The controversial Nationality and Borders Act, which had been criticised by everyone ranging from the UNHCR to faith groups to NGO’s in the field, became law on 28 April 2022. We look at the major changes in law, and what it means for the UK immigration system more broadly.
The Act makes significant changes to Nationality law as well as Asylum law. This post looks at the main changes for asylum seekers and refugees; next we will consider the effects on Nationality law.
Section 12 of the Act starts by explicitly differentiating between “Group 1” and “Group 2” refugees. The distinction is paramount. “Group 1” refugees, once they receive refugee status, will get access to public funds and a 'relatively clear' path to settlement, not dissimilar from the one that exists for refugees now. They will be granted leave to remain for five years and be able to apply for indefinite leave to remain thereafter.
All remaining asylum seekers are considered “Group 2” refugees, meaning that even if they can prove their genuine fear of persecution, their status will remain more precarious. The intention is to grant “Group 2” refugees a temporary protection status for 30 months, to be re-evaluated when the 30 months end. Permission to stay will be renewable if the person is still eligible for refugee status when the Home Office re-evaluates the case, at the end of the 30-month period.
“Group 2” refugees will have no possibility to settle in the UK for at least a decade and no access to public funds. In some cases, Home Secretary Priti Patel has proposed to relocate “Group 2” asylum seekers to Rwanda, though she has not explained clearly how the Home Office would decide who to send away and who would be allowed to stay. All of the above is also applicable to any family members who may be accompanying or trying to join the “Group 2” asylum seeker.
So how does the Home Office differentiate between the two groups?
“Group 1” refugees are those who are considered to have complied with the new rules for claiming asylum. Those rules consider three factors. Firstly, the person claiming asylum must have come to the UK directly from a territory where their life or freedom was threatened as defined in the 1951 Refugee Convention (we did a background briefing on the Convention recently if you want to read up on it). This requirement means that all asylum seekers and refugees who stopped in any other third-party country before reaching the UK will not be considered as “Group 1” refugees. Most refugees globally are unable to flee their country of origin by plane due to lack of means, time, and/or the right paperwork (including passports).
Since the UK is an island, it is only logical that most asylum seekers will not appear out of thin air without passing through European countries such as France first. This means most refugees will not be considered “Group 1” refugees based on this condition alone. As a caveat to this restrictive requirement, s.12(3) of the Nationality and Borders Act sets out that if a refugee has entered or is present in the UK unlawfully, they may still be considered a “Group 1” refugee if they have and can show good reason or their unlawful entry or presence. What exactly constitutes “good cause” remains vague.
The person claiming asylum must also present themselves to the relevant authorities without delay. This has always been the case; previously, if an asylum seeker delayed their asylum application, the Home Office would often use the delay against them in the decision-making process, arguing that it was a sign of dishonesty on behalf of the asylum seeker.
Importantly, if an asylum seeker enters the UK without the required entry clearance, they will not only be considered a “Group 2” refugee, curtailing their rights and benefits in the UK (unless they make up for it under s.12(3)), but they will also be committing a criminal offence. Section 40 of the Act defines the offence and sets the punishment as a fine and/or imprisonment of up to 12 months; in addition, the asylum seeker will of course have a criminal record to deal with in the future.
In addition, the Act amends existing law to broaden the definition of the existing crime of “assisting unlawful immigration” so that it is now an offence to facilitate the commission of a breach or attempted breach of ‘immigration law’, the latter being broadly defined, and including regulation of entitlement to arrive in a state. Maximum penalties for such assistance has been raised, from 14 years to life imprisonment. The Act also changes the offence of helping asylum seekers enter the UK; the new definition includes not only those who help them enter for gain, but also everyone else. This may have implications for rescuers at sea, for example, who help sinking vessels in the Mediterranean to make it to the shores safely. There is limited provision, therefore, in the Act, in s.25(BA), for a defence: a person does not commit a facilitation offence if the act of facilitation was an act done by or on behalf of, or co-ordinated by either Her Majesty’s Coastguard, or an overseas maritime search and rescue authority exercising similar functions.
