On 4 June 2024, Professor Sarah Singer delivered her inaugural lecture ‘Criminalising Asylum: From exceptionalism to Rwanda’ at Senate House, University of London. The text of her lecture is reproduced below, and a recording of the event is available here.

Preparing for this talk gave me the opportunity to reflect on the entirety of my academic career, right from my earlier research on criminality and asylum, all the way up to my more recent engagement with the UK’s Rwanda policy. And in this talk I would like to outline the ways in which I can observe the same trends of what were previously considered to be quite exceptional measures applied to a relatively small group of suspected criminal migrants, becoming manifest much more broadly across the entirety of the UK’s asylum law and policy today.

Over the past few years we have seen the adoption of immigration and asylum legislation which is simply breathtaking in its scope – the Nationality and Borders Act of 2022, the Illegal Migration Act of 2023, and most recently the 2024 Safety of Rwanda Act. These have, of course, been set against a backdrop of increasingly hostile legislation and political rhetoric directed against refugees and asylum seekers over the past decades.

But this new legislation is much more pernicious in its direction and scope. In this talk I would also like to demonstrate the ways in which this new legal framework is giving rise to immense policy challenges, similar to those posed by responses to suspected criminal migrants but on a much greater scale.

The breadth of this exceptionality approach to asylum is problematic not only for its impact on those seeing protection in the UK, but importantly, for the way that it pushes our domestic legal framework to a dangerous extent, beyond what might reasonably be considered respectful of the rule of law and the judicial system in a properly functioning democratic society today.

But for me a really engaging part of preparing this talk was thinking back to what might be considered the beginning of my academic career – me waiting to register as a PhD student at the Queens Building in Queen Mary, University of London, back in 2010. And I’ve been reflecting on who was I then, and what was I thinking?

I remember I was enthused by this crazy passion to unpick what I considered to be a really significant social injustice – that was, the way in which asylum seekers and refugees had been caught up in the global War on Terror, and in many cases presented as terrorist threats themselves.

Over time this evolved into a PhD project which explored how political and legal discourse linking refugees and asylum seekers and terrorism had impacted the UK’s interpretation and practice on who would be excluded from and denied refugee protection due to suspected serious criminality, particularly those associated with the vague and amorphous term ‘terrorism’.

Because despite what many populists would have you believe, the international protection regime does not just blindly grant protection status to serious criminals. Rather, we have specific provisions in the key international treaty governing refugee protection – the 1951 Refugee Convention – and it’s regional counterparts, which explicitly exclude from protection those suspected of committing serious crimes.

And the rationale of these provisions is two-fold. Firstly, preventing impunity from justice – We have to remember that the Refugee Convention was drafted in the wake of the horrors of World War II, and so there was a particular concern that those who had perpetrated war crimes and other atrocities during the war did not benefit from refugee protection and use the refugee regime to evade prosecution.

Secondly, there is a humanitarian imperative and that is to protect the integrity of the international refugee regime by ensuring it is not abused by the perpetrators of serious crimes, particularly those giving rise to refugee-producing situations.

And I explored how, especially in the aftermath of the 9/11 terrorist attacks on the United States, the international preoccupation with terrorism had permeated the refugee protection regime and influenced the interpretation of who would be excluded from refugee status – who would be denied refugee protection – on account of suspected terrorist activities.

And this was a really exciting time for the law of exclusion from refugee status. We had a big Supreme Court decision, I was able to engage with staff at the Home Office, with senior legal advocates, with the judiciary. I was somehow granted permission to survey every member of the asylum tribunal! And throughout all of this I retained my focus on social justice, arguing for a rigorous and principled approach to this issue of exclusion for suspected serious criminality, and that it was not abused to unjustifiably exclude people due to overly expansive interpretations of politically charged terms such as ‘terrorism’ and national security.

Following my doctorate, the natural follow-on was exploring the vexed issue of how States respond to those who are excluded from protection -– not only suspected terrorists but the still relatively small but broader category of persons who are excluded from refugee protection due to suspected criminal activity – but who couldn’t be returned to their home country because they had valid protection claims. That is, they would be at real risk of serious human rights violations if they were removed back to their home country.

