Sea changes

There is no love lost between immigration lawyers and home secretary Priti Patel. Loud in her contempt for ‘lefty lawyers’ and their ‘endless legal claims’ on behalf of failed asylum seekers, she is nevertheless hell-bent on reforms that will invite a tsunami of legal challenges.

The government’s own lawyers have warned Patel she would be likely to lose a case on the lawfulness of forcing migrant boats in the Channel to turn back to France.

Annette Elder, of immigration and asylum specialists Elder Rahimi, foresees ‘years of litigation’ if Patel’s Nationality and Borders Bill is passed into legislation in its current form. ‘It will be achieved at enormous human cost and enormous amounts of litigation as so many parts of it will be challengeable,’ she tells the Gazette.

In a legal opinion published in October, the United Nations refugee agency UNHCR highlighted a raft of clauses in the bill it said were incompatible with the Refugee Convention. The bill’s proposal to differentiate those who arrive via ‘illegal’ routes such as crossing the Channel and give them fewer rights than refugees arriving via so-called safe and legal pathways, for example, is ‘inconsistent with the Refugee Convention and has no basis in international law’, the agency said.

'It’s really damaging to the integrity of the system to say you’re going to do something which everybody knows you can’t do'

 Annette Elder, Elder Rahimi

The Immigration Law Practitioners Association (ILPA) has a long list of concerns. One is the bill’s proposal for an expedited appeal procedure, which would prohibit an appeal from a first-instance immigration decision. ‘There is a public interest in legal issues of general importance being reviewed by appellate courts and to exclude that possibility is an affront to the rule of law,’ says ILPA legal director Zoe Bantleman. ‘We anticipate this will result in the High Court being required to consider numerous judicial reviews against impugned immigration appeal decisions.’  

Doughty Street barrister Alasdair Mackenzie takes aim at the government’s inadmissibility rules, which came into effect via secondary legislation in January 2021 – the bill aims to put them on a statutory footing. Under these rules, asylum claims can be declared inadmissible and the applicant returned to a ‘safe country’, including EU countries through which the person travelled on the way to the UK. ‘Trying to do either of these things without a framework or agreement in place is likely to create endless challenges, both at the individual and policy level,’ Mackenzie says. ‘In reality, they probably won’t be able to send anyone back’.  

The most up-to-date government data, from January to June 2021, shows that 4,500 people were given ‘notices of intent’ to remove them, with seven deemed inadmissible but nobody actually returned on inadmissibility grounds.

'More than one interviewee told us that with certain Home Office decisions, politicians find it more politically palatable to be forced to abandon a policy by a court than to abandon it themselves'

Institute for Government

In effect, a notice of intent just means an extra six months before your claim enters the asylum system, Elder says. ‘It’s really damaging to the integrity of the system to say you’re going to do something which everybody knows you can’t do,’ she adds.

So are many of Patel’s reforms simply an exercise in political posturing and legal provocation? According to a recent report by the Institute for Government (IfG), in contrast with DEFRA where ‘no one moves without talking to their lawyers’, the Home Office’s appetite for legal risk is much higher and judicial review is ‘sometimes considered a political tool in itself’.

‘More than one interviewee told us that with certain Home Office decisions, politicians would find it more politically palatable to be forced to abandon a policy or action by a court than to abandon it themselves,’ the IfG said.

Patel would not be the first politician to introduce hard-line legislation and policies in the knowledge that lawyers and judges can be blamed when they fail – Tony Blair’s government was accused of doing the same with anti-terror laws.

But the bill also contains a deterrent for those representing asylum seekers in the form of new powers for tribunals to fine participants, including lawyers, who bring ‘unmeritorious’ claims or disrupt the process. Ellie Cumbo, the Law Society’s head of public law, says tribunals already had powers to prevent abuse of the system, including the ability to make wasted costs orders and referrals to the regulator. The new powers could deter solicitors from doing their jobs, she says: ‘They will be frightened to take on cases they see as posing a risk of personal liability.’

While some lawyers have responded to the home secretary’s stance with personal attacks on her, there is no shortage of advice and alternative approaches from the sector.

Mackenzie advocates better decision-making at first instance, with ‘frontloading’ of the system so that applicants are properly advised early on, with administrators and decision-makers sufficiently trained and resourced. This would inevitably entail an increase in legal aid for asylum seekers but reduce delay and costs further on in the process.  

Better education and more accurate media are also part of the answer. ‘When people come across actual refugees and hear their stories, perceptions change,’ Mackenzie adds.

He believes the public has a ‘skewed idea’ of the percentage of people accepted as refugees and is unaware of the fact that most asylum claims ultimately succeed. Polling has shown the British public supports taking in those fleeing war and persecution but around half believe most of those claiming asylum in Britain are not genuine refugees.

MacKenzie points to the protests around citizenship-stripping in December 2021 as evidence that many people, even those with an interest in issues around migration, have scant grasp of the details. ‘Deprivation of citizenship was introduced by New Labour,’ he points out. The bill makes changes to notice requirements but the protests have largely focused on the deprivation itself.

As for failed asylum seekers: ‘For people who are found not to be at risk you need a humane system of returning them if you’re going to maintain borders,’ Mackenzie says. The UK should also do more to address the factors that drive refugee movements, he suggests. ‘It seems to me that ultimately we have choices here: we can either try to resolve these crises or we can say we should be more generous to the victims of them.’

