of occasional lack of quality of legal representation, and in almost every case the lack of time practitioners have to prepare a case for their client.

The screening interview is conducted without legal aid or representation since it is intended to only elicit basic information. Once in fast track, everyone is entitled to publicly-funded legal representation during the asylum interview at Yarl’s Wood. Some women, who obtain legal representation through their family or friends, do not use this option, but most make use of a legal representative on the “rota system” (the schedule at Yarl’s Wood that lists the solicitor firms that have a contract to work on fast track cases and that indicates which firms are available on any given day.) 

Firms have a contract with the Legal Services Commission to provide this representation and legal assistance. Research on the quality of legal representation by other organizations concludes that the quality of legal representatives on the “rota” can vary significantly. “Allocation by the Home Office to a duty representative will prove a life line for the lucky ones, and a fig-leaf of representation for the rest.”[189]

At the appeal stage legal representation is subject to a so-called merits test.[190] Before legal aid is granted, the solicitor must assess whether the case has more than a 50 percent chance of success, or find that the prospects of success are “borderline or unclear” but of “overwhelming importance” to the client.[191] Since 2005 legal representatives are required by the Legal Services Commission to win 40 percent of the asylum cases they represent at appeal if they want a renewal of their contract, which adds pressure and may result in some cases not receiving public funding despite the fact they pass the merits test.[192] Aabida M., who was sent back to Algeria even though her family threatened to kill her,[193] tried repeatedly to get a solicitor during her case, especially at the appeal stage when she no longer had the option of a funded legal representative because of the merits test. She did not receive any response to her requests (see figure 1 for a scanned request), and once she had a solicitor (through family contacts), she was unable to contact him (figure 2 is a scanned request to her legal representative.) She told us “I have to fight for myself constantly, and my English not perfect. I am afraid of what judge will do.”[194]

There are no government statistics on how many cases are brought on appeal without legal representation, but practitioners estimate that from one-third to over a half of all women who appeal their case in the Detained Fast Track do so on their own.[195] Since our research shows a lack of quality in referral and initial decisions, the appeal stage is often the first opportunity for independent judicial consideration of the claim, which is why legal representation at that stage is crucially important.

Figure 2 "Can u please give me time to g[e]t solicitor. Please my last date 23/03/09 and I still not find solicitor" Fax sent to DFT by Aabida M. March 23, 2009.

 

 

In addition to the unavailability of legal aid as well as it’s variable quality, solicitors who work on fast track cases told Human Rights Watch repeatedly how difficult it is to adequately assist someone in DFT:

Our hands are tied, both in terms of funding and time. We get a fax from the detention center and usually have to be at an interview the next day or day after, fully prepared. And even if it were true that fast track cases are straightforward that would already be difficult, but it is not. Women with very complex cases still end up in fast track.[196]

To illustrate the limited time, we have included an example of a fax from Yarl’s Wood, concerning a 29-year-old woman, Jane M. from Tanzania, who only speaks Swahili. She arrived in Yarl’s Wood on February 9, 2009 but the fax to the solicitors’ firm was only sent on February 16. Her asylum interview was scheduled to take place the next day at 10am. In less than a day, the solicitor was required to prepare a full asylum claim, with translation, brief the client, and be present at the full asylum interview.

Figure 3 Referral form from Yarl's Wood to Lawrence Lupin solicitors, sent February 16, 2009. Name of detainee blanked out.

 

Besides practical problems, the tight timeframe means solicitors do not have time to build a relationship of trust with their clients. A solicitor working on fast track cases told Human Rights Watch:

A big problem is that it is difficult to identify cases of trafficking and sexual violence, because it takes time to build trust.[197]

Furthermore, solicitors who have already worked with a client who is applying for asylum, but subsequently placed into DFT might not be able to keep her as a client. As another solicitor told Human Rights Watch:

[I]f I have a client who has/is going to apply for asylum and she is subsequently fast tracked, I cannot keep her as a client (even if my firm does fast track work) unless I have done at least five hours work with her. Therefore, usually the case goes to another firm and the lady was starting to open up with me, she will have to go through the trauma of disclosing the same story again to another representative.[198]

Human Rights Watch is concerned that the rigid deadlines in several cases as well as the restricted nature of support for legal representation prevent meaningful access to legal advice and representation and thereby increases risks of refoulement.

A Good Example: The Solihull Pilot

In the framework of the New Asylum Model (NAM) and to improve quality and efficiency of asylum decisions, the Home Office developed the “Early Advice Pilot” project, more commonly known as the Solihull Pilot. This project was introduced in March 2006 by UKBA and the Legal Services Commission and started running in October 2006 at the Solihull public inquiry office. It allows claimants access to quality information and advice from legal representatives from the earliest stages of the asylum process. The purpose was to improve initial decision making and to ensure that the entire case is put forward before the initial decision is made. Furthermore, the project’s objective was to develop a less adversarial approach to decision making and allow agreement to be reached about substantive points and whether further evidence may be required. The pilot’s core is a more interactive role for the legal representatives before, during, and after the substantive asylum interview, prior to the first decision. Simultaneously relevant evidence gathering is funded prior to the initial decision.

The pilot project was evaluated in October 2008 for the UKBA and Legal Services Commission by an independent evaluator and it concluded that it was successful for all parties involved. The evaluation concluded that there was unanimous agreement on the importance of having a witness statement and all relevant evidence in front of the decision maker before the first decision on the claim. The evaluation recommended that this procedure should become “the normal procedure adopted for the decision making element of an asylum claim.” Those who have a right to and need for protection get recognized and integrated earlier, before the appeal stage. The appeal rate dropped and those who had false claims were more inclined to drop their claim.

