The third paragraph of Patel’s Policy Statement (see link below) describes the appeals system as it was before the new Act came into force. These rights to appeal sound entirely reasonable in a country where the legal system is based on the presumption of innocence — when you are innocent until proved guilty:

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.

However, Patel is sceptical — even cynical — about the system and she adds the following misleading sentence:

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 (p. 24).

This is misleading and inaccurate because the “fresh new claim” she describes (usually simply called “a fresh claim”) is in fact only possible if you have new evidence to present to the Home Office; the Home Office then decides whether it should count it as new evidence. You may then be granted asylum on the basis of the new evidence or you may once again be refused. And although you may, if refused, have a right to a judicial review of your case, none of this can by any stretch of the imagination be described as “starting the whole appeal process again”. So bringing a “fresh new claim” is not the endless merry-go-round that Patel wants us to believe it is.

But her cynicism is not just found in that last sentence. She consistently rubbishes the right to appeal from the start. “We are seeing repeated unmeritorious claims,” she says in the first sentence of chapter 5 of her Policy Statement, “sometimes made at the very last minute, which frequently frustrate the removal of people with no right to be in the UK.” She adds for good measure that this includes “the removal of Foreign National Offenders (FNOs).” While FNOs are a legitimate issue for a Home Secretary the deliberate conflation of FNOs (most of whom are currently serving sentences in UK prisons) with refugees currently arriving in small boats serves only to imprint in the public’s mind the idea that refugees are the criminals her policy has declared them to be. I will discuss the question of what should happen to convicted foreign offenders later (which is what Patel should have done rather than deliberately confuse the two issues).

Patel casts her cynical eye over the judicial review process. According to Luqmani, Thompson and Partners (Solicitors), judicial review is “a procedure that allows a judge to review the lawfulness of a decision or action by a public body, e.g. the Home Office or a Local Authority” (https://luqmanithompson.com/judicial-review-who-what-where-how-why-when-and-how-much/). Patel implies that asylum applicants whose claims have been refused abuse this process repeatedly to avoid deportation. In particular:

It is also 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.).

Patel’s accusations of “repeated unmeritorious claims” being submitted by “people with no right to be in the UK” and of frequent abuse of the judicial review process appear to be based on official government figures. Thus in the case of judicial reviews she says (Policy Statement, p. 26):

In 2019, there were 8,000 judicial reviews against Home Office immigration and asylum decisions. Judges concluded 6,063 cases on paper, of which 90% were dismissed or refused, with around 17% being deemed by the judge to be “Totally Without Merit”.

Ministry of Justice (MoJ) figures, however, tell a different story:

There were 3,400 judicial reviews in 2019. Of the 2,100 cases in 2019 that reached the permission stage [where you are asking permission to have a full judicial review of your case] 250 (12%) were found to be “totally without merit” (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/870184/civil-justice-statistics-quarterly-Oct-Dec.pdf)

So Patel’s claim that there had been 8,000 immigration and asylum judicial reviews in 2019 is far from accurate: her figure is more than twice the MoJ’s figure for all judicial reviews (1,600 were civil immigration and asylum applications, 1,600 were other civil cases and 170 were criminal cases). Her figure for asylum cases is nearly four times higher than the MoJ figure for asylum cases that had reached the permission stage. Moreover, her suggestion that the figures represented a rising tide of judicial reviews is clearly undermined by the MoJ figures: immigration and asylum applications were down 10%, there was no change in the percentage of other civil cases and criminal cases were down 20% on the same period of 2018 (ibid.). It might be wise to take all her figures with several pinches of salt.

Nevertheless, Patel pursued her aim to reform the appeals system, including judicial reviews. She promised “a suite of changes”:

1. A “good faith requirement” placed on refugees and their representatives when dealing with the Home Office and the courts (e.g. the requirement not to give “false information” — i.e. don’t tell lies). This goes against the presumption of innocence in UK law, which is arguably a presumption of truth-telling until lies are discovered. But, of course, the real purpose of the “good faith” requirement is to embed in the public’s mind Patel’s message that large numbers of refugees (and their lawyers) are people of bad faith. She has created a presumption of dishonesty. The “good faith” requirement takes us back to the credibility issues I discussed in a previous blog (https://bobmouncerblog.wordpress.com/2022/05/26/asylum-seeker-rejected-and-claim-refused-or-even-ignored/) and seems to impose an extra burden of proof on the applicant without imposing a matching burden on Home Office caseworkers or on judges. There is plenty of past evidence of careless, even hostile, treatment of applicants by caseworkers (see Mouncer, Bob, Dealt with on their Merits, paras 6.5.8-6.5.13, pp. 151-156: https://hydra.hull.ac.uk/assets/hull:2678a/content). The system prior to the Nationality and Borders Act 2022 gave applicants opportunities to challenge decisions made both by caseworkers and judges. But Patel’s extra requirement is part of her plan to reduce those opportunities. It is detrimental to the interests of refugees and of justice in general.

