Asylum Procedures: Curtailment Power (Hansard, 15 February 1995)

§ Baroness Blatch

The use of the curtailment power has been reviewed in the light of the first year's experience of the operation of the Act. The curtailment power has deliberately been used sparingly while the new asylum procedures were settling in. We have concluded that it would now be right to make wider use of this power.

A refused asylum applicant with extant leave at the time of his application may, if the curtailment provision in Section 7 of the 1993 Act is not used, appeal twice, first against the asylum decision, and then, if he overstays, against deportation. This is wasteful of resources, leads to delay and is not in the interests of either genuine refugees or an efficient asylum system.

Greater use of curtailment will speed up appeal procedures and make it easier to remove those with existing leave to enter or remain who have sought to abuse the asylum procedures. Genuine asylum seekers are better served by a system that deals with undeserving cases swiftly and effectively.

Section 7 of the 1993 Act allows curtailment of any existing leave to enter or remain at the time of refusal of an asylum claim. Curtailment takes effect immediately the decision is served. The applicant's appeal right is triggered by the service of a notice of intention to deport. The applicant's detention may be ordered pending his deportation. If the applicant decides to appeal, then all relevant aspects of the case, including the asylum and deportation aspects, may be addressed by a special adjudicator at a single hearing.

During the passage of what became the 1993 Act, the Government indicated that it was not the intention that curtailment should he used either automatically or punitively. We propose no change of approach in these respects.

However, discussion of curtailment during the passage of the Bill tended to focus on the case of a person who is admitted as a bona fide tourist but makes an asylum application soon after, thus revealing that the real intention in coming here was to apply for asylum. Experience since implementation of the 1993 Act suggests that it would restrict the curtailment power too narrowly to confine its use to cases of this sort.

At present, some two-thirds of all asylum applications in the United Kingdom are made after entry, rather than 40WA at the port. Over half of these in-country applications are made by people with existing leave to enter or remain. In the bulk of cases, the asylum application is not made immediately after leave to enter or remain has been granted, but shortly before it is due to expire. We have concluded that in these cases there is significant scope for proper use of the curtailment power.

There will in future be a general presumption that curtailment will be used where available except where this would be inappropriate. Each case will continue to be looked at on its individual merits and, as before, curtailment will be neither automatic nor punitive. Cases where curtailment might be inappropriate include those where it is right to allow existing leave to run after the asylum decision has been taken, where the applicant qualifies for leave to remain under another category of the Immigration Rules (for example if they are married to a British Citizen or person settled here); or where there are compelling compassionate or other circumstances which would make it inappropriate to proceed to deportation action. Where the curtailment power is used, a notice of intention to deport will normally be served at the same time. This is necessary in order to trigger a right of appeal against the refusal of asylum. It will still be open to the applicant to leave voluntarily, either before or (if it is unsuccessful) after the appeal.