Jonathan Thomas, a former City lawyer turned refugee adviser then migration researcher, believes these are inadequate solutions. In a briefing for thinktank the Social Market Foundation, he pointed out that the idea the public should feel comfortable with asylum seekers in the UK on the basis that most claims are eventually upheld is clearly ‘a hostage to fortune. That fact may be true most recently; at other times it has certainly not been true’, he says.

He agrees that better and faster decision-making would be desirable, pointing to Switzerland where some categories of asylum seekers are channelled through accelerated procedures (they have access to free legal assistance throughout). However, he is unclear how this will address public concern about the government’s inability to return failed asylum seekers, which in his mind is the nub of the problem.

There are ‘huge practical obstacles’ to returns, Thomas points out. Many of those claiming asylum have no identity documents and countries can refuse to accept returnees on the basis of the UK’s determination of their citizenship. Since Brexit, the UK has been unable to use the Dublin Regulation, a mechanism for returning asylum seekers to other EU countries they have passed through.

If failed asylum seekers cannot be reliably returned, the government’s message that they must be more forcefully dissuaded from coming to the UK in the first place makes sense to the public. Despite this, he says most in the ‘refugee rights sector’ refuse to engage on a meaningful level with either the public’s scepticism concerning asylum seekers or the difficulties in returning them. Some in the sector have the attitude that every applicant should be supported and every deportation resisted, Thomas tells the Gazette.

‘That position does not have support from a democratic majority and undermines the process.’ The refugee rights sector should see a common interest in resolving the returns problem, he says. ‘Without this common approach an asylum system which politicians, public and refugee rights sector can all stand behind seems unachievable.’

Colin Yeo, an immigration barrister at Garden Court Chambers who runs FreeMovement.org.uk, a blog on migration, immigration and asylum, disagrees with Thomas’s view that the sector should engage more with the returns issue.

‘I don’t see it as the job of refugee rights advocates to imagine new or better ways of removing failed asylum seekers or others,’ he says. ‘But I’d agree that it is unhelpful and potentially counterproductive to be perceived as advocating against all removals, as some seem to be.’ Writing in his blog, he said he was unsure that a decline in removal of unsuccessful asylum seekers was something to be celebrated. ‘In a functioning asylum system, those whose cases fail will have to leave the country,’ he wrote. ‘There is no point in having an asylum system if this is not so. It is hard for anyone to have any faith in a pointless process.’

Thomas has called for the Home Office to hand back administration of the Assisted Voluntary Return (AVR) programme to the third sector. When the Home Office took control of AVR from Refugee Action, the numbers of people returning home fell steeply. ‘This could – and should – be reversed,’ Thomas says. He also thinks the refugee rights sector, including lawyers, should stop acting as though the answer lies in a change in home secretary and painting anyone with concerns about asylum seekers as right-wing or bigoted. ‘The polling around migrant boats in the Channel shows most people think the government is not being tough enough.’

Far from ignoring public concerns about asylum seekers, refugee law expert professor James Hathaway of the University of Michigan says any solution must seek to address them. The current system imposes unlimited and one-sided obligations on a given country based upon the simple fact of arrival, he points out.

‘Under the Refugee Convention every single asylum seeker who arrives is 100% your responsibility, nobody else owes you anything,’ Hathaway tells the Gazette. This can create a ‘race to the bottom’ because states seek to limit those responsibilities, and the absence of a supervisory body means countries can and do breach the convention when it suits them.

In a 2018 paper titled The Global Cop-Out on Refugees, he also pointed out that under the current system OECD countries spend £20bn on the 15% of refugees that cross their borders – who are disproportionately young, male, and mobile – with relatively derisory spending on those who remain closer to home. He believes these refugees must sacrifice some of their ‘relative privilege’ in order to do right by the massive majority languishing indefinitely in camps and slums with limited access to their rights under the convention. The route to a more equitable solution, he says, is ‘to show how a dependable, managed model of sharing could meet the needs of all’.

Hathaway proposes a five-step plan administered by UNHCR or another international body under which, on arrival, asylum seekers would be assessed by an international team. Those deemed not to be asylum seekers would be sent home, while refugees – with some exceptions including unaccompanied children and victims of torture – would be moved to a safe country.  This would normally be in their region of origin, where they would be guaranteed protection, helped to work and able to get on with life. ‘If somebody arrives in Italy from Syria they might initially be protected in Morocco for example, in the hope that repatriation would be possible, or that they would become integrated in Morocco,’ Hathaway explains.

The receiving state, individual refugees and their host community would be given international grants to enable this. After five years, if repatriation or integration proved impossible they would be resettled in another country. Hathaway suggests countries be allocated quotas of refugees for resettlement using a ‘double-sided preference-matching’ formula developed by an Oxford academic that accounts for both refugee and host country needs and desires.

‘As the five-year mark approaches, if it’s not looking as if return will be possible people can start doing security vetting and learning languages.’ Around 1.7 million resettlement spots per year would be needed, Hathaway adds.

Controversially, he also thinks countries should be able to ‘trade’ away their responsibilities, with cash-for-refugee deals such as the EU’s 2016 arrangement with Turkey. The problem with the Turkey deal was the lack of enforcement of refugee rights under the convention and the fact people were left there indefinitely, he argues. ‘My system would require rich countries to contribute dramatically more in terms of resettled people or money. It’s not a perfect solution - a perfect solution does not exist.’

• To get involved with the Law Society Immigration Law Committee, email governance@lawsociety.org.uk and see lawsociety.org.uk/topics/immigration  

Melanie Newman is a freelance journalist