Asylum

The “New Plan for Migration” explained by Charlotte Rubin

After Home Secretary Priti Patel laid out her new Plan for Immigration in Parliament yesterday, the Home Office published the proposals today. Its focus is on the asylum system as a whole as well as those migrants who enter the UK illegally.

Before diving in, it is useful to have a look at numbers and understand exactly what is happening to the “broken” asylum system. In 2019, 9,000 appeals were lodged following an initial asylum claim. The Home Office’s document states that of those appeals determined over the same period, 56% were dismissed. 56% dismissed means 44% were allowed, meaning the Home Office gets it wrong at the initial decision stage in 46% of the cases.

As for the much-discussed backlog, there are 109,000 asylum claims in the asylum system and the number of those awaiting initial decision rose to 52,000 by the end of 2020. Almost 73% of these claims have been in the asylum system for over one year. This is largely not the fault of the asylum seekers, but of the system itself. In fact, asylum numbers are historically low and falling, whilst waiting times for Home Office decisions have soared. Importantly, more asylum seekers are found to be genuine refugees (and their claims accepted) than ever before. As such, the proportion of asylum seekers granted refugee status, or a related form of international protection, at the “initial decision” stage has been around 50% over the past couple of years. This is a significant rise: the 2010-2018 average was 35%. Upon appeal, that number rises even further, as initial refusals are overturned. For immigration applications in general, the appeal success rate is even higher: almost half of all immigration appeals against the Home Office are won by the claimants.

Throughout the document, the Home Office wants to differentiate between “legal” and “illegal” entries to the UK. The idea is to separate clandestine entry, including small boat crossings of the Channel from Calais, with the orderly administrative process of resettlement, where asylum seekers are brought to the UK directly from refugee camps under government programmes. The former will receive less protection once they claim asylum in the UK.

As such, resettled refugees will receive indefinite leave to remain immediately, rather than five years’ temporary permission leading to indefinite leave to remain under the current system. Contrastingly, “anyone who arrives into the UK illegally – where they could reasonably have claimed asylum in another safe country – will be considered inadmissible to the asylum system, consistent with the Refugee Convention”. If an inadmissible person cannot be removed to another country, for example because there is no returns agreement with that country (spoiler: no return agreements exist with any third country at the time of writing), then the UK will be obliged process their claim. If the applicant did not come to the UK directly, did not claim without delay, or did not show good cause for their illegal presence, the applicant will be considered for temporary protection. Temporary protection will be granted for periods no longer than 30 months, after which individuals will be reassessed for return to their country of origin or removal to another safe country. In addition, temporary protection status will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution. People granted temporary protection status will be expected to leave the UK as soon as they
are able to or as soon as they can be returned or removed.

On Returns, the Plan states that the UK’s “ability to enforce immigration laws is being impeded, contributing to a downward trend in the number of people, including Foreign National Offenders, being removed from the UK.” A foreign national offender (FNO) is a non-British citizen who has been convicted either in the UK of any criminal offence, or abroad of any serious criminal offence.

This statement is misleading. Crucially, not all forced returns are foreign national offenders, and merging the two is misleading. We know that in the year ending March 2019, the total number of FNOs removed (voluntarily or forcibly) from the UK was 5216, and that the total number of enforced returns in that same period was 8,637. This means that at the very least, 30% of people (2274 in absolute numbers) who were forcibly returned from the UK were not foreign national offenders or “dangerous criminals,” and the figure is likely to be higher.

Except of this, there are plans for a new system for age assessment, to make assessments stricter and reduce the backlog in judicial reviews on this topic. There are plans to expedite asylum claims, to make claimants pay more costs, to change the human trafficking flagging system to make it more restrictive, etc.

The reasons for the asylum system being broken and overloaded are plentiful. From this preliminary analysis, it seems like a lot of the problems can be ascribed to an understaffed, underfunded Home Office that makes many mistakes when assessing claims. Unfortunately, the proposals in the Plan do not exactly deal with those structural issues. Instead, it offloads issues onto the migrants themselves by excluding as many people as possible from the scope of protection and chipping away at existing rights for asylum seekers. That is the proposed solution to deal with an overcrowded, mismanaged and overloaded system. Arguably, a more adequate and effective solution would be to replace management and invest in the system to catch it up with the realities it faces – but that is not the government we are facing today.

A public consultation on many of the proposed measures will run until 6 May 2021 at https://newplanforimmigration.com.