Although this was a relatively small group of individuals, the political sensitivity of the topic of these potentially criminal migrants, coupled with the very real practical and legal obstacles to removing them, meant that this posed enormous policy challenges for States.

And exploring this issue further, what was revealed was a real patchwork of domestic measures employed by States to address these people who could not be removed. In the UK this included detention, special forms of limited and precarious leave, and very resource intensive battles to secure removal for particularly high-profile cases.

As an example, some of you may recall the case of the Islamist cleric Abu Qatada, who dominated newspaper headlines in the UK for over a decade as successive home secretaries tried to remove him to Jordan to face trail there for his suspected role in terrorist-related offences.

Following his exclusion from refugee status in the UK due to suspected terrorist activity, Abu Qatada was subject to a range of in-country measures, this included detention and a number of measures under counter-terrorist initiatives and, ultimately, this long running saga as the UK tried to address the human rights concerns about removing him to Jordan by concluding a special agreement with Jordan– an MOU – through which Jordan guaranteed Abu Qatada’s safe treatment and fair trial standards. This was incredibly resource intensive and went through the UK and European Court systems for over a decade before Abu Qatada eventually agreed to return to Jordan of his own volition.

But for those individuals who couldn’t be removed, the UK created a unique special status to regulate their stay in the country – Restricted Leave. This is an incredibly precarious and temporary form of leave which can have a range of restrictions attached including on accommodation, residence, employment opportunities, even access to educational courses. This is all without even a criminal trial, and these cases are continuously reviewed by the Home Office with an eye to removal. We have had individuals remain on this temporary form of leave for years and years, it seems almost immune to challenge. Importantly, the intention here is to prevent their integration in the UK and any route to potential regularisation or settlement and keep the focus on the potential for removal.

So we can see we’ve had a range of very exceptional measures developed to deal with this issue of suspected criminal migrants who can’t be removed from the country.  These measures are intended to prevent integration in the UK and keep the authorities eye on potential removal. But what became clear is that these measures are very much ad-hoc in nature and there’s a lack of any structural or long term solution of how to deal with what are so often very protracted situations of non-removability.

I argue that what we are seeing in the UK today is an expansion of these exceptional measures, of this exceptional approach which was originally applied to a relatively small group of suspected criminal migrants, and it is now being applied to the broader mainstream of asylum in the UK. We see the same themes, the same range of measures running through the Nationality and Borders Act and the Illegal Migration Act, and being targeted at asylum seekers. These measures actually criminalise asylum seekers – they create them into criminals – both directly and indirectly. And they do this in myriad ways.

Firstly, in the most literal sense, criminalising the act of seeking asylum by creating new criminal offences of illegal arrival, and facilitating illegal arrival, to the UK, with severe sentences attached. And we know from the work of Vicky Taylor and others that it’s not smugglers that are being prosecuted under this new legislation, but those seeking asylum.

Secondly, by treating asylum seekers as criminals through using the same types of measures we have seen in the criminal sphere, including:

  • Exclusion from refugee protection – asylum seekers are being barred from accessing the UK’s asylum system via the new inadmissibility regime;
  • Expansive detention and accommodation powers – this is not only extremely costly, but is resulting in refugees being detained or contained for extended periods in unsuitable conditions; and
  • An overwhelming focus on deportation and removal – what will likely prove to be largely futile efforts to remove these people to third countries, such as Rwanda, on the basis of questionable agreements. But here we’re not speaking about  agreements focusing on the treatment of specific individuals, but whole groups of asylum seekers and refugees, with very limited exceptions.

Thirdly, as an indirect consequence of these measures, by actually pushing people into illegality. Because we know that denying people access to protection, facing threat of removal, will only force people underground, off-grid, leaving them exposed to abuse and exploitation.

And what I term this ‘criminalesque’ approach to asylum is not only unnecessarily punitive and inhumane, but it creates precisely the same policy challenges as that posed by unremovable criminal migrants, but on a far greater scale.

