Women and Equalities Committee
Oral evidence: Equality and the UK asylum process, HC 726
Wednesday 26 January 2022
Ordered by the House of Commons to be published on 26 January 2022.
Members present: Caroline Nokes (Chair); Dame Carol Dinenage; Jackie Doyle-Price; Anum Qaisar and Bell Ribeiro-Addy.
Questions 1 - 72
I: David Goodhart, Head of Demography, Immigration, and Integration Unit at Policy Exchange; Dr Rosella Pulvirenti, Senior Lecturer in Human Rights Law, Manchester Law School at Manchester Metropolitan University; Jonathan Thomas, Senior Fellow at Social Market Foundation and Zoe Gardner, Policy Advocacy Manager at Joint Council on the Welfare of Immigrants.
Written evidence from witnesses:
Witnesses: David Goodhart, Rosella Pulvirenti, Jonathan Thomas, and Zoe Gardner.
Q1 Chair: Good afternoon and welcome to this afternoon's committee meeting of the Women and Equalities Select Committee, and our first evidence session on equality and the UK asylum process. Can I thank all of our witnesses for being here this afternoon? We have David Goodhart, Zoe Gardner, Dr Rosella Pulvirenti and Jonathan Thomas. I will start off with the questions this afternoon. My first questions are for Zoe and then Rosella. It will be really helpful Zoe, if you could indicate some of the key equality issues faced by people claiming asylum at the determination stage.
Zoe Gardner: There are a really wide range of equalities issues impacting people in the asylum system. Any area of particular vulnerability impacting individuals who are seeking asylum tends to make their experience of the process much more difficult. Obviously, vulnerability is often linked to the protected characteristics of concern to this Committee. I believe that you will hear more detail at a later stage about women and LGBT applicants in particular. I will touch on their experiences but I would like to focus the evidence I will provide today on people who experience mental health difficulties to the extent that it represents a disability, and their experiences in the asylum system, which are often very severe.
The asylum system as we currently have it is formulated with an imagined applicant in mind who is confident, not traumatised, able to clearly and consistently present a well-evidenced case as to how they have been persecuted and why they fulfil the grounds of the Refugee Convention. Actually, refugees who fit that criteria are the exception and not the rule. Unfortunately the system treats as the exception people who are severely traumatised, who have experienced things that have caused them post-traumatic stress disorder that therefore can very often have an impact on their ability to provide a clear, consistent and timely chronological narrative of their experiences. The shame that is associated with many of the things that refugees in these situations have experienced makes it difficult for them to disclose everything they have experienced at an early stage in proceedings. For example, particular issues face women and sexual minorities in disclosing violence that they may have suffered, including sexual violence, with no sort of structural safeguards within the system to assist them. Women being able to give evidence to female caseworkers as a default would be an obvious safeguard that is not available.
In JCWIs experience, when people present with trauma symptoms in the asylum system, instead of reinforcing the case for them to need a careful and trauma-informed response to their application, this usually works against them and makes their experience of the system harder. The system is plagued with huge delays, and this means that they tend to escalate to a very severe degree of mental health trauma before ever obtaining protection.
Q2 Chair: Can I ask you a specific question on PTSD and mental health impacts of it? From JCWIs considerable experience, and you referred to people who were not experiencing trauma as being the exception not the rule, what percentage of asylum seekers?
Zoe Gardner: By definition, a refugee is somebody who is fleeing a well-founded fear of persecution, so I would say that the significant majority of people who are refugees have experienced some form of trauma. Now, diagnosed with PTSD, that is a smaller proportion. I would not claim to know what proportion that would be, but there are obviously difficulties in obtaining diagnosis; access to healthcare; access to competent legal representation within the asylum system in order to bring those issues to light.
Q3 Chair: You are unable to put a figure on it?
Zoe Gardner: We do not know. The Home Office does not collect data on how many applicants present with different mental health needs.
Q4 Chair: Turning to Rosella, could you add something to that?
Dr Pulvirenti: Yes, I would like to pick up on Zoe’s last point. The most important step first of all would be to collect some data, in the sense that the Home Office does not have consistent data for each category of vulnerable asylum seekers. There are some statistics for women, some statistics for children, but it is not consistently monitored, so I think that this is the first challenge. Data that could be analysed would help us to understand how we need to tackle the problem.
The second point, one of the key elements is the stage where we understand when the individual is vulnerable. Clearly for children it is easier, but for some of the categories it might not be so easy to spot their vulnerability. The key element is training the civil servants who are talking to the asylum seekers first, in order to understand whether they belong to a protected category.
Finally, when they are included in the system, while they are waiting for the decision, the type of support that is provided to those individuals. For example, if the individuals were victims of modern slavery, then there is a period of 90 days during which they can be protected, there is assistance. Other than that, the more vulnerable individuals, children, women and so on, are more open to exploitation because they cannot work so they are limited in what they can do.
Q5 Chair: Can you give us any details of how much training is given to Home Office decision makers as to how to identify protected characteristics?
Dr Pulvirenti: The problem is quite challenging. If you look at the statistics, most of the asylum requests are overturned. The majority are overturned by judges which means that the legal framework is there but unfortunately, whether it is for lack of training or because the system is stretched, but clearly we have a lot of requests and the civil servants might be stretched in time or personnel. I am not fully aware of the type of training provided, but it should definitely include knowledge of the vulnerable categories of applicants, and then how to tackle the problem. Clearly, as was mentioned, some of the people who have experienced trauma might not be so forthcoming straight away in telling us about it.
