Blog post by Sheona York (Kent Law Clinic, University of Kent), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
In this blog post I discuss specific problems raised by the UK government’s New Plan for Immigration, showing the real problems lying behind the Home Office complaints, and showing how the New Plan’s proposed solutions will perpetuate Home Office inefficient case processing and poor decision-making, and lead to a further deterioration in Home Office legal probity. I discuss asylum backlogs, the one-stop proposals, the ‘good faith’ proposals, and the various recommendations for speeding up judicial proceedings.
‘The rapid intake has outstripped any ability to make asylum decisions quickly’
In Chapter 4 of the New Plan, the Home Office complains that the asylum backlog now stands at 109,000 applications, and that the financial burden of maintaining the applicants is becoming unsupportable. However, contrary to what the Plan envisages, both for reasons of international law and common humanity, the answer cannot be to try to prevent new entrants. The Home Office needs to commit sufficient resources to the system to ensure timely right-first-time decision-making, reducing the need for unnecessary appeals and lengthy periods of asylum support.
The Home Office should well know that the issue of backlogs is decades old. It has arguably been the policy of governments since the build-up of queues for entry for Commonwealth spouses in the 1970s not to provide enough resources for immigration decision-making. Those and other backlogs were often raised in Parliament during the 1970s and 1980s, by MPs facing complaints from constituents about the years of delays in those cases. In 1995, in the first example of a minister accepting the scale of the Home Office ‘shambles’, Charles Wardle, Minister of State at the Home Office, said in Parliament:
… to process the queue of 75,000 asylum applicants will take additional resources, manpower and facilities—within the asylum division and the appellate section of the Lord Chancellor’s Department… it will probably take £150 million a year for two years, … to reduce the queue to a manageable work-in-progress level of three months. …. Once the queue is removed, the very attraction of the bogus application is destroyed.
In fact, this has been the only time that a Home Office minister has proposed an increase in resources both for decision-making and for appeals. From the time of those backlogs, and the scarcely disguised amnesties of the 1990s and 2000s, to the ‘not fit for purpose’ declaration of John Reid in 2006, to the ‘not good enough’ declaration of Theresa May in 2013, governments have provided insufficient resources for competent decision-making.
Queues have grown, especially, but not only, in asylum decision-making, and so, of course, have costs of supporting asylum-seekers. From the 2006 ‘not fit for purpose’ announcement, the House of Commons Home Affairs Committee (HAC) requisitioned three-monthly reports on ‘the work of the UK Border Agency’, requiring data on such as numbers of concluded cases, backlogs in decision-making, returns and deportations. Theresa May’s 2013 declaration that the UKBA was ‘no good’ stemmed directly from bruising exchanges before that Committee demanding a report on the UKBA’s work which did not reveal a growing backlog or a new pile of unprocessed cases. The prospect of Brexit with its requirement for a fundamentally changed immigration system led to a HAC review of whether the current system could cope, and the answer was ‘No’.
Over the years, reports from that Committee and the Institute of Government have recommended a combination of more resources and simplification of requirements. The asylum system is indeed broken, and does indeed cost too much. But this rests on (i) decades of underfunding of properly trained decision-makers (ii) basing asylum determination on an unequal burden of proof operated with visible lack of legal conscientiousness, (iii) problems exacerbated by cuts to the Home Office and Ministry of Justice following the 2008 financial crash. Delays to decision-making mean increases to the cost of asylum support. Poor decision-making leads to more appeals and judicial reviews. Failure to grant a meaningful right to work is a self-inflicted cost on the government and the economy at large.
Instead, this Plan, just like many previous attempts to ‘reform’ the asylum system, intends to proceed by physically limiting numbers, punishing irregular arrivals with declarations of inadmissibility and limited leave to remain, and curtailing access to justice. These measures will not ‘solve’ the problem, and will have unintended consequences for society including increasing the numbers of people in the UK without rights and yet not removable.
‘We will introduce a one-stop process….’