Human Rights Watch agrees that the more active role for legal representatives and a gathering and funding of evidence before the initial decision in the DFT procedure would greatly improve quality of initial decisions and avoid unnecessary and expensive detention.

Expert reports

Expert evidence is an important aspect of an asylum claim, as it may provide corroboration of key aspects of it. There are several problems surrounding the use of and access to expert reports in DFT, including the costs of obtaining expert evidence and the strict time frames applied.

Women who have been raped may require a medical examination to assess the existence of injuries that would corroborate claims. The procedure is however usually not suspended for a medical examination, a potentially essential aspect of the case, to take place. UNHCR has stated that “We are particularly concerned that cases which require further medical evidence may be overlooked due to the strict timescale operating in the DFT.”[199]

After a refusal in the first stage of the procedure, claimants have two days to apply for an appeal. That appeal should include the full grounds of appeal, including supportive evidence, such as witness statements, medical evidence, and other expert reports. These expert reports are crucial to the success of the appeal. According to one report, women with expert reports corroborating their account of rape are six times more likely to win their case than those without.[200]

The limited funding solicitors get for taking on fast track cases (they get reimbursed for a maximum of eight hours per case, experts get paid separately) has consequences for each claim and can affect whether or not expert reports are used. As one solicitor stated, “Cases become especially tricky when we need expert reports, which are often necessary for women who have been raped. They [LSC] haggle over which experts are cheaper.”[201]

Amina A. is a Somali woman from Koyaama Island off the coast of Somalia. A member of the Bajuni clan, said she had been violently attacked and raped by members of a different clan. She told Human Rights Watch, “My mother and I were raped and attacked many, many times, my children crying ... I saw my mother getting slaughtered.”[202] She has three children but she has no idea where they are. A medical report by the Medical Foundation for the Care of Victims of Torture stated that “[Amina A.] has numerous scars typical of or highly consistent with being repeatedly attacked with machetes and beaten.”[203]

Amina was, however, found to be from Kenya by a language expert who interviewed her over the telephone and who appears to have concluded she must be Kenyan because she speaks Swahili. She had not used a phone before, she could not hear the expert properly, and she was not told who this person was and what their qualifications were.[204] She was set to be removed to Kenya.[205] In fact, many Bajunis speak Swahili and she was later found by a country expert commissioned by her solicitor to be Somali.[206] The Kenyan authorities in the UK are not accepting her nationality is Kenyan, so she cannot be removed for the moment. She is out on bail at the moment awaiting a decision on her judicial review at the time of writing (February 2010).

Solicitors have expressed concern to Human Rights Watch that they are generally unable to access funds to use experts before the appeal stage:

With regard to gathering evidence before the appeal, this is what we thought would happen with the new NAM system (there was a lot of talking about “front-loading” the asylum cases). However, for both [fast track] and non-detained asylum applicants, solicitors are generally unable to access funds to instruct experts prior to the appeal stage, the only exception being funds for the Medical Foundation and usually the Helen Bamber Foundation. Anything else would have to wait until after refusal. At that point Immigration Judges are very reluctant to grant adjournments. [This] illustrates very well the vicious circle in which applicants are. And our frustration: the applicant has no evidence therefore the Immigration Judge does not grant an adjournment – The Immigration Judge does not grant the adjournment and the applicant cannot collect the evidence.[207] 

When Ayoka M. entered the UK from Nigeria, she claims she was “helped” to enter the country by a man who exploited her sexually, but she did not know the word “trafficking”.[208] She says she explained the facts in her asylum interview, but only after she was refused in first instance did it become clear that she was trafficked, when she eventually opened up to her solicitor. Her solicitor arranged an appointment with the Poppy Project, an organization that provides expert evidence on behalf of women who have been trafficked into prostitution, for the day after the appeal hearing. She also arranged for the Helen Bamber Foundation to meet with her a few weeks after the appeal hearing (the waiting list is usually this long). The solicitor argued that the appeal should be adjourned or her client taken out of fast track until at least the Poppy Project appointment had taken place. The Home Office representative agreed to have the hearing adjourned. However, the appeal judge stated “I determined ... not to adjourn the hearing of the appeal until a later date. I came to this conclusion because there was no evidence ... that the appellant was indeed a victim of trafficking” and refused the case.[209]

Besides limited access to expert advice and evidence, there are also examples of case owners making medical judgments themselves or interpreting medical reports without the requisite knowledge. In 2007 a case owner, who did not appear to have any medical expertise, concluded that a report made by the Medical Foundation for the Care of Torture Victims about a woman who was tortured in Cameroon that, “Dr. Cohen’s findings in this respect are somewhat limited and that insufficient alternative explanations have been explored.”[210] He continues “The Medical Report is not accepted to be of any substantial diagnostic or clinical value given that Dr. Cohen is a General Practitioner [emphasis added].”[211] Alicia B. told Human Rights Watch, “First they didn't tell me that I could see a doctor or the Medical Foundation and then when I can finally go, they say they don't believe their judgment. They just did not believe me, no matter what evidence I had.”[212] Eventually, Alicia B won a case before the High Court to start a fresh claim based on the errors made in this initial decision on her case and has received refugee status in August 2009, two years after her initial application and after six months in detention.[213] The Medical Foundation for the Care of Victims of Torture report other cases:

Case owners regularly challenge our expert medical evidence by substituting their own opinions on clinical matters, for example by venturing alternative causes for scars or suggesting that the impact of an injury could not have been as described by the asylum seeker. We spend a lot of time referring these cases to senior UKBA officials who agree this practice is unacceptable—they usually take action in the individual case, but clearly stronger guidance and training is needed.[214]

Another problem raised by solicitors and women is the lack of female caseworkers, interpreters, and doctors. One example of the lack of female interpreters is a woman who needed a female interpreter because she had very sensitive claims she would not be able to explain to a man and she was granted one. The interview was delayed for that purpose for 20 days. On the date of the interview, the woman and the solicitor walked into the office and found a male interpreter, so they had to continue the interview with him.[215]

Detention: Necessary or Arbitrary and Excessive?