The government stated goal with these changes is to improve protection for those at risk of persecution and combatting people smugglers by discouraging asylum seekers from traveling to the UK other than via safe routes; its effect, however, will most likely do the opposite. The Home Secretary has said that the Act “aims to influence he choices that migrants may make when leaving countries of origin.” But of course, refugees and asylum seekers do not choose to leave their country of origin at all – there is no choice involved in the matter, as the whole point of the Refugee Convention is to protect those forced to flee their homes. There is no legal justification in the Convention, for differentiating between refugees based on mode of arrival; for penalising it, or altering conditions of their stay thereafter. The only thing that matters, according to the Convention, is the actual merits of the asylum claim. That is what should determine the outcome of an application.
The UNHCR has highlighted that the Act potentially breaches international law at numerous stages, including the international law of the sea, international human rights law, the 1951 Refugee Convention, and the European Convention on Human Rights, of which the UK is a signatory. What will happen next is most likely a long battle in the courts fighting many of these provisions to uphold international law; a slow and costly affair - for which lawyers and judges, holding the Government to account, will be labelled by the the Government as its enemies. In the meantime, the 2022 Act has become law, and once it is in force (most provisions discussed above will be by 28 June) affect the most vulnerable seeking help when they arrive on UK shores.
The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees form the basic framework of international refugee law today, setting out who qualifies for refugee protection and who does not. But where does this framework for protection come from?
In its most basic form, the regime that deals with refugees and forced migration regulates the treatment of individuals within different state territories and jurisdictions. In the old world, the rights and obligations of individuals towards the state were tied to territoriality and divinity. With the development of the modern nation-state, this evolved and became a question of nationality: the state as an independent political apparatus became dedicated to advancing the general good of its own population. Nationality thus offered entitlement to a form of protection as part of the social contract between citizens and the state. In exchange for this protection, the citizens or nationals have obligations towards the state they must fulfil, such as paying taxes. Contrastingly, the rights of non-nationals are at the state’s complete discretion, since non-nationals are not indebted to the foreign state, only to their own. But what happens when the state of nationality no longer provides the necessary protection for its nationals? That is the lacuna wherein refugee law developed.
World War I created a massive movement of people within Europe. When the League of Nations was established to maintain peace and security, they grappled with this new influx of migrants on an interstate level. Thus, refugee law developed within the League framework as a primarily humanitarian exception to a generally protectionist norm.
The League employed a group or category-based approach. When a particular crisis created a migratory flow or movement of people, the League of Nations would react and intervene to protect those specific minorities at risk. In this context, “refugees” emerged in the 1920s, first after the Bolshevik revolution and later following their expulsion and persecution in the Soviet Union. In 1921, the League of Nations thus accorded a status to those denationalized by the Soviets who became stateless as a result of that denationalisation, guaranteeing some form of protection for them.
At the essence of this project lies the idea that when one loses the protection of their home state, another state can and should assume responsibility. In 1922, the Armenians in Turkey fell victim to massacres in Turkey and started fleeing en masse. The principle created for Soviet refugees was extended to Armenians as a response to that migratory flow. These two refugee groups formed the basis for modern refugee law. Both refugees were victims of mostly mass expulsion, and the international arrangements made in response were based on the idea of expulsion.
During the 1930s, as Hitler rose to power in Germany, the old model of refugee law was challenged, as Jews were not merely expulsed from Germany but exterminated. Germany had left the League of Nations and resigned from the Peace Treaties they signed after the First World War, weakening the League and the existing refugee law model. The League needed to change its approach. It was then decided that persons with German nationality who for some reason were no longer protected by Germany also qualified as refugees. They were considered “stateless” - this was the first explicit mention of statelessness as a migratory issue.
A new definition of refugee emerged, one that only applied to individuals forced to emigrate “on account of their political opinions, religious beliefs or racial origin.” This laid the basis of our approach to refugees and asylum seekers today.
After World War II, human rights gained importance. When the Universal Declaration of Human Rights (UNHDR) was proclaimed in 1948, it laid the basis for an international standard of applications for human rights protection, including the right to ask for asylum under Art.14 of the Declaration. Paired with the 1948 Convention on the prevention of Genocide, which indicates that potential victims of genocide can flee and be protected by other states and the Geneva Conventions, which regulated the means of war, refugees emerged as internationally protected persons. These developments exhibit the close relationship between international refugee law and human rights law, a relationship that has evolved over the years.
