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While the world burns
https://www.theguardian.com/environment/2023/dec/15/fossil-fuels-how-a-huge-gamble-sealed-cop28-deal
The story told in this article about a “chance” meeting between US climate envoy John Kerry, a prince and a sultan is pure theatre. The wording of the final document is a con-trick that any old confidence trickster would be proud of. The “world’s governments” would now “call on countries” to
begin “transitioning away from fossil fuels in energy systems, in a just, orderly and equitable manner, accelerating action in this critical decade, so as to achieve net zero by 2050 in keeping with the science”.
This was a “signal”, said the Head of the UN’s development programme, that “the world is moving beyond the fossil-fuel era.”
It wasn’t. It is a promise that will easily be broken by those who made it, while all the time pretending to have kept it. “We never promised a magic bullet,” they will say, “just that we would be transitioning.” Oh, and “accelerating” something or other. They will no doubt be thankful that there aren’t any targets for them to meet, no timetable. Nothing.
The wheelers and dealers of COP28 are, in a phrase used here in the city of Hull, “having a laugh”. Whatever their rhetoric, this is where the Saudis and the most powerful states always intended COP28 to end. The rest is theatre, pantomime.
Anne Rasmussen, of Samoa, speaking for the small island states, said that the agreement did not go far enough:
We have made an incremental advancement over business as usual when what we really needed is an exponential step-change in our actions and support.
Yes, you do need that, Anne. But you’re being too generous. There was no “incremental advancement over business as usual”, as we will see next year when all the bigwigs come together again, saying “We failed to make progress; we are on the edge; this is our last chance.” And John Kerry will smile his smile and go for another impromptu meeting.
I hope I’m not being cynical. It’s just that I saw this headline this morning:
Cop28 president says his firm will keep investing in oil
Exclusive: Sultan Al Jaber says Adnoc has to meet demand for fossil fuels, and hails ‘unprecedented’ Cop deal
Telling the truth: the undiplomatic diplomat
Following the horrors of the Hamas attack on Israel and Israel’s collective punishment of innocent civilians in Gaza in response, Craig Mokhiber, director of the New York office of the UN High Commissioner for Human Rights until yesterday, has said four things some of which, up to now, have been almost unmentionable. But, daring to say them, he is certainly a hero.
He has accused Israel of genocide in Gaza. You’re not allowed to even suggest that Israel could ever be guilty of genocide or ethnic cleansing, after the mass slaughter of the Jews in the Nazi Holocaust. But Mokhiber says what is happening in Gaza is “a textbook case of genocide”, and he also accuses the UN of failing to prevent it.
He accuses “the US, the UK and much of Europe” not only of that failure but also of “arming Israel’s assault and providing political and diplomatic cover for it.”
He says:
The current wholesale slaughter of the Palestinian people, rooted in an ethno-nationalist colonial settler ideology, in continuation of decades of their systematic persecution and purging, based entirely upon their status as Arabs … leaves no room for doubt.
He suggests a solution:
We must support the establishment of a single, democratic secular state in all of historic Palestine, with equal rights for Christians, Muslims, and Jews … and, therefore, the dismantling of the deeply racist, settler-colonial project and an end to apartheid across the land.
These are the things he’s said.
He’s a hero.
Top UN official in New York steps down citing ‘genocide’ of Palestinian civilians: https://www.theguardian.com/world/2023/oct/31/un-official-resigns-israel-hamas-war-palestine-new-york?embed=true
No change from Labour, whatever the Observer says
The Observer article below welcomes Labour leader Keir Starmer’s statement on Labour’s approach to small boats, people smugglers, deportations and refugee policy generally. In contrast to the left’s view that there is little to “differentiate a possible future Labour government from the present Conservative one”, it claims to detect “a sharp dividing line between the government and Labour on asylum policy.” It says Labour is offering a humane, pragmatic and commonsense approach in contrast to the Tories’ populism and its “cruel, unworkable policy”.
The paper is right to say that the government has removed the right of all migrants who have arrived in small boats to claim asylum, when most of them would qualify for refugee status if they did; it is right to deplore the measures the government have introduced “to detain them until they can be deported to another country for their claim to be processed”; in the light of the government’s keenness to deport asylum seekers it deems to be “illegal”, the article is right to point out that no deportation deals have been achieved with any country except Rwanda (and the Supreme Court has yet to rule on the legality of that deal); it is also right to criticise the backlog the government has allowed to develop in the processing of asylum claims, so that “83% of claims made in 2018 had not been processed five years later”. The article is right to condemn the Tory policy package.
But the Observer is wrong to say that the “real difference” between Labour and the Tories is that Labour “would scrap the government’s unworkable and cruel detention and deportation policies, restoring the right of people to claim asylum in the UK.” It will do this, the Observer seems to believe, by investing in “1,000 extra case workers and a returns unit of 1,000 staff to process claims much more quickly and deport those whose claims are rejected.” This would work because Labour would come to a deal with the European Union (EU) “in which the UK would accept a quota of refugees in exchange for being able to return those who cross the Channel in small boats.” But even if such a deal could be reached, we would still be left, under Labour, with the same old “detention and deportation” policy. None of the refugees in small boats will have their claims considered here. If the Observer thinks that shunting vulnerable and desperate people around Europe as they wait for decisions on their future is what it calls “a far better approach”, so be it. The refugees may not agree. Moreover, in the same article, the Observer admits that “pan-European cooperation has never worked well in the bloc and has broken down further in recent years.” The Observer must know it’s clutching at straws.