The Barracks Explained by Charlotte Rubin

In September 2020, the government decided to start using two former army barracks in Wales and Kent to house asylum seekers, most of whom arrived in small boats crossing the channel. The barracks, Napier (Kent) and Penally (Wales), can house up to 665 people.

General government policy is to house asylum seekers within communities whilst they wait for a decision on their asylum claim. Where housing in communities is not possible, the government started putting people in barracks as “temporary solutions.” The solutions, it turns out, were not so temporary, as some residents are kept at the barracks for weeks, if not months, on end.

The barracks are managed by private contractor Clearsprings. Ever since their opening, they have been criticised for their living conditions, including overcrowding, limited access to healthcare and legal advice, as well as abominable food and sanitary services.

The pandemic has exacerbated these circumstances. Social distancing is impossible in the barracks; people sleep in bunk beds separated only by a sheet. There have been rumours of curfews and limitations on residents’ movement, which the Home Office steadily deny, stating that the only restrictions in place for the residents are the COVID-19 related restrictions in force across the nation.

To make matters worse, a recently-leaked report shows that Public Health England warned against using dormitories in army barracks to house asylum seekers months ago. This advice was ignored, with the residents bearing the consequences. At Napier barracks, residents with negative COVID-19 test results were made to stay in the same room as those who tested positive. Add do that the lack of access to a GP and other standard healthcare provisions, and a COVID outbreak seemed unavoidable. The inevitable ultimately happened, and in January, as many as one out of four residents at Napier tested positive with the coronavirus.

After the outbreak, the government released most, but not all, residents from Napier barracks. 63 asylum seekers remain at Napier today. Trapped in the camps, their mental health is deteriorating. Many of them have lived through trauma either in their home country or during their journey to the UK, and are therefore extremely vulnerable.

Six asylum seekers brought a case against the government, arguing that conditions at the barracks are inhumane. Their case was heard in the High Court last week, during which the Home Office conceded that it was arguable that the use of Napier barracks to house refugees is unlawful and in breach of human rights. Judge Martin Chamberlain ruled for the asylum seekers, and a two-day judicial review hearing of the government policy and the circumstances in the barracks is set to begin on 13 April.

The atrocious situation in the barracks is not an isolated event. Rather, it is symptomatic of the way this government has treated migrants all along. The outsourcing of services to private contractors, the segregation of migrants, and the demonisation of those seeking to enter the UK via unconventional routes are not new policies. The hostile environment’s aim, after all, is to make the UK as inhospitable as possible so as to make migrants leave the country voluntarily. Its methods inherently lead to stigmatisation and segregation, and in this case go as far as putting the migrants in objectively abhorrent conditions in the middle of a global pandemic.

If you want to take action in the meantime, sign Freedom from Torture’s petition to empty the barracks here, write to your MP to highlight the issue and help spread awareness of that is going on.

If you need legal assistance, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.


UKVI Asylum Operations Key Updates

The Home Office are continuing to adapt the ways they work during the coronavirus crisis and have provided the following key updates to services for asylum seekers.

UASC SEF and Witness Statement returns

As part of a focus on minors applications, including planning to facilitate the restart of asylum interviews, we have contacted legal representatives in all cases where SEFs and Witness Statements are outstanding in order to request their completion and return at the earliest opportunity. Where there are obstacles to SEF and Witness Statement completion and return, we ask that representatives contact their local asylum office to explain the issues faced, plans for resolution and expected timeline for completion and return.

The Home Office remains committed to working with legal representatives to resolve issues, reduce delays and progress minors claims in accordance with the Immigration Rules.

Resumption of Asylum Substantive Interviews

As you will be aware, substantive asylum interviews were paused on 19 March 2020 due to the impact of Covid-19. More recently, Asylum Operations has been working to enable substantive interviews to restart with safety as our priority for all attendees, initially through the use of videoconferencing. We have now published guidance on the resumption of substantive asylum interviews on Gov.UK. This guidance should be read in conjunction with the Asylum Interviews guidance as normal.

Surviving on £5.66 a day: “an insult, not an increase” by Charlotte Rubin

Whilst waiting to find out if their asylum claim is accepted, asylum seekers are often stuck in the country where they lodged their claim for months. In the UK, they are not allowed to work during this time, yet they have to provide for themselves. To help alleviate their financial burden, the government provides them with “Asylum Support” which includes housing and a small cash allowance for essential products such as clothing, food, and toiletries.

The government guidance on eligibility and access to this support is clear. To qualify for accommodation, an asylum seeker will have to prove that they have nowhere else to stay. For the cash allowance, they will have to prove that they do not have the means to survive. Applicants should fill in form ASF1, which asks about their financial situation and that of their relatives, await a decision, and then receive the support they qualify for.

