Home Secretary Priti Patel has announced an overhaul of the UK asylum system, which she says is “broken”. She says that when she’s finished her review the system will be “faster and fairer”. She is not the first Secretary of State to announce such a reform of the system and not the first to use that kind of language. In 1999, Labour’s Jack Straw announced that after his review the system would be “fairer, faster, firmer”.[1] Before him, Social Security Secretary Peter Lilley told the Tory Party Conference in 1995:

“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.”[2]

 In 2006, Labour Home Secretary John Reid described the immigration system as “unfit for purpose”, “dysfunctional” and probably needing “wholesale transformation”.[3] Now, after more than a decade of Tory government, Patel is at it again. And as she does it, we will see that she shares the hostility to asylum seekers shown by Lilley, which he in turn shared with Tory Home secretary Michael Howard, who declared in 1995 that the UK

“is 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.”[4]

To cite her predecessors is to suggest that her proposals are not particularly new. Yet their post-Brexit context has given them extra traction. The referendum campaigns to leave the EU (both the official campaign, Vote Leave, and the unofficial campaign, Leave.EU) argued their case on the basis of democracy. Boris Johnson claimed that the EU had become “ever more centralizing, interfering and anti-democratic … The independence of this country is being seriously compromised. It is this fundamental democratic problem – this erosion of democracy – that brings me into this fight.”[5] Thus we would be able to “take back control” of several aspects of our affairs, e.g. our laws, our justice system, our waters – but notably our borders. Both campaigns wanted to control migrants from the EU, but Leave.EU in particular (which was fronted by UKIP’s Nigel Farage) quickly extended this demand to all immigration, and Leave.EU’s “Breaking Point” poster, which depicted refugees from the Middle East in a vast queue at Europe’s borders, made the point with the slogan displayed on the poster: “We must break free of the EU and take back control”. Migrants were depicted (wherever they came from) as an economic threat to the working class and a security threat (through terrorism) to the country as a whole.[6] Perhaps not surprisingly, in the four weeks following the referendum result, there were 6,000 racist hate crimes recorded by the police. And in cases of verbal abuse there was evidence of how Brexit was thought by some to mean getting rid of all immigrants:

“A Sikh radiographer recounted how a patient asked, “Shouldn’t you be on a plane back to Pakistan? We voted you out.” In 51 per cent of the incidents, perpetrators referred specifically to the referendum in their abuse, with the most commonly involved phrases including ‘Go home’ (74 stories), ‘Leave’ (80 stories), ‘Fuck off’ (45 stories). These were followed up by statements such as ‘We voted you out’, ‘We’re out of the EU now, we can get rid of your lot’, ‘When are you going home?’ ‘Shouldn’t you be packing your bags?’ And then, in August 2016, six teenage boys were arrested in Harlow, Essex, for a brutal street attack on an Eastern European migrant after he was heard speaking Polish in the street. The man subsequently died. What is striking about this wave of racist violence was the way its perpetrators made little attempt to distinguish between black and brown citizens and white European migrants – in their eyes, they were all outsiders.”^[7]

Back in Westminster, once the government of Boris Johnson had “got Brexit done”, it began to focus on “taking back control of our borders”.

How did you get here?

One of Patel’s key proposals is that people seeking protection as refugees will have their claims assessed based on how they arrived in the UK. According to the Home Office, the question of whether asylum seekers enter the UK via another safe country such as France will, “for the first time”, “have an impact” on how their claims are dealt with. However, such a measure could find itself in breach of the Refugee Convention signed by the UK. According to the Convention, an asylum claim should be assessed on the basis that the asylum seeker is someone who,

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[8]

There’s nothing there about how you arrive or the route you take. You just need to have been persecuted or be living in fear of persecution. On the face of it, Patel’s proposal looks like a breach of the Refugee Convention. But then it always did. For this is not “the first time” that such a regulation has been applied.