All the challenges to a fair hearing posed by the speed and characteristics of the DFT procedure are exacerbated by the fact of detention.

The very fact that women are told they have a straightforward case that will be determined in a “removal center” can in and of itself have a profound psychological impact.[216] Amina A., the coastal Somali woman raped and attacked by clan rivals but refused asylum on the basis she was Kenyan because she spoke Swahili, described being detained and how it affected her: “This [detention] will kill me. This is not life. They prefer me to die.”[217]

For Laura A. who said she was imprisoned, tortured, and raped in Sierra Leone, detention was considered dangerously damaging to her mental and psychological health by the head of the Helen Bamber Foundation,[218] whom was made aware of her case and wrote a letter stating:

I am taking the unusual step of writing at this stage to highlight my concern and my alarm that this woman has remained in the fast track system.... [D]etention of individuals with a history of such prolonged captivity, social deprivation, and extreme brutality likely leads to severe re-traumatisation and can significantly impair both prognosis for the future in terms of mental health and rehabilitative capacity and ability to give detailed instruction and evidence.[219]

Laura A. told Human Rights Watch: “when I was taken away by two guards to Yarl’s Wood with only the clothes I was wearing, it reminded me of when I was taken away from my house.”[220]After this letter and other efforts by a solicitor and NGOs, Laura A. was finally removed out of the fast track procedure and detention, and she was granted refugee status. Alicia B. from Cameroon, who also said she was tortured and raped, described her experience in detention: “My head exploded, I kept on crying, my head did not work anymore. I could not eat and not speak.”[221]

Another serious concern arises when women are rushed through the DFT system, have their claims refused, but then remain in detention for months because they cannot be removed. There is no statutory limit to detention and Human Rights Watch has, in the short period of research, encountered several cases of women who had to remain in detention for several months. Generally, women without valid travel documents cannot be sent back to their home country as they will not be accepted. Certain countries have been difficult to send women back to, such as China and Zimbabwe.[222]

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. As one solicitor explained: “Detention is just not a conducive environment for vulnerable women to disclose that type of information [about sexual violence or trafficking], but we need it to make their case.”[223]

The 1999 UNHCR Guidelines on detention of asylum seekers reaffirms the general principle that asylum seekers should not be detained. Countries may detain refugees and asylum seekers only when there are no viable alternatives to detention and only as necessary to regularize their status or to protect national security.[224]

The detention of asylum seekers is inherently undesirable, in particular in the case of vulnerable groups such as single women, all trauma survivors, and children.[225]Detention should only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved the lawful and legitimate purpose.[226]

In its case law, the UN Human Rights Committee has held that the failure by the immigration authorities to consider factors particular to the individual, such as the likelihood of absconding or lack of cooperation with the immigration authorities, and to examine the availability of other, less intrusive means of achieving the same ends, might render the detention of an asylum seeker arbitrary.[227]

Whether a detention is arbitrary requires consideration of whether the reasons given by a state party make the detention appropriate, just, proportionate, and reasonable in the circumstances.[228] The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which is incorporated into UK domestic law through the 1998 Human Rights Act, allows detention of a person “to prevent his effecting an unauthorized entry into the country,” among other reasons.[229]However, the European Court of Human Rights has clarified that such detention is permissible only when it is not arbitrary; and that it would not be arbitrary provided that it was “carried out in good faith,” and “closely connected to the purpose of preventing unauthorized entry of the person to the country,”that “the place and conditions of detention [were] appropriate,” and that the length of the detention did not “exceed that reasonably required for the purpose pursued.”[230]

The Joint Committee on Human Rights of the UK Parliament has expressed its concerns about the Detained Fast Track procedure:

We are concerned that the decision to detain an asylum seeker at the beginning of the process simply in order to consider his or her application may be arbitrary because it is based on assumptions about the safety or otherwise of the country from which the asylum seeker has come.[231]

The HRC has also commented on the length of detention. Referring to a Swiss Act that allows for detention for up to one year, the Committee states that it “notes that these time-limits are considerably in excess of what is necessary, particularly in the case of detention pending expulsion.”[232]

The Crossroads Women Centre summarized to Human Rights Watch the consequences of DFT for the women they help:

A woman will arrive in the UK, often having paid someone to help her escape, many times not even knowing which country she has arrived in, sometimes not being able to speak English. On claiming asylum, if her case is deemed “straightforward”, she’ll be put on the fast track and straight into detention. She may still be suffering physical injuries as a result of the violence she suffered. She has left everyone and everything she knew and loved, and is suffering the traumatic impact of rape and other violence but is denied care and support. She faces the additional burden of sexism in making a claim; the rape and other torture she suffers is downgraded or not taken seriously because of a perceived lack of credibility.
 The Home Office has institutionalized a procedure which systematically denies her the time to get the thorough and committed legal representation, specialist support, medical or country evidence needed to corroborate her asylum claim. This is especially unjust as the UK has made it a clear political priority to refuse as many applications as possible.[233] 

Human Rights Watch’s conclusion is that the complexities of many women’s asylum claims, the challenges the DFT poses to the preparation and proper presentation of viable claims, the poor gender-sensitivity in the way the system is implemented and the consequently overbroad use of DFT, leads to violations of women asylum seekers’ rights to a full and fair asylum determination procedure.

