Blog post by Jessica Schultz (Chr. Michelsen Institute, TemPro project), Esra Kaytaz (Coventry University and TemPro project) and Maria O’Sullivan (Monash University), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
One strategy in the New Plan for Immigration to combat ‘illegal entries’ is to offer a ‘new temporary protection status’ for refugees who arrived in the UK without visas, typically by lorry or boat. These refugees, provided they ‘reasonably could have claimed asylum in another safe country’, will be considered inadmissible. Until removal is possible, a refugee will be granted permission to remain for a period no longer than 30 months, after which he or she will be reassessed for return to the country of origin or removal to a third state. Family reunification rights and access to public support will be limited. In other words, the terms of ‘asylum’ seem inspired by Discretionary Leave, which is a non-protection-based category in existing UK law.
In this blog post, we discuss the broader context behind, and consequences of, the temporary protection status proposed in the New Plan. Besides having adverse impacts on refugees, the temporary protection status foreseen in the New Plan is not compatible with the 1951 Refugee Convention’s non-discrimination principle, which prohibits discrimination between different groups of refugees. Similarly, the Global Compact on Refugees calls on states to end ‘discrimination of any kind’ (para 9), which includes discriminating against those refugees who arrive in the UK irregularly by limiting their status and rights.
Temporary Protection as a Tool for Restricting Asylum Space
These proposals, a combination of temporal and spatial migration control measures, do not come from nowhere. On the one hand, they reflect a regional trend towards more temporary protection for people recognized as refugees under the 1951 Refugee Convention and human rights law. Unlike in the 1990s, when European countries coordinated efforts to extend (temporary) protection to refugees from the Balkans, current practices infuse temporariness into their asylum policies in order to limit protection.
These measures are not only about providing time-limited residence permits. They are also about reducing security for refugees by introducing ‘safe return reviews’, increasing income, language, and longer residence requirements for a settlement visa, and creating obstacles to the enjoyment of family life. While in neighbouring countries such policies were intensified following the increase of asylum seekers in 2015, in the UK the escalation of such policies has been motivated also by broader Hostile Environment policies that target not only refugees but anyone with a migrant background in the UK.
What is new about the New Plan is the explicit distinction made on the basis of people’s modes of arrival and the increased precarity of legal status. The New Plan proposal reduces the protection owed to refugees – just because they arrive outside controlled channels – to a temporary stay of deportation. Ironically, people who seek asylum in the UK because of existing networks there, and therefore have an advantage when it comes to economic and social inclusion, are precisely those who are excluded from settlement.
Temporary Protection in Context: Insecurity of Status in the UK
While ‘temporary protection’ of refugees has emerged with the New Plan as a core strategy of UK asylum governance, the temporariness that otherwise permeates refugee policies in the UK stems from a broader logic of earned residence that affects not only refugees but migrants more generally. Indeed, the constant need to prove one’s belonging is a key feature of the Hostile Environment.
There are two primary ways that the existing logic of earned settlement affects refugees: first, through the practice of ‘safe return reviews’ and second, as part of ‘good character’ requirements.
Safe Return Reviews
Rather than receive permanent residence immediately, as was the practice between 1998 and 2005, refugees are currently granted a 5 year leave to remain before they are permitted to apply for settlement. A settlement application may be refused on many grounds (fraud, criminal behaviour), but the one relevant to all refugees is the requirement of a continued need for protection. In 2016, ‘safe return reviews’, which had previously been a kind of ‘check-the-box’ exercise, were intensified. Now, the burden is placed on an applicant to show why he or she still needs asylum. Based on the New Plan’s proposals, these checks would be conducted more frequently.
An added level of insecurity derives from legal interpretations of the scope of ceasing refugee status (Article 1C Refugee Convention). Under UK law, if an ‘internal protection alternative’ exists in the country of origin, the right to refugee status no longer exists. This reasoning potentially exposes many refugees, including those from countries still in conflict, to a premature return.
Good Character Requirements
‘Good character’ requirements for naturalization in the UK exclude migrants, including refugees, for a broad range of offences. For example, the bad faith associated with ‘illegal entry’ can be leveraged years later as evidence of ‘bad character’ and disqualify a refugee from permanent settlement or citizenship. Similarly, the crime of ‘illegal labour’ penalises refugees forced to work without permission to do so, sometimes for years, while waiting for their asylum decision. Finally, high application fees, and complex/constantly changing rules make it easy for migrants, including refugees, to commit an immigration violation by falling ‘out of status’.