Dublin Convention 1990

The Dublin Convention specified that an asylum application must be made in the first EU country of arrival. If you applied in the UK, for example, but you had passed through France, your asylum claim could be refused or you could be sent back to France to be dealt with. It was no defence to explain that you were in the hands of a courier and had no control over your destination; that you had friends or relatives in the UK but did not know anybody in France; that you had some knowledge of English but not of French. Further, under the Dublin Convention, if your application was refused in one EU country it would automatically be refused in all others. This, however, goes against the usual interpretation of the Refugee Convention, i.e. that it requires every signatory state to consider all applications for asylum made on its territory.^[9]

    But this is all in the past for the UK: now we’ve left the EU, we can no longer use the Dublin Convention to get rid of unwanted asylum seekers. Hence the new proposal, and Patel claims the UK is negotiating new arrangements to overcome this inconvenience. But no agreement has so far been reached. In any case, Patel’s new proposal, like the Dublin Convention rules themselves, sits awkwardly with the Refugee Convention’s Article 1.2, quoted above, and also seems questionable on other legal grounds. The  Convention, in Article 31.1, prescribes limits on what governments can do:

“The Contracting States 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.”

According to the BBC’s Home and Legal correspondent Dominic Casciani, “Official sources say Ms Patel’s restrictions would be legally possible because asylum seekers are not allowed to go ‘shopping’ for the best destination.”[10] We will come to shopping expeditions later, but Article 31.1 does seem to provide a basis for a legal challenge.

“Illegality”

In spite of this, Patel defends her proposal with the language of law and order, of “illegal” and “legal” travel. The Home Office says that “asylum seekers fleeing persecution or violence and coming to the UK via the ‘legal resettlement’ route from countries such as Syria and Iran would straightaway get permission to remain in the UK indefinitely.”[11] Apart from this limited group, everyone else is apparently “illegal”. But most asylum seekers are not handpicked by the UK government; they flee from many different countries, for many different and complex reasons, sometimes planning their flight, sometimes on the spur of the moment. They may or may not have passports, they may have obtained false passports. They may use ordinary means of transport or they may, in desperation, seek the help of people smugglers. In the case of the smugglers, Patel rightly regards them as illegal, but she then extends that illegality to the asylum seekers they exploit: under the new plans, anyone who pays criminal gangs to bring them to the UK would “only ever receive temporary permission to remain and would be regularly assessed for removal from the UK.”[12] This unjust punishment of the victims of illegal traffickers, however, might be a breach of Article 31.2 of the Refugee Convention:

“The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”

    The idea of a “legal settlement scheme” is not new either. When such a scheme was proposed for the EU in 2001 by the UK’s Labour Home Secretary Jack Straw, it caused worries. Human Rights Watch argued that “to set quotas of refugees that European countries would accept from specific trouble spots, while insisting that the rest find protection in the region from which they come”, would “seriously compromise the security of refugees”, many of whom “are simply not able to find safety in neighbouring countries in their region of origin”. Such a scheme would exclude people who fled when they had to, often precipitately, most without choice, and many without knowledge of their destination.[13] And so it has proved.

    Choice bugs Ms Patel. Having defined “illegality” and “legality” to suit herself, she declares:

“If you illegally enter the UK via a safe country in which you could have claimed asylum, you are not seeking refuge from imminent peril, as is the intended purpose of the asylum system, but are picking the UK as a preferred destination over others.”

As we saw earlier, there are several reasons why a refugee might want to go to a particular country. They may have relatives or friends only in that country; they may have knowledge of its language but not the language of another country (English rather than French, for example, or the other way round); some will have heard much about countries that are democratic countries and may want one of them to be their destination for that reason. A young Kurd celebrating the Kurdish new year in north London told me, “I come here because England democracy country.” All these are valid reasons to try to reach a particular country, and should not be ridiculed as “asylum shopping”. But asylum seekers who are smuggled often don’t know their destination, and simply go where the lorry or the boat is taking them. They should not be stigmatised as criminals.