The UK’s Obligation to Ensure the Right to Asylum

We get it right in most cases.
— David Jull, Deputy Director of the Detained Fast Track and Third Country Unit of UKBA.[234]

The UK is a state party to the 1951 Refugee Convention and its 1967 Protocol (Refugee Convention).[235] As party to the framework of international legal protections for refugees, it may not punish refugees fleeing from persecution. The Universal Declaration of Human Rights declares that “everyone” has the fundamental right “to seek and to enjoy in other countries asylum from persecution.”[236]

Instruments protecting human rights generally apply to all persons within a state’s jurisdiction.[237]

The cornerstone principle of refugee law prohibits the UK from returning refugees to countries where they have a well-founded fear of persecution (“refoulement”) or to third countries that might not respect that prohibition. A similar requirement on states is imposed by the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR).

The legal prohibition against refoulement is not limited in application to formally recognized refugees, but applies to all persons who are outside their own country and unwilling or unable to return due to a well-founded fear of persecution, and to all persons who would face a substantial risk of torture or cruel, inhuman or degrading treatment on return.[238]

Article 3 of the European Convention on Human Rights (ECHR) prohibits “torture or inhuman or degrading treatment.” The European Court of Human Rights jurisprudence is clear that this provision carries a nonrefoulement obligation not to expose an individual to a “real risk” of that treatment.[239] The prohibition against refoulement under Article 3 of the ECHR is broader than that of the Refugee Convention and includes a duty to consider the risk of abuse by non-state actors.[240] Claims of asylum seekers must be assessed in light of the UK’s obligations under both instruments not to return any person to a country where they could be at risk of torture or serious ill-treatment, which includes lack of state protection from such treatment by other parties.

The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has recognized that rape can constitute torture.[241] The International Criminal Tribunal for the former Yugoslavia (ICTY) in the Furundzija case noted that "[i]n certain circumstances rape can amount to torture and has been found by international judicial bodies to constitute a violation of the norm prohibiting torture.”[242] The International Criminal Tribunal for Rwanda (ICTR) in the Akayesu case stated that:

Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.[243]

Most recently, the Rome Statute of the International Criminal Court (ICC) specifies that acts of rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilization, or any other form of sexual violence of comparable gravity can constitute war crimes or crimes against humanity.[244] Even in those cases when rape does not constitute torture, it can still constitute a risk of inhuman and degrading treatment.

The United Nations High Commissioner for Refugees (UNHCR) has determined that accelerated procedures may be used, but they should only be applied to cases which are “clearly abusive” or “manifestly unfounded”.[245] These types of cases are defined as those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the Refugee Convention nor to any other criteria justifying the granting of asylum.[246] However, whilst UNHCR accepts the use of accelerated procedures in limited circumstance, the use of detention is not supported.[247] 

[94]Sharon Oakley, “Accelerated Procedures for Asylum in the European Union Fairness Versus Efficiency,” Sussex Migration Working Paper no. 43, April 2007, p.5.

[95]See also Human Rights Watch, “Fleeting Refuge. The Triumph of Efficiency over Protection in Dutch Asylum Policy,” April 8, 2003, http://www.hrw.org/en/reports/2003/04/08/fleeting-refuge-0 (accessed September 30, 2009).

[96]Joint Committee on Human Rights, sixteenth report, Annex 4, Letter dated 10 May 2007 regarding the implementation of judgments of the European Court of Human Rights, http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/128/12814.htm (accessed September 30. 2009).

[97] Home Office, Research Development Statistic, “Immigration and Asylum Statistics,” http://www.homeoffice.gov.uk/rds/immigration-asylum-stats.html (accessed November 11, 2009).

[98]Home Office, “Asylum statistics United Kingdom 2008,” Home Office Statistical Bulletin, September 14, 2009, table 2s.

[99]Home Office, “Control of Immigration: Quarterly Statistical Summary, United Kingdom - First Quarter 2009”, table I.

[100]Home Office, “Asylum statistics United Kingdom 2008,” Home Office Statistical Bulletin, September 14, 2009, table 2s.

[101]Human Rights Watch interview, David Jull, Deputy Director Detained Fast Track & Third Country Unit, UK Border Agency, September 15, 2009.

[102]Human Rights Watch interview, David Jull, Deputy Director Detained Fast Track & Third Country Unit, UK Border Agency, September 15, 2009.

[103]Ibid.

[104]Ibid.

[105]See e.g. Human Rights Watch email correspondence with BID, October 29. 2009.

[106]UNHCR, “Quality Initiative Project, Fifth Report to the Minister,” March 2008, p. 8.

[107]Human Rights Watch interview with solicitor (name withheld), May 22, 2009.

[108]Council of Europe: Commissioner for Human Rights, Memorandum by Thomas Hammarberg, Council of Europe Commissioner for Human Rights, 18 September 2008, para. 19.

[109]UNHCR Executive Committee Conclusion No. 30 (XXXIV), “The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum”, 1983 and UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999) and UNHCR ExCom Conclusion No. 44 (XXXVII) of 1986 on the detention of refugees and asylum seekers.

[110]Council of Europe Parliamentary Assembly, Resolution 1471, “Accelerated asylum procedures in Council of Europe member states”, October 7, 2005, http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta05/ERES1471.htm (accessed October 1, 2009), para. 8.1.3.

[111]Mungiki is a politico-religious group and a banned criminal organization in Kenya.

[112]Human Rights Watch interview with Lisa O., July 28, 2009.

