In the UK approach to asylum, nothing works

There were huge problems with every piece of immigration legislation I have covered as a journalist over the past 20 years. But the new phase of asylum policy is uniquely, universally, criticised by lawyers who handle immigration work as ‘unworkable’. Not hardline, yet effective, but a total failure.

I don’t mean it has fallen short of expectations. It’s much worse than that – there is not a single piece of evidence that policy is working by any metric.

The Nationality and Borders Act 2022 is a staggering failure by every available measure. As home secretary, Priti Patel promised it would remove ‘all’ (her word) asylum seekers who arrive in the UK by ‘illegal’ means.

The figure for such removals in 2023, up to the end of June, the Home Office now reveals as… zero.

The policy, and its successor, the Illegal Migration Act, have been criticised for ‘chasing headlines’.

But this is how it looks. With not a single removal in 2023 –the policy is not chasing a headline or four. The headlines are the policy.

Nothing happens.

I have tried to find the ‘meat’ in this policy – the possibility that it might be effective on its own terms. There is no such meat.

The Home Office boasts of a new ‘duty’ on the home secretary, contained in the newly minted Illegal Migration Act 2023, to detain and remove ‘illegal’ arrivals. But the duty has not been activated.

If ‘every’ illegal were detained, the detention facility places would be 50,000, give or take – around half the current prison population. And that figure would increase as the backlog increases.

Such detention facilities aren’t there. Whenever a new location for even one of them is mooted, local MPs, often from the governing party, lead effective resistance to them.

The Illegal Migration Act claims to override part of the Human Rights Act (HRA), but affirms compliance with the European Convention on Human Rights, on which the HRA is based.

The sole output from the new legislation is the possibility that more arrivals here are forced into a ‘limbo’ status – in many cases, being forced out of the ‘system’ without leaving the UK.

In fact, an increase in those kept in limbo by the asylum system is pretty much the only output from Home Office policy and practice.

Some are in ‘limbo’ while waiting in the record backlog of asylum cases. 175,000 are waiting for a determination in their case.

Another category is on the rise, though. That is ‘withdrawals’.

Withdrawals of asylum claims have gone through the roof.

A withdrawal can be an ‘explicit’, deliberate action on the part of someone who made an asylum claim.

But it can also be ‘implicit’ – the Home Office ‘deeming’ a person to have withdrawn their claim because they did not, for example, complete a particular task or meet a deadline. (Although that failure may also be down to a failing or error on the part of the Home Office.)

Implicit withdrawals looks a lot like an area that’s been deliberately targeted by the Home Office, perhaps to lower the backlog. Why do immigration lawyers suspect that? Because so many withdrawals are coming from nationals of countries that the UK does not send people back to. Afghanistan and Syria, for example. They have no reason to withdraw.

Deemed withdrawn, they cannot legally work, nor claim the support they received as asylum applicants. People in that position can be pushed to the margin of society.

There are many communities who will pick up those left put by such a system as ours. The charity shown by some communities to their own, when they can, is off the scale by most people’s standards.

But there is a risk that some will be pulled, or pushed, into ‘marginal’ activities and exploited. Because the law stops them working ‘legally’.

Which may result in them being resented by anyone feeling undercut by ‘non-indigenous’ labour. Or they might be pulled, or pushed, into ‘criminal’ illegal activity, which fuels the sense that immigration is a problem, and adds to crime.

Why would the Home Office, charged as it is with keeping law and order, manufacture illegality of status and enhance the incentives of criminal activity?

No political party, left or right, has a straightforward approach to immigration and asylum law. Its conflicts and outright contradictions are in all quarters unresolved.

Hardliners superintend a rise in immigration and a fall in deportations. Non-existent ‘safe routes’ are insisted upon, but not created. Progressive politicians argue they would be better at enforcement in a cruel system. Credit is claimed for legal duties on ministers, without the duties being activated. Thousands of people are informed by the Home Office that they may be removed – and then hear no more of the matter.

None of the mainstream discourse on immigration and asylum, none of the policies or resulting action – or inaction – make any kind of sense.

Meanwhile, businesses, the law and people affected try to find a way around or through the tensions that shape public policy on immigration. They hope immigration stays out the headlines, so that their own priorities stand a chance – because there is always a knock-on effect for areas of immigration outside the area of asylum when a clamp down on asylum becomes a ‘priority’.

See feature.