2. A “one-stop” process. This requires all evidence to be brought forward together from the start. This may sound a reasonable requirement in a complex system. But behind this change lies the same presumption as before: that refugees and their lawyers have been dishonest till now and that this change will put a stop to it. This is unmistakable in the language of Patel as she announces the change. It will require

people and their representatives to present their case honestly and comprehensively — setting out full details and evidence to the Home Office and not adding more claims later which could have been made at the start (p. 27).

She insists that the process “will require people to raise all protection-related issues upfront and have these considered together and ahead of an appeal hearing where applicable” (p. 28). Moreover, this requirement includes every kind of claim you might make as a refugee. It includes

grounds for asylum, human rights or referral as a potential victim of modern slavery. People who claim for any form of protection will be issued with a “one-stop” notice, requiring them to bring forward all relevant matters in one go at the start of the process (p. 28).

What Patel ignores is the fact that people are often unable to “bring forward” everything that has happened to them “in one go” and “at the start”. This may be due to fear (e.g. in the case of victims of trafficking and modern slavery) or because they have been traumatised by what has happened to them, both in their country of origin and on their journey to find protection (in both cases this may have included sexual abuse). In such cases they may not be able to talk about all their experiences until later, sometimes much later. Patel’s language about lies and deceit is offensive in this context. Furthermore, her policy will hamper and hamstring decision makers and judges from giving victims careful and detailed consideration of their claims. She declares:

We will introduce new powers that will mean decision makers, including judges, should give minimal weight to evidence that a person brings after they have been through the ‘one-stop’ process, unless there is good reason (ibid.).

She tries to reassure us: “This new process will not bar genuine claims from being considered …” (ibid.) This is meaningless, since the genuineness of the claim is exactly what is being considered by the caseworker or the judge. Moreover, she says the new process “will mean that the credibility of the individual and the weight of their evidence will be considered in light of their previous opportunities to present that evidence.” But “the credibility of the individual” and “the weight of their evidence” should surely be decided on — well — the weight of the evidence. Section 25(2) of the Nationality and Borders Act suggests that lateness precludes giving full weight to the evidence, although it seems to concede (unwillingly) that there may be “good reasons” for such lateness:

Unless there are good reasons why the evidence was provided late, the deciding authority must, in considering it, have regard to the principle that minimal weight should be given to the evidence.

The meaning of the expression “good reasons” is unclear, while giving minimal weight to the evidence has been elevated to a “principle”. Since Patel gave no sign of understanding the fears and traumas experienced by refugees, our worry must be that giving evidence “minimal weight” simply because it hasn’t been raised before will only serve to disadvantage the most vulnerable applicants, victims of trafficking, slavery and sexual abuse.

The United Nations High Commissioner for Refugees (UNHCR) has similar worries (UNHCR Observations on the Nationality and Borders Bill, para 106, pp. 36-37: https://www.unhcr.org/uk/615ff04d4.pdf):

A rule prescribing that particular evidence should be given minimal weight would run counter to fundamental principles governing the assessment of evidence, including that “everything capable of having a bearing has to be given the weight, great or little, due to it”, and that evidence must be approached objectively, with an open mind, and assessed in the round, rather than in isolation.

That’s all for now. But the “suite of changes” is not complete. More to come.

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

I said at the end of my last blog that, for all the punishment meted out to refugees, “there is no sign so far of punishment for criminal networks.” Yet Patel claims in her Policy Statement (see link below) that she is targeting the criminal networks in order to save refugee lives: “To stop the deaths”, she says, “we must break the business model of the people smugglers.” But how does she say we should do that? We must, she says, “better deter illegal migration and strengthen the protection of our borders” (p. 36). So the way to stop the smugglers is to target the migrants: they must be deterred from their illegal actions; our borders must be strengthened and protected against them. That, according to Patel, is the way to “break the business model of the people smugglers”. If the refugees can be deterred, the smugglers will have no customers and the way to deter them is to criminalise them, make them inadmissible, detain them, deport them, give them, if we have to, temporary protection at best, and then throw them out. Some of them may have to be prosecuted and get prison sentences. But that’s the way to do it.