In practice, however, the decision-making process is slow, leaving applicants in limbo for weeks if not months before getting the support they need. Housing is scarce, and there is often a waiting list for accommodation. The cash allowance is minimal: asylum seekers are expected to make do with just over £5 a day. To make matters worse, they are often forced to spend a significant part of that sum on public transport, as they have to report once a week to the immigration authorities whilst awaiting the outcome of their application. This makes it very hard for asylum seekers and their families to make ends meet.

A number of charities have challenged this allowance in the past, arguing that it is unrealistic to expect anyone to survive on that little money. They argue that asylum support should be more in line with Universal Credit rates, which are more than twice as high as the Asylum Support allowance.

During the COVID-19 pandemic, these charities’ voices were amplified. As prices are rising in general, and all citizens are expected to invest in basic hygiene products such as hand sanitiser, masks and pain killers to avoid the spread of the coronavirus, the economic hardship imposed on asylum seekers has spiralled out of control. That is why on June 8th, the Immigration Minister Chris Philp announced that from June 15th, the stipend or Asylum Support rates would increase - from £37.75 to £39.60 per week, to be precise. Effectively, that amounts to an increase of 26p a day. If that does not sound very ambitious, that’s because it isn’t. If before the pandemic, asylum support rates were already significantly lower than mainstream benefits, the gap has now widened beyond belief, as they are now barely equal to 40% of the allowance people over 25 receive on Universal Credit.

With the prospects of inflation and an economic crisis on the horizon, over 250 organisations, faith groups and community leaders wrote to Home Secretary Priti Patel to ask her to urgently reconsider her decision. They called the proposed changes to the Asylum Support Rates “an insult, not an increase”, and instead requested an increase in line with the recent changes to Universal Credit and Working Tax Credit, which were increased by approximately £20 per week as part of the coronavirus relief measures. As of yet, there has been no response from the Home Office.

When lockdown measures were introduced in March, the Prime Minister stated that the UK “will look after all the most vulnerable in society” including asylum seekers. On 23 May, he stated that, “we will make sure that nobody in this country, let alone asylum seekers, is ill-treated.”. Ensuring that people seeking safety in the UK are able to meet their essential needs and stay safe, and making up to those promises, however, will take more than a 26p increase in funds.








Briefing: Fleeing Climate Change and Environmental Disasters by Charlotte Rubin

Since 2008, an average of 26.4 million people per year have been forcibly displaced by weather-related hazards. This is the equivalent of one person being displaced per second every day. The UN Internal Displacement Monitoring Centre (IDMC) and the Norwegian Refugee Council identify natural disasters as the number one cause for the international displacement of people. Many of those displaced find refuge within their own region or country. In fact, almost two-thirds (61%) of all new internal displacement in 2018 was triggered by natural disasters such as floods, windstorms, earthquakes or droughts. Others, however, are forced to go abroad and seek refuge in a foreign country.

Migrants fleeing their home country for environmental reasons are informally called “climate refugees.” They broadly fall into two groups: on the one hand, those fleeing immediate natural disasters such as storms, droughts or earthquakes, and on the other hand, those fleeing climate impacts that deteriorate over time, like rising ocean levels and desert expansion. With climate change, the number of both types of climate refugees is set to rise for years to come. The response to this global challenge of displacement has thus far been limited, and protection remains lacking.

Traditional asylum law is based on the 1951 Geneva Convention, which grants a right to asylum to people who “have a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group or political opinion, and are unable or unwilling to seek protection from their home countries.” Although the Convention is a living document and it is possible to push the boundaries of these definitions, shoehorning climate refugees into it has proven to be a challenging undertaking. The 1951 definition of a refugee is hard to apply to those who are forced to flee their home due to environmental disasters; climate change does not fall under “persecution,” nor are any of the grounds for persecution compatible with haphazard natural catastrophes.

Environmental migration can take many forms. Sometimes it is forced, sometimes voluntary, often somewhere in a grey zone in between. The very notion of climate refugees seems to challenge the boundaries of asylum law as we know it. It blurs the line between economic and political migrants, a dichotomy which lies at the core of the 1951 Convention. Moreover, instead of focusing cross-border movement as the Geneva Convention does, climate change displacement forces us to consider internal displacement, as the majority of today’s climate refugees are displaced within the borders of their own country. As such, the 1951 definition of a refugee is clearly not applicable to those who are forced to flee their home due to environmental disasters; climate change does not fall under “persecution,” nor are any of the grounds for persecution compatible with haphazard natural catastrophes.

