I ended the previous blog by noting that the alternative to dangerous journeys (safe routes to protection) were few and far between. The Refugee Council has identified 2 main routes (what the government calls “safe and legal” routes) for people seeking asylum in the UK: they are the family reunion and the resettlement routes. The Refugee Council also calls for the creation of humanitarian visas such as those used by the EU states (Safe routes save futures, Refugee Council: https://www.refugeecouncil.org.uk/get-involved/campaign-with-us/safe-routes-save-futures/).

Family reunion. For the 5 years prior to the Nationality & Borders Act (NBA), around 29,000 people were reunited with their families through family reunion schemes. 90% of them were women and children. However, the Act now denies the right to family reunion for Group 2 refugees, who are only given temporary refugee status (arguably illegally). The Office of the High Commissioner for Refugees (UNHCR) made the following point before the Bill became an Act:

With the possibility of applying for family reunion foreclosed, moreover, more women and children are likely to attempt dangerous journeys, either at the same time as the men who might previously have sponsored them under current rules, or to join them afterwards. This risk has been recognized by the Council of Europe, among others, and has been borne out in Australia, where the abolition of family reunion rights for holders of “Temporary Protection Visas” was followed by a threefold increase in the percentage of refugees trying to reach Australia who were women and children (UNHCR Observations on the Nationality & Borders Bill, para 20, p. 7: https://www.unhcr.org/uk/615ff04d4.pdf).

Patel often holds up the Australian government as an example to follow in its asylum policy. However, the result of doing so in this case means that her declared objective (to reduce deaths and dangerous journeys) is likely to be defeated.

Refugee resettlement schemes. According to the Refugee Council:

Europe generally accepts very few refugees for resettlement. Between 2004 – February 2021, the UK has been resettling around 750 refugees annually, from all over the world, through the Gateway Protection Programme. This was in addition to the 20,000 refugees from Syria who were resettled to the UK by February 2021 (https://refugeecouncil.org.uk/information/refugee-asylum-facts/refugee-resettlement-facts/).

The Syria resettlement scheme ended in March 2021. Two resettlement schemes were set up to cover Afghanistan. The first was the Afghan Relocation and Assistance Policy (ARAP) — https://www.gov.uk/government/publications/afghan-relocations-and-assistance-policy/afghan-relocations-and-assistance-policy-information-and-guidance. The scheme, set up in December 2020, was restricted to “employees of Her Majesty’s Government”. There were four categories of eligibility in the scheme. However, there was a further restriction built into it, found in the words “directly employed”. This meant that if you applied for the job through an agency you were not eligible to be included in the scheme, whether your job was to support the armed forces or with the government in general, whether you were a bodyguard or an interpreter. This angered, and left stranded, a large number of people.

The second scheme was the Afghan Citizens Resettlement Scheme (ACRS) — https://www.gov.uk/guidance/afghan-citizens-resettlement-scheme. It was a half-hearted affair from the start: it was announced in August 2021 but wasn’t launched for another 5 months and seemed at first to be restricted to those who had already come to the UK during the chaotic evacuation following the Taliban’s takeover and the USA’s and the UK’s withdrawal from the country (https://www.refugeecouncil.org.uk/get-involved/campaign-with-us/safe-routes-save-futures/). It was eventually divided into three pathways. The first was, as mentioned, for the people already here. The second pathway was through UNHCR referrals. This is for people who have fled Afghanistan to a neighbouring country (e.g. Pakistan) and who may want, for example, to join relatives in the UK. The third pathway is for “those at risk who supported the UK and international community effort in Afghanistan”, plus particularly vulnerable” people such as women and girls and ethnic minority groups (like, say, the Hazaras). Unfortunately, this pathway is no longer available. There is no indication why this is so (it may be because the first year’s quota has been reached, but the ACRS page doesn’t say so and it doesn’t say if or when the pathway will reopen).

