Taking all reasonable steps' & 'sustained effort'
The UK Border Agency does not provide a definition of what it considers to be a sustained effort to obtain evidence of identity or nationality for the purpose of obtaining travel documents, not does it reveal in adequate detail what it might consider to be reasonable steps for individuals to take on a country by country basis.
In legal cases considering nationality, statelessness and removability it is possible to see judicial elucidation of what it means to make "a sustained effort" to obtain travel documents. On a similar basis, determinations of the Asylum Support Tribunal on entitlement to Section 4 support shed light on the concept of "taking all reasonable steps to return home", which may include cooperation with the documentation process.
In order to obtain Section 4 (2) support, refused asylum seekers who are not detained need to show that they are either ‘taking all reasonable steps' to leave the UK or that there is a reason or barrier preventing them from leaving the UK. A report by the Asylum Support Appeals Project (ASAP), 'Unreasonably Destitute: A report by ASAP into the difficulties of obtaining Section 4 (2) support for refused asylum seekers taking reasonable steps to leave the UK' (2008) points out that "issues such as fear of return, statelessness, or difficulties obtaining a travel document are not accepted as reasons preventing the person from leaving the UK" (ASAP, 2008: 6).
Based on their findings ASAP recommended that:
- UKBA develops clear, realistic and practical guidelines concerning what constitutes ‘taking all reasonable steps to leave the UK'
- UKBA suspends the policy of regularly reviewing an individual's Section 4 support where there is evidence that the person has done all in their power to leave the UK
- UKBA recognises that there are certain countries to which refused asylum seekers cannot return at the moment
- UKBA offers a temporary form of leave to individuals where there is clear evidence that they are unable to leave the UK
- UKBA provides support to individuals who appear to be stateless and who have demonstrated that there is no country that is willing to accept them as their national
- UKBA recognises that many embassies are often unwilling to provide evidence that an individual has approached them and applied for a travel document, or evidence that they refused to recognise someone as their national
- UKBA recognises that where the International Organisation for Migration is unable to assist someone to voluntarily return due to problems with travel documents, this person is unlikely to be able to return by other means so should be considered as having taken all reasonable steps to leave the UK
ASAP further note that "as there is not realistic understanding of what constitutes "taking all reasonable steps to leave the UK", individuals are often subjected to a ‘one size fits all' approach by UKBA. A later ASAP update notes that:
"On 14 July 2008 UKBA wrote to the National Asylum Stakeholders Forum proposing changes to the conditions of provision of Section 4 support. UKBA are proposing the following: "The phrase "all reasonable steps to leave the UK" has been removed and the steps necessary to be eligible for support have been specified. Thus, in order to establish eligibility, it will be necessary to secure acceptance on a voluntary returns programme or present evidence in person to a representative of the Secretary of State, demonstrating that travel arrangements to leave the UK have been made. The current reference to "complying with attempts to obtain a travel document" has been removed as it was considered unclear. Instead, it will be a condition for the continued provision of accommodation that the supported person comply with specified steps to facilitate departure from the UK, including applying for a travel document" [ASAP, 2008: 15)
For further reading on 'reasonable steps' we recommend the 2014 research report by the Asylum Support Appeals Project (ASAP) 'The next reasonable step: Recommended changes to Home Office policy and practice for Section 4 support granted under reg 3(2)(a)'
STEPS THAT CAN BE TAKEN TO SHOW A SUSTAINED EFFORT TO OBTAIN TRAVEL DOCUMENTS
How can foreign nationals provide evidence of the steps they are taking to cooperate with UKBA in the matter of obtaining travel or identity documents?
How can foreign nationals show that they have exhausted all possible steps when a statement that no further evidence is available may be construed as non-compliance?
How can the gap between the responsibility of a foreign national to provide sufficient information to enable documentation and their practical ability to do so be closed to the satisfaction of UKBA?
What type of evidence of steps taken towards documentation might support a judicial review of unlawful detention?
Please note that another section of this site contains practical tools for immigration detainees, including template letters, contact details, and lists of actions that can be taken in order to evidence cooperation with the documentation process.
A search carried out by BID of a number of Asylum Support Tribunal determinations came up with a number of steps which might be considered necessary to satisfy the condition of "taking all reasonable steps". Other suggestions listed below have been drawn from the judgment in MA & TT v SSHD  EWHC 2350 (Admin) (21 September 2010), and 'Removability, statelessness, a life on temporary admission', a paper given by Sheona York at the Challenges to Limbo workshop, IAS Conference 2009, London. The suggestions are listed in no particular order:
- At least 3 recorded delivery letters say 2-4 weeks apart, with full biographical information, to the relevant embassy(s), formally requesting an interview;
- If the embassy has a passport form on its website, as does the Ethiopian Embassy, the person must make a formal application for anew or replacement passport, with fee etc and follow up with several reminder and begging letters;
- A visit with a witness to the relevant embassy; a formal witness statement; a formal attempt to make an appointment with a consular official;
- A formal request and several follow-up letters to UKIS (at their reporting address) to formally assist with documentation by contacting the Embassy on their behalf
- A documented application to the Red Cross tracing service to locate missing relatives;
- Evidence of letters to relatives
- Documented attempts to obtain ID/other evidence from school, previous workplace
- Regular visits to refugee community centres and requests to community workers to ask around the community for people who may have known the claimant in her country of birth; if relevant, formal applications by family members to sponsor the claimant to re-enter a former country of habitual residence.