Under Art.1(a)(2) of the 1951 Refugee Convention, the definition of a refugee is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
This definition is limited in its scope. First and foremost, it is based on social and political rights only. Those fleeing other types of hardship, such as economic crises or natural disasters, fall outside of the scope of protection. This is still the case today, although new categories of protection have been added through interpretation, most notably for those fleeing gender-based persecution. Secondly, at the time of implementation, the Convention was limited both temporally and geographically: to those having fled their home country before 1951 and only those fleeing within Europe. This changed in 1967, when the Protocol relating to the status of refugees universalised the refugee definition to remove the time constraints as well as include refugees from other parts of the world.
The 1951 Convention has changed and evolved, and human rights have expanded its interpretation, but it remains limited. For example, international refugee law protects only those who are successful at leaving their country; internally displaced people are subject to other rules, no matter how egregious a situation may be within a country’s own borders. These and other failures originate in the inherent tension between state sovereignty and the need for protection. The role of state sovereignty in international refugee law is often minimised or overlooked. Traditional accounts of refugee law logic emphasise the need for humanitarian protection as a key imperative for the development of the refugee framework. Whilst need for humanitarian assistance is certainly an important factor in the development of international law and human rights, it is not the only noble motivation that shaped the system of international protection. If it was, the framework would look very different than it does today. We should aim to read the Convention from a different point of view, one that does not consider migratory flows a problem to be managed but rather centres the human dignity and rights of those forced to flee.
According to the UN High Commissioner for Refugees, over 1 million people have fled Ukraine since President Vladimir Putin ordered his troops to invade the country on 24 February 2022. Where are they going, and what is the UK doing for them?
Ukraine has a total population of about 44 million people. The vast majority of those leaving are women and children, as men are obliged to stay in Ukraine and fight. Most of the displaced are crossing into neighbouring countries. According to the UN High Commissioner on refugees (UNHCR), Poland has accepted the highest number of Ukrainian refugees, currently standing at 548,000. People across the country have shown solidarity through donations, accommodation, and transport for those forced to flee. Hungary, Moldova, Slovakia, and Romania are next on the list, with close to 133,000, 98,000, 80,000 and 51,000 refugees each, respectively. The UNHCR projects that over 4 million people will have left Ukraine by summer, with a staggering 30% of newcomers (1.5 million) seeking refuge in Poland.
An additional 47,800 people have left Ukraine for Russia; presumably, these are mostly Ukrainian-Russian separatists who support the annexation of Ukraine in some shape or form, though they may not be supportive of this war. Belarus, which also shares a border with Ukraine, has barely received any demands for protection. Since most people fleeing are escaping the Russian regime, and Belarusian President Alexander Lukashenko has shown allegiance to Putin, this does not come as a surprise.
In theory, providing humanitarian aid to those in need should never be politicised. In practice, the current open-border policy towards Ukrainians is uncharacteristic of the European Union’s (EU) general approach towards migrants. Questions arise regarding the underlying motives of these policies, especially for countries like Hungary or Poland, who generally enforce some of the harshest policies and rhetoric against refugees in Europe. Just a few months ago, in November 2021, Polish authorities refused to let refugees from Syria, Iraq, Afghanistan, and Yemen enter the country, instead of letting them freeze to death at the Polish-Belarusian border. Today, Polish authorities do not even require Ukrainians crossing the border to show a valid passport. How can this be?
For one, Russia and Ukraine are geographically closer to Europe. This not only makes the threat more tangible, but countries in proximity to war and disaster are also naturally expected to step up and help out their neighbours. Similarly, at the height of the Syrian civil war in 2015, neighbouring Lebanon and Turkey bore the brunt of the burden of displaced Syrian civilians. This is only logical. Less logical and less noble is the political incentive to accept certain refugees but not others. Poland and Hungary, whose extreme-right governments often stand alone against the other 25 Member States in EU negotiations, are now reminded of the protection the EU gives them against an old empire looking to recuperate some of its former glory. Or so their logic goes: it is in these right-wing governments' interest to be anti-Putin more than it is to be anti-refugee. In other words, the ex-Soviet countries’ fear of Russian imperialism explains their sudden U-turn on migration and their sudden willingness to help victims of this fast-encroaching power.
