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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
Deterrence and punishment (2)
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:
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
Deterrence and punishment (1)
This is the fourth blog on the new UK Nationality and Borders Act
Home Secretary Priti Patel is clear about one thing: making refugees who arrive in small boats illegal, unlawful or inadmissible, and making it easier to deport them, is essential in order to stop the criminal networks’ trade and “break their business model” (Policy Statement, p. 18: see link below). These measures will save refugees’ lives by deterring them from taking these illegal routes. The criminal networks not only put migrants’ lives at risk, they are also responsible for other illicit activities (she gives the examples of drug dealing, firearms trading and the spread of serious violent crime) and this leads to unsustainable pressure on public services (ibid., p. 17). Patel also believes that most migrants who arrive in small boats are not refugees. She describes them in these terms:
Because of the various ways in which people with no right to be in the UK can frustrate their removal by filing an asylum claim, the system creates perverse incentives for economic migrants to pay criminals to facilitate dangerous and illegal journeys into the UK and then claim asylum on arrival (Policy Statement, p. 17).
So the new measures that punish refugees are justifiable as far as she is concerned on these grounds too.
Her ignorance is profound. She identifies them as “economic migrants” with no history of persecution or discrimination and no need of protection. Not only does she fail to understand that economic hardship too often forms part of the persecution and discrimination experienced by refugees but she also has the highly questionable belief that most people who take long, dangerous and life-threatening journeys to claim protection do not need to do so and are not desperate people but more like casual opportunists who put their own and their children’s lives at risk for no good reason. However, when she claimed that 70% of arrivals in small boats “are not genuine asylum seekers”, data from the Home Office itself showed that nearly two-thirds of them had been judged to be genuine and given protection (The Guardian, 20 November 2021: https://www.theguardian.com/uk-news/2021/nov/20/home-office-covering-up-its-own-study-of-why-refugees-come-to-the-uk?CMP=Share_iOSApp_Other).
But Patel insists that her view is correct and that people who travel in this “irregular” fashion make it more difficult for vulnerable genuine asylum seekers to get their claims heard. The solution is simple: if migrants know that they will be either sent back to where they came from, be forcibly deported to Rwanda, be sent to prison or at best be given temporary protection for a maximum of just 30 months before being deported, they will be deterred from paying criminal gangs to get them across the Channel. This will, it is claimed, destroy the criminals’ “business model”. Problem solved.
That is what Patel thinks and that is what government ministers repeated endlessly after an injunction from the European Court of Human Rights eventually forced the government to cancel the first refugee-deportation flight to Uganda on 14 June 2022.
Who is targeted by this policy?
In her Policy Statement, Patel seems at first to be targeting the criminal networks:
To protect life and ensure access to our asylum system is preserved for the most vulnerable, we must break the business model of criminal networks behind illegal immigration (Policy Statement, p.18).
She then proposes eight reforms to achieve this aim (ibid.):
- Ensure that any refugee who has, on their journey to the UK, passed through a safe country but didn’t apply there for asylum is put into the “inadmissible” box so that their asylum claim will not be considered in the UK.
- Rapidly remove these “inadmissible” people back to that “safe” country or another “safe” country. (NB: a mutual agreement between the UK and that country is required before this can happen and the only country to sign such an agreement so far is Rwanda.)
- Introduce temporary protection status (for no more than 30 months).
- Build more reception centres (otherwise known as detention centres or removal centres).
- Introduce “offshoring” of the asylum process, allowing asylum claims to be decided abroad. This process will be conducted not by UK officials but by officials of the country concerned (currently Rwanda), who will also be responsible for either settling the refugees in that country or deporting them to another.
- Reduce to 12 months the threshold prison sentence after which convicted prisoners may have their refugee status revoked. We will need to consider this question later, but for now we should note that it seems to have nothing to do with newly arrived refugees in small boats.
- Change the UK’s interpretation of the words “well-founded fear of persecution” in the Refugee Convention (Art. 1) to make it more difficult to prove.
- Make the age-assessment process “robust” (Patel gives the impression that “robust” means “more accurate” but we will need to question this in a later blog as it relates to children currently being wrongly assessed as adults).
Unfortunately, just one glance at this list makes it clear that the proposals don’t target criminal networks at all — they target and punish their victims. You will be punished for not claiming asylum in another country, punished by being put in a detention centre (refugees accurately describe these places as prisons), punished by being sent to Rwanda, punished with only temporary protection even if you’re recognised as a refugee. There is, however, no sign so far of punishment for criminal networks.
Next blog: Deterrence and punishment (2)
Patel, P. (March 2021), New Plan for Immigration: Policy Statement
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:
Out of sight, out of mind: the fate planned for refugees
Discreet talks with the government in Tirana to establish an asylum centre are under way. After a series of frustrations in talks with other countries to host migrants, cabinet hopes of a deal with Albania are growing (The Times, “Migrants to be held in Albania”, 18 November 2021).
