Oral evidence: Human rights of asylum seekers in the UK, HC 821

Wednesday 25 January 2023

3.05 pm

Members present: Joanna Cherry (Chair); Lord Henley; Baroness Ludford; David Simmonds; Lord Singh of Wimbledon.

Questions 59 - 64

Witnesses

I: Mark Symes, Barrister at Garden Court Chambers; Dr Peter Walsh, Senior Researcher at the Migration Observatory, University of Oxford.

Examination of witnesses

Mark Symes and Dr Walsh.

Q59 Chair: Good afternoon, everyone, and welcome to today’s meeting of the Joint Committee on Human Rights. We are a cross-party committee and a Joint Committee, which means that we have Members from the House of Commons as well as the House of Lords. Today, we are continuing our evidence sessions in our inquiry into the human rights of asylum seekers in the United Kingdom.

In this session we are going to consider particularly the compatibility of the Nationality and Borders Act passed last year with the UK’s human rights obligations. We will also look at global asylum trends and how they might impact on the UK asylum system.

We are very pleased to be joined in our first panel by Mark Symes, a barrister at Garden Court Chambers with expertise in immigration, asylum and human rights law. Thank you very much for joining us, Mr Symes. We are also joined by Dr Peter Walsh, senior researcher at the Migration Observatory and departmental lecturer in migration studies at the University of Oxford.

The Government’s position is that only people coming to the United Kingdom through safe and legal routes should claim asylum here. What are the current safe and legal routes? How many people come to the UK through them, and how many asylum seekers arrive through other means? I direct that question to Dr Walsh. I will turn to Mr Symes for my next question.

Dr Walsh: If I may make a couple of comments on the premise of the policy, to me, it is not entirely clear what the Government mean by giving protection only to people who come via safe and legal routes, because on one reading that would appear to imply effectively opting out of the global asylum system, which is based on the idea of hearing people’s claims even if they enter irregularly, so there is some uncertainty about that.

There is also a practical question. If we assume that the Government accept the principle that we will not return asylum seekers to their countries of origin, where they could be at risk, it raises the question of where they will be sent and whether the UK can find countries to send tens of thousands of people to. It is not clear to me that that is even practicable.

There are broadly three categories of safe and legal routes. The UK has three refugee resettlement programmes: community sponsorship; the mandate scheme; and the UK resettlement scheme, which is the main one. In the year ending September 2022, about 1,400 people were resettled to the UK under those three, but 80% of them—about 1,100—came through the main UK resettlement scheme. That is the first category.

The second category is refugee family reunion. Recognised refugees in the UK can be joined by their partners and any children they have under the age of 18. In the year ending September last year, around 4,800 people came under that route.

The third category is what the Government have termed bespoke humanitarian routes that are nationality specific. Those routes accept by far the largest number of people. First, we have the Hong Kong BNO route. That opened at the end of January 2021. To 30 September last year, around 145,000 visas were issued under that route.

Total arrivals under the Ukraine schemes as of 16 January of this year were approximately 157,000.

There are two main Afghanistan schemes: the Afghan relocations and assistance policy, or ARAP, and the Afghan citizens resettlement scheme. As of 4 November of last year, the latest date for which we have data, settlement was granted to about 6,000 people under the ARAP scheme and a further 6,300 received ILR under the Afghan citizens resettlement scheme first pathway—the pathway where people were offered status and evacuated under Operation Pitting.

Adding all those together, focusing on the year ending 30 September 2022 and looking at visas rather than arrivals, that is a total of 277,000 people granted leave in the UK under safe and legal routes. The vast majority of them, 98%, came under the bespoke humanitarian routes. For some context, in the same year 86,000 people claimed asylum in the UK and 16,000 were granted asylum or other leave. Those 16,000 are fairly typical for any one-year period.

Chair: So we are clear, that does not mean that 70,000 were refused; most of their applications will still be in the pipeline.

Dr Walsh: That is right. All the decisions that were made may well have been in respect of applications made in earlier years. The backlog is quite large and waiting time is quite long, so I expect that many will have been submitted not in that year but in earlier periods.

Chair: Of those who come to the UK through routes that are not part of the safe and legal routes that you have described, how many of their asylum claims are successful, in percentage terms?

Dr Walsh: We have data for three-quarters of that 2022: 77% was the grant rate. That is at initial decision. Therefore, some of those refusals will go to appeal and will be granted status. That is unusually large in recent British history. In 2018, the grant rate at initial decision was 33%. It has increased quite substantially over the past two years. A much higher share of people are being granted status at the initial Home Office decision.

Q60 Chair: That is very helpful. Mr Symes, I want to ask about the Nationality and Borders Act and the amendments it made to the Immigration Act, which provide that a person who knowingly arrives in the UK without a valid entry clearance commits an offence. Given the limited number of safe and legal routes available to refugees, does this provision potentially criminalise a significant number of asylum seekers arriving in the United Kingdom?