Agenda of Disbelief

The assumption, without evidence and before any questions have been asked, that an asylum seeker is, in Patel’s words, “not seeking refuge from imminent peril” is part of what has been called an “agenda of disbelief” about refugees that has been adopted by governments for decades.[14] It has often been included in Acts of Parliament. So the Asylum and Immigration (Treatment of Claimants) Act 2004 gave the green light for asylum caseworkers to raise what were called “credibility” issues. These included:

• failure to produce a valid passport (s. 8 (3) (a));
• production of an invalid passport as if it were valid (s. 8 (3) (b));
• destruction or disposal of a passport (s. 8 (3) (c));
• “failure … to answer a question asked by a deciding authority” (s. 8 (3) (e)), e.g. a caseworker;
• failure to claim asylum when passing through a “safe” country (s.8 (4)).^[15]

Yet raising these issues as problems of credibility might breach Article 31.1 of the Refugee Convention. We’ve discussed the “failure” to claim asylum in a safe country. Patel’s proposals imply that caseworkers will continue to raise the other “credibility” issues despite their questionable legality under the Refugee Convention. We will look at the “failure” to produce a valid passport” together with the “destruction or disposal of a passport”.

    The offence of entering the UK without a passport was introduced by the 2004 Act, after a period of hostile talk from the government about asylum seekers, led by Labour Home Secretary David Blunkett, and taken up by the tabloid press. One of the most common – and true – explanations for the absence of a passport is that the agent who supplied it demanded the passport back before the end of the journey, typically in the case of a regular flight, before landing. Traffickers take back the passports to avoid detection of their routes and methods.^[16] Blunkett claimed that this explanation was not true. Asylum seekers “destroy” their passports, he declared, because “traffickers tell them it’s their best chance of staying in the UK – by making fraudulent claims and making it difficult to remove them if their claims fail.” In line with this philosophy, section 2 laid down that asylum seekers who arrive without passports must “prove that they have a reasonable excuse” for not having one (s. 2 (4) (c)) and section 8 specifically requires the caseworker to raise it as a credibility issue. However, obeying the agent‘s instructions is not counted as a “reasonable excuse” for destroying the passport unless you can show that “in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice” (s. 2 (7) (b)). The official Home Office guidance (the Asylum Policy Instructions (API)) on credibility[17] stipulates that this “excuse” will be counted as reasonable only in “exceptional situations”, such as in the case of “unaccompanied minors, the very elderly or … people with mental disabilities”, or if “a document was destroyed or disposed of as a direct result of force, threats or intimidation, e.g. where an individual was forced at knife-point to give a document to someone else.” ^[18] When doing my PhD research on the treatment of asylum seekers, I never met anyone who offered such an extreme explanation: everyone I talked to who travelled with a false passport on a regular flight in the company of their agent felt obliged to give them up when the agent demanded it. One came with his family from Eritrea. His wife told her caseworker: “The passport I had was Sudanese but the agent took it away.” The agent of another took her passport before the plane landed and then he disappeared. Yet another’s agent took her passport during the flight, disembarked when the plane landed at Rome and left her to travel on to Heathrow alone. There is, in fact, no need for “knife-point” threats: asylum seekers hand their passports back because, dependent as they are on their agents, they feel they have no choice but to obey.

Temptation to abuse

The pressure on caseworkers to raise these questions may lead to misrepresentation (deliberate or accidental) or to abuse. This happened in Ervin’s case.[19] His application for asylum was refused and his caseworker set out his reasons in the refusal letter:

“In your statement you claim that you travelled to Turkey then to the United Kingdom concealed in the back of a lorry. You would therefore have travelled through a number of European countries which are signatories to the 1951 United Nations Convention, and are therefore safe countries that are obliged to consider any asylum applications made upon their territory. There is no reason to believe that these countries would not fulfil their [Convention] obligations … The fact that you failed to claim asylum [in one of these countries] therefore further reduces your credibility.”

Unfortunately, the “fact” on which this conclusion is based is no fact at all. Ervin and his wife did not “travel to Turkey then to the United Kingdom concealed in the back of a lorry”. They arrived by plane. In his witness statement (read by the caseworker), Ervin said:

“We entered the plane with passports provided by the agent. The passports were taken away from us by the agent’s representative at the Transit Hall of Stansted Airport, in the United Kingdom.”