Countries further afield are considering relaxing their policy to welcome Ukrainians, too. The EU has waived visa requirements for Ukrainian people. In Belgium, the government is considering waiving the requirement of having to formally request asylum, instead offering any Ukrainian who arrives in Belgium protection automatically as a “temporary displaced person.” This status grants them a one-year permit, extendable for two additional years, to live and work in Belgium, with access to benefits and public services. This policy proposal is based on Belgian law implementing an EU Directive which considers that when there is a mass influx of displaced persons who cannot return to their country of origin, it is necessary to “set up exceptional schemes to offer them immediate temporary protection.” This Directive was unanimously “activated” by the Council of the EU after holding a vote on 3 March. Belgium had said that if the vote did not pass at the EU level, they would set up their own scheme with similar conditions. In France, all Ukrainians whose right to stay is about to expire have received an automatic 90-days extension of their papers, with the interior minister Gérald Darmanin stating that such an extension may be repeated in the future. The government also expressed support to activate the EU Directive and grant Ukrainians temporary protection.
So what is the UK doing for Ukrainians fleeing their home country? Not much, it seems. Initially, Home Secretary Priti Patel announced that “immediate family members” of British nationals or Ukrainian people already settled here could join their family here, but not much more. After significant backlash, this policy has now been revised and the “Ukraine Family Scheme” allows for extended family members to join their family in the UK as well. Ms. Patel has also announced that businesses, charities and community will be enticed to hire Ukrainian citizens through a new humanitarian sponsorship visa route. Crucially, these applications must be made from abroad, from a visa application centre in Ukraine, Poland, Hungary, Moldova, Poland, or Romania, as visa requirements have not been waived for these applicants. In addition, the Home Office extended concessions to Ukrainians already in the UK, such as allowing them to switch into other visa categories that normally require applicants to leave the territory. Overall, the British response diverges from the European response by it being much cooler and far removed from the heat, or so the government seems to think. The UK government doesn’t like refugees from Ukraine; it doesn't like refugees from Syria; not from anywhere at all.
If you are Ukrainian and need legal advice / immigration advice, the Ukraine Advice Project is offering free services to connect Ukrainian citizens in need with legal professionals. If you want to contact us directly, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
In a statement to the House of Commons this week, the government confirmed that they will not lift the ban that prevents asylum seekers from working whilst they await their application outcome in the UK.
Since October 2018, over 250 charities, businesses, faith groups, think thanks and trade unions came together to campaign against the UK Government’s ban on asylum seekers being able to work whilst their application is being resolved. Their coalition, “Lift the Ban” prepared a report which they presented to the Home Office. In October 2020, they presented the Home Office with a petition that gathered over 180,000 signatures calling on the Government to lift the ban.
But what does this ban entail exactly, and what would lifting it mean?
Under international law, there is no obligation on countries to grant asylum seekers the right to work. Each country is allowed to make their own rules on the matter. Sweden is most generous in its approach, as they do not impose any restrictions on asylum seekers’ working rights. In most other countries, asylum seekers will have to wait a few months before being allowed to work. Sometimes, they will have to pass a resident market labour test to show that the position they are accepting could not be filled by a member of the domestic labour force.
As a general rule, people seeking asylum in the UK are banned from working whilst waiting for their asylum claim to be resolved. Instead, they receive £39.62 per week, or £5.66 per day, from the Home Office to survive, an amount that is laughable in the face of actual cost of living in the UK. This puts many at risk of exploitation and/or destitution.
There are exceptions to this general rule; in some circumstances, asylum seekers may apply for permission to work. For example, if an applicant’s asylum claim is outstanding for 12 months or more, and where the delay is not the applicant’s fault, they may apply to obtain the right to work. If permission is granted, they can then apply for jobs on the Shortage Occupation list. Only applicants themselves can apply for such an exception; dependants of applicants (e.g. partners or children) cannot apply for permission to work at all.