Mark Symes: Until the entry into force of the 2022 Act’s revised criminality regime for core immigration offences, refugees would often not be liable to prosecution because they were treated simply as arriving in the UK without entering the UK; there was no arrival offence.

The offence has been restructured significantly. The restructuring continues to uphold the basic offending regime for breaching deportation orders and knowingly entering without leave to enter when it is required, or overstaying your leave once you have arrived here. It also adds a new offence under subsection (D1) of knowingly arriving in the UK without a valid entry clearance. That could catch all kinds of cases, but it would include arrivals crossing the English Channel in small boats. Often, they would not be liable to prosecution because they had not committed a relevant offence.

There is also the related offence of assisting any of these breaches of immigration control, so the range of people who are liable for criminal conviction is broader again because of that factor.

We do not know how much in practice these offences will be charged. From many years in practice, I can say that charging asylum seekers when possible has become much more common in the past 10 to 15 years than it once was, but there are still tens of thousands, if not hundreds of thousands, of overstayers in the UK, and that does not seem to be prosecuted very often. Therefore, there is an issue about the extent to which CPS guidance is humanitarian and there is a generous use of discretion.

Chair: Is the approach of at least potentially criminalising asylum seekers who arrive irregularly consistent with our international legal obligations under the refugee convention and the European Convention on Human Rights?

Mark Symes: Article 31 of the refugee convention says that you should not impose penalties. Obviously, a criminal sanction is the most extreme form of penalty to impose on people who essentially come directly to the UK and claim asylum promptly. That is a paraphrase, but essentially that is its meaning.

So far, in case law that has been looked at in decisions such as the famous case of Adimi and analysed fairly broadly. As long as an asylum seeker did not unduly stop off such as to break their journey here, and so long as they claimed asylum recently quickly, they would be exempt from the penalties. This is now a much broader range of circumstances that could attract penalties in the first place, so there is a real concern here.

Sections 12 and 37, I think, of the 2022 Act address the approach to Article 31 and define quite closely how it is that the assessment of whether or not somebody has come directly to the UK is to be carried out. It looks at issues such as whether or not there was a reasonable opportunity to claim asylum in a safe third country, but the stated intention of the Government was to restrict the operation of Adimi because they felt the courts had given too broad an interpretation to the defence. However, as Adimi is being quoted by judges around the world, not just in the UK, it is generally thought to be a correct statement of the international legal position, and any narrowing of it could be quite dangerous.

Chair: What about the ECHR?

Mark Symes: The protections against criminal sanction under the ECHR are less obvious. The refugee convention looks directly at the issue of migration penalties, but the ECHR does not deal with it directly. I do not immediately see an ECHR-relevant issue arising from prosecution.

Chair: Might there be an Article 14 issue?

Mark Symes: If the ambit of one’s rights is in play, or one can say that prosecution impacts on someone’s private life, which I suppose potentially it does, and it impacts in a discriminatory way against particular groups, poorer people are obviously much more likely to have to travel over land and possibly end up arbitrarily breaking their journey en route to the UK. Wealthier people are much more likely to be able to fly in; people from less developed countries are much more likely to be subject to visa restrictions that prevent them from getting on planes in the first place. I suppose it is possible that women are more affected than other groups, depending on any disadvantages they may have.

It is not overt discrimination, but obviously there is potential for indirect discrimination because it will impact on particular groups in particular ways, albeit that it is clothed in language that is intended to be neutral.

Chair: That is extremely helpful.

Q61 Baroness Ludford: I am Sarah Ludford, a Liberal Democrat Peer. Mr Symes, may I ask about the two-tier arrangement under the Nationality and Borders Act 2022? It creates a two-tier system allowing the Secretary of State to treat asylum seekers differently depending on their means of entry to the UK. Will you kindly explain which asylum seekers fall into group 1 and which into group 2, and how would their treatment differ?

To save time, perhaps I may add a supplementary. Is this split into two groups consistent with our obligations under the refugee convention and, if relevant, the ECHR?

Mark Symes: Group 1 refugees are those who behaved themselves, as it were, and did what government policy suggests, which is that they came to the UK directly and presented themselves without delay to the authorities. Group 2 refugees are those who fail to do so—those who pause in a third country or claim asylum late. Those are essentially the two groups.

The Immigration Rules give those groups differential access to certain rights that, pre-28 June 2022, were universally given. One is family reunion; another one is access to settlement. Those are the two headline ones that seem to be in force at the moment. There was discussion in Parliament as the Bill was going through that recourse to public funds might also be restricted, depending on whether you were a group 1 or group 2 refugee.

