Travel Document Project

Advice to legal representatives taken from "Challenging Immigration Detention: a best practice guide", ILPA/BID, 2003 (currently under revision)

WHERE FAILURE TO CO-OPERATE IS ALLEGED 

For clients who are alleged to have refused to provide information to the UKBA or High Commission or Embassy or to sign a travel document application, you must first of all understand precisely what has occurred, for example:

• Did your client refuse to provide any information? If so, in what circumstances?

• Did your client refuse an interview with the High Commission or Embassy?

You should then take instructions as to why she refused to cooperate (if she did refuse).  For example, a client may be willing to comply once she has received advice on her case from her representative.  Has she answered the same questions on a previous occasion? 

If your client instructs you that she has not refused to cooperate, you should request disclosure from the UKBA of the evidence on which the allegation is based.  You should rely on the Guidance Notes which require the Secretary of State to present evidence at a bail hearing on which contested allegations are based.

For clients who completely refuse to cooperate, you should note that this is not, in itself, a criterion for detention within the OEM.  However, refusal to cooperate may be seen as evidence of risk of absconding. 

WHERE NATIONALITY OR IDENTITY IS DISPUTED

Sometimes the UKBA or the Home Office contends that a person:

• Is not a national of the country claimed

• Is giving false information as to identity

Because of the allegation of deception and/or because it makes it more difficult to return someone if their asylum or other application fails, it is more likely that such clients will face prolonged detention.

If it is not clear to you why your client is considered to have deceived the UKBA, you should request reasons.

If reasons are not forthcoming, or you are not clear what evidence the assertions are based on, it may be helpful to refer to the Guidance Notes.  These require the Secretary of State to present evidence of any allegations in the bail summary that are contested.

"27. A bail hearing takes the form of a risk assessment and attempts to apply strict burdens of proof may be misleading. Either party may need to provide relevant   evidence to support their case.  It is for the immigration authorities to provide the evidence on which they rely to say that it is reasonable for detention to continue. It is necessary for the applicant to provide the evidence to challenge this case and show that it is reasonable to grant bail.   Failure by one side or the other to provide relevant evidence that is reasonably available should result in an Immigration Judge giving less weight to that party's arguments" (Source: Presidential Guidance Note No 1 of 2011: Bail guidance for immigration judges, First-Tier Tribunal (Immigration and Asylum Chamber). [Updated here with 2011 rather than 2003 edition of bail guidance]).

Clearly, it is helpful if you or your client can obtain evidence of nationality and identity from her home country.  If you are unable to obtain this, you must consider how nationality and/or identity can be provided in other ways:

• Does your client know anyone in the UK who can verify these - through testimony, photographs, etc.  If your client does know someone, you should make arrangements for that person to be present at the bail application to give evidence.  Perhaps he or she may also stand as a surety? If neither of these is possible, you should arrange to take a detailed sworn statement that can be used at court.

• Where your client's nationality is being challenged, it will probably be necessary to obtain a detailed statement from your client in order to establish her substantive case (covering such areas as family history, local knowledge of geography, history and culture, language and dialect, ethnic identity, etc).  This may also mean instructing an expert to give an opinion as to nationality, which should assist in obtaining release.

• Where there is a dispute as to nationality, the UKBA may have conducted a nationality interview (for example, in cases in which the UKBA allege that a Sierra Leonean is actually a Nigerian).  It is important to obtain these interview notes so that you can check the accuracy of your client's replies.

The dispute as to nationality may be the only reason that your client is detained.  Therefore any evidence to establish this will be helpful in relation to an application for TA/TR or bail.  As a great many asylum seekers do not have evidence of their name and date of birth, these factors are less likely to be primary reasons for detention, except if the client is a ‘disputed minor'.