The New Plan promises to increase penalties for the crime of ‘illegal entry’ and introduces regular safe return reviews. These reviews raise due process concerns as a refugee will be asked not only to respond to information about their country of origin but also, in some cases, give reasons why she should not be returned to a host of countries with which she may or may not have meaningful links.
It’s Not Why You Arrive, but How
While most versions of ‘temporary protection status’ in Europe are linked to the underlying cause of flight (despite evidence that needs are only exceptionally short-lived), the New Plan reinforces a distinction that has hardened over decades of anti-migrant policies: between ‘bogus asylum seekers’ who arrive in the UK ‘spontaneously’ and ‘vulnerable’ refugees who wait patiently in refugee camps for the chance of resettlement.
While those who apply for asylum in the UK are to be punished with time-limited permits and minimal assistance, the New Plan intends to reward refugees who come through controlled channels with an immediate grant of permanent residence, more generous family reunification rights, and enhanced integration support. For example, the Plan promises to consider extending rights of family reunification to refugees’ adult children under the age of 21.
To justify these distinctions, the Plan relies mostly on moral licensing rather than empirical facts based on people’s real needs: ‘safe and legal routes’ to prioritise the ‘most vulnerable’ will be strengthened, while smuggling routes that only the strong or dishonest would use will be strangled. In reality, however, these controlled channels are subject to extensive discretion, and punish refugees without access to a camp with UNHCR presence or the time to gamble on untransparent entry processes. Further, as Mayblin observes, the situation of refugees in camps and ‘spontaneous’ asylum seekers is often interconnected: “men are more likely to go ahead in advance, making perilous journeys, in the hope that safe and legal options will then be opened up for vulnerable family members.” It is precisely the inadequacy of existing channels for legal entry that makes their travel so dangerous.
Unfortunately, while this two-tier system separating people who take ‘legal’ versus ‘illegal’ pathways to protection has historical roots in the UK, this form of legal fragmentation is becoming more popular as a tool of migration control. As Macklin points out, ‘most states deplore the arrival of asylum seekers’. Indeed, linking modes of arrival with the quality of protection is already an established feature of asylum policy in Australia and Canada. Meanwhile, in countries like Denmark, a contrary trend has been to collapse any distinction, to the detriment of durable solutions for all. There, temporary protection has been controversially extended to resettled refugees in the name of equal treatment.
Lessons from Australia’s Temporary Refugee Visa Regime
A closer look at these existing temporary protection systems sheds light on problems inherent in this system and serves as a lesson for countries like the UK, which intend to implement it. In this section, we will take a closer look at Australia’s temporary refugee visa regime.
Australia has operated a temporary protection visa (‘TPV’) scheme in various forms since 1999. Under the current legal framework in Australia, a recognised refugee who has arrived in an unauthorised manner can only be granted a three-year ‘temporary protection visa’ and is precluded from obtaining a permanent protection visa. In contrast, asylum seekers arriving by plane or with valid visas continue to be eligible for permanent residence if found to be refugees.
Controversially, TPV holders in Australia are only eligible to receive ‘rolling’ three-year visas and are not permitted to apply for permanent protection visas. This has significant implications for the granting of durable solutions. Like the UK’s New Plan proposal, TPVs in Australia are subject to periodic review. Therefore, the existence of TPVs has also enabled Australian authorities to apply Article 1C(5) of the Refugee Convention to holders of those visas.
Holders of TPVs in Australia have the right to work, access to the public medical system and social security benefits. However, they are excluded from a number of rights and services that are otherwise offered to refugees holding permanent protection visas. For instance, TPV holders cannot access refugee family reunion schemes, English language tuition or accommodation support.
According to the Migration Regulations 1994, they may only travel outside of Australia where the Minister is satisfied that there are ‘compassionate or compelling circumstances’ justifying the travel, and if a TPV-holder travels to the country where they fear persecution their visa will be cancelled (Condition 8570, as per subclause 785.611.).