[113]Reasons for refusal letter for [Fatima H.], June 29, 2009, p. 7.

[114]Letter from Fatima H., from Yarl’s Wood Removal Center, to Human Rights Watch, September 24, 2009.

[115]UKBA, “Screening Process Overview,” http://www.ukba.homeoffice.gov.uk/asylum/process/processoverview/screening/ (accessed October 5, 2009).

[116]Immigration Law Practitioners’ Association Training Pack, “Fast Track asylum determination procedures: how best to represent your clients,” November 2005, para. 38.

[117]UNHCR, “Handbook on Procedures and Criteria for Determining Refugee Status Geneva,” January 1988, para. 196.

[118]As also concluded by the Home Office, NAM Quality Team, “Yarlswood Detained Fast track Compliance with the Gender API,” August 2006.

[119]Human Rights Watch interview with Omar B., June 8 2009, London. The case description in his reasons for refusal letter, 14 December 2007.

[120]Human Rights Watch interview with Omar B., June 8 2009.

[121]Human Rights Watch interview with Omar B., June 8 2009, London.

[122]Reasons for refusal letter, [Omar B.], 14 December 2007.

[123]Worthing Herald, August 5, 2009. Human Rights Watch email communication with Omar B.’s solicitor, August 6, 2009.

[124] The transcript of [Laura A.’s] asylum interview at Yarl’s Wood, June 19 2009.

[125]Human Rights Watch interview with Laura A., July 2 2009.

[126] Home Office, “DFT & DNSA Intake Selection,” AIU instruction, para.2.2.3.

[127]Human Rights Watch interview with Aabida M., Yarl’s Wood removal center, June 17 2009.

[128]Human Rights Watch was not able to see the letter itself, because it was with her solicitor, but we know about the content through the refusal letter and appeal hearings. 

[129]Letter by Aabida M. to her caseworker in Yarl’s Wood, dated April 14, 2009.

[130]File of Aabida M. provided by herself to Human Rights Watch, including Information Request to UK Border Agency to translate a letter into English, April 6, 2009.

[131]Human Rights Watch interview with Aabida M., June 18 2009.

[132]Council of Europe, “Convention on Action against Trafficking in Human Beings and its Explanatory Report,” Council of Europe Treaty Series - No. 197, Warsaw, May 16, 2005, ratified by the United Kingdom December 17, 2008.

[133]Home Office Press Release, “Government ratifies European convention against human trafficking,” http://press.homeoffice.gov.uk/press-releases/government-ratifies-convention (accessed October 4, 2009), December 17, 2008.

[134]House of Commons Home Affairs Committee, “The Trade in Human Beings: Human Trafficking in the UK”, Sixth Report, May 6, 2009, http://www.publications.parliament.uk/pa/cm200809/cmselect/cmhaff/23/2302.htm (accessed October 4, 2009), para. 106.

[135]Determination of Asylum Claim, [Xiuxiu L.], December 11, 2008 and Human Rights Watch interview with her solicitor on May 21, 2009.

[136]Ibid.

[137]Human Rights Watch interview with Amanda Shah, Assistant Director Policy, Bail for Immigration Detainees, May 20, 2009.

[138]FGM is common practice in certain areas of Cameroon. For an overview, see GTZ, “Female Genital Mutilation in Cameroon,” November 2007, http://www.gtz.de/de/dokumente/en-fgm-countries-cameroon.pdf (accessed October 5, 2009).

[139]Case from interview with Head of Immigration at Lawrence Lupin solicitors, May 21, 2009, London.

[140]Human Rights Watch interview with Head of Immigration at Lawrence Lupin solicitors, May 21, 2009, London.

[141]Human Rights Watch interviews with practitioners from Refugee and Migrant Justice, Wilson and Co, Doughty Street Chambers, Lawrence Lupin Solicitors and Bail for Immigration Detainees (BID), June-July 2009.

[142]UNHCR, “Quality Initiative Project, Fifth Report to the Minister”, March 2008, p. 22-23.

[143]Human Rights Watch interviews with practitioners from Refugee and Migrant Justice, Wilson and Co, Doughty Street Chambers, Lawrence Lupin Solicitors and Bail for Immigration Detainees (BID), June-July 2009.

[144]Human Rights Watch interviews with practitioners from Refugee and Migrant Justice, Wilson and Co, Doughty Street Chambers, Lawrence Lupin Solicitors and Bail for Immigration Detainees (BID), June-July 2009.

[145]Home Office, NAM Quality Team, “Yarl's Wood Detained Fast track Compliance with the Gender API,” August 2006.

[146]Home Office, NAM Quality Team, “Yarl's Wood Detained Fast track Compliance with the Gender API,” August 2006, p. 14.

[147]Council of Europe: Commissioner for Human Rights, Memorandum by Thomas Hammarberg, Council of Europe Commissioner for Human Rights, following his visits to the United Kingdom on 5-8 February and 31 March-2 April 2008. Issues reviewed: Asylum and immigration, 18 September 2008, CommDH (2008)23, http://www.unhcr.org/refworld/docid/48d351c42.html (accessed October 1, 2009), paras. 21-23.

[148]UNHCR, “Quality Initiative Project, Second Report to the Minister”, Section 2.2, UNHCR, “Quality Initiative Project, Third Report to the Minister”, March 2006, section 2.3, UNHCR, “Quality Initiative Project, Fourth Report to the Minister”, January 2007, section 2.2, UNHCR, “Quality Initiative Project, Fifth Report to the Minister”, March 2008, section 2.3.

