Asylum seeker rejected and claim refused — or even ignored
In this second blog on the new Nationality and Borders Act in the UK (see previous blog), we are concerned here with asylum seekers who are not part of a government scheme, who don’t have valid passports, and who may, in their desperation, escape one kind of danger by embracing another: making a hazardous journey across continents and finally crossing the English Channel in the back of a lorry, in a container or in a small boat. I will deal with why people make journeys to safety in this way in a later blog, but for now we will simply look at what may happen after they arrive.
We need to recognise a fundamental difference between the concerns of those who created the Refugee Convention, which the UK has signed, and the priorities of the UK government as expressed in the new Nationality and Borders Act (NBA) and by the Home Secretary, Priti Patel: the Refugee Convention is about protecting people fleeing persecution; the government’s aim is to refuse protection to as many people as possible and remove those who seek it, thus putting them out of sight and out of mind.
We saw in the first blog that the people arriving in the way I’ve described are immediately counted as unlawful and most of their claims as inadmissible. The government’s default position is that their claims will not be heard. As Patel makes clear,
Those deemed inadmissible will be served with a notification upon arrival that the UK will seek to return them to a safe country (New Plan for Immigration: Policy Statement, p. 20, see link below).
So it’s not just their claims that are inadmissible. Each asylum seeker is an “inadmissible person” and Patel shows her contempt for them and her resentment at the idea of having to listen to them at all:
If an inadmissible person cannot be removed to another country, we will be obliged to process their claim. If they did not come to the UK directly, did not claim without delay, or did not show good cause for their illegal presence, we will consider them for temporary protection (Policy Statement, p. 20).
Being considered for temporary protection doesn’t mean you will get it. You will first be accommodated and processed. Patel explains how this will happen:
To help speed up processing of claims and the removal of people who do not have a legitimate need to claim asylum in the UK, we plan to introduce new asylum reception centres to provide basic accommodation and process claims (ibid.).
Despite its name, the reception centre may double as a removal centre should your asylum claim be refused, though this is not entirely clear (“We will also maintain the facility to detain people where removal is possible within a reasonable timescale”) but it looks as if the same centre that received you will remove you as speedily as possible. Your claim will be “processed” and you will be closely questioned by a Home Office caseworker about the persecution you suffered and you will be asked to provide evidence of it (NBA s. 18 (2)). One line of questioning will be an old one, about what the Home Office calls your “credibility”. Credibility issues were included in section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Caseworkers had always been encouraged to cast doubt on the credibility of asylum seekers but now they were obliged to do so: “a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour” specified as such (s. 8 (1)). How did it work under the 2004 Act?
Amnesty International has shown how caseworkers frequently made “unreasonable and unjustifiable assertions about asylum applicants which cast doubt on the applicant’s individual credibility” (Shaw, J. & Witkin, R. (2004), Get it Right: How Home Office Decision Making Fails Refugees, Amnesty International, London, p. 19). This was part of “a negative culture of decision making … often based on ‘catching applicants out’ rather than investigating the substance of their claims” (ibid.). Questions of credibility ranged from minor discrepancies (dates, times, etc.) to major aspects of the asylum account. They often involved the timing of the asylum seeker’s departure from their country, their means of travel or their motives for migration. The caseworker would question the plausibility of the claimant’s own or other people’s actions, mostly without any supporting evidence.
I will give just one example from my 2010 research of how this worked. In their determined search for “discrepancies”, caseworkers used the slightest deviation regarding a date in order to construct a “reason” for refusal. A refugee from Eritrea was informed in a caseworker’s letter refusing him asylum:
You have stated in your witness statement … that you were arrested on 5/8/2004. It is noted however that in your substantive asylum interview you have alternatively claimed that you were actually arrested on 4/8/2004. These statements are inconsistent and in light of your lack of certainty about the date of the event which led you to leave the country in fear of your life, your account of this matter cannot be accepted as being true (“Reasons for Refusal” letter cited Mouncer, Bob (2010), Dealt with on their Merits? The Treatment of Asylum Seekers in the UK and France, University of Hull, p. 153 (Kindle version, http://t.co/r9p0zkYK)).