- Having obtained the Home Office file under the subject access procedure, note any internal Home Office anomalous determinations of nationality; [from the computer section of the file] any UKIS attempts to obtain emergency travel documents and/or evidence that they haven't bothered to for X years since the dismissal of the asylum appeal;
- Comprehensive attempts to deal with any issues of credibility from previous asylum applications which have bearing on nationality, identity, loss of documents; whether the person is in touch with family;
- Findings of fact from the Asylum Support Tribunal that the client has "taken all reasonable steps to return home" without success;
- Applications to IOM for voluntary return and actively working with IOM to facilitate return
- Approaching the IOM for assistance in obtaining an ETD from the embassy
- Approaching UKBA for assistance with documentation on the individual's behalf
- Supplying evidence to UKBA to support an application for ETD
- Approaching the local MP for assistance with documentation
- Supplying documentary evidence that all efforts have been exhausted to acquire the necessary documentation from the embassy to support your application for travel documentation (verbal evidence appears to be insufficient). NB: Embassies may be unwilling or unable to provide formal letters to confirm meetings or that a travel document has been refused. This issue was raised by practitioners at the National Asylum Support Forum (NASF) in 2004 to the then Minister of State for Immigration. In response, he is recorded as saying that ‘it would not appear reasonable for the Home Office to demand documentation from an uncooperative embassy as evidence that an applicant has attempted to return to their country of origin'. Meeting of the National Asylum Support Forum (NASF) 27/05/04
- Visits to all embassies concerned (if disputed nationality) where this is practically possible
- Establishing in other ways that the individual is proactively working to facilitate her return
- Documents obtained in-country by a relative or friend can be taken to the British Embassy or High Commission in-country for them to pass to FCO London and hence to the foreign mission in the UK.
In addition weight may be given to:
- Whether there are any novel or complex actions in respect of steps to get travel documents that require the detainee to be told what is required of him,
- Whether the individual has or had a solicitor to advise during the period in question.
- Any difficulties in communication with family and obtaining documentation (undeveloped area, poor communications)
- Illiteracy of applicant.
- Inertia on the part of the detainees evidenced by timescales, or excuses offered for inability to obtain documentation or evidence.
- Realistic possibility of documents being forthcoming - need embassy to state this
- Early and concerted efforts to communicate with contacts in country of origin
The UNHCR Conclusion on the return of persons found not to be in need of international protection, 10 October 2003, is of interest in relation to the obligation of States to receive back their own nationals, and for relevant States in any case to cooperate to facilitate this practice, including in establishing identity, determining identity, and finding solutions where genuine travel documents are not or no longer available. Of particular interest is paragraph (g):
"Annex 9 to the 1944 Convention on International Civil Aviation requires that States, when requested to provide travel documents to facilitate the return of one of its nationals, respond within a reasonable period of time, and not more than 30 days after such a request is made, either by issuing a travel document or by satisfying the requesting State that the person concerned is not one of its nationals"
An excerpt from the document states:
The Executive Committee, Bearing in mind that the efficient and expeditious return of persons found not to be in need of international protection is key to the international protection system as a whole, as well as to the control of irregular migration and prevention of smuggling and trafficking of such persons;
Concerned by the difficulties experienced by many countries of asylum in different parts of the world in effecting the return of persons found not to be in need of international protection, which have served to undermine the integrity of individual asylum systems;
Recalling the obligation of States to receive back their own nationals, as well as the right of States, under international law, to expel aliens while respecting obligations under international refugee and human rights law;
Recalling also that the 2000 United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air sets out the obligation of States parties to facilitate and accept, without undue or unreasonable delay, the return of a person who has been smuggled and who is its national or who has the right of permanent residence in its territory at the time of return;
(a) Reaffirms the right of everyone to leave any country, including his or her own, and to return to his or her own country as well as the obligation of States to receive back their own nationals, including the facilitation thereof, and remains seriously concerned, as regards the return of persons found not to be in need of international protection, that some countries continue to restrict the return of their own nationals, either outright or through laws and practices which effectively block expeditious return;
(b) Emphasizes that the credibility of individual asylum systems is seriously affected by the lack of prompt return of those who are found not to be in need of international protection;
(d) Recognizes the importance that persons found not to be in need of international protection cooperate with return arrangements;
(e) Calls on States to cooperate regarding the efficient and expeditious return of persons found not to be in need of international protection, to their countries of origin, other countries of nationality or countries with an obligation to receive them back, notably by;
cooperating actively, including through their diplomatic and consular offices, in establishing the identity of persons presumed to have a right to return, as well as determining their nationality, where there is no evidence of nationality in the form of genuine travel or other relevant identity documents for the person concerned;
finding practical solutions for the issuance of appropriate documentation to persons who are not or no longer in possession of a genuine travel document;
(g) Recalls further that Annex 9 to the 1944 Convention on International Civil Aviation requires that States, when requested to provide travel documents to facilitate the return of one of its nationals, respond within a reasonable period of time, and not more than 30 days after such a request is made, either by issuing a travel document or by satisfying the requesting State that the person concerned is not one of its nationals;