But there is one thing Starmer has to do before we can believe in this tale of “differentiation” between Labour and the Tories on asylum. He has to commit the Labour Party to repealing the Illegal Migration Act 2022. While the Act remains, Tory policy remains unchanged. Unless it is repealed, there can be no “differentiation” between the parties. In its guidance to the Act, the government makes clear that
anyone arriving illegally in the United Kingdom will not have their asylum claim, human rights claim or modern slavery referral considered while they are in the UK, but they will instead be promptly removed either to their home country or to a safe third country to have their protection claims processed there. (https://www.legislation.gov.uk/ukpga/2023/37/notes/division/3/index.htm)
Obviously the Act must be repealed. But both Starmer and shadow immigration minister Stephen Kinnock have refused to commit to repealing it. While it stands, so does the policy.
The article begins by setting the “Observer view” in the context of Starmer’s political approach as a whole. Keir Starmer, it says,
has made clear that under his leadership a first-term Labour government would stick to tough fiscal rules, and has ruled out making any unfunded spending commitments in the run-up to the next election. That has fuelled criticism from some on the left of his party, who argue that this has limited the extent to which he has been able to differentiate a possible future Labour government from the present Conservative one.
It says Starmer’s asylum policy makes Labour different. It doesn’t.
What that means for our voting intentions next year is up to us all. But it puts a very big strain on mine.
Incoherent, or just plain trickery?
It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination (section 2, Amendment 19B).
does not make it unlawful for [a minister, official, or caseworker] to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration and nationality functions (Amendment 19D).
to eliminate unlawful racial discrimination; and … to promote equality of opportunity and good relations between persons of different racial groups (section 2(1).
An end to trickery? The Refugee Council’s proposals
The Refugee Council’s proposals for a new. fairer asylum process (Towards a National Refugee Strategy) are below. But first:
The government says that there is no need to make a dangerous journey across the English Channel to seek asylum in the UK. Instead, refugees should use the safe routes provided by the government.
The numbers game and other trickery: virtually no safe routes
When the UK government set up the Afghan Citizens Resettlement Scheme in January 2022, it said it would resettle 20,000 people in an unspecified period of time. But it turned out that that number would include people already here before the scheme was announced, let alone set up, and who therefore had no need for protection under the scheme. By 23 February 2023, 7,609 of them had been included. This means that only 12,391 places were provided under the scheme, not 20,000.
Trickery? Of course. Here’s more:
Except for a small number of people under arrangements with the British Council and others, there is no way for an Afghan nationals to apply to be included in the scheme. This is why friends of mine were told by a legal firm that getting three vulnerable female members of their family out of Afghanistan and away from the clutches of the Taliban would be virtually impossible.
Here’s a bit more:
Another scheme (the UK Resettlement Scheme) replaced several resettlement programmes, including the scheme to rescue victims of the Syrian conflict. Good news? Not really. For this scheme, too, “has no application process”, says the Refugee Council (see Strategy, below, p. 6). So there are safe routes – but you’ll be lucky to get on one.
No wonder the English Channel is overcrowded.
Here are the Refugee Council’s proposals.
Where the NHS is going: they’ll give you a diagnosis – but no treatment
Yesterday I followed the advice of my local hospital’s Audiology Department (they fix hearing aid problems) and tried to book an appointment at the GP surgery to get my ears syringed. I wear two hearing aids. This increases the likelihood of a build-up of wax in the ears. Recently, this has made it difficult for me to use the phone and by yesterday it was impossible for me to understand the recorded voice on my local surgery’s answering system telling me to press this, that or some other key for this, that or some other service that I also, unfortunately, wouldn’t be able to decipher. But no problem: I went into the medical centre to make an appointment. They found me a slot in three weeks’ time. But the receptionist said it will be “for assessment only”. She repeated this as she booked the appointment — “it’s for assessment only, you understand, not treatment. We’ll be able to tell you where you can get treatment if it’s necessary.” In other words, at most surgeries, ear syringing is no longer available on the NHS.
I knew this already as it happens. Audiology had told me it would cost between £50 and £70. So I suppose I’ll get to choose which private outfit I fancy to do it. I suddenly had this memory of a friend of mine in the 1980s who did a pretty good impersonation of Margaret Thatcher haughtily explaining her vision for us all in the new world she was creating: “Choice — choice — we must have choice!”
So I’ve got an appointment in three weeks. Audiology said there might be an infection developing in one ear. If they do find one, I have to assume they’ll still be treating infections on the NHS then, although three weeks is a long time in politics, as the Labour prime minister Harold Wilson once told us (he didn’t actually — he said one week). Whether I’ll submit to private syringing is another matter. Perhaps it’ll be done in the little corner shop down the road that used to be a newsagent’s. Thatcher again: “We want to encourage small businesses.” It probably won’t be done there though. It’s more likely to be done by some big outfit, like a bank. Or Marks & Spencer’s. “Can I have Tesco’s Finest?”, I’ll ask.