The New Plan proposes introducing ‘a “one-stop” process to require all rights-based claims to be brought and considered together in a single assessment upfront.’ The one-stop concept was introduced by Labour in section 120 of the Nationality, Immigration and Asylum Act 2002, which provides for a ‘requirement to state additional grounds for application,’ and which is still in force. Some migrants are still issued with s120 notices. Home Office refusal letters, whether asylum or other immigration refusals, refer to s120. Online application forms require applicants to state all their reasons for wishing to remain in the UK. It is the Home Office itself which has ruptured the one-stop system, by refusing to consider ‘other reasons’ supporting an application, instead requiring applicants to make separate applications, each requiring large fees to be paid.
The Plan sets out, as one of its ‘suite of changes’, the following:
Introduce an expanded ‘one-stop’ process to ensure that asylum, human rights claims, referrals as a potential victim of modern slavery and any other protection matters are made and considered together, ahead of any appeal hearing. This requires people and their representatives to present their case honestly and comprehensively – setting out full details and evidence to the Home Office and not adding more claims later which could have been made at the start.
To consider all reasons for a migrant’s wishing to stay in the UK before making a decision on their application is sensible and humane. Lawyers acting for migrants are expected to consider all aspects of a client’s case before advising them.
But the one-stop process is already in force. Its erosion arguably began in the 2000s with Labour’s introduction of an ‘Australian-style points-based scheme’ for workers and students. The aims of that scheme were to routinise and standardise work visa application processing, eliminating discretion as far as possible. But as soon as there is a class of application in which discretion cannot operate, the one-stop principle has been breached, as a discretion-free system, such as the points-based system, precludes consideration of ‘all reasons’ for wishing to remain.
Subsequent developments have continued this process. Looking across the whole range of immigration applications, we see that some attract rights of appeal, some provide ‘administrative review’, and some have no access to any onward reconsideration. Cutting across those distinctions, but also relevant, is the determination that certain applications are ‘human rights claims’ and others, even dealing with intensely personal issues, are deemed not to be ‘human rights claims’. Thus, a person applying to extend their visa as a worker or student, or a person making a statelessness application, cannot advance any family or private life grounds within that application, while applications as a ‘bereaved partner’ and as a victim of domestic violence (Appendix FM Immigration Rules) are considered not to be ‘human rights claims’.
This separation of different types of application by legal remedy and by subject-matter has been intensified (and may even have been driven) as the Home Office has moved towards an aim of making migrants pay for the immigration system out of the truly extraordinary increases in fees over the last several years. The recent report by the Independent Chief Inspector of Borders and Immigration (ICIBI) said this:
In 2016, the Home Office set out its intention to increase its fees for “growth routes” (which it identified as visit, work and study visa applications) by 2% each year for 4 years, equivalent to a compound increase of 8% by 2019-20, while for most “non-growth routes” (“settlement, nationality and other/family leave to remain”) the increase would be higher and be front-loaded: 25/18/0/0%, equivalent to a 47.5% compound increase over the 4 years. Broadly, the Home Office has stuck to this, but with some adjustments … to produce a 4% increase in 2018-19 to meet an identified funding shortfall (emphasis added).
Anyone applying in a category which is not considered to be a human rights claim, but who wishes to advance human rights arguments such as family or private life factors, is obliged to make a separate ‘human rights’ application, all of which are chargeable. These policies, segmenting immigration applications into smaller and smaller separate categories, have led to lengthy litigation, which has arrived at the ridiculous position that even if a person sets out their human rights reasons for remaining in the UK other than in a ‘human rights claim’, the Home Office can, in refusing those, decide that because a ‘claim’ has not been made, that ‘refusal’ does not constitute ‘a refusal of a human rights claim’ and therefore there is no right of appeal.
