The New Plan for Immigration – Selective Protection and the Home Office Proposals for Asylum Law Reform.
Gemma Manning, Senior Lecturer in Law, University of Huddersfield
On 24 March 2021 the Home Secretary, Priti Patel, set out her New Plan for Immigration with the purported intentions of increasing fairness and efficiency in the system, deterring illegal entry and removing those with no right to be here. Whilst some of the proposals are positive, including the extension of the resettlement policy to guarantee greater rights on arrival, these come at a cost. The policy statement presents a two-tier system of asylum claimants, with the Home Office predetermining who is worthy of protection. It has little regard for our international obligations under the Refugee Convention and the needs of asylum seekers from countries with no national humanitarian crisis but where certain groups, often women and children, are still at risk of persecution. In order to achieve a fair asylum system based on need, as claimed by the Home Secretary in her proposals, the rights of those who have entered the UK illegally, as their only means of escaping persecution, must not be undermined.
The foreword to the proposals sets the scene of a welcoming and culturally diverse country with ‘a proud history of being open to the world’. It is maintained that ‘Global Britain will continue in that tradition’ by continuing to recognise the contribution of lawful immigration to society. Moreover, it is claimed that we ‘take pride in fulfilling our moral responsibility to support refugees fleeing peril around the world.’ With such an altruistic rhetoric from a Department renowned for more cynical motives (see the culture of disbelief), it is perhaps not surprising that the true intention of the proposals is then revealed in more familiar notions of regaining sovereignty and taking back control, all ironically justified by the principle of ‘fairness.’
Aside from a few minor changes to nationality law, the main proposals are largely directed at the asylum system. There are a number of significant changes proposed, including the following:
- Treating illegal entrants to the UK differently to other asylum seekers, including a removal of their right to refugee status, offering a lesser temporary protection with regular review for removal. The right to family reunion and to access public funds is also removed for those who entered here illegally.
- Seeking the removal of those who travelled from a safe third country and allowing asylum claims to be processed from outside the UK (amending sections 77 and 78 of the Nationality Immigration and Asylum Act 2002).
- Introducing indefinite leave to remain for those who come to the UK under resettlement schemes and allowing them to benefit from the entitlements and rights that encompasses.
- Seeking to redefine a ‘well founded fear of persecution’ by attempting to ‘clarify’ the standard of proof using a two-stage assessment process.
- Proposals relating to the appeals system including a good faith requirement for dealings with the court, expanding the ‘one-stop’ process for appeal hearings, a pre-approved expert system for appeals and an attempt to resurrect the fast track process for certain claims.
- Attempting to circumvent judicial reviews by providing a procedure for judges to take decisions on Home Office refusals without a right of appeal, and expanding the use of costs orders.
- A scientific method of assessing the age of claimed minors.
The proposals claim to have a well-defined objective of granting access to the asylum system on the basis of need rather than the ability to pay people smugglers. But this is justified as follows:
“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.”
The difficulty with this statement is that most asylum seekers will be illegal entrants, also seeking this refuge from imminent peril, but not from one of the few selected countries the Secretary of State deems dangerous. The resettlement schemes protect those fleeing national conflicts but do little to protect the female victim of state sponsored sexual violence or the child at risk of Female Genital Mutilation (FGM). They also offer no protection to claimants persecuted for their sexuality in countries where it is illegal to be gay and where punishments can range from state sanctioned violence to execution.
Under the proposals, those chosen by the government for resettlement will receive the necessary rights, entitlements and security whilst those who make their own way here risk uncertainty (being deemed ‘inadmissible to the asylum system’), removal to a third country and possible detention. They may also be unable to review asylum decisions, either from a lack of support or the risk of being pursued for litigation costs. How the government makes the decisions on who deserves this greater protection, and whether this is a fair method of assessment, is thus in question. For those not entering under resettlement schemes the complexities of the proposed changes to the standard of proof will create further difficulties in proving genuineness.
The improvements to the resettlement schemes are positive, guaranteeing greater stability to those protected by permitting them indefinite leave to remain immediately. The report mentions how many have settled from countries such as Lebanon, Jordan and Turkey following the conflict in Syria, and how schemes like this will continue. At the time of writing, the Home Office website details the Syrian resettlement Scheme and the vulnerable children’s resettlement scheme as the only current schemes. The policy statement does suggest offering resettlement to ‘a broader range of minority groups’ including ‘Christians in some parts of the world’ as an example. It acknowledges ‘that across the globe there are minority groups that are systematically persecuted for their gender, religion or belief’ and that this should be reflected in the resettlement policy. However, the only plan to achieve this is to ‘strengthen [Home Office] engagement with global charities and international partners’ with no further detail on what this will involve or how it will be actioned.
Furthermore, not all individuals meeting the definition in Article 1A Refugee Convention will have been ‘systematically persecuted’. The definition of persecution itself only requires acts to be sufficiently serious by their nature or repetition (Article 9 (1) (a) Refugee Qualification Directive) to amount to persecution. Females at risk of FGM, for example, may not suffer systematic persecution, but certainly be at risk of one very serious and life threatening procedure should it be carried out. More detailed and structured plans are needed to ensure large protection gaps are not left by new legislation.