Lift the Ban’s 2018 report argued that these rules are overly restrictive, stating that the UK is “an outlier amongst comparable countries.” Indeed, though certain European countries also require the applicant to do a resident market labour test, the waiting period is often shorter or the types of job available wider. According to Lift the Ban, this is also true for Canada and the USA. In addition, restricting the right to work leads to increased modern slavery and forced labour, as asylum seekers are forced to go underground if they wish to survive.
The report’s recommendations include shortening the timeframe for permission to work from 12 to 6 months and removing restrictions to the types of jobs asylum seekers are allowed to do. Implementing these recommendations would benefit the government financially, said Lift the Ban, estimating benefits of up to £180.8m a year. In addition, allowing asylum seekers to work would push their integration into British society, as well as allow them to live in dignity and security whilst awaiting the outcome of their application.
The government has now responded to Lift the Ban’s recommendations, stating that their evidence “indicates the assumptions underpinning the recommendations are highly optimistic.” Their main argument is that the benefits outlined in Lift the Ban’s report are overstated, because if migrants are allowed to work, they tend to work in precarious jobs, often part-time, and not very lucratively.
Tom Pursglove, MP for Corby, said: "In light of wider priorities to fix the broken asylum system, reduce pull factors to the UK, and ensure our policies do not encourage people to undercut the resident labour force, we are retaining our asylum seeker right to work policy with no further changes." The Home Office considers that resources should instead be redirected to ensure timely responses to asylum claims, so that applicants can resolve their status quickly and either leave the UK upon rejection or stay and find work upon receiving their status.
In summer 2021, the backlog of asylum cases passed 70,000, despite the number of applications being down since the pandemic hit. In addition, the number of applicants waiting an initial decision on their application for longer than six months has been rising 40% year after year since the early 2000s. To clear the backlog, the Home Office wants to create a fast-track system of applications, the framework of which is set out in the Nationality and Borders Bill.
Advocates for lifting the ban, and for a more humane asylum system in general, say that fast-track applications will lead to more mistakes and wrong decisions. As it stands, almost half the initial decisions made by the Home Office are already being overturned upon appeal. The 250-member Lift The Ban coalition certainly agrees with the Home Office that months- if not year-long delays on asylum applications are a disgrace. The solution they present, however, could not be more divergent from the Home Office’s. Though the Home Office’s statement, which ironically took three years to produce, was disappointing, they will not stop campaigning.
A Syrian family has brought legal action against Frontex, the European Union (EU) organisation charged with management and control of the Union’s external borders, for beach of their fundamental human rights. This is the first time that such a claim is brought to the Court of Justice of the European Union.
The family, which includes four children aged between one and seven years old, arrived in Greece from Syria in October 2016. Upon arrival, they were denied the right to have their asylum claim processed and promptly put on a flight to Turkey, their last non-EU country of passage. The flight was managed by Frontex, and was supervised by Frontex employees. On the flight, which was supervised by Frontex employees, the young children were separated from their parents and forced to sit next to escort guards. Five years later, the family lives in Northern Iraq, as building a life in Turkey was not sustainable.
Informal cross-border expulsions such as this are known as “pushbacks.” Pushbacks are illegal under international and EU law. They are in breach of the 1951 Refugee Convention, and of Art.14 of the Universal Declaration of Human Rights, which states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” In addition, pushbacks breach the absolute prohibition on non-refoulement, a basic tenet of international law which prohibits sending people back to a country where there is a risk of prosecution or inhumane and degrading treatment.
The right to asylum is enshrined in the EU Charter of Fundamental Rights, yet since the 2015 influx of Syrian refugees, there have been countless reports of EU member failing to comply, and EU organisations unofficially condoning the practice. Most recently, Croatia, Greece and Romania were called out for such practices, as it was revealed that over 2,000 migrants lost their lives after systemic pushbacks.
The family has now brought action for damages against Frontex for the breach of their human rights and the breach of the children’s rights which, they claim, occurred when they were separated from their parents on the flight from Greece to Turkey. The lawsuit is part of a wider campaign, “Not on Our Border Watch,” which fights to hold the European Union accountable for its controversial migration policies. Not On Our Border Watch aims to demand a change in the current asylum and border system, of which Frontex is one of the core pillars.
The lawsuit, brought by Dutch firm Prakken d’Oliveira, therefore explicitly targets Frontex, stating that “it is no longer acceptable that Frontex, equipped with an ever wider mandate and a bigger budget, deems itself above the law. It is time that Frontex respects fundamental rights and the rule of law.”
The UK Nationality and Borders Bill puts Afghans fleeing the Taliban at risk of being criminalized, warned UN representative for the UN Refugee Agency (UNHCR) Rossella Pagliuchi-Lor.
Ms Pagliuchi-Lor said: “There is something ironic in the way we are so concerned about them [the Afghan refugees] while they are there, but we are ready not to consider them when they come to the UK.”
This rings true even as the Home Office unveiled details of their much-anticipated resettlement scheme for Afghan refugees. Under the Afghan citizens resettlement scheme (ACRS), the government has committed to welcome 5000 people fleeing Afghanistan in its first year of operation, working up to 20 000 places over the next few years. During the height of conflict in 2014-2015, the government resettled a similar amount of Syrian refugees. Compared to the amount of people needing protection, it is almost negligible.
The Home Office purports to give Afghans a “warm welcome” in the UK. The ACRS is meant to provide that, together with the Afghan Relocations and Assistance Policy (ARAP) protecting Afghans who assisted the UK government in its Afghan operations.
Both schemes are not only limited in their applicability and strict on eligibility, but also fail to prepare the lucky few who manage to qualify for the hostile immigration system in place once they reach the UK. Lack of housing for refugees, slow and complicated administrative processes, and difficulty accessing public funds are just a few of the challenges that lay ahead.
As for those who do not qualify and find their way to the island through other means, a controversial two-tier asylum system which criminalises their means of travel may be awaiting them. The two-tiered asylum system, proposed in the Nationality and Borders Bill differentiates between those who come to the UK through official ways (e.g. through resettlement or family reunion visas) and those who make their way here through more illicit ways. The Bill has been criticised much before on this blog, in the press and internationally. In May 2021, the UNHCR called the two-tiered approach to asylum applications discriminatory and in breach of the 1951 Refugee Convention.
The UN Representative for the UNHCR confirmed that the Bill could criminalise Afghan refugees trying to escape the Taliban if they travel by illegal routes. If the Bill becomes law, anyone entering the UK by an unlawful route (e.g. small boat crossings) could be barred from applying for asylum ever again. They would not have access to public funds, be disqualified from having their family members joining them, and be at risk of a jail sentence of up to four years.
Resources for those affected by the crisis in Afghanistan are available on the Refugee Council website.
According to the 1951 Convention Relating to the Status of Refugees, a refugee is defined as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” Over 140 countries, including the United Kingdom (UK), are signatories to this Convention.
There are two main pathways to be recognised as refugees. In both cases, the process if often long and arduous. The first path to refugee status is to seek asylum in a host country. To claim asylum, and thus request to become recognised refugees, applicants have to be physically present in the host country – the application cannot be made from abroad. Those who have applied for such recognition known as asylum seekers. They remain asylum seekers as long as their application is pending. Once their application is accepted, they become recognised refugees. If it is refused, they are not recognised refugees. They may then appeal the decision (in the UK, almost half of the cases challenged after a refusal are overturned on appeal), they may seek another way to stay in their host country, or they may be returned to their home country.
Most refugees, however, are not able to travel far beyond the borders of their home countries, if they manage to leave the country at all. Often, they get stranded in refugee camps in bordering countries, where they often remain stuck for years. Some of these individuals who are highly vulnerable (e.g. due to their age, high risk of harm, exploitation, or health conditions) are selected by the UN for resettlement. This means that the UN identifies them as refugees abroad, and then transfers them to their new host country through bilateral agreements with those countries. This is the second way in which refugees can become recognised refugees and start new lives in host countries.
The UK is currently setting up a refugee resettlement scheme for the thousands of Afghans fleeing Afghanistan after the Taliban took control of the country. The Taliban’s rule is likely to rule Afghanistan with an iron fist, with a risk of returning to the human rights abuses and repression that led to a stream of Afghans leaving the country when the Taliban was last in power in the 1990s. Broadly, the government promises to resettle 5,000 Afghan refugees during the scheme’s first year, with more to follow, up to a total of 20,000. This seems to be along the lines of the Syrian resettlement scheme which was implemented in 2014. Under that Scheme, the UK resettled close to 20,000 refugees between 2016 and 2020, most of which fled Syria at the height of conflict in 2014 and thereafter. 20,000 people represent only a fraction of those who, at the time, were in need of relocation. In fact, just 0.6% of Syrians (or 80,000 out of 13 million people) who fled their homes found refuge through resettlement schemes worldwide after being referred by the UN. The Home Office has not devolved all the details of the Afghan resettlement scheme yet, but Home Secretary Priti Patel has hailed it as “one of the most generous” schemes in the UK’s history.
Calling the UK “generous” to asylum seekers and refugees fleeing war-torn countries on that basis alone is, in all senses of the word, a stretch. This is especially the case in light of government efforts to criminalise asylum seekers who enter the UK irregularly, and making their life in the UK more difficult after they arrive. Additionally, the UK does not receive that many asylum applications in the first place. In 2015 and 2016, Germany received and accepted over ten times as many asylum applications (the vast majority from Syrians) as the UK, even though they are countries with roughly the same population size. This relatively low number is partly explained by the UK’s geography - as an island, the UK is harder to reach than European mainland, and as we have seen, asylum applications can only be made from within the host country. Refugee resettlement schemes are one way to balance out the unequal reception of refugees. Proposing to take in 20,000 people, however, is merely a drop in the ocean.
The resettlement scheme for Afghan refugees is necessary, but it is not enough. The thousands of Afghans currently navigating their way through the UK asylum system need their status to be guaranteed. The same is true for the tens of thousands who will undoubtedly follow in the months and years to come.
As the UK government rushes to pass its new Nationality and Borders Bill (which includes measures to penalise certain entry routes to the UK in breach of the 1951 Refugee Convention), refugees and asylum seekers are pushed further to the margins of British society. By keeping migrants and asylum seekers physically as far removed from the public as possible, the government’s hope seems to be that the migrants might actually disappear, or at least that the Home Office will receive less attention when the system fails, asylum seekers’ waiting times soar, their living circumstances worsen, and their death tolls rise. Off-shore detention centres for asylum seekers awaiting a decision, another one of Ms. Patel’s proposals, are meant to complete that mission of pushing migrants out of sight and out of mind to let the Home Office do its business uninterrupted.
But refugees refuse to go into hiding, to make themselves invisible. At the 2020 summer Olympics, Yusra Mardini, who fled Syria in 2015 after her house was destroyed, was shining as she walked down the opening ceremony carrying the Olympic flag, representing not her own nation but the Olympics themselves as part of the Refugee Olympic Team.
The Refugee Olympic Team was created by the IOC for the 2016 Olympics, to include athletes in competition after having been forced to leave their home countries due to circumstances beyond their control. In 2016, the team comprised of 10 athletes. This summer, it has 29 representatives in Tokyo. These 29 athletes represent a population of 20.7 million refugees and 82m displaced people across the world: their struggles, their stories and their place in their adopted home countries after being forcefully displaced, often thousands of miles away from home.
Mardini is a symbol of hope for all of them. She and her sister left Damascus in August 2015. Once they arrived in Turkey, they embarked on the dangerous journey to Greece in an overcrowded inflatable lifeboat. When the boat started taking on water, they were forced to stay afloat swimming for hours on end before the boat started working again, and they were able to continue their journey to Lesbos. From Lesbos, they walked through Europe until they reached Germany, where Mardini now lives and trains for her swimming races. In 2016, she became the first Refugee Athlete to participate in the Olympics, using the same swimming skills which saved her life a year prior to swim the 100 metres freestyle and the 100 metres butterfly at the Rio Olympic Games.
The Refugee Olympic Team is ground-breaking for many reasons. It disrupts the traditional patriotic nationalist make-up of the Olympics, allowing for an independent team of different nationalities to participate under the same flag whilst representing a diverse, multinational population of refugees across the world. This sends an encouraging message; in sports, everyone can compete. There is no difference to be made based on where you are from or how you got there. It also shows a sign of solidarity and hope for refugees and those forced to leave their home, giving them role models who have been through similar experiences, pushing the boundaries of what they can imagine to one day achieve.