If we look at the rationale that’s being given for this new range of measures, it’s curious as we see the same rationale given as for the measures I outlined earlier directed at suspected criminal migrants, but in a perverse twist it is almost as if these rationales are being inverted.

We have the same rationale of addressing criminality. Its been made very clear, we have been repeatedly told these measures will ‘break the business model’ of the criminal smuggling gangs. But it’s not the criminal gangs who are being targeted by this legislation, it’s asylum seekers. 

The purported humanitarian rationale of these measures – to save lives by deterring dangerous irregular journeys – is also disingenuous because it’s not accompanied by the creation of safe and legal routes for people to seek protection. All these measures achieve is actually pushing people into the very dangerous journeys that the measures are purportedly intended to address.

And the only outcome of this criminalesque approach to asylum, if it is indeed followed through to its natural conclusion, is the explosion of a policy nightmare. It’s immensely costly both in financial terms but also, as we will explore, in political, legal and reputational terms for the UK, and is far from any conception of a credible and functional immigration and asylum system.

Now the breadth of this legislation is vast and I don’t have time to cover the entirety in the time available today, so I’m going to focus now on three key areas which I think exemplify this legal and policy disorder. That is, exclusion from access to protection in the UK through the new inadmissibility regime; efforts to remove individuals to third countries, including Rwanda, and; the in-country measures which will inevitably be applied to those who cannot be removed from the country.

To begin with the new inadmissibility regime. The Nationality and Borders Act of 2022 saw a dramatic expansion of the UK asylum ‘inadmissibility’ regime whereby the Home Secretary could declare inadmissible – so effectively bar access to the UK’s asylum system – anyone who arrived in the UK irregularly via a third country. Indeed, the Illegal Migration Act of 2023 envisages it will be a mandatory duty on the Secretary of State to bar anyone who arrives in the UK irregularly from access to the asylum system, from being granted leave to enter or remain in the UK, and from ever settling or obtaining citizenship in the UK, regardless of whether or not they are a refugee. We can see clear parallels here with the approach to suspected criminal migrants which seeks to deny any possibility of a stable legal status or settlement in the UK.

This denial of access to the UK’s asylum system is clearly in breach of the 1951 Refugee Convention, as without a firm legal status refugees cannot access the range of rights they are entitled to under that instrument. But it furthermore creates a huge category of persons, the majority of which have genuine protection claims and cannot be removed back to their home country, in the UK in a limbo situation.

This issue is ostensibly addressed by my second area of focus, that is the increased powers granted to the Secretary of State to remove such persons from the UK. This sounds like a very simple solution, but the government knows that the vast majority of people arriving in the UK irregularly have genuine protection claims and cannot be removed back to their home country where they would face a real risk of serious human rights violations.

We can see this by looking at the demographics of people entering the country. The Refugee Council has shown that nearly three-quarters of people who irregularly crossed the Channel last year came from just seven countries where persecution, conflict and oppression is well documented – most notably Afghanistan, also Iran, Eritrea, Iraq, Syria and Sudan. These people would almost certainly be recognised as refugees if the government processed their asylum applications, so they cannot be removed back to their home countries.

Therefore the power of the Secretary of State to remove people from the UK has been greatly expanded to include countries with which they have absolutely no connection whatsoever, the idea being that these people can simply be sent elsewhere. But the fundamental flaw with this plan is the lack of available and willing countries to receive such persons. As we know, so far Rwanda is the only country the UK has been able to secure an agreement with, a policy which, as we will explore, is problematic on many levels.

Even the Prime Minister, who has been championing this removal route throughout his Premiership, seems to have lost faith in it ever being workable, and has recently announced that no removal flights to Rwanda will take place before the General Election in early July. Labour, the lead opposition party, has also intimated that they would not pursue removals to Rwanda if they come into power.

But even if removal to Rwanda specifically is not pursued, it is important to be mindful that the underlying legal architecture on which removals to this country have been based will still be very much part of law in this country, will still be ‘on the books’. These expanded powers will still be in place. And there has been no indication from any political party that this foundational legal framework will be repealed.

But why is this relationship with Rwanda and plans to remove refugees there is so problematic?

