By Nadine Finch.
Over the past three decades I have linked my practice as a human rights lawyer in the UK with research and policy development in the migration field and I will draw on this experience in my new role as an Honorary Senior Policy Fellow in the School for Policy Studies at Bristol. It will take the totality of this experience, and more, to address the formidable challenges posed by the immigration legislation recently proposed by the UK government. The New Plan for Immigration needs to be placed in the context of repeated attacks on ‘activist lawyers’ and plans to limit the discretion of judges in immigration and asylum appeals and to reduce their powers in judicial review.
It is not just international law norms that are not respected in the wake of Brexit. There is also a growing disregard for the parts of the UK’s unwritten constitution that assign the judiciary a role, as important as that of the executive and parliament, when it comes to domestic law. The enormity of the possible consequences for migrants and the professionals who support and assist them is still not fully comprehended by many in civil society. The gradual and disparate extension of the ‘Hostile Environment’ over the past three decades has been mitigated to some extent by local authorities and legal challenges and this has lulled many into a false sense of security that there are certain lines that will not be crossed. As have the continuing invitations to take part in consultations and working groups.
The UK has legislated to control immigration on numerous occasions since 1905, when the Aliens Act first gave responsibility for matters concerning immigration and nationality to the Home Secretary. The very fact that responsibility was allocated to this particular minister indicated a belief that it was imperative to ‘protect’ existing British residents from those seeking to enter from abroad. Since then, on many occasions, legislation has been introduced – and supported by the mainstream media – to protect the ‘majority’ from migrants who are perceived to be seeking employment and support, to which they are not entitled, and who are said to be responsible for a varying degree of criminality. In the populist climate following Brexit and the repudiation of the human rights norms underpinning much EU law, these claims can be more blatant and fact-free.
The main targets for this legislation can be refugees and migrants fleeing from civil war and economic and social degradation, which is rooted in the history and economic policies of the very states in which they are compelled to seek protection. Attempts have previously been made to deter asylum seekers from accessing protection but the main principles underpinning the 1951 Refugee Convention have been honoured. The New Plan for Immigration is in many ways a radical departure.
The Immigration Rules relating to this New Plan do not provide a safe and legal route for an asylum seeker to enter the UK as a refugee. A person seeking international protection cannot seek sanctuary and assistance at a UK diplomatic post abroad. Instead, they can only apply for asylum once they have reached the UK’s home territory. Some individuals do manage to circumvent this restriction by initially entering as a student or a visitor. But this is only possible if they can meet a series of onerous financial and evidential conditions before leaving their own state. A person fleeing persecution is unlikely to have the economic resources, the freedom of movement or the time to do so. In addition, if they mention a fear of persecution in their application for a student or visitor visa it will be refused as they will not be able to show that they will return to their country of origin after their limited leave to enter and remain as a student or visitor. But if they do not mention it, this failure will damage the credibility of any subsequent refugee claim.
Therefore, asylum seekers have to employ whatever means are available to enter the UK, whether on flights and Eurostar trains or dinghies to the southern and eastern seaboards of England. In response, the Government has funded defensive walls and fences in northern France, posted immigration officers in airports in many states abroad and is now patrolling the Channel. An individual travelling alone is unlikely to be able to penetrate these defences: this is a major factor that has led to their need to employ smugglers to assist them to enter the UK. The emergence of these ‘criminal networks’ is better characterised as a response to the barriers faced by refugees than a reason for their arrival.
If adults do manage to enter, but illegally, and are deemed to have passed through or have a connection with a safe third country, any application for asylum is deemed inadmissible and they will face removal. If they cannot be removed, and even they are found to be entitled to international protection, they will only be given a lesser and temporary form of protection, will have no recourse to public funds unless they are destitute and their immediate family members will not be permitted to join them. This creation of a two-tier system for international protection does not meet the requirements of the Refugee Convention and has been severely criticised by UNHCR.
It is also planned to set the test for qualifying for international protection at a significantly higher level than that recommended by UNHCR in its Handbook. In a series of seminal cases the UK’s highest court has also recognised the severe challenges facing asylum seekers asked to provide evidence of detention, torture or ill-treatment, when their persecutor is a repressive regime, witnesses and family members may have been killed or imprisoned and they may have fled without any possessions, let alone documents, to prove their case. An individual’s ability to provide evidence will also be curtailed by the fact that on arrival they will be transferred to proposed reception centres or camps. This will limit their access to legal advice and representation as well as medical and other expert reports. It is also likely to increase any trauma previously experienced in their countries of origin and during their journeys and render them less capable of providing a cogent account of their persecution.
It is still not clear whether these centres and camps will accommodate any children accompanying adult asylum seekers, as was the case in the 1990s before it was accepted that the detention of children in such circumstances breached the UN Convention on the Rights of the Child. However, children wrongly assessed as being adults will be detained. It is also likely that proposed changes to the age assessment process will increase the risk of mistakes being made. In particular, the proposal to establish a National Age Assessment Board staffed by social workers, contracted to the Home Office, would remove the process from the direct oversight of local authorities who have the training and skills to maintain necessarily robust and regulated child protection processes.
The core elements of the New Plan were included in the Queen’s Speech on 11 May 2021 and it is expected that the proposed bill will have its Second Reading before the parliamentary summer recess. It is likely that much of the detail of the Plan will not be on the face of the Bill but that the Government will give itself wide regulatory powers. This will be addressed in a policy briefing that I am writing on the Plan and the Bill, which will be published by Policy Bristol in the autumn.