A recent example of waste of resources arising from the segmentation of Home Office decision-making is set out in JA (human rights claim, serious harm) [2021] UKUT 97. In this case, a family with leave to remain made a private life application under para 276ADE of the Immigration Rules, where their ‘very serious obstacles to integration’ in their home country arguably amounted to asylum grounds. The Home Office invited the family to claim asylum, which they declined. The application was refused, and appeal dismissed, and permission to appeal to the Upper Tribunal dismissed, on the grounds that having refused to claim asylum, their protection-based arguments for ‘very serious obstacles’ were not required to be considered. Eventually, the Scottish Outer House in HAA v Secretary of State for the Home Department [2017] CSOH 11 recognised this to be an error of law: a person cannot be forced or obliged to claim asylum. The court did say that a refusal to claim asylum may indicate a reluctance to engage in the asylum process, but, the court said, in so far as this might involve an interview, the Home Office may interview any applicant about any aspect of their case. It is also possible that a family who has leave to remain, and who has made an in-time application, and is protected by section 3C of the Immigration Act 1971, might fear that by claiming asylum their extant leave would be curtailed, and they would be catapulted into the grim world of living in barracks and surviving on £37 a week – a fate that has nothing to do with fearing a Home Office interview.
The Court decided that a person making a human rights claim is entitled to have their protection-based claims considered as a part of a consideration about obstacles to return. But why was this resisted in the first place? It appears that this at least partly arises from the segmented silo-style organisation of the Home Office. Officials dealing with statelessness claims, during the Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 saga, stated that they were not equipped to consider applicants’ family life claims – the files had to be passed to teams dealing with human rights applications. It was only a short step from there, to requiring that people make, and pay for, separate human rights applications. The most recent discussion on the issue can be found in the case of MY (refusal of human rights claim) Pakistan [2020] UKUT 00089, which is currently under appeal.
A similar problem of disaggregation of issues is raised at in the New Plan’s discussion about modern slavery and trafficking. Here the Home Office refers to people raising these issues at the last minute to stop being removed. However, applicant lawyers are beginning to notice a trend in which a migrant with an extant application, rather like JA in the case discussed above, is invited by the Home Office to make a trafficking referral, and an applicant may be genuinely unsure whether this is useful to them, or just another part of an obligatory set of procedures. Then the claims are pursued because the applicant fears that deciding not to pursue such a claim might itself weaken their credibility – even long after the principal application has been decided. Further, these trafficking referrals take months and years to resolve. So, it is not at all clear that the proliferation of these claims, and the delays attendant on them, can be blamed on the applicants.
A true one-stop process must be reciprocal
If the Home Office truly wishes every applicant to provide all their reasons for wishing to remain in the UK, it must agree to assess all those reasons holistically and in accordance with the rule of law – and if the application is refused, the Home Office response must be equally holistic and comprehensive. In particular, the Home Office should be precluded from later adding to the reasons for refusal. This will be discussed below, in relation to how principles of good faith must apply in appeals and judicial reviews.
For a one-stop process to be effective, it must be reflected in how the legal aid system operates
To ensure that a one-stop process is effective, the legal aid system should be reformed, firstly to bring back non-asylum immigration issues into scope, but secondly to ensure that the legal aid financial regime does not disincentive a holistic consideration of an applicant’s case. At the moment, a lawyer acting for someone in an asylum claim is not paid for consideration of that applicant’s article 8 claim or other rights to remain, without making a lengthy application for a separate grant of legal aid.
It is not the applicants who have eroded the one-stop system.
The issue of good faith
The Plan’s proposals about ‘good faith’ entirely neglect the many and varied instances of Home Office conduct which fall below good legal practice. From a purely legal point of view, so long as asylum determination forms part of an adversarial system, requirements of good faith must clearly also apply to the Home Office.
The Plan suggests to:
Develop a “good faith” requirement setting out principles for people and their representatives when dealing with public authorities and the courts, such as not providing misleading information or bringing evidence late where it was reasonable to do so earlier.