Punishing refugees: a policy quietly dropped? No, it’s still a crime to travel by boat
According to the article below, the government has “quietly dropped” the policy they’ve been boasting about for months as the gold standard way of stopping asylum claims by people who have, in their desperation, crossed the Channel in small boats to get here. Originally, their claims for asylum were going to be heard but, even if they were successful, they would be granted “Group 2” status, get only temporary leave to remain and would soon be deported. Only those with passports or visas, or who had managed to find one of what the government calls its “safe routes” (they are becoming increasingly difficult to detect, even with up-to-date technology) would be given Group 1 status, indefinite leave to remain, the right to family reunification and eventually be able to apply for UK nationality. That was the plan. It was called “differentiation”. People who travelled in unauthorised ways had to be punished.
All this has now been “paused”, there will be no “differentiation”, according to Robert Jenrick, the Immigration Minister. Now, migrants who arrive on boats and get their asylum claims granted will get “the same conditions” as the ones with passports or visas, etc. Instead of being punished for travelling on a small boat across dangerous waters, Group 2 asylum seekers will be “aligned with Group 1”. Why the pause? The government claims it will speed up the processing of the backlog of 50,000 people who have been waiting since June 2022 for their cases to be decided. These include 15,000 from countries such as Afghanistan and Sudan, who are more likely to have their claims accepted and will now be processed through questionnaires rather than interviews.
But whatever the reason, Enver Solomon (Executive Director of the Refugee Council) is understandably relieved and has expressed agreement with the move: “It’s the right decision”, he said, “to pause the differentiation policy that treats refugees based on how they got to the UK rather than on their need for protection.”
But to leave it there, of course, would be to rejoice too soon, and the Refugee Council knows that. A pause is just that. A pause. And a Home Office spokesperson has already warned us that the Illegal Migration Bill, which is currently making its way through parliament, will definitely not be paused. Instead, the spokesperson reminded us, it will “make sure that people who come here illegally won’t have their asylum claim considered in the UK and instead can be detained and swiftly removed.”
That’s the policy. None of the politicians can stop it. Most of them don’t want to. The Labour Party is refusing to say whether it will repeal the Act in government. That means it won’t. Only the pressure of a mass movement against this cruel policy will get rid of it.
Can we build one?
Here’s a petition: https://petition.parliament.uk/petitions/634311
The Guardian article:
No repeal, no vote
I’ve just noticed that this year marks a kind of grim anniversary, one that we might want to forget. Just a decade ago, in 2013, Home Secretary Theresa May devised what would become the Immigration Act 2014 and explained its purpose in the following way:
“Most people will say it can’t be fair for people who have no right to be here in the UK to continue to exist as everybody else does with bank accounts, with driving licences and with access to rented accommodation. We are going to be changing that because we don’t think that is fair.”
She wanted to “create a really hostile environment” for illegal migrants: “What we don’t want”, she said, “is a situation where people think that they can come here and overstay because they’re able to access everything they need.”
The Act reduced migrants’ rights, including rights of appeal against deportation. It introduced a “deport first, appeal later” policy for people regarded as being at “no risk of serious irreversible harm” if returned to their country of origin: such judgments, made by caseworkers or Secretaries of State, are notoriously unreliable and dangerous. May’s legislation and her language were in line with a long-standing and nasty Tory approach to asylum and immigration. Her comments were reminiscent of a previous Home Secretary’s remarks, which referred specifically to asylum seekers: in 1995 Michael Howard had declared that the UK was seen as
“a very attractive destination because of the ease with which people can get access to jobs and to benefits. And while, for instance, the number of asylum seekers for the rest of Europe are falling the number in this country are increasing [and] only a tiny proportion of them are genuine refugees.”
Likewise, Social Security Secretary Peter Lilley told the Tory Party Conference in the same year:
“Genuine political refugees are few. The trouble is our system almost invites people to claim asylum to gain British benefits. That can’t be right – and I’m going to stop it. Britain should be a safe haven, not a soft touch.”
The hostile environment led to the Windrush scandal, in which long-standing UK citizens were told they had no such status and were deported to countries they knew nothing about. Some died as a result of the treatment they received at the hands of the woman who now, bizarrely, claims to defend the rights of smuggled children against the provisions of the latest two bits of Tory legislation to abuse, detain and deport some of the most vulnerable and desperate people in the world.
The new laws that have now been brought in by the Sunak government (the Nationality & Borders Act and the Illegal Immigration Act) are harsher and more cruel than anything even Theresa May dreamt of. The rhetoric that goes with them is nastier and more dangerous. We need to find ways of supporting victims of these policies. And the least we can do is put pressure on Labour MPs and, later, candidates in the 2024 general election, to promise to repeal the Tory Acts if Labour wins the election. Tell them: No repeal, no vote.
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So you want to appeal, do you? (1)
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
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