How UK laws are being changed to deter asylum seekers

Despite outcry from lawyers and activists, the Nationality and Borders Act became law earlier this year

Human rights campaigners outside the High Court in London, after an Appeal Court judge ruled against stopping the UK flying asylum seekers to Rwanda. It subsequently went to judicial review. EPA
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UK Home Secretary Suella Braverman has pledged to do “whatever it takes” to deal with the migrant crisis in the English Channel, which has seen 43,000 men, women and children make the perilous journey so far this year.

Ms Braverman said the numbers were “wholly unacceptable and unsustainable” and that ministers would “comprehensively tackle the small boats problem”.

She made her comments in a foreword to a report by the centre-right Centre for Policy Studies think tank which called for new laws barring migrants who enter illegally from ever settling in the UK and the indefinite detention of asylum seekers arriving in the UK illegally.

It called for the overhaul of human rights laws — with the UK “if necessary” withdrawing from the European Convention on Human Rights — to allow detentions and offshoring the processing of asylum claims.

Obstacles to asylum

The UK government is likely to amend legislation to lower the number of asylum seekers.

Despite outcry from lawyers and activists, the Nationality and Borders Act became law earlier this year, creating new obstacles for people seeking asylum in the UK.

Though touted as a win against “illegal migration”, lawyers do not expect the legislation to affect the number of people arriving in Britain — just how they are dealt with.

“It will make life difficult for everyone in the system because it has muddied the waters,” Chris Cole, a British immigration lawyer with two decades of experience working on asylum claims, told The National.

“But it doesn’t address the fundamental flaws in the system which is ultimately about processing claims in a reasonable time frame.”

Refugee and human rights charities say the massive backlog in undecided claims is the real asylum crisis and one that needs extra resources — not more legislation — to resolve.

A backlog problem

Last month, MPs learnt that the Home Office only processed 4 per cent of asylum applications made by migrants who had crossed the Channel last year.

Of those claims that were decided, 85 per cent were granted refugee status or another protection status.

There is a backlog of 100,000 claims.

It costs about £5.6 million a day to house those awaiting decisions on their claims, amid revelations about “wretched” conditions in Manston asylum centre, in Kent, south-east England, and hotels used by the Home Office.

What's happening at Manston?

What's happening at Manston?

After admitting that “not enough” asylum applications are being processed, Prime Minister Rishi Sunak said the government would increase the number of processing officials by 80 per cent in a bid to “treble” the Home Office’s target regarding the number of decisions made.

But there are concerns over the skills of those being hired and the quality of services being provided.

A recent investigation by The Observer revealed that the Home Office is hiring asylum decision makers from customer service and sales positions at fast-food restaurants and supermarkets, who have “no prior experience or knowledge of the asylum system”.

New laws, more delays

As it is only came into effect in June, the impact of the Nationality and Borders Act on migration remains unclear but lawyers argue that its provisions are only likely to add to the government’s mounting caseload.

Increasing the burden of proof on claims, adjusting the definition of refugee or differentiating between applicants based on how they arrive in the country are all likely to increase appeals while at the same time keeping claimants in limbo, said Steve Valdez-Symonds, refugee and migrant rights programme director at Amnesty International UK.

“We will have a new backlog of people who the government will be spending enormous resources trying to return to places where they will be persecuted and people will obviously resist that in all sorts of ways, including if need be going underground,” Mr Valdez-Symonds told The National.

And children are the most vulnerable group. In October, it was revealed that more than 100 unaccompanied minors had gone missing in a year from Home Office-provided housing.

“So, we will build up bigger numbers of people held in detention centres and we will build up work for the home office in trying to manage a population of people who will not keep in contact with it … and that will cost the system an awful lot of money,” Mr Valdez-Symonds said.

Will offshoring Britain's problems solve them?

The UK justice system is also where the fate of the government’s plans to send asylum seekers to Rwanda, in Central Africa, is currently being decided.

A judicial review was heard at the High Court in October but judges have yet to deliver their judgment.

Mr Cole, former chairman of the Law Society’s immigration committee, said he would be “surprised” if the judges rule the policy unlawful but thought the courts would require a higher threshold and procedural preparation for individual deportations to be approved.

“So, if there is anyone going there, it won’t be on the scale that the Home Office wants,” he said.

Brexit has made the removals of asylum seekers from the UK harder to do. Under the EU’s Dublin Agreement, refugees can be sent back to their point of entry to the bloc.

Britain has not yet negotiated bilateral deals to do the same with European members.

Europe has also been blamed for stalling the UK’s domestic arrangements to curb migration. It was the European Court of Human Rights that stopped the Rwanda flight from taking off in June, reigniting the debate about Britain’s national sovereignty.

Although the European Convention on Human Rights is an international treaty exercised in the European courts, it is related to the Council of Europe, not the EU.

Does Britain need a new Bill of Rights?

Nevertheless, the recent revival of the British Bill of Rights by Deputy Prime Minister and Justice Secretary Dominic Raab is another way the government is using the law to deal with the current crisis.

Mr Raab is expected to return the legislation — giving the UK courts supremacy over the ECHR — to Parliament “in the coming weeks”.

Justice, a law reform organisation, has said it is “dismayed” by the return of the Bill of Rights, which had been shelved under former prime minister Liz Truss.

“This divisive legislation looks to undermine human rights protections that protect everyone, with the stated aim of giving legal cover to hardline immigration policies such as the forced deportation of asylum seekers to Rwanda,” an official said.

Even if the Bill of Rights does not make a “radical change” in the migrant crisis, Amnesty said it will still “lean on our courts”.

“It doesn't necessarily have a lot to say about the asylum system, although there's obviously the provision about trying to escape the oversight of the European Court over interim measures to prevent returns,” said Mr Valdez-Symonds.

“It is all part of this ratcheting up of the idea that all of these international legal standards to which we are obliged, along with others, are in some way badly and wrongly imposed upon us by international legal standards that it is improper to expect us to meet.”

The Home Office has previously said that their policies are aimed at deterring people from making the dangerous crossings in the first place.

But Mr Valdez-Symonds said it may not result in the deterrent effect government ministers are after, as vulnerable people prepared to make these dangerous journeys will continue do so, but perhaps less publicly.

“You might deter people from entering your asylum system, which is not the same as deterring them from arriving,” he said.

“If that happens, you may end up with the number of asylum claims reducing, but the number of people here increasing and the number of people who are here in extremely vulnerable and dangerous circumstances being exploited with all the associated costs for the Home Office to deal with an increased population of undocumented and unregistered people it does not know about.”

Updated: December 05, 2022, 11:11 AM