Over the last week, the Home Secretary has proposed a number of changes to the asylum system. The language from the Home Office describes the asylum system as broken, backlogged and open to abuse, with endless appeals frustrating immigration control. As such, they now want sweeping reforms to make the system more efficient and to reduce the numbers of challenges. Are these concerns justified and will the proposed changes work?
Gordon Irving, solicitor in our Immigration team, discusses the Home Office’s proposals and whether it can make a positive difference to those seeking asylum in the UK. Read on to find out how the proposed changes to claiming asylum in the UK affect where you stand.
Is our current perception of asylum skewed?
Whilst numbers of people coming to the UK to seek protection during the Covid-19 pandemic have slightly decreased, the method of transport became more visible. As fewer flights and lorries came to the UK, and access to them was more challenging, more refugees used small boats and channel crossings to get to the UK. This route is both more visible and more deadly than others, although lorries often have significant risk of low temperature or asphyxiation.
The Home Office have attempted to vilify these refugees, unsuccessfully suggesting the refugees steering the boats could be charged for assisting the illegal immigration of the others. It is not unlawful to enter the UK clandestinely for the purposes of claiming asylum and those given the tiller of a boat don’t have a choice in the matter.
The Home Office, understandably and correctly, wishes to reduce these crossings and break links with people smugglers and traffickers. This is an admirable aim but the proposed methods to solve these are severely flawed.
Current suggestions include:
- Processing asylum claims overseas so that migrants can travel here safely, knowing they have asylum on entry. These migrants would be granted Indefinite Leave to Enter, rather than the 5 years we presently issue refugees before they can apply to settle.
This is a good idea in theory. Looking at safe passages for refugees is important and overseas options would be welcomed by many. There is presently no other option but to try and enter the UK somehow (asylum cannot be applied for overseas) or see if you are one of the lucky few to be included in a refugee resettlement programme (the UK’s has not been operational since March).
The issue here is selectivity.
The Home Office would pick ‘good’ refugees from camps and the ‘bad’ refugees who enter clandestinely or claim in the UK by other means would be granted a less favourable form of leave to remain. This ignores the reality for many refugees who cannot afford to wait in a camp to see if a foreign government deigns to allow them entry. Camps are often unsafe and there are many for whom the only route to safety is to flee, either by themselves or using an agent, and have no control over their eventual destination. The Home Office also only resettles a very small number of refugees per year, compared to the actual number of annual claims.
- Those who have travelled through safe third countries should not be able to claim in the UK
It cannot be sufficiently stated that there is no obligation on a refugee to claim asylum in the first country they arrive in. The Home Office are, however, legitimately allowed to consider whether the applicant has a safe third country they could depart to instead.
Prior to Brexit, the Home Office had the power to return refugees to any other safe country they may have travelled through en-route to the UK within the EU - a process known as the Dublin regulations. No agreement was made to continue this mutually beneficial arrangement following our departure from the bloc.
As of this year, reforms have already come through which state the Home Office can return refugees to any safe third country they may have travelled through, regardless as to whether the UK has a return agreement with them or not – this is likely a breach of international law and may not be specific or limited enough for the Government to get away with it. What this essentially means is that refugees are stuck in limbo for around 6 months whilst the Home Office attempt to avoid taking responsibility for them, as we presently have no agreements to allow these returns. When the Home Office complain about a massive backlog of cases and issues with refugee housing, this is significantly a mess of their own making by adding in a further level of delay.
- Some refugees can be held offshore whilst their claims are processed
The jokes about refugees being held on a volcanic island are already a bit dated but the Home Office do seem to be looking into offshore processing seriously at the moment. Gibraltar have already indicated they would not assist, with other locations being considered including the Falklands and Channel Islands.
These would likely be massively expensive, inefficient and inhumane. Refugees overseas cannot have access to the support and legal advice they need to help build clear claims. Refugees often need access to interpreters and medical experts which would be limited as well. Australia’s attempts with similar systems over the years have also taught us that this ‘out of sight, out of mind’ approach leads to abuse. Refugees are not prisoners, nor should they be treated as such. They are amongst the most vulnerable in our society. Many only get by during their long waits because of the support of charities and community groups, neither of which can really help them in a secure camp on another land mass.
The front page of Monday 22nd March’s Independent describes the squalid conditions some refugees are facing when being housed in the UK. If we cannot manage safe and sanitary conditions domestically, then we shouldn’t be looking to move these issues overseas where they will have less oversight and scrutiny.
- Those who provide evidence after their initial decision should have to meet higher evidential thresholds and their claims be given less weight
The Home Office indicates that they want those who raise further issues in asylum claims late in the day or after their initial decision to be given less weight unless there are exceptional circumstances. A test for this in the immigration rules already exists, known as the ‘Fresh Claim’ test and there are already legal provisions requiring asylum seekers to present all their reasons for claiming asylum as soon as they arise and for questioning the credibility of their claims when they fail to do so.
The Home Office seem to expect a perfect refugee, who arrives lawfully, has all the evidence they need and gives a consistent and clear account. Whilst this would be ideal for both them and for us as representatives, this thinking is naïve in the extreme. Refugees are often traumatised, scared and their ability to give a consistent account affected by the trauma they have endured. This is why expert reports and medical evidence are a crucial part of claims, as well as being able to create a safe and supportive environment for refugees to give their accounts.
This can mean that some aspects of a case do not come to light until later on. Documents may need translating and verifying. Some people may not mention physical or sexual trauma until later on, when they feel comfortable to do so. Those facing persecution based on sexual orientation or gender identity may need specialised support before they feel able to disclose these concerns. These are not all things that happen overnight. Confusingly the Home Office recognise these complexities in their guidance on how to apply the Modern Slavery Act in the context of victims of trafficking.
Will these ideas work?
Possibly. If the aim is purely to reduce cases then they might well. But if they are all implemented, then this is a continuation of the hostile environment to one of the areas of law where compassion and understanding are most required. Yes, poor claims should be, and are, refused. This can be dealt with effectively by proper training for Home Office caseworkers and fewer ‘standard’ refusal letters that don’t deal with the facts presented. This can be dealt with by better funding Tribunals so that more cases can be processed. This can be dealt with by effective working with charities and medical experts early on so that refugees are able to express themselves more effectively and to be active participants in the process.
If we want to return people following unsuccessful claims more efficiently then this is a matter that requires diplomacy and making agreements with our allies.
Some of these aims are good and the idea of overseas processing is an appealing one for many, but the majority of these ideas are inhumane and would seek to frustrate the legitimate claims of those who need our protection. The UK might have a proud history of helping those who need our protection but whether we have a proud future seems uncertain.
Alex and his team specialise in supporting people in their journey through immigration. Read more about how his team can help you know where you stand: