Net Migration Falls 88% - Asylum Claims Increase 18%

Asylum applications to the UK have reached their highest level since 2004, according to official estimates. There were 37,562 asylum applications in the year to September - an 18% increase on the previous year. But net migration - which does not include asylum claims or refugees - fell by 88% last year after Covid. Huge backlog of asylum claims waiting to be heard, with 67,547 cases yet to have an initial decision.

The increase in claims for asylum is driven by arrivals from Eritrea, Iran and Syria, all of which have very high acceptance rates for asylum in the UK. The backlog in the number of asylum seekers is increasing both as a result of this increase and the slow processing of asylum claims. Asylum applications in the UK were "substantially lower" than in France, which received 31,000 applicants in the third quarter of 2021, according to the Migration Observatory.

Source: BBC News, https://rb.gy/wjrdu0

Priti Patel has Been Very Clear that the problems in the asylum system are other people’s fault (including me and my “activist lawyer” colleagues) and that her Package Of New Measures will sort them out. But what do the government’s own experts think?

Well, the Independent Chief Inspector of Borders and Immigration released a report called An Inspection of Asylum Casework. The Chief Inspector is a body set up by statute, whose stated purpose is “to help improve the efficiency, effectiveness and consistency of the Home Office’s border and immigration functions through unfettered, impartial and evidence-based inspection”.

If that sounds dry, yes it is. But let’s have a look and translate some of the highlights into ordinary English. What they show is that many of the most fundamental problems with the asylum system — and the potential solutions to them — lie within the Home Office.

Read more: Freemovement, https://rb.gy/bfgebk

One Month a Reasonable Time to Source Bail Accommodation During Pandemic

In R (Babbage) v Secretary of State for the Home Department [2021] EWHC 2995 (Admin), the High Court found that a person with an extensive offending and adverse immigration history who posed high risks of re-offending and absconding was unlawfully detained because of the poor prospects of enforcing his removal to Zimbabwe, and delays in sourcing a release address. The judgment is fact-specific, but the court’s approach to these two issues is likely to be useful to practitioners in other cases, particularly the analysis of the relevance of release address delay.

In AO, the court decided that on the facts of that case there had been a number of breaches of the section 4 duty due to errors and delays in deciding the application and in sourcing accommodation once the application had been granted. The court decided that if the section 4 duty had been complied with, accommodation would have been in place by the time that detention reviews acknowledged the claimant should be released.

The errors in deciding AO’s application for section 4 support therefore bore upon, and were relevant to, the decision to detain, and so meant that detention was unlawful. The department failed to provide satisfactory evidence to establish that detention would have been maintained even if accommodation had been in place, meaning that AO was entitled to compensatory rather than nominal damages.

Read more: Freemovement, https://rb.gy/arbnhr

Home Office: Ethical Decision-Making

Soul-searching in a large bureaucracy often manifests in well-meaning paperwork. So it is that the Home Office has published an ethical decision-making model. The document is intended to help staff grappling with difficult moral choices in the course of their work. This was one of the recommendations of the Wendy Williams Review into the Windrush scandal, following which Priti Patel promised a kinder, gentler Home Office. Recommendation 17 of the Williams report was: The Home Office should develop a set of ethical standards and an ethical decision-making model, built on the Civil Service Code and principles of fairness, rigour and humanity, that BICS [Borders, Immigration and Citizenship System] staff at all levels understand, and are accountable for upholding. The focus should be on getting the decision right first time. The ethical framework should be a public document and available on the department’s website.

The framework has duly been made available. It is, in fairness to all involved, short and jargon-free. The basic message is that if making a given decision, such as to deny someone immigration papers or kick them out of the country, is making you feel bad, you should not plough ahead regardless. Instead, you should look again or discuss with colleagues whether the rules really do demand that outcome. If there is no way to grant the person status within the rules, escalate the case to senior officials.

Read more: Freemovement, https://rb.gy/dr3iql

Pursuit of Racial Justice and the Limits of the Law

Anti-racism campaigners have long turned to the legal sysstem for help, whether that be to tackle the injustice of slavery in the 1770s, or the racial bias of facial recognition technology in the 2020s. But just how helpful have legal processes been for challenging racial injustices?