The caseworker knew that Ervin had arrived by plane, not only from his witness statement and the record of his screening interview but also from his main asylum interview conducted by the caseworker himself. At best the caseworker’s accusation arose from a careless disregard for the details of Ervin’s account. At worst, it derived from an eagerness to push “credibility” issues as hard as possible under pressure from his managers and his legal obligation under the 2004 Act to raise them. Nevertheless, in this case the caseworker seemed intent on fitting up Ervin for refusal. A major part of Ervin’s claim for asylum was based on his experience of detention and torture in Iran. His caseworker relentlessly set about demolishing that claim:

“You say that whilst in detention, you were beaten, kicked, and “a crazy person” burnt you with a cigarette. It is unclear whether the crazy person was a member of the security forces, or another detainee.”

It is perfectly clear in Ervin’s account that the “crazy person” was a member of the security forces. Ervin is telling a story of abuse by the authorities in the detention centre. It is clear that when he claimed that he had been “beaten up, kicked” and that “my face was swollen, with blood pouring out of my nose” he was accusing the staff at the centre. When he claimed that he heard “the cry of others who were being tortured in other rooms” and that he “could hear the cry and begging of other prisoners” he meant they were being tortured by the guards. When he said, “At the end a crazy person came and put his cigarette out on my hand” the culprit was clearly a guard, not “another detainee”.

    Secondly, the caseworker writes:

“When I asked you how often you were beaten (Q36) [Question 36], initially you were unable to say, then you responded “4-5 hours”, during which you sustained a bloody nose, and eye.”

The impression given is of a man who was uncertain of the story he wanted to tell, finally inventing an implausible four- to five-hour beating, from which he emerged with no more than “a bloody nose, and eye”. However, virtually none of the interviewer’s account is true. Ervin was perfectly able to answer Question 36, and he did so immediately and appropriately – but it was not the question the caseworker claimed it to be:

“Q36: Could you tell me how you were beaten?

A: Some of them punched me and some kicked me. My nose was bleeding and my eye. At the end a crazy person came and put his cigarette out on my hand …”

Ervin then replied immediately to Question 37, which did ask how often he had been beaten. However, he did not claim to have been beaten for four or five hours but to have been beaten four or five times:

“Q37: Could you tell me how often you were beaten?

A: I did not know from the day to the night. I would say about four or five times but I don‘t know if it was day or night.”

This can be read as a misrepresentation of Ervin’s account of his detention or as the product of the interviewer’s poor memory and his misreading of the interview record. But Ervin’s claim to have been tortured was an important part of his claim for asylum and should have been considered carefully, at length and in detail. Instead, his experience was discounted in a mish-mash of inaccuracies and unsustainable accusations.

    The pressure to make a credibility issue stick was also seen in Daryan’s case. He fled from Iraq when Saddam was persecuting the Kurds. During the asylum process he got some dates confused. His caseworker jumped at the opportunity and used this as a reason for refusing his asylum claim:

“You claimed [in your written witness statement] you were arrested on 20 May 1995 … At interview, when you were asked the date you were arrested you stated you were arrested on 20 November 1995, you then corrected this and claimed you were arrested on 20 May 1995 and allege you were released on 10 November 1995. When asked what happened on 20 November 1995, you said you made a mistake, you stated it was the date your brother was killed, but not the year.”

There was nothing to cause suspicion here – Daryan made a mistake about dates, then immediately corrected himself. During his interview with me, he explained:

“I had said the wrong date: “What date your brother die?” Yeah? Because … I been shot with my brother. After three days my brother die in hospital. They ask me “Which day you and your brother been shoot?” And “Which day your brother die?” And “Which day you run?” “Which day you leave your country.” Is too many days, and I don’t remember after four years all these dates.”

These examples show that the UK asylum system, as it has existed over several decades, lends itself to abuse – not by asylum seekers but by Home Secretaries and their officials determined to wrongfoot and criminalise them. Under the new proposals, powered by Brexit, this will only get worse.