[149]Sharon Oakley, “Accelerated Procedures for Asylum in the European Union Fairness Versus Efficiency,” Sussex Migration Working Paper no. 43, April 2007.

[150]UNHCR, Reflections by UNHCR on some of the issues raised in the Working Document prepared by the European Commission “Towards common standards on asylum procedures,” May 4, 1999, p. 5.

[151]Asylum Policy Instruction (API), “Gender Issues in the Asylum Claim,” October 2006, http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/genderissueintheasylum.pdf?view=Binary (accessed October 5, 2009)

[152]Reasons for Refusal letter for [Jane S.], provided by the Crossroads Women Center, August 14, 2009.

[153]Asylum Policy Instruction (API), “Gender Issues in the Asylum Claim,” p. 12.

[154]Human Rights Watch interview with Mesi C., June 19, 2009.

[155]D. Bögner and C. Brewin, “Impact of sexual violence on disclosure during Home Office interviews,” British Journal of Psychiatry, 191, p. 75.

[156]Asylum Policy Instruction (API), “Gender Issues in the Asylum Claim”.

[157] D. Bögner and C. Brewin, “Impact of sexual violence on disclosure during Home Office interviews,” British Journal of Psychiatry, 191, p. 75-81.

[158]Human Rights Watch interview with Laura A., July 2, 2009.

[159] For an elaborate study into how rape victims are perceived in the asylum process: Helen Baillot, Sharon Cowan, and Vanessa E. Munro, “Seen but Not Heard? Parallels and Dissonances in the Treatment of Rape Narratives across the Asylum and Criminal Justice Contexts,” Journal of Law and Society, vol. 36, issue 2, pages 195 – 219.

[160]Falun Gong is a Chinese spiritual movement, founded in 1992. An amalgamation of Buddhism, mysticism and traditional exercise regimes, it was outlawed by the Chinese government in 1999, and the country's authorities have continued to crack down on its adherents. “Falun Gong,” New York Times, April 28, 2009, http://topics.nytimes.com/topics/reference/timestopics/organizations/f/falun_gong/index.html (accessed October 19, 2009).

[161] Refusal letter for Yuan C.., March 20, 2009.

[162]Asylum and Immigration Tribunal, between [Fatima H.] and the Secretary of State for the Home Department, July 8, 2009, p. 5.

[163]Asylum and Immigration Tribunal, between [Fatima H.] and the Secretary of State for the Home Department, July 8, 2009.

[164] Currently the list is: Afghanistan, Algeria, Bangladesh, Burma, Cameroon, China, Democratic Republic of Congo, Eritrea, Ethiopia, India, Iran, Iraq, Jamaica, Korea, Kuwait, Nigeria, Pakistan, Occupied Territories of Palestine, Somalia, Sri Lanka, Sudan, Syria, Turkey, Vietnam, Zimbabwe.

[165] Home Office, Country of Origin reports, http://homeoffice.gov.uk/rds/country_reports.html (accessed August 3, 2009).

[166] All COIS Key Documents can be accessed here http://www.homeoffice.gov.uk/rds/country_reports.html (accessed August 3, 2009).

[167]Home Office, Country of Origins reports, http://www.homeoffice.gov.uk/rds/country_reports.html (accessed August 3, 2009).

[168]Human Rights Watch Interview with Nick Swift, Head of the Country of Origin Information Service, July 2, 2009.

[169]The website of the Independent Advisory Group on Country Information: http://www.ociukba.homeoffice.gov.uk/independent-advisory-group/ (accessed November 6, 2009).

[170] Home Office UKBA, “Country Specific Asylum Policy OGNs,” http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/countryspecificasylumpolicyogns/ (accessed July 29, 2009).

[171] Immigration Advisory Service, “The Use of Country of Origin Information in Refugee Status Determination: Critical Perspectives,” May 2009, p. 19.

[172]Ibid and Home Office Research Study 271, “Country of Origin Information: a user and content evaluation, September 2003.

[173] Home Office, “Country of Origin Information Key Documents, Kenya,” April 2008, http://www.homeoffice.gov.uk/rds/country_reports.html (accessed October 4, 2009), p. 18.

[174] UK Border Agency, “Operational Guidance Note: Kenya”, September 2008,  http://www.ind.homeoffice.gov.uk/sitecontent/documents/policyandlaw/countryspecificasylumpolicyogns/kenya.pdf?view=Binary (accessed October 4, 2009), section 3.6.

[175]See most recently: Human Rights Watch, Bring the Gun or You’ll Die: Torture, Rape, and Other Serious Human Rights Violations by Kenyan Security Forces in the Mandera Triangle, June 29, 2009, http://www.hrw.org/en/node/83969/section/1 (accessed October 4, 2009) and Human Rights Watch, All the Men Have Gone: War Crimes in Kenya’s Mt. Elgon Conflict, July 2008, http://www.hrw.org/sites/default/files/reports/kenya0708_1.pdf (accessed February 10, 2010).

[176]UK Border Agency, “Operational Guidance Note: Jamaica”, June 2009, http://www.ind.homeoffice.gov.uk/sitecontent/documents/policyandlaw/countryspecificasylumpolicyogns/jamaica.pdf?view=Binary (accessed October 4, 2009), p. 8.

[177]Human Rights Watch, Hated to Death: Homophobia, Violence and Jamaica’s HIV/AIDS Epidemic, Vol. 16, No 6 (B), November 2004, http://www.hrw.org/reports/2004/jamaica1104/jamaica1104.pdf (accessed October 1, 2009). 

[178]Home Office, “Country of Origin Information Report: Jamaica”, August 2008, http://www.homeoffice.gov.uk/rds/country_reports.html (accessed October 4, 2009).