Section 8 still applies today, suitably amended and updated to bring it into line with the new Act. Although we will have to wait to see how it will be used today, we would be naive to believe that it won’t be used in the same way as before.
So if you don’t get temporary protection you will be detained and eventually deported. You may have a right of appeal. Otherwise (or if you lose your appeal), you will be deported. There may be problems sending you back to the country you fled (even Rwandan asylum seekers won’t be sent back to Rwanda). The UK government will therefore aim to send you to a “safe third country”, although this may prove impossible since no agreements have so far been reached with any country except Rwanda. Maybe everybody will be sent to Rwanda, although I doubt that’s what Rwanda had in mind when it signed the Memorandum.
There are many uncertainties and confusions in the current situation. Some of them may be clarified as time goes on. But it does look as if the process of getting rid of people has already begun:
Fifty migrants have been told they will be the first to be sent to Rwanda … as part of the government’s controversial resettlement policy (BBC News, 14 May 2022: https://www.bbc.com/news/uk-61447106).
The government doesn’t expect this to go unchallenged. Prime Minister Boris Johnson predicted “a lot of legal opposition” to the policy and he couched his response in unashamedly tabloid language. The opposition would come from law firms which “for a long time have been taking taxpayers’ money to mount these sort of cases”:
We will dig in for the fight and we will make it work. We’ve got a huge flowchart of things we have to do to deal with it, with the leftie lawyers (ibid.).
Meanwhile, back in the non-tabloid world, aid agencies, the Red Cross and the Refugee Council report that fear of being sent to Rwanda has led several asylum seekers to go into hiding, and some to attempt self-harm or suicide (ibid.).
Patel’s complaint
I mentioned rights of appeal. In her policy statement announcing her New Plan for Immigration, Home Secretary Priti Patel complained about the current situation, that is, the situation prior to the new Act:
Currently if a person’s asylum claim is rejected, they have an automatic right to appeal the decision by referring it to the First Tier Immigration and Asylum Tribunal. Nearly everyone who has their asylum claim rejected chooses to make this appeal. If the decision is upheld the person claiming asylum has a further route of appeal to the Upper Tribunal. If at that point they are not satisfied with the result, a decision can be appealed again at the Court of Appeal and Supreme Court. It is possible for a person, having exhausted all the above processes, to then bring a fresh new claim, in effect, starting the whole appeal process again (Policy Statement, p. 24).
The tone surrounding this description of the appeal system is sneering and dismissive: “valuable judicial and court resources are being wasted”, she says. The asylum system needs to be “re-wired” so that “our generosity is not exploited by those with no legitimate claims” (ibid.). Yet if we read the paragraph in the light of section 8, the complaint disappears and we might feel some pride in the opportunities previously provided to appeal against decisions made by caseworkers intent on “catching applicants out”. But Patel complains about appeals at every level, including judicial reviews. A judicial review is a legal challenge to the way a decision in your case has been made. An outraged Patel complains that it is
possible for someone to judicially review a Home Office decision – and they frequently do – at various points in the process, including just before they are about to board a plane for removal (ibid.).
For Patel, this presumably justifies Johnson’s jibe about “leftie lawyers” and about law firms “taking taxpayers’ money”. But, for anyone concerned about protecting refugees, a robust appeals system is needed in the context of bad decision-making and what advocacy groups have called a “culture of disbelief” at the Home Office. Moreover, in 2020/21 49% of appeals at First Tribunal level against asylum decisions were given in favour of the asylum seeker; in 2010/11 it was 29% (Appeal figures: https://freemovement.org.uk/statistics-refugees-uk/). So, from a refugee’s point of view, Patel’s complaint may be about a perceived improvement in decision-making that she is determined to correct.
Policy Statement:
In the next blog I will look at what happens if you end up as a Group 2 refugee.
So you’re a Group 2 refugee, are you?
This is the third blog in the series on the UK’s Nationality and Borders Act 2022
The first thing to note if you are a Group 2 refugee is that you are a temporary person: “Temporary protection status will be for a temporary period, no longer than 30 months …” (Policy Statement, p. 20, see link below). Once that period is over, you will be protected from absolutely nothing. In Patel’s impersonal language, “individuals will be reassessed for return to their country of origin or removal to another safe country” (ibid.).