There’s one law for them …
Alok Sharma, the government minister and President of the upcoming COP26 climate change conference, has travelled to 30 countries in the past 7 months. Six of those countries were “red list” countries. And he didn’t have to isolate when he came back.
Did he travel to all those countries? Yes, he did – despite the fact that most foreign travel was banned during this period; despite the fact that “the aviation industry produced 915m tonnes of CO2 in 2019, equivalent to 2% of all human-made CO2 emissions”; and despite the fact that the alternative to travel of virtual meetings and conferences is now common practice everywhere; and despite the fact that he’s President of COP26 and last month said that “we all need to play our part” in taking measures to stop the climate crisis, and encouraged small changes which could make a difference.
So they could, Alok, so they could.
Was he exempt from the requirement to isolate? Is that really true? Yes, it is.
The government’s official Guidance to Crown servants (and that includes Alok) sounds OK to start with:
You need to quarantine in a government approved hotel if you have been in a country on the travel ban red list in the 10 days before you arrive in the UK …
There’s no way out of that, then, is there? Yes, there is. The Guidance goes on to say that if “a relevant department of the UK government has certified that you are not required to do so” then you are not required to do so. This is because you are
a Crown servant or government contractor travelling to the UK for essential government work or returning from such work outside the UK, or
returning from conducting essential state business outside of the UK, or
returning to the UK where this is necessary to facilitate the functioning of a diplomatic mission or consular post of Her Majesty or of a military/other official posting on behalf of Her Majesty.
And they will certify you simply by sending you a letter. Still, Alok might get caught under the next rule:
Even if you do not need to quarantine in a managed quarantine hotel you may still be required to quarantine in the place where you are staying.
However,
You do not need to quarantine in the place where you are staying if a relevant department of the UK government has certified to that end that you are:
a Crown servant or government contractor travelling to the UK for essential government work, or
returning from conducting essential state business outside of the UK, or
returning to the UK where this is necessary to facilitate the functioning of a diplomatic mission or consular post of Her Majesty or of a military/other official posting on behalf of Her Majesty.
Whew! Lucky escape, Alok.
Still, like everybody else, he will still have to be tested for the virus when he gets back to the UK, won’t he? After all:
You are expected to complete tests on day 2 and day 8 where reasonably practicable [after your return] …
However,
you will not need to complete the mandatory testing requirements if a relevant department of the UK government has certified that you are:
a Crown servant or government contractor travelling to the UK for essential government work, or
returning from conducting essential state business outside of the UK
and you do not need to quarantine in a managed quarantine hotel or the place where you are staying as a result.
That must be a relief.
Finally, what about the rules on “covid testing before entering England”? Well, Alok would need to be specifically certified to escape this, but that wouldn’t be a problem. He would just need another letter:
The relevant department of the UK government will issue you with a letter certifying that you fall within one of the categories above and that you are not required to comply with the requirement.
So that’s all done and dusted, then. No quarantine, no testing, go where you like, as often as you like, no problem. Still, our hero did wear a mask on his journeyings apparently, so that’s something.
It was just a mask though. To hide the fact that there’s one law for us, and a whole raft of exemptions for them.
Government Guidance:
Abstaining is not an option – Labour must reject Patel’s Bill
I’ve written to Labour’s Shadow Home Secretary, Nick Thomas-Symonds, and my local MP, Emma Hardy, asking them to make sure that Labour votes against Priti Patel’s new asylum Bill.
Scrutiny of the Nationality and Borders Bill begins tomorrow (19 July). It is of particular interest to me because of my earlier research at Hull University on the treatment of asylum seekers. My particular concern today is that Labour should give no credibility to the Bill. In particular Labour shouldn’t abstain at any point on the grounds that “we understand voters’ concerns”. Labour did this on the Welfare Bill in 2015 and the front bench tried to do it on the Immigration and Social Security Bill in, I think, 2017. But it is time to stand up for a few principles now and not just run scared. The current Bill is the worst Bill of its kind that I can remember and it will do untold harm to people from the moment it becomes law. Labour should have no truck with it from day 1.
I’ve looked at the Bill itself now, so I thought I’d make some preliminary comments. I will focus on Part 2, which is about asylum, but for now I will only mention a couple of points.
Section 10 is unacceptable from the outset: it immediately creates two groups of refugees. Group 1 refugees are legal; Group 2 refugees are not. They are “unlawful”. What makes them unlawful is, according to s.10 (4), because “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.” This new definition of “unlawful” makes the vast majority of asylum seekers illegal. The Bill achieves this end, in part, because it creates an entirely new offence. According to s.37(2), (C1), a person who
“(a) requires entry clearance under the immigration rules, and
(b) knowingly arrives in the United Kingdom without a valid entry
clearance,
commits an offence.”
Plus, according to s. 37 (3):
“In proceedings for an offence under subsection (C1) above of
arriving in the United Kingdom without a valid entry
clearance … (b) proof that a person had a valid entry clearance is to lie on the defence.”