So there will be (Policy Statement, pp. 36-37):

1. Tougher criminal offences (sentences?) for those attempting to enter the UK illegally, including raising the penalty for illegal entry.

2. Wider powers to tackle those facilitating illegal immigration, through acts like piloting small boats, including raising the maximum sentence for facilitation to life imprisonment.

3. Additional powers given to the Border Force Agency to (a) search containers “within the port or freight environment” if they believe people are trying to “conceal their entry into the UK”; (b) “seize and dispose of any vessels”; (c) stop and redirect vessels away from the UK.

We should pause at this point for, even here, there is little enough to justify the government’s claim that it is seriously targeting the “criminal networks behind people smuggling”, to quote the title of Policy Statement, chapter 7. The “tougher criminal [sentences]” in the first item of policy are unambiguously aimed at migrants and no one else. In the second item, life imprisonment for the pilots of small boats may seem to be targeted on the smugglers, but it isn’t. Patel knows full well that smugglers are unlikely to put themselves in danger in a rickety boat on the busiest stretch of water in the world. Instead, one of the migrants is chosen to be pilot and the boat is pushed out. The Guardian reported as much (see link below) in the case of Abdullah Kurdi, whose family was drowned in the Mediterranean, the body of his son Alan washed up on a Turkish beach. Abdullah, who steered the boat, was accused by some of being a smuggler:

The facts proved otherwise. Investigations into the smuggling operations in Turkey showed that refugees were often tasked with helping smugglers sign up passengers for smuggling trips. Their language skills and contacts inside refugee communities made them ideal as middlemen. It was also not uncommon for one of the passengers to be given the responsibility of driving the boat. No smuggler, with family in Turkey and a steady income from the lucrative smuggling trade, would want to end up illegally in Europe and risk not being able to return home …

Let alone be drowned. The third item of policy gives more power to Border Force staff. But smugglers are not targeted here either. Container owners and their drivers, and lorry drivers in general, are targeted because of the problems around securing their vehicles. We should note, however, that none of this is new. Lorries and containers have been targeted since at least 1999. Section 32 of the Immigration and Asylum Act of that year imposed a £2000 penalty on lorry drivers for every passenger without documents. This was done in line with the Schengen Convention; the Convention also imposed sanctions on airlines and shipping companies carrying asylum seekers without travel documents. These measures no doubt had some effect: they must, for example, have spurred haulage companies to ensure the security of their vehicles and discouraged drivers from accepting passengers. But it will also have encouraged smugglers to find new ways of getting their passengers across the Channel. Hence the rise of the small-boat industry in the ensuing years. Innovation and expansion, rather than deterrence, may also be the result of the current policy. The smugglers are not being directly targeted.

Border Force also gets the power to “seize and dispose of” vessels, but the smugglers and their access to supplies of boats seem little affected. In the original proposals, vessels were to be stopped in the Channel and “redirected” (physically “pushed back”) away from the UK, again with no real effect on the smugglers. However, this was seen by refugee agencies and others as extremely dangerous for migrants. Border Force staff also regarded this practice as dangerous both to migrants and to themselves and the plan was abandoned in face of threatened industrial action by their union. But in the case of “pushback”, too, Patel’s targets were the migrants not the smugglers.

The targeting of migrants is part of the criminalisation of refugees set out in Patel’s Policy Statement and made law in the Nationality and Borders Act 2022. Yet the UK has not only signed the Refugee Convention, which prohibits penalties being imposed on undocumented refugees taking “irregular” routes to safety, but also the UN Protocol Against People Smuggling, which it signed on 14 December 2000 and ratified on 9 February 2006. Article 5 of that Protocol is clear:

Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in article 6 of this Protocol.

That simply means that the smugglers are the criminals, not their desperate victims. It also means that Patel’s new law may be illegal in international law and somebody needs to test this in court. We might then be able to get rid of her spurious accusations of illegality and inadmissibility and stop her from sending innocent people to jail or deporting them to Rwanda.

That’s all for now.

Priti Patel’s Policy Statement:

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

The case of Abdullah Kurdi:

The Guardian, 22/12/2015: https://www.theguardian.com/world/2015/dec/22/abdullah-kurdi-father-boy-on-beach-alan-refugee-tragedy?CMP=Share_iOSApp_Other