Three main problems arise immediately. The first is that it may not be safe to send you back to your own country. The UK government will argue that, since your claim of persecution has been rejected, returning you to your own country will not put you in danger. But, as we have seen, the Home Office’s decision-making is open to question and we will see in later blogs that in any case its knowledge of countries of origin is often inaccurate or out of date. So your safety is far from 100% certain. Moreover, there are plenty of examples where governments, especially if the Home Office has informed them of an asylum seeker’s return, punish them once they get back, and the UK government does not check on the welfare of the people it returns. Labour Immigration Minister Baroness Scotland told the House of Lords in 2006:
Where we refuse a claim and the Asylum and Immigration Tribunal dismisses any appeal we … consider that it is safe for that individual to return. This is one of the reasons why the Home Office does not routinely monitor the treatment of individuals once removed from the UK (cited Mouncer, B. (2010), Dealt with on their Merits?, p. 98).
The second problem is that so far Rwanda is the only country to agree to take asylum seekers passed on to them by the UK, and we don’t know if they will include the UK’s temporarily protected refugees, how they would be treated if they were included (settled there or removed somewhere else?), let alone whether there will be agreements in the future between the UK and other countries.
Thirdly, temporary protection status also means “family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution” (Policy Statement, p. 20). In practice this must mean that family reunion rights will be defunct in practice (for who would want to bring their family over for a maximum of 30 months, only to be deported to some unknown destination after that, possibly in a state of near-destitution?). But even “restricting” the right to family life surely breaches the spirit of the Refugee Convention, if not the letter. For although there is no specific reference to family reunification in the Refugee Convention, the Conference that adopted that Convention passed a strongly worded recommendation urging governments “to take the necessary measures for the protection of the refugee’s family, especially with a view to ensuring that the unity of the family is maintained” (The Right to Family Life and Family Unity of Refugees, etc., p. 9, para. 2.1.4: https://www.unhcr.org/5a8c40ba1.pdf). Jastram and Newland argue that “Recognition as a refugee gives rise to a prima facie reason to admit the refugee’s close family members to the country of asylum.” (Jastram, K. & Newland, K., Family Unity and Refugee Protection, p. 581: http://refworld.org). They give the same reason: “Reunification in a country of asylum is the only way to assure the right to family unity for refugees, who cannot by definition return to their country of origin.” This has been accepted by most signatories to the Refugee Convention ever since its inception.
The Home Office has described another scenario. In its Explanatory Notes it says that “individuals may be eligible to apply for long residency settlement after 10 years if the necessary requirements are met.” (Explanatory Notes, p.6, para 19). It doesn’t specify who these individuals might be or explain the contradiction between the 10-year period envisaged in this scheme and Patel’s firmly limited protection period of “no more than 30 months”. But with no basis in international law for the creation of Group 2 refugee status, the deportation of recognised refugees, whether after 30 months or 10 years, clearly breaches the Refugee Convention, Article 32: “The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.”
Finally, we have seen that if you are given Group 2 status, with its temporary protection, you will have “no recourse to public funds except in the case of destitution” (Policy Statement, p. 20). However, for UNHCR, a refugee is a refugee regardless of the notion of temporary protection or the allocation of any “Group 2” status. UNHCR is clear that a “Group 2 refugee” is entitled to “public relief and assistance on the same terms as nationals”, as laid down in Article 23 of the Refugee Convention (UNHCR Comments on the New Plan, para. 45; Refugee Convention, Art. 23). A ban on such benefits must surely be a breach of the Convention.
Policy Statement:
WHY THIS ACT HAS TO GO
Home Secretary Priti Patel’s immigration bill has passed through parliament and has received the Royal Assent. It is now law. It’s called the Nationality and Borders Act (NBA) and is bad news for us all, but especially for anyone forced to flee persecution.
The UK long ago signed the 1951 Refugee Convention but some believe that the passing of this Act is a prelude to the present government withdrawing from it. Others predict that the UK will be forced out for breaching it.
What is so objectionable about the Act?