It’s difficult in fact to know what is available. Supposing you have managed to get out of Afghanistan? The official government Guidance tells you the following:

If you have fled from Afghanistan to another country looking for humanitarian support, and are seeking resettlement to the UK, you should not make a visa application (“Support for British and non-British nationals in Afghanistan”, Guidance: https://www.gov.uk/guidance/support-for-british-and-non-british-nationals-in-afghanistan).

The Guidance then directs you to the ACRS page, where Pathway 2 tells you about being referred for resettlement by UNHCR — not that the Guidance (being skimpy) has mentioned UNHCR, but you may just notice it on the ACRS page. How does UNHCR referral work? Well, if you are in touch with UNHCR yourself a “self-referral” may be possible, or an “internal referral” by a staff member; if you are in touch with a non-governmental organisation (an NGO), you may be able to get an “NGO referral” to the UNHCR. But if you have limited contacts in the country to which you have fled, arranging this may be difficult. There are no links in the government Guidance to these UNHCR procedures. They might be found elsewhere, but my experience didn’t suggest they were easy to get to. I googled a simple question: “I am an Afghan refugee in Pakistan, how do I contact UNHCR?” The result was two invitations to donate to help refugees (one from UNHCR and the other from the Red Cross), next came a UNHCR plea for “support” followed by an appeal to donate to help women in Afghanistan, and then came information, from “UNHCR Pakistan” (https://help.unhcr.org/pakistan/), aimed at people travelling in the opposite direction, that is who want to be resettled back in Afghanistan under UNHCR’s “facilitated voluntary repatriation programme” — the opposite of what I (or, indeed, any Afghan refugee escaping the Taliban) might be looking for. If the government were serious about protecting refugees it would put clear information in one obvious and easily accessible place. Did I say the scheme was half-hearted? It is. Incidentally, the UNHCR Pakistan page did, if you scrolled past the “voluntary repatriation” section, provide a link to further information for new arrivals. The link didn’t work when I tried it.

Supposing you haven’t left Afghanistan? The UK government offers the following guidance under the heading “Support for British and non-British nationals in Afghanistan”, with the assurance that “We continue to work at pace to assist people facing serious risk in Afghanistan”. So here you are, a “non-British national” (i.e. an Afghan) facing serious risk:

Afghan nationals need to apply for a visa to come to the UK to study, work, visit or join family … There is currently no Visa Application Centre (VAC) operating in Afghanistan. If you are in Afghanistan and wish to make a UK visa application, you will normally have to submit your biometric information (fingerprints and photograph) in a VAC in a third country to complete your application (https://www.gov.uk/guidance/support-for-british-and-non-british-nationals-in-afghanistan).

So you have to go abroad, scramble out to a third country, with your children, and all your biometric information if you’re lucky, and find a VAC! Are VACs part of UNHCR? Don’t know. Keep looking, Afghan national. But if you lose heart and decide to make your own way here to join your relatives, you could end up in Rwanda.

More on safe routes in the next blog.

Let’s see what makes you a criminal in Patel’s universe. We saw in the first blog of this series that travelling to the UK without a valid travel document and then applying for asylum is now a punishable offence, despite the Refugee Convention saying that signatory states “shall not impose penalties” for such an act. However, in Patel’s new universe, according to the law she has spawned, you may be tried in a magistrates’ court or the Crown Court and, while the punishments are different, punished you will be. This is true whether you have arrived in a small boat provided by smugglers or you have managed, say, to hide in a lorry to get across the Channel. Migrants coming to the UK illegally, says Patel, should be “appropriately penalised” for breaking the law, especially when they “originate” from safe European countries (Policy Statement, p. 36). In fact, of course, they don’t originate from safe European countries: they originate from the home countries they had to flee. The most they may have done is to pass through a European country. But that has now also become a crime.