The Treatment of Illegal Entrants
The policy statement makes it clear that those chosen for resettlement are seen as in need and those who enter illegally are a granted lesser protection or possibly returned to a safe third country. It is stated that:
“It is unfair that genuinely vulnerable people who have played by the rules and accessed the asylum system via legal routes find themselves in the same position as those who have entered the UK illegally.”
There is not a legal way to claim asylum from outside the UK. The UK has a non- refoulement obligation under Article 33 of the Refugee Convention to not expel or return a refugee to a country ‘where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’ Thus the legal obligation only arises once the asylum seeker reaches the UK; there is no legal application process or method of entry clearance as a refugee. The only legal route available is through the selective, government driven, resettlement policy. With this route the UK determines who is in genuine need of protection on a countrywide basis, rather than the asylum seeker being able to claim protection based on individual risks in a range of different countries, once they have reached the UK.
Invariably many genuine asylum seekers will be illegal entrants, but these are the victims of the new proposals. Rather than ‘Global Britain’ offering protection to those fleeing persecution, it is attempting to close its borders to many of those in need who would have previously received refugee status. Female claimants at risk from non- government agents but without state protection are less likely to be fully protected, such as victims of FGM or human trafficking. Even where counties have implemented laws against these practices, they often continue underground. FGM is prevalent in 31 countries worldwide (see UNICEF FGM), presenting a risk to females from particular ethnic groups (for example in the Kisii ,Somali, Samburu and Maasai tribes in Kenya (see para 5.4.4 CPIN Kenya FGM ) and the Hausa, Yoruba and Igbo tribes in Nigeria (see para 4.8 CPIN Nigeria FGM.) Many of these countries have implemented anti- FGM legislation, but it is ineffective in preventing the practice. Likewise in Albania, trafficking is criminalised but is still a risk to certain vulnerable groups (See Albania CPIN Trafficking). Decision making in these cases involves very individualised assessments of risk, which would not lend themselves easily to any blanket resettlement scheme.
Safe third country
The proposals maintain that those who arrive in the UK, having passed through safe countries, or with a connection to a safe country, will not be admitted to the UK’s asylum system. This will invariably be most entrants who travel overland to the UK. The argument that an asylum seeker will have travelled through safe third countries and should have claimed asylum there is a well-rehearsed Home Office adage, but does not account for the realities of travel to the UK. However, many may be under control of an agent, hidden in the back of a lorry or in a shipping container, and have very little idea where they are whilst en route to the UK. Even if the UK is a country of choice to escape persecution, there may be good reasons why an asylum seeker would wish to travel here, such as family connections or other support networks in the UK.
Regardless of such considerations, the safe third country provisions are not new and similar arrangements have been in place with European countries for many years, most recently in the Dublin III Regulation. But such arrangements must be reciprocated to be practical; European countries will not accept asylum seekers from Britain who have travelled through their countries if we do not offer the same arrangement in return. Unfortunately we rescinded our rights to this reciprocal arrangement, and the relevant databases for tracking and identifying those who had travelled through safe countries, when we left the EU (See Brexit: The end of the Dublin III Regulation). Amending sections 77 and 78 of the Nationality Immigration and Asylum Act 2002 so that asylum claims can be determined elsewhere is futile without agreements from these proposed safe third countries to accept such claimants.
Standard of Proof
Yet another obstacle to proving an asylum claim is the proposed changes to the standard of proof. This is lower in asylum claims than civil claims, as an asylum seeker is not in a position to provide witness statements and other corroborative evidence of events that took place in their country of origin, forcing them to flee. There may be many genuine reasons why an asylum seeker cannot seek evidence, even where it does exist, such as a court summons sent to a family home under surveillance by the security services or the female victim raped by government officials and unable to report the crime. Domestic violence victims and victims of marital rape often have little scope for collating evidence where there is no legal redress in the country for such persecution. To attempt to raise the standard of proof for claims already difficult to prove is unjustified and unnecessary.
The proposals seek to introduce a more complex system using two standards of proof. The first test will apply the balance of probabilities standard to determine whether ‘the person is who they say they are and that they are experiencing genuine fear of persecution.’ This first test is also proposed to ‘include a credibility assessment, considering all the relevant evidence’ such as whether the opportunities arise to claim asylum in another country. However, the second element of the test appears to overlap with the first, purporting to ‘consider whether the claimant is likely to face persecution if they return to their country of origin’ but based on the long established standard of “reasonable likelihood”, another variant of the ‘real risk’ (PS Sri Lanka EWCA Civ 1213) standard used currently in asylum cases. However, the credibility assessment and the standard of proof assessment are inextricably linked; if a claim is credible it is usually well founded. Applying two standards of proof is confusing, overly complex and likely to lead to poor and inconsistent decision making. Consequently, higher level courts will become involved at great public expense.
The improvements to the resettlement policy in the government’s new immigration plan offer stability to some, but to the detriment of those deemed ‘illegal entrants’. Most asylum seekers enter the UK illegally, fleeing persecution from oppressive governments, or from other perpetrators of violence from whom the government does not protect. There is not an asylum application process from outside the country, and the UK’s legal obligations arise once an asylum seeker reaches the UK. Thus only granting full refugee status to those on resettlement schemes will invariably deny many genuine refugees the protection that they deserve. It employs an arbitrary and selective approach to granting refugee status rather than the transparent and humanitarian one that is currently in place.