[179]Jamaica is in the top 5 of countries of origin of women placed into fast track and cases included claims based on persecution because they are lesbian. See also Claire Bennett, Asylum Aid, “Relocation, Relocation. The impact of internal relocation on women asylum seekers,” November 2008, p. 61.

[180]Immigration Advisory Service, “The Use of Country of Origin Information in Refugee Status Determination: Critical Perspectives,” May 2009, p. 9.

[181] UNHCR in “Quality Initiative Project, Fifth Report to the Minister,” March 2008, para. 2.3.45.

[182] Reasons for refusal letter for [Fatima H.], June 29, 2009, p.7.

[183]Home Office, “Country of Origin Information Report: Pakistan,” April 16, 2009, para. 23.54.

[184] Home Office, “Country of Origin Information Report: Pakistan,” April 16, 2009, para. 23.55-23.63.

[185]  Human Rights Watch interview with Sadia H. August 4, 2009.

[186]  Letter from Yarl’s Wood stating reasons for refusal of a fresh claim, March 25, 2008, para. 21.

[187]  Reasons for refusal letter, Omar B., 14 December 2007, para. 11.

 [188] Kennedy, Miranda, “Open Secrets,” The Boston Globe, July 11, 2004, http://www.boston.com/news/world/middleeast/articles/2004/07/11/open_secrets/ (accessed August 5, 2009).

[189]See for example Bail for Immigration Detainees, “’Refusal Factory’. Women’s experiences of the Detained Fast Track asylum process at Yarl’s Wood Immigration Removal Centre,” September 2007, p. 17.

[190]Also known as Controlled Legal Representation (CLR). Bail for Immigration Detainees, “’Refusal Factory’. Women’s experiences of the Detained Fast Track asylum process at Yarl’s Wood Immigration Removal Center,” September 2007.

[191]Human Rights Watch Interview with Gabriella Bettiga, Head of Immigration at Lawrence Lupin Solicitors, May 21, 2009.

[192] Bail for Immigration Detainees, “’Refusal Factory’. Women’s experiences of the Detained Fast Track asylum process at Yarl’s Wood Immigration Removal Center,” September 2007, p. 25.

[193]Human Rights Watch was not able to establish contact with her again.

[194]Human Rights Watch Interview with Aabida M. in Yarl’s Wood, June 17, 2009.

[195] Legal Action for Women, “A ‘Bleak House’ in Our Times”, June 2006, p.12, Bail for Immigration Detainees, “’Refusal Factory’. Women’s experiences of the Detained Fast Track asylum process at Yarl’s Wood Immigration Removal Center,” September 2007, p. 24.

[196] Human Rights Watch Interview with Gabriella Bettiga, Head of Immigration at Lawrence Lupin Solicitors, May 21, 2009.

[197] Human Rights Watch Interview with Rosalyn Akar, solicitor at Wilson & Co, May 22, 2009.

[198] Written comments by Gabriella Bettiga, Head of Immigration at Lawrence Lupin Solicitors, October 26, 2009.

[199] UNHCR, “Quality Initiative Project, Fifth Report to the Minister,” March 2008, p. 17.

[200]Black Women’s Rape Action Project and Women Against Rape, “Misjudging Rape. Breaching Gender Guidelines & International Law in Asylum Appeals,” December 2006.

[201] Human Rights Watch Interview with Louise Lawson, senior team leader Refugee and Migrant Justice which provides legal representation in fast track cases, June 17, 2009.

[202] Human Rights Watch interview with Amina A., July 28, 2009.

[203] Medical report by the Medical Foundation for the Care of Victims of Torture, July 28, 2009.

[204] Emergency application for judicial review, between the Queen on the application of [Amina A.] and the Secretary of State for the Home Department, June 26, 2009.

[205] Human Rights Watch interview with Amina A., July 28, 2009.

[206] A more thorough nationality assessment later carried out by expert of the region Brian Allen (at the request of her solicitor), stated “Her accent [in Swahili] is very much that of a Somali Bajuni,” June 26, 2009.

[207]Written comments by Gabriella Bettiga, Head of Immigration at Lawrence Lupin Solicitors, October 26, 2009.

[208]Reasons for refusal letter for Ayoka M., April 6, 2009 and Human Rights Watch interview with her solicitor from Wilson & Co, May 22, 2009.

[209]Asylum & Immigration Tribunal, Appeal Determination and Reasons, Between [Ayoka M.] and the Secretary of State for the Home Department, April 19, 2006.

[210] High Court of Justice Queen’s Bench Division, the queen on the application of PB v Secretary of State for the Home Department, EWHC 364 (Admin), February 6, 2008, quoting the findings of the Case owner of May 2007, para. 15.

[211] Ibid.

[212] Human Rights Watch interview with Alicia B., June 8, 2009.

[213]High Court of Justice Queen’s Bench Division, the queen on the application of PB v Secretary of State for the Home Department, EWHC 364 (Admin), February 6, 2008.

[214] Sonya Sceats, Medical Foundation for the Care of Victims of Torture, email correspondence with Human Rights Watch, February 10, 2010.

[215]Case provided by Refugee and Migrant Justice, in interview with Human Rights Watch, June 17, 2009.

[216] Bail for Immigration Detainees, “’Refusal Factory’. Women’s experiences of the Detained Fast Track asylum process at Yarl’s Wood Immigration Removal Center,” September 2007, p. 21.

[217] Human Rights Watch interview with Amina A., July 28, 2009.

[218] The Helen Bamber Foundation is one of two organizations that take appointments from traumatized asylum seekers for psychological treatment and whose appointments can suspend the asylum process. The other organization is the Medical Foundation for the Care of Torture Victims.