Firstly, the Rwanda policy rests on a legal fiction – that Rwanda is a safe country to remove asylum seekers to. How do we know this is a fiction, because it is in direct contravention of a very clear ruling of the UK Supreme Court last November, in which the Court unanimously held that Rwanda was not a safe country to remove asylum seekers to. Following this decision the UK swiftly concluded a new treaty with Rwanda which sought to address many of the concerns raised by the Supreme Court, and enacted the ‘Safety of Rwanda’ Act which declares “the judgement of Parliament that the Republic of Rwanda is a safe country”.

This determination of safety is quite questionable given the Supreme Court’s very recent ruling to the contrary. But even without this, it is deeply worrying because it is simply not Parliament’s role to turn a factual question regarding safety into a matter for legislation to conclusively determine. This approach is contrary to the UK’s well-established separation of powers between the judiciary (whose role it is to determine such factual questions) and the legislature, and it simply doesn’t make sense to declare, in perpetuity, a factual point which refers to an on the ground situation which is subject to change. Even if it was argued that Rwanda is safe today, what happens if civil war breaks out in Rwanda next year? What happens if there is an environmental disaster? What if there is a change of regime? Parliament’s determination of safety would still stand because one of the reasons this legislation is so concerning, is that (aside from a very limited scope of review based on individual circumstances) it removes the ability of the UK courts to review, on an ongoing basis, whether the country is in fact safe.

So the intention of the legislation is to facilitate removals to Rwanda by limiting almost completely the ability of UK courts to scrutinise government removal action. This is obviously devastating for those potentially subject to removal, but the concerns go much deeper. Seeking to limit the role of the courts and to contain judicial power in this way is a dangerous strategy and one most commonly associated with authoritarian regimes. Judicial scrutiny of government action is a necessary precondition for any well-functioning democratic society, to ensure the government is acting in line with the law and not beyond it, and to ensure there are safeguards for all individual rights. And we should be incredibly alert to any attempt to impede this judicial function.

And why is the government seeking to evade judicial scrutiny? Because there are serious concerns that these actions – seeking to remove asylum seekers to Rwanda – are not in line with the UK’s well-established and binding international human rights obligations. In order to bring in these new asylum measures, the Secretary of State actually disapplied certain sections of the UK’s Human Rights Act (which implements many of our human rights obligations into domestic law) and explicitly declared that they could not state this legislation was in conformity with the European Convention on Human Rights.

The fact that that the UK’s hard won human rights protections should be disapplied to such a vulnerable section of our society, to those on the margins – the very people human rights were intended to protect – is disgusting. And this criminalesque approach can be seen so clearly through comparison with the only other piece of legislation in which the government has been seeking to disapply sections of the Human Rights Act – the Victims and Prisoners Bill which, until very recently, was making its way through Parliament. We see a rights stripping akin to the approach taken to convicted criminals. Another group on the margins.

But despite all this, we know that these efforts to strip rights protections, and to insulate the government from scrutiny, will not succeed. Despite all the efforts of the current government to underfund, undermine, and dismantle the UK court and legal aid system; we know that our legal system is strong enough to resist this. Because we have legal advocates, judicial colleagues, practitioners across the board who work tirelessly to ensure that government action is not immune from judicial oversight, by our domestic courts or indeed by the European Court of Human Rights, as is pre-empted in Illegal Migration Act and the Safety of Rwanda Act themselves.

But the lunacy of the whole regime is that even if the Rwanda policy is on some level successful and people are removed there, or agreement with a different country is secured, we know that this could only apply to a limited number of people because it’s unlikely the UK will find any third country willing to receive large numbers of refugees. So one might question whether the ‘price’ of the Rwanda policy, or the price of any policy of seeking to remove refugees from the UK, is really worth the imagined benefit.

This leads directly on to the third area I wanted to explore – the in-country measures which will inevitably be applied to the tens of thousands of people caught in legal limbo who cannot be removed.  

As with the approach to criminal migrants, detention is the key short-term ‘solution’ envisaged, and indeed it is given prominence in the Illegal Migration Act, which grants the Secretary of State wide new powers to detain people, frustrating much judicial oversight of the decision to detain or the length of such detention. If the hope is to achieve unchallenged incarceration for extensive periods of time, this will prove to be unworkable in practice, immensely costly to the State and damaging for all.

