Safe routes (2)
If you are fleeing persecution in your own country and you want to apply for asylum in the UK, how do you do it safely? During a House of Commons debate on Channel crossings (see link below), Home Secretary Priti Patel gave the following assurance: the Nationality and Borders Bill, she declared, “does create safe and legal routes.”
It didn’t. And nor does the final Act.
In the same debate, the Conservative MP for Hertford and Stortford, Julie Marson, went further: safe and legal routes, she said, “are central and integral” to the Bill (ibid.).
They aren’t.
The debate took place on 5 November 2021. Home Office officials and ministers may have been surprised at Patel’s assertion — as it was certainly news to them. Still, they are pretty resourceful at the Home Office: by 5 April this year, junior minister Tom Pursglove was able to tell the charity MSF UK that safe and legal routes “do not form part of the Bill” (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).
And so it turned out.
Mind you, that didn’t stop the Home Office from publishing a “factsheet” with the title Nationality and Borders Bill: Factsheet. Safe and Legal Routes. It’s still on the Home Office website (see link below).
Misleading? Of course. That’s the Home Office.
In my previous blog, I tried to show a few of the problems associated with the various government schemes and their accessibility (https://bobmouncerblog.wordpress.com/2022/08/28/safe-routes-1/). Looking now at the government schemes described in the “factsheet”, it’s clear that many of the same problems raise their heads again. Top of the list is something called a “UK Resettlement Scheme”, which is described as a “global scheme” offering “safe and legal routes” to “the most vulnerable refugees around the world”. There is, however, a limitation on it which we’ve met before (ibid.): according to the government’s Policy Guidance to its resettlement schemes (see link below), the UK “will only resettle those determined by UNHCR to be refugees” (p. 3). We’ve seen that UNHCR referral comes in three forms: self-referral, internal referral and NGO referral, and we’ve also seen some of the obstacles to engaging with this process.
The “factsheet” gives another warning:
The number of refugees we resettle every year depends on a variety of factors including local authorities’ capacity for supporting refugees and the number of community groups willing to take part.
This seems to raise a question about the effectiveness of the next item on the “factsheet’s” list, the Community Sponsorship Scheme. This scheme claims to “enable communities to welcome and support people resettled to the UK through their eligibility for the Afghan Citizens Resettlement Scheme”. Yet the “factsheet” warning suggests that such “enabling” does not include increasing the resources of local authorities to do the job or give any similar encouragement to community groups. Such groups should, it seems, already have increased their own resources:
Community sponsor groups need to demonstrate that they have suitable plans and resources in place to support a refugee or family.
The positive note in this second scheme is also undermined in that “eligibility” must surely be dependent, as in the first scheme, on UNHCR referral.
There are several other schemes in the “factsheet” of varying relevance and one (the route for British National (Overseas) status holders (BN (O)) has no relevance at all here. It may be that some schemes work for some people. But beware — a pattern has emerged which we would be foolish to ignore: a more detailed look may reveal that they have also been undermined in some way, like the first two. We may have reason to come back to them but, for now, they needn’t detain us any further.
So in terms of practicalities, what’s the situation on the ground? If, for example, you are a member of a minority ethnic group, about whom the government claims to be “particularly concerned”? Like the Hazaras. The Hazaras faced discrimination and violence in Afghanistan long before the Taliban came on the scene and, as DUP MP Jim Shannon told MPs in a debate on 6 January 2022, when the Taliban ruled the first time Hazaras “faced targeted violence, and many fled as refugees … in search of safety” (see link below). But the Taliban returned to power in August 2021 and, by the time of the debate, Shannon’s concern was that
There has been a resurgence of attacks on the Hazara community since the Taliban took control of Afghanistan. Hazara schools and religious sites have been bombed, medical clinics have been targeted, and Hazara civilians have been murdered by the Taliban and ISIS-K (ibid.).