The European Parliament has recognised that the “protection gap” for climate refugees is a problem. In his 2015 State of the Union speech, then European Commission President, Jean-Claude Juncker, said: 'Climate change is one of the root causes of a new migration phenomenon. Climate refugees will become a new challenge – if we do not act swiftly'. Five years later, there is still no formal legal definition of who exactly qualifies as a climate refugee, nor any formal protection under existing international law.

Laws are slow to adapt to the reality of increasingly frequent and accelerated natural disasters, but there has been some progress. In January, a landmark decision by the United Nations Human Rights Committee found it unlawful to force climate refugees to return to their home countries. While a UN Committee judgment is not formally binding on countries, it points to legal obligations that countries have under international law, and individual countries have to consider it within their own legal systems.

The ruling is the first of its kind to explicitly find that governments must take into account climate-related human rights violations when they consider deporting asylum seekers. Although on a personal level, the man at the centre of the case, Mr. Teitiota, was not considered at imminent risk of death upon deportation, and therefore lost his case, the ruling did open the door to a more concrete legal framework for climate refugees.

Nature does not stop for anyone; as climate emergencies become more frequent, many more cases like Mr. Teitiota’s will be brought to courts all over the globe. Needless to say, it is beyond time to integrate environmental and climatic factors into migration management laws and policies nationally and internationally, in order to prepare for the waves of climate migration to come.

During Covid-19, did we forget about Syria? by Charlotte Rubin

Over 3.6million Syrian refugees made Turkey their home since civil war tore their country apart in the 2010s. Polls show that most of the Turkish population want them to leave. On February 28th, President Erdogan announced that his government would heed that request, and Turkey would no longer stop refugees from crossing over to Greece.

Mr. Erdogan’s promise of free passage to Europe led tens of thousands of migrants to leave Turkey and resume their journey to Europe. What the President failed to mention was that on the European side of state lines, borders would remain closed.

The current political impasse originates from the 2015 refugee crisis, when over 1 million migrants entered Europe from Turkey. In an attempt to stop the influx, the EU struck a deal with Mr. Erdogan. As part of that deal, the EU gave Turkey over 6.0 billion euros in aid. In exchange, Turkey promised to keep the refugees inside their borders and prevent them from migrating to Europe through Greece. When Turkey ran out of aid last year, Mr. Erdogan requested more funding to keep up his end of the bargain, but the two parties failed to reach an agreement.

In response to the arrival of so many people, Greece doubled down on their border security. The government sent riot police, armoured vehicles and 1000 soldiers to the Turkish border, and suspended the right to apply for asylum for a month. Greek authorities as well as rogue actors detained, assaulted, robbed, and stripped asylum seekers and migrants, and then forced them back to Turkey. Tens of thousands of people now find themselves in limbo between borders.

Greece, like all EU countries, is bound by the EU Charter of Fundamental Rights. The Charter recognises the right to seek asylum and guarantees protection from forcible return of anyone at real risk of persecution or other serious harm. Greece’s suspension of the right to claim asylum, in combination with their appalling treatment of migrants on the border, is a gross violation of human rights.

Yet this violation has received very little scrutiny. As the spread of COVID-19 pushed the images of men being shot, children being hit, and faces behind barbed wire to the back of the news cycle, these breaches of the 1951 UN refugee convention and EU law went unnoticed. Instead, Ursula von der Leyen, head of the European Commission, announced the distribution of a £609 million aid package to help and support Greece’s border infrastructure. She called Greece “our European shield”, and praised the country for its tough response, as it has helped avoid another “crisis” like the one in 2015.

Instead of taking collective responsibility, the EU, yet again, has shown lack of leadership on the issue of migration at an astronomical human cost. The only solution to this endless plight remains unchanged from 2015: meaningful change to EU asylum policy allowing for coordinated resettlement and shared responsibility for all EU member states. The UK should be leading the charge, accepting a number for resettlement and providing for safe routes to claim asylum in the UK. Instead, in the midst of a global health crisis, the violence and human suffering at the border persist. We should fight to end it and create an immigration which actually reflects the European discourse of enlightenment and human rights in practice, rather than the dysfunctional and divisive system that is in place now.




FGM and asylum by Charlotte Rubin

The World Health Organisation defines Female Genital Mutilation (FGM) as ‘all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.’ FGM is an intrusive and extremely painful procedure which stains a girl’s entire life, and is linked with severe long-term consequences including cysts, infections and complications in childbirth.