The Home Office indulges in multiple behaviours which, if carried out by litigants in other legal arenas, would be regarded as acting in bad faith or at the very least wasting public money in unnecessary litigation. For example, the Home Office should be expected to put forward all relevant reasons for refusal, properly responding to the applicant’s reasonable explanation. An applicant’s name spelt differently in different places? That’s because often the person’s name starts out in a different alphabet, such as Arabic, or Tigrigna, and more than one hapless official has tried to transliterate it. Birthdays not matching? Because people in many countries do not get birth certificates or celebrate their birthdays. The Home Office should desist from ‘providing misleading information’ such as quoting selective paragraphs from objective country reports, and from using interview techniques designed to elicit discrepancies and discourage detailed answers. The Home Office should be debarred from raising fresh refusal issues during an appeal hearing (even, in a case of mine, raising a credibility issue during final submissions which had not been raised in the refusal letter nor even explored in examination of the witnesses). The Home Office should be precluded from relying on their own opinions (‘she couldn’t possibly have escaped from that prison’); from measuring the strength of a person’s religion by asking them exam questions about the Bible; from assessing someone’s sexual orientation based on what they said in a screening interview at age 14; from disbelieving a woman’s claim to have been raped by soldiers because she did not reveal this at her screening interview; along with the many other bad-faith reasons for refusing asylum which have been quoted in many critical reports over the years.
A shared burden of proof
A closer approach to a shared burden of proof (approached in the 2007 Solihull Early Advice Pilot and used to great and efficient effect in the EU Settlement Scheme) would be the single most transformative change to our current ‘broken’ asylum system. It is not widely recognised that the ‘culture of disbelief’ issues in UK asylum determination arise from the fact that the Home Office strictly applies the basic rule that the burden of proof in asylum and immigration, without considering a shared acceptance of a duty to facilitate evidence-gathering. The term ‘culture of disbelief’ is widely used to refer to the prevalence of a ‘refusal culture’; refusals based on suppositions, minor discrepancies, non-sequiturs, bureaucratic mistakes and tendentious applications of criteria such as ‘genuine’ which force applicants to prove negatives. This puts applicants at a clear disadvantage in an adversarial system, in contrast to the shared burden of proof in civil litigation, and the very different position in the welfare benefits jurisdiction, in which, according to the House of Lords in Kerr [2004] UKHL 23, there is ‘a co-operative process of investigation in which both the claimant and the department play their part. … ‘If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof’.
However, despite UNHCR guidance (para 196) on problems of documentation and evidence, including giving the benefit of the doubt to children and vulnerable applicants, refusals often cite the lack of evidence. In the absence of a shared burden of proof the Home Office can and does introduce unsubstantiated allegations, spurious or irrelevant ‘facts’, and the decision-maker’s own opinions, into the decision. A shared burden of proof would eliminate that type of issue.
The issue of delay in presenting evidence requires separate consideration. Especially for those placed in the Detained Fast Track, and especially for those who need specialist evidence, time is often needed to obtain legal representation and then obtain the required evidence. It is well-known that traumatised and abused individuals need time to come to terms with what has happened to them before they can speak to people about it, yet the Home Office continues to fetishise people’s initial statements at screening or in interview as being ‘the truth of their claim’.
The ‘good faith requirement’ therefore must be reciprocal.
Expedited appeals processes; expedited judicial consideration
In relation to both appeals and judicial reviews, the Home Office is blaming the wrong people, and looking at the wrong issue. Considering the gravity of their subject matter, (asylum, deportation and human rights) appeals are short (1-3 hours at most) and generally limited to substantive matters only; and judicial review consideration is brisk. The Home Office is concerned that rights of appeal and access to judicial review slows down the process of removing and deporting people with unmeritorious cases. But the delays are not caused by the substantive access to those proceedings, but by the delays in listing hearings and delays in judicial consideration arising from cuts in administration and judicial resources by the Ministry of Justice following the 2008 financial crisis.
In proposing expedited appeal processes, the Plan’s description of the appeals process bears no relation to current reality. The waiting time for most appeals is over a year. An appeal granted expedition in December 2020 has still not been listed. Virtually every single applicant, for whatever immigration status, would like their appeal to be expedited. The problem is not with the procedure. A typical appeal takes around 2 hours; and writing a determination may take up to a day. The delays do not arise from the difficulties of case preparation, presenting or adjudicating, but with the lack of judicial and administrative resources.