Others will be punished too. The Nationality & Borders Act (NBA) increases the powers of Border Force guards to search vehicles. If you are a lorry driver you will be punished if your vehicle has not, in the opinion of the Border Force guards, been secured against “unauthorised access” (NBA, Schedule 5 (1), (a)). Moreover, this will happen whether or not a refugee is found in your vehicle: “A penalty may be imposed … regardless of whether any person has obtained unauthorised access to the vehicle” (Schedule 5 (3)). All this comes under the heading “Failure to secure goods vehicle, etc”. But the factors which constitute such “failure” are only vaguely identified in the Act. They include “checking”, “reporting”, and “keeping records”. It is left to the Secretary of State to specify details through regulations, which presumably she and her successors will do from time to time. But all this places an uneasy burden on drivers. Carriers (owners of ships, aircraft and other means of transport) will also be punished. If you have travelled on a ship or aircraft without a valid travel document and you are caught by an immigration officer, the carrier will be fined £2,000 (NBA, s. 76 (2)).

Penalties abound. In one example, where Patel seems determined to dot every “i”, cross every “t” and nail everyone in sight, Schedule 5 (12) of the Act stipulates:

Where a penalty is imposed … on a person who is the driver of a goods vehicle pursuant to a contract … with … the vehicle owner or hirer … the driver and [the owner] are jointly and severally liable for the penalty imposed on the driver (whether or not a penalty is also imposed on [the owner]).

The definition of “travel document” seems to be expanding. In her Policy Statement, Patel declares (p. 39): “[W]e will legislate to establish and enforce Electronic Travel Authorisations (ETAs)”. To get your ETA you will have to declare any criminal record you may have (or presumably declare that you have no criminal record). Apparently, everyone coming to the UK will need one — as well as a passport. “This will”, says Patel, “give the UK more control of our borders, improve our capability to count people in and out and ensure we can do more to prevent criminals from travelling to the UK” (ibid.). This desperate insistence on closing the gates and pulling up the drawbridge reflects an unreasonable fear of outsiders, an exaggerated xenophobia. If that is denied, I want to ask why criminality checks should take place for people travelling from Berlin to London but not for people travelling from Manchester to Devon. The only possible answer must be our fear of foreigners. And that is xenophobia.

But for all the penalties and punishments imposed on drivers, hauliers, ship owners and train operators, there are few clues as to what will happen to the smugglers themselves. Patel seems to believe that, because of these punishments, the criminal networks will be disrupted and their business model broken. But is this credible? Research published by the Migration Policy Centre suggests that “policy interventions aimed at disrupting smuggling networks may make smuggling more lucrative and increase incentives for criminals to enter this market” (https://globalinitiative.net/wp-content/uploads/2018/01/EUI-What-Does-It-Mean-to-Disrupt-the-Business-Models-of-People-Smugglers_.pdf, p. 3). In other words the smugglers will become richer and there will be more of them. As one refugee, “Fernando”, told Refugee Action:

On the news [the govenment] were saying that “we are doing this so smugglers don’t get money” … [but] what you will do is make them richer as they will find out how to get in the country and they will charge more … People pay! Because they need to save their lives (“All Punishment No Protection: Why the Anti-Refugee Bill Should be Scrapped”, p. 8: https://www.refugee-action.org.uk/wp-content/uploads/2021/11/All-Punishment-No-Protection-Report.pdf).

This also means that many people will become indebted to smugglers and traffickers, another lucrative aspect of their trade.

There is certainly no sign of a fall in Channel crossings. According to the Commons Home Affairs Committee, this “may be attributed to scaremongering from people traffickers, that because of new regulations coming in across the Channel it will be much harder to access the UK in future, so they had better get on with it” (https://www.bbc.com/news/uk-england-kent-62539789). The people smugglers will doubtless also try other ways, other methods and routes, to persuade refugees to use their “services”. They have even been lowering their prices according to one report “as rival groups tried to achieve dominance in the market” (ibid.). This is a far cry from the destruction of their business model. It should be no surprise, as BBC South East recently reported, that suspected people smugglers

were using TikTok to advertise illegal entry to the UK via the English Channel. Fierce competition between gangs saw various groups boasting they were the “best” operator for successful crossings, and stating “Rwanda has been cancelled” (ibid.).