These concerns were shared by Labour MP Fleur Anderson, who worried that Hazaras in the UK
have no way of knowing whether their family members are in the system … It is very unclear whether these people are going to be safe despite the fact that they are in hiding and in fear of their lives” (ibid.).
Little seems to have improved since then. It is still the case that if you are a UK citizen anxious to bring close family relatives to safety in the UK in the current Afghanistan crisis, you could be forgiven for abandoning hope. The Afghan Pro Bono Initiative (a partnership of NGOs and law firms which offers free legal support in such cases) gives the following advice:
[T]he routes to the UK are incredibly limited. The route for bringing adult dependent relatives to the UK is extremely difficult and unlikely to be successful — there is a very high fee for the applications and the applicants have to prove they need care from the family member that they cannot obtain elsewhere (Pro Bono Initiative advice to a prospective client).
The “high fee” for the application will go to the Home Office which, in more ordinary circumstances, charges high fees at every stage of a family reunification procedure. What we have here, though, are not ordinary circumstances and the Home Office, rather than rising to the humanitarian occasion, has instead seized this new opportunity to cash in on human distress and desperation. There is also an additional obstacle: your family members must have some special need (unspecified, for flexible refusal purposes) before they stand any chance of being accepted. So much for the “right to family life” (European Convention on Human Rights, Art. 8; this is signed by all 47 members of the European Commission (including the UK), so is not confined to EU members and is unaffected by Brexit). Moreover, when it comes to particularly vulnerable people, nine expert groups on Afghanistan, in a parliamentary briefing in early August,
criticised the British government’s resettlement schemes as “unjustifiably restrictive”. They said it was deeply concerning that the government was currently not offering a safe route for many Afghan women and girls or to oppressed minority groups (The Guardian, 15/8/2022: https://www.theguardian.com/uk-news/2022/aug/15/uk-treatment-of-afghan-refugees-continues-to-be-source-of-shame?CMP=Share_iOSApp_Other
It also seems that only the simplest possible case stands a snowflake’s chance of success. Pro Bono told one enquirer (a Hazara) that “unfortunately we are not able to assist because … the nature of your case is very complex.” It involved just four close family members. As to urgency, one of them was a child, a girl.
Look out next for Ukrainian refugees.
References
Channel crossings debate
Commons Hansard, 25/11/2021: https://hansard.parliament.uk/commons/2021-11-25/debates/68AB08E2-DD41-4674-B7B1-602A7375524F/EnglishChannelSmallBoatsIncident#contribution-16AA51EB-AB65-4EE2-BA5D-F60E081717B6)
Policy guidance to resettlement schemes
Factsheet
Jim Shannon Debate
Safe routes (1)
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.
Criminals, crime and business models
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.
So you want to appeal, do you? (2)
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:
- ). 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:
Nationality & Borders Act 2022:
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:
WHY THIS ACT HAS TO GO
Home Secretary Priti Patel’s immigration bill has passed through parliament and has received the Royal Assent. It is now law. It’s called the Nationality and Borders Act (NBA) and is bad news for us all, but especially for anyone forced to flee persecution.
The UK long ago signed the 1951 Refugee Convention but some believe that the passing of this Act is a prelude to the present government withdrawing from it. Others predict that the UK will be forced out for breaching it.
What is so objectionable about the Act?