First, although the Act seems to accept the Refugee Convention’s definition of a refugee — i.e. someone who is outside their home country, has a “well-founded fear” of persecution in that country and is, for that reason, “unwilling” or “unable” to return there (Refugee Convention, Art. 1 (A) (2); NBA s.32 (1)) — it immediately starts to make refugee protection in the UK impossible to achieve for most people who need it. At the heart of the Act is a two-tier system which discriminates between refugees, depending on how they travel to the UK. If you have a passport and you come on a regular flight or cross the Channel on EuroStar, and you apply for asylum soon after you arrive, the Act presents no obstacles at this stage. Likewise, if you travel by some kind of official route — a government resettlement scheme or a family reunion scheme, or a scheme related to a specific crisis in a particular country or region — once again the Act presents no obstacles at this stage. In both these cases, if your asylum claim is accepted, you will be classed as a Group 1 refugee and given Indefinite Leave to Remain (ILR). If you have arrived on a resettlement scheme you may have already been granted refugee status before you set out on your journey. With ILR, you will also have the right to work and to apply for family members to come to join you. If, however, you don’t have a passport, and you’re not travelling by an official route, you will have problems. Unable to get a genuine passport in your own country due to persecution, you may have managed to get a false passport (which, if it isn’t spotted as false in the course of your journey, will probably be identified as false on your arrival in the UK). Or you may simply have travelled the best way you could (by walking, hitch-hiking, or maybe paying an agent to get you through part of your journey across continents or across the Channel. Many refugees fleeing persecution and violence travel in these ways because to do so is their only option and the official schemes and routes are few and limited. But if you do, you will be classed as “unlawful” immediately on arrival. In the words of the Act:
… a person’s entry into or presence in the United Kingdom is unlawful if they require leave to enter or remain and do not have it (NBA s.12 (4).
In similar vein:
A person who (a) requires leave to enter the United Kingdom under this Act, and (b) knowingly enters the United Kingdom without such leave, commits an offence (NBA s. 40 (2) (B1).
It is worth pausing here to look at what the Refugee Convention says about penalties for illegal entry. It says there shouldn’t be any penalties. States that have signed the Convention
shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence (Refugee Convention, Art. 31 (1).
So no passport no penalty. It begins to look like the penalty for illegal entry may itself be illegal, and we may expect it to be challenged in the courts. But as things stand, having been defined as “unlawful”, if you now apply for asylum you will be put into an immigration reception centre while you wait for a decision on your claim. On the face of it, this may sound like a reason to be hopeful. But we will see that the system is not as straightforward as that and you shouldn’t be so positive so soon. For one thing, the process is supposed to take up to six months, but may last considerably longer. At the end of it your claim may be refused. In that case, apart from a possible right of appeal, you will be considered ripe for detention pending deportation.
However, even if you are granted asylum at the end of this decision-making process, you will not be given refugee status as it was defined before this Act was passed. You will instead be punished for the way you travelled to the UK: you will be classed as a “Group 2 refugee” (NBA s.12 (5)) with very limited rights. They will be limited because the Home Secretary is specifically empowered by the Act to limit them. Section 12 of the Act allows the Home Secretary to treat Group 2 refugees differently (i.e. less advantageously) in terms of the length of their right to remain, the requirements they must fulfil in order to get ILR, and whether they have access to public funds (i.e. whether they can claim state or other benefits). The Home Secretary has the same powers over the refugee’s family (i.e. whether they would be entitled to enter, or remain in, the UK, what requirements they must fulfil and whether they would have access to public funds (NBA s.12 (5), (6)). Yet UNHCR is clear: it “reiterates that the attempt to create two different classes of recognised refugees is inconsistent with the Refugee Convention and has no basis in international law” (UNHCR Observations on the Nationality and Borders Bill, para 8).
The Act falls foul of the Convention and of international law in another respect. You may also find yourself, as an “unlawful” traveller, in yet another category. Your claim may be “inadmissible” if, on your journey to the UK, you passed through another “safe” country where you might have applied for asylum, but didn’t (NBA ss. 16-17). When the UK was in the EU the rules of the Dublin Convention allowed the government to send asylum seekers back to the first safe country they had passed through. So if you had passed through France, you could be sent back to France to make your claim there. But we have left the EU and the Dublin Convention no longer applies. So shouldn’t your claim, in these circumstances, now be admissible? And can’t it now be considered?