Yusra Mardini and her co-athletes represent the potential and possibility of a society where refugees are included and empowered to be a part of their adopted homes. It shows how they can transcend their traumatic past and boasts of the potential they can fulfil if given the opportunity to do so. Such initiatives could be mirrored at a national level. Shamefully, that is not the case in individual states like the UK, where hostile environment policies and increasingly harsher measures against asylum seekers slim their chances for a fulfilled life and contribution in British society.
Last week, Home Secretary Priti Patel introduced her Nationality and Borders Bill into Parliament for its first reading. The Home Secretary said that the bill is “the change we need to fix the UK’s broken asylum system.” Its main provisions include an attempt to criminalise certain asylum claims, expand powers of detention and making more asylum claims inadmissible.
The Bill clearly brings change, if not in practice, then at the very least in black letter law. The question of whether it fixes anything is a whole different issue. It is clear as day that the asylum system in the UK is overloaded. It takes a long time for the Home Office to reach decisions, and when they do, those decisions are often overturned. The Migration observatory reports that the share of asylum applications resulting in an initial decision within six months fell from 87% in the second quarter of 2014 to 22% in the second quarter of 2020. As for appeals, 43% of appeals on initial refusals are overturned in court, meaning the Home Office gets it wrong almost half the time. These certainly are symptoms of a problematic – or potentially “broken” – system.
Ms. Patel blames this “broken system” on the asylum seekers crossing the Channel to the UK, proposing this Bill to fix this. However, the number of asylum applications is historically low, with the COVID-19 pandemic continuing a trend of falling applications that started in the early 2000s. Contrastingly, success rates are higher than ever, meaning that a high percentage of asylum applicants are recognised as refugees in need of sanctuary. In other words, as the amount of asylum seekers falls and their successful claims increase, the system has become progressively slower and inefficient. The problem does not seem to be with asylum seekers, but rather with an overly bureaucratic and complicated asylum system that is designed to make applications fail. Ms. Patel’s proposed solution only adds more legislative barriers to that process, meaning that rather than fixing its problems, it will most likely amplify them.
Substantively, the Bill introduces a differential treatment of refugees based on their means of entry to the UK. Refugees who do not arrive in the UK directly from a country of persecution, such as those who travel through Europe, will find that their asylum application upon arrival in the UK will be automatically filed as inadmissible. The Home Office will then attempt to remove them from the UK, and will only hear their asylum claim if removal turns out to be impossible. Effectively, this means more people will be stuck in detention or other forms of government accommodation for longer periods of time, when their case is likely to end up being heard at a later point anyway. Keeping people in detention when they have not even had their case heard is not only immoral and potentially in breach of the 1951 Refugee Convention, but also expensive.
Once their case is being heard, those refugees who came through “safe” third countries who are granted asylum will no longer receive leave to remain. Instead, they will receive “temporary protection” to be renewed regularly. Under ‘temporary protection,’ the refugees will be at risk of being removed every time the Home Office assesses their status for renewal. This is in contrast with those asylum seekers who are deemed to have entered the UK legally, who will receive indefinite leave to remain immediately upon the grant of asylum. This differentiation between legal and illegal entry flies in the face of the Refugee Convention, which expressly states that an asylum claim should not take mode of entry into the country of refuge into account. Evidently, this arrangement suits the Home Secretary well. The UK is an island, after all, and does not border any war zones. It is therefore highly unlikely that any asylum seeker entering the UK will have done so without crossing multiple borders, sometimes without all necessary paperwork or through unconventional routes.
Home Office rhetoric on immigration has emphasised the need for refugees to come to the UK through legal routes, and to support the expansion of those routes to then penalise those who fail to use them. However, this Bill only does the latter, failing to increase or expand on legal routes at all. It does not set a target for resettlement numbers, it limits rights to family reunion for those with ‘temporary protection,’ and limits safe routes of entry. The story Ms. Patel is selling to the British public is one of reducing the “burden” of asylum seekers on the UK, yet all her proposal will do is increase that burden by making the asylum process more complicated, more costly, and more bureaucratic. How that is going to fix anything remains a mystery.
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.
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.
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.
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.
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.
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.
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.