So punishing refugees for their lack of travel documents and the route they travel doesn’t seem to be dissuading them from making the journey. Nor does the punishment of lorry drivers, hauliers and carriers. And the disruption of anybody’s business model any time soon seems unlikely.

So how to stop the dangerous journeys, the smugglers and the deaths that are the inevitable result not only of their activities but of the steady disappearance of legal routes to safety? On this, Sophie McCann, advocacy officer of MSF UK, makes the point: “There are almost no safe ways for someone fleeing war, persecution or poverty to travel to the UK” (https://www.theguardian.com/uk-news/2022/apr/17/fury-as-patels-borders-bill-found-misleading-on-safe-routes-for-migrants?CMP=Share_iOSApp_Other). I will try to explore some of this in my next blog.

We considered Patel’s first two changes in appeals policy in the previous blog. They were the “good faith” requirement and the “one-stop” process. Her next change unexpectedly sounds positive: “We will … [p]rovide more generous access to advice, including legal advice, to support people to raise these issues …” (Policy Statement, p. 27, see link below). Whether this is good news or not may depend on the meaning you give to “generous”. In the Act, “legal services” (basically, legal aid) for appeals are provided for people who have received Priority Removal Notices (PRNs) and wish to appeal against their deportation. Such legal services may be granted “for up to (but no more than) 7 hours”. It’s not clear why we should see this limit on legal aid as generous. There have been limits before. The ones set in 2004, were five hours for solicitors to make an initial asylum application to the Home Office for their clients and a £1,600 limit on asylum work undertaken for an appeal. When it came to appeals, solicitors had to second-guess the appeal judge and only take cases they thought stood a more than 50% chance of winning. What happened next was that solicitors were often unable to complete the necessary work within the time limit and, not surprisingly, were often unlucky at second-guessing the learned judge. They began to shut down their immigration services. In Hull, by 2006, there were no firms specialising in immigration and asylum. One asylum support centre struck an agreement with a firm in Doncaster (60 miles away) to do weekly surgeries in Hull and a solicitor in Grimsby (30 miles away) took only paying clients (Mouncer, B., Dealt with on their Merits, para. 6.4.1, pp. 140-141: https://hydra.hull.ac.uk/assets/hull:2678a/content). Unsurprisingly, there are fears of a similar outcome this time round, which would leave the most vulnerable people without representation at a crucial stage in their search for protection.

Speed is crucial under the new policy, and Patel quickly makes that clear. The “more generous access to advice” will enable people to “provide evidence as early as possible and avoid last minute claims”. Consider the following scenario: you have been give a PRN (and therefore a cut-off date after which you will be deported); you decide to appeal; you miss the cut-off date. Your appeal will then be certified as “expedited” unless it is decided that there were good reasons why you were late. Who decides whether your reasons are good? If you thought it would be a judge, you would be mistaken. It is the Home Secretary who decides. The very same Home Secretary who refused your asylum claim in the first place. There is no guidance on what constitutes a good reason. The Home Secretary will decide for herself whether she is “satisfied that there were good reasons”, but we are not privy to the workings of her mind. But once her mind has worked on your reasons and she has decided she is unsatisfied with them, she will immediately speed up your appeal: “The Secretary of State must [my italics] certify [the claimant’s] right of appeal [as an expedited appeal]” (Nationality & Borders Act 2022, s. 23 (1) (new insertion 82A (2)).

So you may get to a final, speeded-up hearing. But beware: “… cases that do proceed to a final hearing … will be shorter and more focused” (Policy Statement, p.29). Why would that be? Well, cost is still crucial: “This more efficient appeals system will ensure better value for the taxpayer, [and] free up valuable judicial time …” (ibid.). And let’s not forget the theme that permeates this new policy, the need to stop people making dangerous journeys across the Channel in order to make “unmeritorious” claims and, now, to stop them making “unmeritorious appeals that can be a way of preventing removal” (ibid.).

