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:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/972517/CCS207_CCS0820091708-001_Sovereign_Borders_Web_Accessible.pdf

In the next blog I will look at what happens if you end up as a Group 2 refugee.