The idea of the access to settlement restriction is that, generally speaking, group 1 refugees are granted something called refugee permission to stay and get access to settlement after five years, the same as the existing system. Group 2 refugees, who are given temporary refugee protection, will not overtly have any access to settlement rights at all, although, like any other migrant, they can accumulate 10 years of lawful residence, in which case at that point they can apply for settlement.

The family union provision essentially requires that group 2 refugees—people with temporary permission to stay who have not claimed asylum promptly enough and so on—will achieve family reunion only if there are insurmountable obstacles to them living together elsewhere. This implies that there are always two countries in play: the country where the spouse or partner is and the UK.

If the country abroad is the country of asylum, it is difficult to see people losing out under this test, but if there is a third country involved, as is so often the case because so many refugee communities end up being hosted temporarily by, and living irregularly in, particular countries, that is where the test will kick in.

The test that searches for insurmountable obstacles to living in that third place is taken from Strasbourg case law, so in one sense you might say that it draws on ECHR case law. The wording of it is clearly written. It requires both insurmountable obstacles and a breach of the right to family life, whereas hitherto the English courts have said that one can succeed in a family reunion case generally under immigration law either if there are surmountable obstacles to life abroad or if a refusal would be unjustifiably harsh. We will have to see how it is interpreted, but the wording seems to be pretty tight.

Let us not forget that that test from Strasbourg, which Strasbourg itself acknowledges is a very high test—there are really difficult obstacles to life abroad—was designed and measured up for overstayers and illegal entrants, as it were; it was not designed for people who were recognised as having a lawful basis to stay in the UK, which is obviously the case for recognised refugees. Therefore, there is a clear possible issue under Article 8 of ECHR.

The same discrimination point that I have already made arises again in terms of the groups affected, because it will always be the wealthy asylum seekers who can avoid dangerous journeys and so forth.

In its preamble, the refugee convention says that “human beings shall enjoy fundamental rights and freedoms without discrimination”. Article 3 of the convention says that the contracting state shall apply the provisions without discrimination as to race, religion or country of origin. The refugee convention also has quite strong anti-discrimination norms, which, at an indirect level, could very well be in play here.

Baroness Ludford: Dr Walsh, do you think that this provision in the Nationality and Borders Act is likely to impact certain groups of refugees more than others?

Dr Walsh: It could do. We cannot say at this stage exactly how many people will be affected by the two-tier system. It will depend broadly on how its constitutive terms are defined, but there are some potential outcomes where it is discriminatory and affects some groups more than others.

The first is to do with country of nationality. As it targets those who arrive without authorisation, it follows that refugees who enter irregularly will be targeted. In recent history, they tend to be of certain nationalities. For example, boat arrivals on which we have country of nationality information tend to be from Afghanistan, Syria, Iran, Iraq, Eritrea and Sudan. They make up a large majority. Those nationalities are more likely to fall foul of the two-tier system. That is nationality.

There is also gender. The restriction on refugee family reunion is more likely to affect the ability of women to receive protection in the UK. That is because more men than women apply for and are granted asylum. In the past 10 years, 70% of grants at initial decision were to men, but then they are joined, through the refugee family reunion route, by their female partners, so if that is restricted it will prevent the ability of women refugees to get protection in the UK. Those are two ways in which it could impact certain groups of refugees more than others.

In addition, there is the point about class and wealth. Wealthier refugees can fly and perhaps can get a visa for some other purpose, such as a student visa or work visa. They have the resources to pay for that and for the immigration health surcharge, and they can apply for asylum once they are in the UK. Therefore, that group is also less likely to be affected.

Q62 Lord Singh of Wimbledon: I am a Cross-Bench Member of the House of Lords. I would like to direct my first question to Mr Symes. The Nationality and Borders Act 2022 provides that asylum claims from individuals with a connection to safe third countries are inadmissible. Will you explain what is meant by “connection to a safe third country”? What does this rule mean in practice?

Mark Symes: The legislation continues the existing notion of a safe third country. The language it uses is “safe third state”. A safe third state is one where you will not be endangered for a refugee-relevant reason and it is a state that will not send you on to another state where you would similarly be in danger, or where you would be in danger of an Article 3 ECHR violation—where you might face inhuman or degrading treatment, punishment or torture. That is the safe third state.

There are five conditions in Section 80(c) of the amended 2002 Act. The first is being recognised as a refugee abroad and still able to access protection. The second is having been granted equivalent protection to that of a refugee. The third is having an outstanding asylum claim in a state, or a failed asylum claim in such a state. The fourth is having previously been able to make a claim in the third state but not having made it where there is no reasonable excuse. The fifth is where it is reasonable to expect someone to have made a relevant claim to the safe third state.

We are not sure how the fifth condition might be used. The other four speak for themselves, but I suppose that if someone came to the UK and at screening it became apparent that they had many relatives in Canada or somewhere, maybe they would be treated as inadmissible.