First, although the Act seems to accept the Refugee Convention’s definition of a refugee — i.e. someone who is outside their home country, has a “well-founded fear” of persecution in that country and is, for that reason, “unwilling” or “unable” to return there (Refugee Convention, Art. 1 (A) (2); NBA s.32 (1)) — it immediately starts to make refugee protection in the UK impossible to achieve for most people who need it. At the heart of the Act is a two-tier system which discriminates between refugees, depending on how they travel to the UK. If you have a passport and you come on a regular flight or cross the Channel on EuroStar, and you apply for asylum soon after you arrive, the Act presents no obstacles at this stage. Likewise, if you travel by some kind of official route — a government resettlement scheme or a family reunion scheme, or a scheme related to a specific crisis in a particular country or region — once again the Act presents no obstacles at this stage. In both these cases, if your asylum claim is accepted, you will be classed as a Group 1 refugee and given Indefinite Leave to Remain (ILR). If you have arrived on a resettlement scheme you may have already been granted refugee status before you set out on your journey. With ILR, you will also have the right to work and to apply for family members to come to join you. If, however, you don’t have a passport, and you’re not travelling by an official route, you will have problems. Unable to get a genuine passport in your own country due to persecution, you may have managed to get a false passport (which, if it isn’t spotted as false in the course of your journey, will probably be identified as false on your arrival in the UK). Or you may simply have travelled the best way you could (by walking, hitch-hiking, or maybe paying an agent to get you through part of your journey across continents or across the Channel. Many refugees fleeing persecution and violence travel in these ways because to do so is their only option and the official schemes and routes are few and limited. But if you do, you will be classed as “unlawful” immediately on arrival. In the words of the Act:
… 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 (NBA s.12 (4).
In similar vein:
A person who (a) requires leave to enter the United Kingdom under this Act, and (b) knowingly enters the United Kingdom without such leave, commits an offence (NBA s. 40 (2) (B1).
It is worth pausing here to look at what the Refugee Convention says about penalties for illegal entry. It says there shouldn’t be any penalties. States that have signed the Convention
shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence (Refugee Convention, Art. 31 (1).
So no passport no penalty. It begins to look like the penalty for illegal entry may itself be illegal, and we may expect it to be challenged in the courts. But as things stand, having been defined as “unlawful”, if you now apply for asylum you will be put into an immigration reception centre while you wait for a decision on your claim. On the face of it, this may sound like a reason to be hopeful. But we will see that the system is not as straightforward as that and you shouldn’t be so positive so soon. For one thing, the process is supposed to take up to six months, but may last considerably longer. At the end of it your claim may be refused. In that case, apart from a possible right of appeal, you will be considered ripe for detention pending deportation.
However, even if you are granted asylum at the end of this decision-making process, you will not be given refugee status as it was defined before this Act was passed. You will instead be punished for the way you travelled to the UK: you will be classed as a “Group 2 refugee” (NBA s.12 (5)) with very limited rights. They will be limited because the Home Secretary is specifically empowered by the Act to limit them. Section 12 of the Act allows the Home Secretary to treat Group 2 refugees differently (i.e. less advantageously) in terms of the length of their right to remain, the requirements they must fulfil in order to get ILR, and whether they have access to public funds (i.e. whether they can claim state or other benefits). The Home Secretary has the same powers over the refugee’s family (i.e. whether they would be entitled to enter, or remain in, the UK, what requirements they must fulfil and whether they would have access to public funds (NBA s.12 (5), (6)). Yet UNHCR is clear: it “reiterates that the attempt to create two different classes of recognised refugees is inconsistent with the Refugee Convention and has no basis in international law” (UNHCR Observations on the Nationality and Borders Bill, para 8).
The Act falls foul of the Convention and of international law in another respect. You may also find yourself, as an “unlawful” traveller, in yet another category. Your claim may be “inadmissible” if, on your journey to the UK, you passed through another “safe” country where you might have applied for asylum, but didn’t (NBA ss. 16-17). When the UK was in the EU the rules of the Dublin Convention allowed the government to send asylum seekers back to the first safe country they had passed through. So if you had passed through France, you could be sent back to France to make your claim there. But we have left the EU and the Dublin Convention no longer applies. So shouldn’t your claim, in these circumstances, now be admissible? And can’t it now be considered?