Expedited appeals go to the Upper Tribunal, the last port of call (or the last-chance saloon), not the First-Tier Tribunal (which examines cases in detail and may grant further leave to appeal). Expedited appeals to the Upper Tribunal must be “brought and determined more quickly” than a First-Tier appeal (Nationality & Borders Act 2022 (NBA), s.23 (1) (inserted section 82A (4)). Moreover, although your solicitor can represent you in court and be present during any interview you have with Home Office caseworkers and others, you will have to pay for these services yourself since they are not part of the “more generous” legal advice package. (See NBA, s.25 (1) (inserted section 31ZA (5)).

But even First-Tier Tribunal hearings have been speeded up: they have been “streamlined” and the aim is to “deliver an efficient and transparent service … that is simple, fair and accessible for everyone” (to use the meaningless jargon of the Policy Statement (p. 29)). Appeals will be “progressed online where appropriate” and the issues dealt with will be “narrowed” (ibid.). In the context of this new policy, our fear must be that “narrowed” means “limited”, so that you won’t be able to raise all the issues you think are relevant.

On good reasons for being late:

• we discussed in an earlier blog how experiences of torture and abuse, including sexual abuse, and other experiences in their country of origin, and on their journey to escape it, often result in trauma and mean that people are reluctant to talk about them. It is only in desperation and at the last minute that they decide to do so;

• the asylum system is complex and some delays are no doubt unavoidable. But the House of Commons Home Affairs Committee report of July 2022 also identified some avoidable and long-term problems not yet tackled, including inappropriate software, poor processes, insufficient staff, worry among staff about meeting targets, inadequate “quality assurance” for standards resulting in errors, delays and more appeals. (Committee report, para. 6, pp. 7-8: https://committees.parliament.uk/publications/23102/documents/169178/default/).
• there is sheer incompetence on the part of staff running the system, which goes back a long way. In the early 2000s, I knew a Kosovan asylum seeker who had been in the UK for more than a year but was now detained, awaiting deportation, in the Pembury Hotel in Finsbury Park, North London — the Home Office had taken over the hotel and turned it into a detention centre for these purposes. When she arrived her caseworker at the hotel, Alistair, told her that her files were missing and he had no idea where they could be or what they said about her. They were subsequently traced. They were, he finally told her, in the office in Brixton, South London. What to do? Alistair knew immediately: she must go and pick them up in Brixton and bring them back to him now. And this is what happened. Such shenanigans produce delays;

• there is a level of disrespect for asylum seekers amounting to hostility among Home Office staff which also goes back a long way, with consequential errors and delays. One asylum seeker received a refusal letter from his caseworker but he didn’t understand it. So he asked his solicitor to explain it. The solicitor began to read the letter until she suddenly saw the words “With regard to your claim to be a national of Afghanistan, the Secretary of State thinks that this is a pile of pants” (

The Guardian

• , 16 December 2000:

https://www.theguardian.com/uk/2000/dec/16/immigration.immigrationandpublicservices?CMP=Share_iOSApp_Other

). It is difficult to see how any asylum claims entrusted into this caseworker’s care were being taken seriously if this was the his approach. Such an approach must certainly cause delays.
• We have discovered that the “more generous” provision of legal services, including legal aid, is nothing of the kind. We have seen how the appeals process is now shortened and speeded up to get you out of the system and out of the country as soon as possible. This is particularly so in the case of expedited appeals. We have noted that, although the Act just about allows that you might have good reasons for missing the PRN cut-off date, it is the same Home Secretary who refused your original asylum claim, not a judge, who must decide whether your reasons are acceptable or should be dismissed. And we have seen how delays on your part are considered unacceptable almost by default while delays caused by the Home Office are ignored.
• This is all for now. More later.

Policy Statement:

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

Nationality & Borders Act 2022:

https://www.legislation.gov.uk/ukpga/2022/36/enacted