Judicial reviews are often used where the only way to get an intelligent person to look at a client’s problem in a timely way is to send a pre-action protocol letter. An ICIBI report on Home Office mechanisms for learning lessons from litigation stated that, in 2016-17, the number of pre-action letters was 22,610 of which 13,855 resulted in judicial reviews. This implies that in around 9,000 cases, a pre-action letter achieved its aim. In a system where more and more immigration processes and decisions do not attract a right of appeal, judicial review is often the only remedy. In a system where delays of over a year are commonplace, and where there is no direct contact with any caseworker, judicial review is often the only way of attracting urgent attention to a client’s case. Away from asylum, people lose their jobs and their homes because of Home Office mistakes and delays in providing biometric residence permits, etc. At the moment, these issues, administratively tiny for a department of State but crucial to the applicants, can only be resolved by threat of judicial review.
In respect of unmeritorious claims, whether made from prison, in detention or out in society, legislation already provides for certification of claims judged to be without foundation, and rejections of fresh claims deemed not to meet the fresh claims test. Such decisions do not take a long time because they are complicated. If all the papers are available, it takes around one hour at most to decide whether a case truly has no merit, or there is nothing ‘fresh’ in a fresh claim – applicant lawyers make these decisions every day. Similar decisions made by the Home Office appear to take a long time, not because officials take longer making the decisions, but because governments have not provided sufficient trained staff resources to make these decisions in a timely way, and insufficiency of administrative staff, poor record-keeping and poor IT precludes gaining rapid access to old files.
The Plan also suggests speeding up judicial rejections, more specifically, to:
Provide a quicker process for judges to take decisions on claims which the Home Office refuse without the right of appeal, reducing delays and costs from judicial reviews.
Again, there has not been a careful analysis of where delays come from. Judges do not cause delays. Judicial review is already a quick process. Judicial review judges might deal with 10 paper applications in a day, as refusals only require the briefest of reasons, as in ‘no merit’. Even oral permission hearings rarely take longer than half an hour unless a case brings a truly new legal argument or multiple appellants. The reason it takes months to obtain a decision on a permission application, rather than the week it used to take in the 2000s, is largely because of the deep cuts in administration and judicial resources in the MOJ. The procedures are already available – there just aren’t enough people to look at the applications.
If what the Home Office means here is ‘the delay caused by an applicant having access to the judicial review process,’ the answer is the same. An urgent judicial review can be prepared, lodged, read and decided in a morning. With permission granted, a full judicial review might be listed for a morning’s hearing, which could be within a few days if the court had enough judges. The ‘delay’ does not come from the judicial review itself as a remedy, but from the administrative shortcomings in the administration of the relevant courts and tribunals, meaning that there are not enough judges available to carry out enough hearings to ensure the cases are progressed promptly.
Just as with asylum decision-making and appeals, it may well be the case that some applicants make applications in order to delay their removal – but that has only occurred because delay has been the overriding feature of the asylum system since the early 1990s. The remedy for that is to ensure that there are sufficient administrative and judicial resources to deal with applications, appeals and judicial reviews promptly and according to law, and to institute a reliable, effective internal system for promptly responding when things go wrong, not to try to solve the problem with skimpy processes.
Conclusion
The Plan implies that the availability of legal remedies for migrants is also effectively a cause or driver of criminal people-smuggling, overstaying and so on. At best this would require a long chain of causation with many weak links in it. But, worse, the Plan implies that Britain’s proud reputation for the rule of law and access to justice is a disadvantage, giving rise to unintended and regrettable consequences. This is a profound mistake. The rule of law and access to justice are rightly regarded as cornerstones of UK democracy. This means that the UK is genuinely attractive to foreign people as a place where the rule of law prevails: attractive to the whole gamut of foreign people from billionaires and capitalists through ordinary citizens all the way to asylum-seekers. We should be sternly anxious to preserve this, and not cast it away as part of a misguided attempt to fight a particular type of crime, or stop a relatively small number of irregular arrivals claiming asylum in the UK. The availability of legal remedies for migrants serves a wider and grander purpose not to be chipped away to serve short-term and badly-thought-out objectives.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.
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