No, it can’t. Because the new law (apparently substituting itself for the now-disappeared Dublin Convention) says that you have a “connection” to that “safe” country and should apply for asylum there, not here (NBA s.16). In the words of the Act itself, you were “previously [i.e. during your journey] present in, and eligible to make a relevant claim to,” that country (NBA s.16 (80C) (4)). However, in its observations on the Bill in 2021, UNHCR made clear that the “first safe country” principle
is not found in the Refugee Convention and there is no such requirement under international law. On the contrary, in international law, the primary responsibility for identifying refugees and affording international protection rests with the State in which an asylum-seeker arrives and seeks that protection (UNHCR Observations, para. 3).
So, once again, the Act could well be in breach of the Refugee Convention and found to be breaking international law.
Moreover, the Act is silent about what should actually happen to you once it has declared your claim to be “inadmissible”. For the government hoped, in the absence of the Dublin Convention, for agreements with other “safe” countries where asylum seekers could be sent. Unfortunately for the government, no state seemed interested, either within the EU or outside it. All the government could say about declarations of “inadmissibility” was that there is no right of appeal against them, on the grounds that appeals are made against refusals of claims after they have been considered and these claims haven’t been considered because they have been declared “inadmissible”. In the words of the Act: “A declaration … that an asylum claim is inadmissible is not a decision to refuse the claim and, accordingly, no right of appeal … arises” (NBA s. 16 (80B) (3)).This tricky, not to say devious, argument left these particular asylum seekers in an impossible position: they were “unlawful”, their claims couldn’t even be examined, and they had nowhere to go.
At least, not until Rwanda came on the scene. The UK government has reached a “Memorandum of Understanding” with Rwanda in which Rwanda
commits to receive asylum seekers from the United Kingdom, to consider their claims for asylum, giving effect to their rights under international law through the Rwanda domestic asylum system and arranging for the settlement in Rwanda of those recognised as refugees or otherwise requiring protection … (Memorandum of Understanding, para. 1.1).
Apparently the asylum seekers chosen for despatch to Rwanda will be the “unlawful” ones “whose claims are not being considered by the United Kingdom”, so they will be, at the very least, the “inadmissible” ones who failed to stop in France, Germany, Spain, Italy, etc., to claim asylum there, but there is no clarity about which asylum seekers will eventually be sent to Rwanda. Whoever they are, Rwanda will “process their claims and settle or remove (as appropriate) individuals after their claim is decided” (Memorandum, para. 2.1). Those granted asylum will not be returned to the the UK. Rwanda will arrange their “settlement” in Rwanda. Some of those whose claims are refused may also be “settled” in Rwanda, but others will be deported (“removed”). It is not clear where they will be sent.
There have been numerous concerns raised about this deal, not least about Rwanda’s own human rights record (Rwandans themselves apply for asylum in the UK) and about the legality of the “Arrangement”. The Memorandum itself states: “This Arrangement will not be binding in international law” (Memorandum, para. 1.6). Advocacy groups have talked of legal challenges but it may be difficult to do so. The Memorandum also declares that
the commitments set out in this Memorandum … do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals (Memorandum, para 2.2).
I will try to deal with some of this in a later blog. For now we can assume that other “Agreements” with other countries are in the pipeline. The British Overseas Territory of Ascension Island has been mooted as a destination for offshoring asylum claims, and with Denmark reportedly interested in doing such deals with Tunisia, Egypt and Ethiopia the UK is unlikely to be far behind.
Secondly, there is another danger faced by anyone who applies for asylum in ways that have now been defined by the Act as “unlawful”: they may find themselves facing a prison sentence. They may be charged and taken to court and, if found guilty, they would be “liable on summary conviction [in a magistrates’ court] to imprisonment for a term not exceeding twelve months or a fine (or both) …” (NBA s.40 (2) (F1A)). Even more seriously, if they are convicted on indictment (in the Crown Court), they may face prison for up to four years, or a fine, or both (NBA s.40 (2) (F1) (d) (ii)). It’s not clear whether this process applies both to refused asylum seekers and Group 2 refugees or to just one of these categories of people. This is quite something when, according to the Refugee Convention, there shouldn’t be any penalties at all.
In the next blog I will look a bit more at what refusal means for the “unlawful”.
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