Such limitations were established as part of a broader policy of deterrence by Australia in response to a perceived misuse of the refugee system and penalisation of unauthorised arrivals. For instance, TPVs are said to be ‘a key element of the Government’s border protection strategy to combat people smuggling and to discourage people from making dangerous voyages to Australia.’
The use of TPVs in Australia has attracted a substantial amount of criticism from UNHCR and both domestic and international NGOs (see here and here). One of the main concerns raised by commentators is the uncertainty and instability caused to refugees’ lives by such visas. This was illustrated by concerns raised by civil society to Parliament in a number of government inquiries. For instance, Cabrini Outreach has noted that:
Current policy settings result in protracted uncertainty for our clients. From our experience working with those exposed to this uncertainty, it almost always causes a high prevalence of mental health issues, particularly major depression and post-traumatic stress disorder. It also exacerbates complex physical health issues, including chronic pain syndromes and chronic diseases such as diabetes and heart disease. Our work and experience in the asylum seeker health sector has highlighted the unique vulnerabilities and typically complex mental and physical health care needs of this cohort. This is due to pre migration and migration stressors including torture and trauma, persecution and experiences of interpersonal violence and broader conflict. Countries of origin and transit countries for asylum seeker populations are often those with limited access to healthcare, nutrition, vaccinations, chronic disease management and other requirements for good health.
It is the view of Cabrini Outreach that permanent protection visas are the most appropriate outcome for people who are found to be refugees and people should be provided with stable visas that enable full social and economic participation while protection claims are being assessed. Conclusion Based on our experience providing clinical primary health and mental health services to people seeking asylum over the past 4 years, it is the view of Cabrini Outreach that the government’s current use of temporary migration policy settings for people seeking asylum create serious difficulties in gaining and maintaining employment. The forced inactivity and uncertainty that occurs as a result can have serious mental health and physical health consequences, and have a serious impact on the ability of people affected to participate fully in Australian social and economic life.
Cabrini Outreach strongly recommends that people seeking asylum are afforded stable and permanent visa types, both while awaiting a protection application outcome and when found to be owed refugee protection.
Finally, a further criticism of TPVs in Australia is that the cessation or expiry of a TPV in Australia leaves refugees open to deportation, unless they are successful in appealing to the Minister for Immigration for exercise of his or her personal, discretionary powers to substitute a new decision (Migration Act 1958 (Cth), s 417).
Temporary Protection as Prolonged Insecurity
As evident from the Australian example, the temporary status proposed in the New Plan would distort the protective role of refugee law beyond recognition. Indeed, as UNHCR has pointed out, it directly violates the 1951 Convention by denying refugees their right to public benefits in line with nationals (Art. 23), and by permitting the expulsion of refugees even if they pose no threat to national security or public order (Art. 32).
Thus, instead of providing security, albeit for a time-limited period, the introduction of temporary protection for people with a right to refugee status will have predictably deleterious consequences for individual refugees and their families. The adverse impacts of the uncertainty of the asylum system on asylum seekers and refugees and of discretionary leave on life courses and wellbeing of young people in the UK is well-documented. Research from other countries in the TemPro project similarly illustrates harms of legal uncertainty (see also here) to the well-being and life trajectories of temporary protection on status holders. Treating refugees from the same countries, and with the same protection needs, differently will also increase distrust in the system among those who perceive they have been unfairly given less secure status.
The New Plan and the Timespace of Migration Control
By linking the duration of permits to the mode of arrival, the New Plan collapses temporal techniques of internal bordering (time limits, safe return reviews) with spatial techniques of external bordering (containment, safe third country rules, and extraterritorial processing). The irony of course is that this ‘return turn’ is completely disassociated from return realities, meaning that the compression of protection space will predictably prolong the hardships of being displaced.
While ‘temporary protection’ in the 1990s was recognized to fill a time-limited need towards durable solutions, ‘temporary protection’ in the New Plan is a permanent non-solution. It entrenches precarity inside the UK, promotes removals to ‘safe third countries’ and opens the possibility of ‘return’ to countries still in conflict – as long as a refugee can safely join the ranks of the internally displaced. Even from the perspective of UK authorities, the search for a safe place willing to admit a refugee claimant promises to prolong, rather than reduce, asylum processing times.
 Other submissions to this Inquiry can be viewed here: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Temporary_Migration/TemporaryMigration/Submissions . The Senate is due to release their report on Temporary Migration in August 2021.
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