This offence of “arriving in the UK” is a new offence, created by this Bill. According to criminal defence barrister Aneurin Brewer, the current situation is that
“those who merely arrive, immediately claim asylum and are as a result admitted to the UK while their asylum claim is processed have not entered the UK illegally.” https://www.freemovement.org.uk/prosecutions-for-assisting-unlawful-immigration-in-small-boats-cases-the-key-to-acquittal/
If this Bill is passed, they will have done so and thus, although the Bill doesn’t breach Convention Article 31 (1) according to Patel’s narrow and restrictive interpretation, it certainly ignores the spirit of UNHCR recommendations on applying a “flexible and liberal” approach and on giving “the benefit of the doubt”.
Patel is legally entitled to do this. It may be worth bearing in mind that the Refugee Convention is not a perfect instrument for protecting refugees. Its final form was the result of a deal. Every state wanted to limit its obligations to give protection to refugees. So the Convention and UNHCR’s Guidelines, despite talk of liberality and benefit of doubt, provided them with caveats and ways of avoiding their responsibilities. One example of this is Article 31(1). While it is generally interpreted as prohibiting governments from imposing any penalties on asylum seekers who arrive without passports or other travel documents, governments generally do impose penalties because the article talks of asylum seekers who come “directly” from the country of their persecution and refers to illegal entry. The word “directly” can be interpreted to mean that penalties can be imposed if the asylum seeker comes to the UK and passes through another “safe” country where, it is always assumed, they could have claimed asylum. This interpretation of the word “directly” was probably the reason why the Dublin Convention, now not applicable after Brexit, was not regarded as a contravention of the Refugee Convention. one of the things Patel is proud of doing in this Bill is making this requirement part of UK law now, thus dealing with the “problem” of the disappearance of the Dublin Convention after Brexit.
So what I’m saying is that, in principle, the Convention seems to establish the primacy of refugee protection, but in its detail and in practice it has proved to be ambiguous and open to a variety of interpretations. UNHCR “advocates that governments adopt a rapid, flexible and liberal process” when dealing with asylum applicants because it recognises “how difficult it often is to document persecution”. However, its interpretation of the Convention contradicts this stance. In its definition of a refugee, the Convention’s reference to persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion” suggests the possibility of group persecution and a collective refugee experience. But, when interpreted by UNHCR, the definition turns out to be based on a concept of persecution in which the burden of proof falls on the individual asylum seeker. Thus people “who apply for refugee status normally need to establish individually that their fear of persecution is well-founded”, i.e. they must provide evidence that it is not just their social group, members of their political party or people who share their religion or ethnicity who are in danger but themselves as individuals. I have sat in a good few solicitors’ offices listening to them explaining to their clients how their letters, newspaper reports, and their photographs are absolutely not proof. A “flexible and liberal process” becomes less likely as governments demand this rigorous standard of proof. To put the burden of proof on refugees is to consider them guilty until proved innocent.
But Patel is clearly entitled to do what she’s trying to do here. She can invent laws and move the goalposts, she can choose only to follow the UNHCR advice that suits her and ignore the rest. But I think Labour should do its best to stop her. It should, if it can’t eliminate all her hostile purposes from the Bill, vote against the whole shebang and campaign loudly against it from the start. It should never abstain. Not just because of the Refugee Convention, important though that is. But because of the principle of refugee protection and the defence of human rights.
Public inquiry into Covid must begin now, says senior judge
Well, there’s a turn-up for the books. According to this story (below), Sir Robert Owen will brook no delay: he wants an inquiry now. Sir Robert is, of course, right — but he’s retired and who’s going to take notice of a retired judge? Not Johnson for sure. Neither will he listen to
the Royal College of Nursing, Bob Kerslake, the former head of the civil service under David Cameron, Angela Rayner, the deputy Labour leader, and Ed Davey, the leader of the Liberal Democrats.
It’s good of Sir Robert to suggest a “duty of candour”, to be put in a charter and applied to all inquiries. But what good would that do? Most of us might assume that a duty of candour is a given — otherwise what’s the use of a sodding inquiry in the first place? And what difference would it make if it was written down? If they want to be candour-free, they will be candour-free:
Lord Justice Cholmondeley-Grimwood: I must remind all parties to this inquiry of their duty of candour throughout these proceedings.
Counsel for the government: My Lord, my clients assure me that they have been working incredibly hard to ensure that candour is at the very heart of their approach.
This perfect example of a lack of candour will continue “throughout these proceedings”, as his Lordship might put it.
Candour excluded.
Government exonerated.
Justice denied.
Public inquiry into Covid must begin now, says senior judge
https://www.theguardian.com/uk-news/2021/jun/24/public-inquiry-into-covid-must-begin-now-says-senior-judge-sir-robert-owen?CMP=Share_iOSApp_Other
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