That is the essential regime. Would you remind me of the second part of your question?

Lord Singh of Wimbledon: What does this mean in practice? You gave a very detailed answer, but it illustrates how complicated it all is.

Mark Symes: Indeed. In practice, what will happen is that the Home Office, upon detecting a connection, will serve someone with an inadmissibility notice. The consequences of an inadmissibility notice are that you might be returned to the country with which you have a connection or you might be sent to a country with which you do not have a connection—somewhere such as Rwanda, a country that is participating in a mutual allocation scheme of putative refugees. It has pretty significant consequences, in that you could then be eligible to be sent to a part of the world where you have no connections.

Q63 Lord Singh of Wimbledon: May I direct my second question to you, Dr Walsh? Is there data on the number of asylum seekers who arrive in the UK with a connection to safe third countries?

Dr Walsh: Unfortunately, no; there are no clear statistics for asylum applicants by their method of entry, but there are some indicative data. If we take the concrete example of small-boat arrivals, upwards of 90% claim asylum. You would think that boat arrivals would meet the main criterion for inadmissibility given that they have entered the UK from France, which the UK Government describe as a safe country, but there is a puzzle in the statistics in that fewer people, but not all who have arrived by small boat—indeed, not even a majority—have actually been served with the inadmissibility notices that Mark Symes referenced. In the period between 1 January 2021 to 30 September last year, about 62,000 people entered the UK via small boats, but only about 19,000 were actually assessed for inadmissibility. That is about 30% of the number who arrive by small boats.

It seems to suggest that to date the Home Office is assessing a minority of small boat arrivals for inadmissibility, even though you might think it would try to assess all of them. It is not clear why that is. This could change in the future, but for now that is the main data point that we have available to assess the possible scale of those who would be considered for inadmissibility.

Q64 Lord Singh of Wimbledon: That is very helpful. It seems to me as if an asylum seeker would require a PhD in asylum seeking to have any fair chance.

May we move on to the relocation of asylum seekers? What human rights concerns are raised by the relocation of asylum seekers to what the Government call safe third countries?

Mark Symes: Experience over the past 30 years—the heyday of third-country returns—has taught us a lot about their human rights compatibility. There is a whole series of issues of concern. One issue is that people may be separated from family members. I recently saw a case where father and son had lived together all their lives. The son is now a young adult, but he had never left the family unit. The Home Office proposed the father’s removal to a third country but not the son’s.

Over time one sees many cases of that nature. Of course, delays in processing cases sometimes mean that people spend years in the UK before a third country return takes place and they may very well have formed significant relationships here.

Another possibility is Article 3 violations: inhuman and degrading treatment abroad. Even in the European Union, Greece was determined to be structurally inadequate. For a long time, no European country would return asylum seekers to Greece because of the high risk of homelessness and destitution.

Hungary was found to be a place whose asylum system was not reliable enough to prevent refoulement—onward dangerous return to countries beyond Hungary, not the country of origin but intermediate dangerous countries. A variety of issues have cropped up essentially focused on overt mistreatment abroad or inadequate living conditions threatening one’s life abroad.

Another possibility is mental health damage. Statistically, most asylum seekers have some mental health issues. The threat of giving up the protection that they believe they have established in the UK and having to get into another system can be terrifying for people. Very often, psychiatrists will say that people facing third-country returns are suicidal, not necessarily because of any objective risk that they face but because of their subjective state of mind and their fears. There is a whole series of potential problems.

Lord Singh of Wimbledon: Dr Walsh, would you like to add anything to that?

Dr Walsh: I would like to speak to the practical challenges associated with removing asylum seekers to safe third countries. Even when we had a return agreement with the EU, the Dublin III regulation, we did not return very many. From 2016 to 2020, the UK was a net receiver of people under Dublin, and from 2008 onwards there was a sustained fall in the number of people transferred out, so history shows that they are difficult to operationalise. I guess that Rwanda would be another case in point, with no one having been sent to Rwanda yet.

There are real practical challenges, often of an administrative kind, with lack of co-ordination between countries and lack of evidence. That will be more challenging now that we do not have access to the EU fingerprint record of connecting individuals to third countries to send them to. Therefore, recent history suggests that there are very intractable practical difficulties in sending asylum seekers to safe third countries.

Chair: I have to cut in because, as I explained, we are under external time constraints today and have to move to our second panel of witnesses. I thank you both very much for your full and helpful answers. There are a couple of issues that we have not managed to cover today about some of the stats and age assessments. If it is all right with you, we will write to you about that and maybe ask you to follow up in writing. Again, we are extremely grateful to you for your time. Once more, I apologise for having to cut the session shorter than I would have liked.

Oral evidence: Human Rights of Asylum Seekers in the UK