To explain the scope of the problem, it is helpful to explore how legal rules have developed from being staunchly pro-racist, to being broadly anti-racist. This overview puts the problem into stark relief: if the law on paper should be useful to anti-racists, why do campaigners and lawyers struggle to fight racial injustices in the courts? The answer to this lies in the systems and processes that stymy the effectiveness of the law.

We can start by looking at what the law said about slavery and colonialism. During the 1600s and 1700s, courts and senior legal officials were quite content to declare that people from Africa could be classed as ‘merchandise’ for the purposes of legal transactions, since they were commonly bought and sold. Even when Chief Justice Mansfield stated that slavery is ‘so odious’, he still questioned whether it would be desirable to let people from Africa roam the streets of England freely. In the 1800s and early 1900s, the government used a variety of legal rules to enable and justify the mistreatment of people in the colonies of the British Empire. In Kenya, for example, indigenous Kenyans were forced by law to work for British settlers, and the law was used to detain, torture, and execute those who dared to resist.

Bharat Malkani, Justice Gap, https://rb.gy/yuzvaw

Home Office ‘Covering Up’ its Own Study of Why Refugees Come to the UK

Deputy prime minister Dominic Raab talked about “reducing the pull factor” in an attempt to justify the government’s controversial plans for offshore asylum processing centres in Albania. Home Office minister Chris Philp has claimed that accepting asylum seekers who have travelled through Europe “creates a pull factor where migrants are incentivised to undertake dangerous and illegal journeys”. Yet when the Home Office was asked for evidence to support its claims, it refused. A freedom of information response dated 28 October says the material could not be disclosed because it was “likely to inhibit the free and frank provision of advice and the free and frank exchange of views for the purposes of deliberation”.

Sophie McCann, advocacy officer at Médecins Sans Frontières (MSF) UK accused ministers of knowing their arguments were ill-founded. McCann said: “Ministers are covering up evidence that is central to their case for the need to target refugees and asylum seekers with inhumane ‘deterrence’ measures. “Ministers are refusing to release the evidence they hold on whether or not such a pull factor even exists.

Read more: Mark Townsend, Guardian, https://rb.gy/wldcvk

Home Office Only Able to Remove Just Five Channel Boat People Since Brexit

Only five people who arrived in the UK by small boat have been sent back to a European country so far this year, according to the Home Office. The figure comes from junior minister Tom Pursglove, who told MPs on the Home Affairs committee that, thanks to Brexit, there is no agreement in place allowing that to happen: We offered as part of our withdrawal from the European Union a comprehensive returns arrangement which the European Union decided not to [accept]. We clearly need to continue to discuss that with our European friends and neighbours.

Within the EU, there was such an agreement: the “Dublin” arrangements. In the last few years of UK membership that was not a particularly effective tool for sending asylum seekers back to mainland Europe: the number of Dublin removals had fallen to a trickle in recent years. (More on this from Colin shortly in a forthcoming article.) Nevertheless, from a Home Office point of view, having no return agreement at all is hardly an improvement. Pursglove added that the government was also trying to strike bilateral deals with individual countries. It has been trying for some time: his predecessor, Chris Philp, told the same committee last December that “our priority is to reach proper bilateral agreements. That will be our number one priority”. While such deals remain elusive, so too does the Brexit promise of “taking back control of our borders”.

Read more: Freemovement, https://rb.gy/ywsicn

Immigration appeals can last a long time: often years and years. What happens when things change during the appeal? This is the question answered by the Upper Tribunal in Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 272 (IAC). The main take away from this case is: don’t appeal to the Upper Tribunal on the basis of new evidence. Send it to the Home Office instead. This can be frustrating, as it essentially means starting the whole process all over again. But given the Upper Tribunal’s reluctance to consider anything that was not before the First-tier Tribunal, it is likely to be the only way to get anyone to look at it and consider the case afresh.

Once a hearing at the First-tier Tribunal is over it can be very difficult to introduce new evidence. This can cause difficulties when the facts of the case change quite radically: conditions in the country of origin change; a newly discovered medical condition is diagnosed; a child reaches seven years’ residence in the UK or registers as a British citizen.

Read more: Freemovement, https://rb.gy/mlz1q4