[219]Helen Bamber Foundation, letter concerning [Laura A.], dated June 19, 2009.

[220]Human Rights Watch interview with Laura A., July 2 2009.

[221]Human Rights Watch interview with Alicia B., June 8, 2009.

[222]Although according to a UKBA official, the UK now has an agreement with China that enables people to be sent back. Human Rights Watch Interview, UKBA official, September 15, 2009.Phil Woolas also recently announced that UKBA would start sending people back to Zimbabwe as well.

[223] Human Rights Watch Interview with Rosalyn Akar, solicitor at Wilson & Co, May 22, 2009.

[224]This relates to cases where there is evidence that the asylum seeker has criminal antecedents and/or affiliations which are likely to pose a risk to public order or national security. See the Refugee Convention, art. 31, and the associated UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999, http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (accessed June 2009).

[225] UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999, http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (accessed June 2009), Par. 1.

[226]UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999, http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (accessed June 2009), Guideline 3 (iv).

[227]A. v. Australia, CCPR/C/59/D/560/1993, UN Human Rights Committee (HRC), 30 April 1997, http://www.unhcr.org/refworld/docid/3ae6b71a0.html (accessed October 1, 2009) and C. v. Australia, CCPR/C/76/D/900/1999, UN Human Rights Committee (HRC), 13 November 2002,  http://www.unhcr.org/refworld/docid/3f588ef00.html (accessed October 1, 2009).

[228]Van Alphen v. The Netherlands, CCPR/C/39/D/305/1988, UN Human Rights Committee (HRC), 15 August 1990 and A. v. Australia, CCPR/C/59/D/560/1993, UN Human Rights Committee (HRC), 30 April 1997, http://www.unhcr.org/refworld/docid/3ae6b71a0.html (accessed October 1, 2009), para. 7.6.

[229]European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively, art. 5(1)(f).

[230]European Court of Human Rights, Case of Saadi v. the United Kingdom, Application no. 13229/03, Judgment of 29 January 2008, available at www.echr.coe.int, para. 74.

[231]Joint Committee on Human Rights, “The Treatment of Asylum Seekers,” 10th report, March 22, 2007, available at http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/81/8102.htm (accessed October 1, 2009), para. 226.

[232] UN Human Rights Committee, “Concluding Observations of the Human Rights Committee: Switzerland,” CCPR/C/79/Add.70. November 8 1996, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/475617de7537b1bbc12563f40036a3ae?Opendocument (accessed June 2009), para. 15.

[233]  Crossroads Women Centre & Women Against Rape, email correspondence on August 14, 2009.

[234] Human Rights Watch interview with David Jull, Deputy Director Detained Fast Track & Third Country Unit, UK Border Agency, September 15, 2009.

[235] Convention relating to the Status of Refugees (Refugee Convention), 189 U.N.T.S. 150, entered into force April 22, 1954, acceded to by the United Kingdom 1954 and the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967 (abolishing the Refugee Convention's temporal and geographic restrictions), acceded to by the United Kingdom 4 September 1968.

[236] Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 14(1).

[237] ICCPR, art. 2(1), requiring states to ensure Covenant rights apply to “all individuals within its territory and subject to its jurisdiction.”

[238] The prohibition against refoulement is enshrined in the Refugee Convention (article 33), the Convention Against Torture (article 3.1), the ICCPR (as derived from article 7), and international customary law. See also Chahal v. the United Kingdom, no. 22414/93, judgment of 15 November 1996, (1996, § 80); the New Zealand case of Zaoui v. Attorney General (2005), Supreme Court of New Zealand,, CIV SC 13/04, judgment of 14 October 2004. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by the United Kingdom December 8 1988; the International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United Kingdom May 20, 1976.

[239] See Soering v United Kingdom 98 ILR 270; Cruz Varas v. Sweden, 108 ILR 283, Vilvarajah v. United Kingdom, 108 ILR 321; Chahal v. United Kingdom, 108 ILR 385; and T.I. v United Kingdom Application No.43844/98, Decision as to Admissibility, March 7, 2000.

[240]  TP and KM v United Kingdom, ECtHR, 10 May 2001.

[241] United Nations, Report of the U.N. Special Rapporteur on Torture, Mr. Nigel S. Rodley, submitted pursuant to the Commission on Human Rights Resolution 1992/32, E/CN.4/1995/34, Paragraph 19, January 12, 1995.

[242] Prosecutor v. Anto Furund ija, Judgement, IT-95-17/1-T, December 10, 1998, para. 171.

[243] Prosecutor v. Jean-Paul Akayesu, Judgement, ICTR-96-4-T, September 2, 1998 (the Akayesu Trial Chamber Judgement), para. 687.

[244] Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002. The Rome Statute is the treaty creating the ICC.

[245] UNHCR Executive Committee Conclusion No. 30 (XXXIV), “The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum”, 1983.

[246] Ibid. In addition, UNHCR supports the processing of claims on an accelerated basis where there are compelling protection needs, see UN High Commissioner for Refugees, Procedural Standards for Refugee Status Determination Under UNHCR's Mandate, 20 November 2003, available at: http://www.unhcr.org/refworld/docid/42d66dd84.html [accessed 22 October 2009].  See Unit 4.6 ‘Accelerated RSD Processing’, 4.6.3 lists the categories of applicant who may have “compelling protection needs”; these include, inter alia, those “manifetly in need of protection intervention” and “women who are at risk in the host country”.

[247]  UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999) and UNHCR ExCom Conclusion No. 44 (XXXVII) of 1986 on the detention of refugees and asylum seekers.