Supporting the vulnerable

Setting out the plans to MPs, Patel said the government would introduce a “faster and fairer” system that would “better support the most vulnerable”. This false claim is nothing new. Back in 2001, Jack Straw expressed similar goodwill towards refugees. His aim was to “make it easier for genuine refugees to access the protection regimes of Europe and other Western States, for example by making their journeys less hazardous.”[20] According to Straw’s plan, an agreed number of refugees – and possibly others in need of protection – would be identified in their own regions and brought to the EU for resettlement. It would mean funding UN refugee camps in regions of origin and giving priority to protection in those regions. The result, in the UK, was the Gateway programme. But Straw, like Patel today, only counted the refugees in the camps as “genuine”, and perhaps only some of them. Under the programme, only 1% of the refugee population in the refugee camps concerned were selected. In March/April 2004, 69 people were resettled in Sheffield; in November, 81 people went to Bolton; in 2005, 51 refugees were sent to Sheffield, 84 to Bury and Bolton combined and 115 to Hull and Rochdale.[21] The numbers were low, as Human Rights Watch had feared. The vast majority of refugees, both in the refugee camps and beyond, were unable to access the protection they needed. Similarly, Patel’s tight distinction between “illegal” and “legal” asylum seekers will have the same effect. The handpicked refugees in the “legal resettlement” category will get protection – but inevitably (and by deliberate design) the numbers will be small. Everyone else will be rejected, and Patel uses the same hostile language Straw used. She said the asylum system is clogged up with bogus claims and legal wrangles.[22] In 1997, Straw announced that his aim was to ensure that “there will be less of an incentive for the bogus people to come here.”[23]

Bogus people? There’s a thought.

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[1] Fairer, Faster and Firmer – a Modern Approach to Immigration and Asylum (1999), IND, London.

[2] Cited, Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, pp. 96-97: https://hydra.hull.ac.uk/resources/hull:2678

[3] BBC News, “Immigration system unfit – Reid”: http://news.bbc.co.uk/1/hi/uk_politics/5007148.stm”, 23 May 2006.

[4] Cited, Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 96: https://hydra.hull.ac.uk/resources/hull:2678

[5] Cited, Virdee, S. & McGeever, B., “Racism, Crisis, Brexit”, in Ethnic and Racial Studies, August 2017, Routledge, London, p. 3.

[6] Ibid., p. 5.

[7] Ibid., p. 7.

[8]Convention relating to the Status of Refugees, Article 1.2.

[9] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 14: https://hydra.hull.ac.uk/resources/hull:2678

[10] BBC News, “Priti Patel pledges overhaul of asylum seeker rules”, 25 March 2021: https://www.bbc.com/news/uk-politics-56500680

[11] Ibid.

[12] Ibid.

[13] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 280: https://hydra.hull.ac.uk/resources/hull:2678

[14] Ensor, J. (2006), “Credibility under the 2004 Immigration Act” in Headleins, Issue 5 (Nov./Dec. 2006), Electronic Immigration Network.

[15] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 156: https://hydra.hull.ac.uk/resources/hull:2678

[16] Webber, F. (2003), “New Deterrent Measures for Asylum Seekers Condemned”, Independent Race and Refugee News Network, Institute of Race Relations, London, October 2003.

[17] API – Credibility (2006), Assessing Credibility in Asylum and Human Rights Claims, BIA, Home Office, London.

[18]Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 157: https://hydra.hull.ac.uk/resources/hull:2678

[19] Names in this section are not the real names of the people described. Quotations are from official records of witness statements and Home Office caseworker interviews and refusal letters, as well as asylum-seeker interviews conducted by me.

[20] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 278: https://hydra.hull.ac.uk/resources/hull:2678

[21] Ibid., p. 280.

[22] BBC News, “Priti Patel pledges overhaul of asylum seeker rules”, 25 March 2021: https://www.bbc.com/news/uk-politics-56500680

[23] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 97: https://hydra.hull.ac.uk/resources/hull:2678