No, it can’t. Because the new law (apparently substituting itself for the now-disappeared Dublin Convention) says that you have a “connection” to that “safe” country and should apply for asylum there, not here (NBA s.16). In the words of the Act itself, you were “previously [i.e. during your journey] present in, and eligible to make a relevant claim to,” that country (NBA s.16 (80C) (4)). However, in its observations on the Bill in 2021, UNHCR made clear that the “first safe country” principle
is not found in the Refugee Convention and there is no such requirement under international law. On the contrary, in international law, the primary responsibility for identifying refugees and affording international protection rests with the State in which an asylum-seeker arrives and seeks that protection (UNHCR Observations, para. 3).
So, once again, the Act could well be in breach of the Refugee Convention and found to be breaking international law.
Moreover, the Act is silent about what should actually happen to you once it has declared your claim to be “inadmissible”. For the government hoped, in the absence of the Dublin Convention, for agreements with other “safe” countries where asylum seekers could be sent. Unfortunately for the government, no state seemed interested, either within the EU or outside it. All the government could say about declarations of “inadmissibility” was that there is no right of appeal against them, on the grounds that appeals are made against refusals of claims after they have been considered and these claims haven’t been considered because they have been declared “inadmissible”. In the words of the Act: “A declaration … that an asylum claim is inadmissible is not a decision to refuse the claim and, accordingly, no right of appeal … arises” (NBA s. 16 (80B) (3)).This tricky, not to say devious, argument left these particular asylum seekers in an impossible position: they were “unlawful”, their claims couldn’t even be examined, and they had nowhere to go.
At least, not until Rwanda came on the scene. The UK government has reached a “Memorandum of Understanding” with Rwanda in which Rwanda
commits to receive asylum seekers from the United Kingdom, to consider their claims for asylum, giving effect to their rights under international law through the Rwanda domestic asylum system and arranging for the settlement in Rwanda of those recognised as refugees or otherwise requiring protection … (Memorandum of Understanding, para. 1.1).
Apparently the asylum seekers chosen for despatch to Rwanda will be the “unlawful” ones “whose claims are not being considered by the United Kingdom”, so they will be, at the very least, the “inadmissible” ones who failed to stop in France, Germany, Spain, Italy, etc., to claim asylum there, but there is no clarity about which asylum seekers will eventually be sent to Rwanda. Whoever they are, Rwanda will “process their claims and settle or remove (as appropriate) individuals after their claim is decided” (Memorandum, para. 2.1). Those granted asylum will not be returned to the the UK. Rwanda will arrange their “settlement” in Rwanda. Some of those whose claims are refused may also be “settled” in Rwanda, but others will be deported (“removed”). It is not clear where they will be sent.
There have been numerous concerns raised about this deal, not least about Rwanda’s own human rights record (Rwandans themselves apply for asylum in the UK) and about the legality of the “Arrangement”. The Memorandum itself states: “This Arrangement will not be binding in international law” (Memorandum, para. 1.6). Advocacy groups have talked of legal challenges but it may be difficult to do so. The Memorandum also declares that
the commitments set out in this Memorandum … do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals (Memorandum, para 2.2).
I will try to deal with some of this in a later blog. For now we can assume that other “Agreements” with other countries are in the pipeline. The British Overseas Territory of Ascension Island has been mooted as a destination for offshoring asylum claims, and with Denmark reportedly interested in doing such deals with Tunisia, Egypt and Ethiopia the UK is unlikely to be far behind.
Secondly, there is another danger faced by anyone who applies for asylum in ways that have now been defined by the Act as “unlawful”: they may find themselves facing a prison sentence. They may be charged and taken to court and, if found guilty, they would be “liable on summary conviction [in a magistrates’ court] to imprisonment for a term not exceeding twelve months or a fine (or both) …” (NBA s.40 (2) (F1A)). Even more seriously, if they are convicted on indictment (in the Crown Court), they may face prison for up to four years, or a fine, or both (NBA s.40 (2) (F1) (d) (ii)). It’s not clear whether this process applies both to refused asylum seekers and Group 2 refugees or to just one of these categories of people. This is quite something when, according to the Refugee Convention, there shouldn’t be any penalties at all.
In the next blog I will look a bit more at what refusal means for the “unlawful”.
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