A 2016 government report states that FGM is child abuse. It promises not to tolerate this practice in the UK, and expresses a commitment to taking concerted action to prevent and ultimately end FGM.

As such, the government has taken active steps to combat it. In the UK, agencies have been set up and legislation passed to fight the practice aggressively. FGM has been a criminal offense in Britain since 1985, and new legislation in 2003 introduced a jail term of up to 14 years for British citizens carrying out FGM abroad, even in countries where it is legal to do so. Beyond British borders, the government pledged to invest £50m in grassroots organisations working to stop the practice across Africa, where it is most prevalent. As it stands, there are over 30 countries where young girls are still routinely subject to FGM. That begs the questions: what happens to girls who escape the practice in their home country and seek refuge elsewhere? Does the commitment to prevent and end FGM extend to them?

In order to qualify for refugee status in the UK, an asylum seeker must show a fear of persecution in their home country. Claims made based on fear of FGM have to fit into this legal terminology in order to succeed. Three basic elements must be proven for the claim to be successful. Firstly, the asylum seeker must have a well-founded fear of persecution. Secondly, the individual must be subject to the persecution for reason of race, religion, nationality, membership of a particular social group, or political opinion. Lastly, the asylum seeker must prove that they cannot be adequately protected against the persecution in their country of origin. These three elements are worth discussing each in turn.

FGM has been classed as a form of torture and inhumane or degrading treatment, and as a violation of the human rights as well as health and bodily integrity of women and girls. It violates numerous human rights statutes such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), as well as the Convention on the Rights of the Child (CRC) which asks to ‘protect the child from all forms of physical or mental violence, injury or abuse.’ As such, FGM constitutes persecution in the legal sense of the word.

Considering the second element, FGM can be claimed under a couple of these umbrellas. Since it is a practice that affects only women and these women experience discrimination in their countries of origin, they can be considered to belong to the particular social group “women.” FGM is a form of violence against women and girls which is in itself both a cause and consequence of gender inequality, and therefore targets a particular social group, namely a particular gender. Opposition to FGM can also be considered a religious or political opinion. Either argument can satisfy the second element of an asylum claim.

Lastly, the claimant must prove that they cannot accurately be protected against persecution in their home country by for example relocating or seeking protection from the local authorities. This is where it usually goes wrong. The Home Office, focused on meeting net migration targets, often claims that contrary to the evidence, the risk of FGM in such cases is low because the mother can single-handedly protect her daughter from familial, religious or community pressure to undergo FGM; or that, just because the mother has been cut, it does not necessarily follow that her daughter will be cut; or that the state can protect the girl from FGM. As a consequence, asylum is often refused, even though it is widely documented that, when considering the risk of FGM, the most important factors are whether the girl’s family has a history of practising FGM, whether it is known to be practised in her community or country of origin, and whether laws to facilitate protection against are actually enforced in that particular country (hint – they often are not.)

If a girl has already been subjected to FGM when she claims asylum, the claim will usually also be refused. The physical and psychological trauma of having been through the mutilation does not, under current law, form a sufficient basis for an asylum claim, since the claimant is not at risk of FGM in the future. As such, unless there is a reasonable degree of likelihood that the procedure might be redone after the birth of a baby, or that FGM might be performed on the claimant’s daughters, someone who has previously been cut will not be granted asylum on that basis alone.

Even when a FGM claim succeed, that only guarantees status for the person directly at risk. More often than not, these claimants are children on the cusp of puberty. Since parents cannot be dependants on their daughter’s asylum claim, the Home Office has to evaluate whether accompanying parents qualify for refugee status on the basis of a well-founded fear of persecution in their own right. This may be either as a member of a particular social group, that group being the accompanying parents of a daughter at risk of FGM, or for other reasons in the country of return. If this is not the case, the parents may be granted discretionary leave, but, predictably, this is entirely at the Home Office’s discretion, effectively bringing these children at risk of separation from their parents if they want to avoid mutilation back home.

This exemplifies the duplicity of the government’s public commitment to ending FGM with real support for victims. On the one hand, the rhetoric against FGM is strong and unequivocal. In the UK, as well as for British citizens abroad, the practice is criminalised and heavily punishable. On the other hand, women and girls at risk of mutilation abroad are deported. As Charlotte Proudman, a Goldsmiths chambers barrister and academic specialised in FGM cases said last year, if the government was genuinely committed to protecting women and girls from FGM, it would be concerned with them being cut at home as well as overseas.

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