The annual financial cost of operating the UK’s detention system for the year ending March 2022 was around £94 million. With the increased costs of holding more people in detention for longer, and opening new large scale accommodation centres in disused RAF bases and barges such as the Bibby Stockholm, the cost is now soaring into the billions. What is ensuing is large numbers of people are being held for extended periods of time in unsuitable and often unsanitary conditions, at immense cost to the taxpayer and harm to them. But even this expansion will have its limits.

What then? Unable to detain potentially large numbers of people for such long periods of time, and with limited removal options, the Home Secretary will likely be forced to implement some form of temporary leave for unreturnable asylum seekers caught in the inadmissibility regime. It might be similar to the Restricted Leave policy which I mentioned earlier is in place for suspected criminal migrants. But the public interest in maintaining protection seekers on such a punitively limited form of leave is highly questionable. Furthermore, the effect will be enforced reliance on the State – again increasing the financial cost to the UK and preventing these people from becoming contributing members of society. Indeed, the precarity of this type of status and continual threat of removal will likely drive many people underground, off grid, forcing them into illegality, a policy which is harmful to them and ultimately, harmful to our society.

To reflect back, given all this, thinking back to where I started, what would I say to that younger me embarking on this academic journey? Well, firstly I would express immense gratitude for the amazing support I’ve had along the way. Because, as Jo mentioned in her introduction, I haven’t got here alone. From having a partner who looks after so much at home to enable me to come out into the world to do my ‘Professoring’, to having the most amazing academic mentorship during my decade here at the School of Advanced Study, and amazing support throughout my earlier academic studies as well. Thanks to the brilliant colleagues here at SAS and further afield, and to all my friends and family. And I’m so grateful to so many of you for being able to make it here today.

But I think also that the younger me would be quite shocked by this turn in UK asylum law, and indeed it does feel like quite a strange time to be emerging as a Professor of refugee law in the UK, given that refugee law seems to be crumbling around us. But this only makes me reflect on the importance of all the work in this field, work from academic colleagues, legal advocates and scholars. And all the work we do here at SAS in training, connecting and supporting the next generation of practitioners and researchers in this field, who are so sorely needed, and of bringing so many people together, like we’re doing today.

So what for the future? Well it looks likely it will be the end of days for this government, and I can only hope that the incoming government not only does not pursue removals to Rwanda, but also reverses this very pernicious legislation on which the Rwanda policy is based, and which is so detrimental for all. Because – and this is really the key issue – aside from any debate about whether Rwanda is or is not safe to remove people to, or any debates about what legal challenge options may or may not be available – any approach which seeks to criminalise refugees, deny access to protection and ship people across the globe, would mean the UK failing to play its part in the global system of refugee protection that relies on international co-operation and responsibility sharing. Those principles are enshrined in the Refugee Convention, which, as my colleague David Cantor has argued, is at its heart a pragmatic response to addressing the global phenomenon of refugees, which is not going to go away any time soon.

If the UK simply decides it wants to shirk its international obligations, then what’s going to stop many other countries shirking their international obligations as well? That doesn’t just include countries in Europe as we’ve been hearing about recently, but notably countries in the Majority world who are currently hosting more than 75% of the world’s refugees. And where would those refugees go? Well, I suggest we would be seeing many more Channel crossings.

The UK proportionately takes a very small number of asylum seekers and refugees in the global context. Even within the European context we host far fewer than countries such as France and Germany. Perhaps rather than criminalising asylum seekers, a more pragmatic approach would be to look at ways to avoid people having to make these dangerous journeys in the first place and supporting them in settling into the UK and becoming productive members of our community. Coming from refugee stock myself I would argue that refugees can and do make immensely productive and positive contributions to our society.

And finally, as a lawyer, I would urge everyone to be mindful that an attack on the fundamental rights of anyone in our society is an attack on all of us. To paraphrase Martin Niemöller, ‘First they came for the refugees, who will they come for next?’

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