Q6 Chair: We know that equality law applies equally to everyone in the UK, but there are some instances in which the equality legislation does not apply to asylum seekers; specifically those who have had their claims refused. Do you think that the State has a legitimate interest in restricting those rights?
Zoe Gardner: That is an interesting question. In JCWI’s experience, I believe that 100% of the asylum seekers that we represent are people who have initially had their claim rejected, and we have an extremely high rate of success in obtaining refugee protection for them. The reason is that the initial rejection is often a bad decision. There are huge problems with the decision making in the asylum system. Along with a few other specific law firms, JCWI is able to use our charitable funding to ensure that our lawyers are able to spend a significant amount of time breaking down those issues that I mentioned about trauma, gaining the trust of our clients, understanding the full story of what they have gone through, getting medical legal reports, getting the relevant evidence together and presenting a full case. We have an extremely high rate of finding that our clients are then recognised as refugees. Under the current system—which so clearly rejects people as a matter of routine who are entitled to protection when over half of asylum appeals at the current time are allowed—I do not think that there is that justification.
Dr Pulvirenti: I think that the system should not be discriminatory. Yes, the State has a legitimate interest in understanding that the process for asylum seekers is different for different categories of people. This is something that is protected both at the national level with the Equalities Act, but also the international level with the European Convention on Human Rights, and some of the United Nations Conventions, for example, protection of the rights of a child and so on.
Q7 Chair: There are a lot of restrictions on people who are in the UK claiming asylum: where they can live; their right to work; their access to healthcare, for example. Do you think that some of those restrictions could be eased without undermining the asylum system?
Zoe Gardner: Definitely. The asylum system we have at the moment treats people with unjustified brutality. The reality is that asylum seekers are people who are traumatised, but they are also people who have no understanding of the asylum procedure, how it works and what the requirements are. They very often come to this country under traumatising circumstances as well, and they enter a system that is deeply dehumanising. One of the key ways in which it is so dehumanising is that it is plagued by these extremely long delays and we see how this grinds people down. If accommodation for asylum seekers were to be basic—not infested with rats and falling down with damp as it currently tends to be, but basic—it would be perfectly acceptable for people to be kept in basic accommodation for three to six months while their asylum claim was being heard.
Under the circumstances of an average asylum claim taking one to three years just for an initial decision, conditions that people are subjected to in the asylum system are brutal. That is the word for it. Because living in substandard conditions for that long is incredibly damaging to people's health. Not being able to work and being forced into inactivity hugely exacerbates existing mental health issues. Fundamentally, it is the fear. Until you have gone through your claim and gained recognition as a refugee or otherwise, you do not know at any time whether you might be detained, whether you might be deported, whether you might then be returned to that danger that you are fleeing. That exacerbates people's mental health struggles to an enormous degree and in the long term obviously makes it much more difficult for them to integrate.
Q8 Chair: Can I take you back to the specific question? We will use right to work as an example, if you are suggesting that asylum seekers should be granted the right to work, at what point should that happen?
Zoe Gardner: In other European countries, asylum seekers are granted the right to work in the ordinary labour market after six months.
Q9 Chair: Would your view be that it should be six months?
Zoe Gardner: Six months would be a reasonable timeframe, or at least a more reasonable timeframe, given how long people tend to be waiting at the current time.
Q10 Chair: How do you envisage the interplay between the benefits system, supported accommodation and the right to work, if initial decisions are taking longer than six months?
Zoe Gardner: Currently most migrants in the UK, not just asylum seekers, are not entitled to access mainstream benefits at all. If they are working in low paid jobs, for example, they cannot access support on top of that. That is a difficult situation. It drives many people into poverty. If people were supported better, they would be able to integrate better and to work better.
Q11 Chair: Can you define “better”? What I would really like is to get an idea from the JCWI as to whether somebody in supported accommodation should be allowed to work, and how you see that working. Sorry, but “better” is not a great descriptor.
Zoe Gardner: I think that if people were entitled to work sooner in the process of their asylum claim, many of them would find jobs and be able to move out of supported accommodation, be able to rent in the private rented sector, for example. In that case, there would need to be protections for people to ensure that there was not discrimination occurring in the private rented sector, but that is a wider issue impacting all migrants seeking to rent. The right to work is very important in terms of letting people have a bit more autonomy over their lives to start to integrate. But I would caution that it is important that we do not frame the right to work as just a cost-saving mechanism, that asylum seekers can then get into jobs and support themselves. Many could, but many are too traumatised for that to happen, and it is appropriate for the State to support them while their application is ongoing. It needs to be done on a case-by-case basis.
Q12 Chair: Is the answer to process the claims faster, to hit the six-month target?
Zoe Gardner: If all or almost all asylum claims were being processed in six months, we would not be against people having the right to work, but it would just simply not be such an issue.
Dr Pulvirenti: It is a very difficult question and I do not think there is an easy answer to that. I believe that there is a possibility to ease some of the restrictions for asylum seekers in the sense that the UK could review the problem of time and decide that if the request has not been processed after six months, asylum seekers could be given the right to work. There is also the necessity to address the type of job. Clearly with Brexit there was the impact of some European workers leaving the market in the UK. Having someone else that could fill that gap—limited to what would be deemed appropriate for asylum seekers—could help in the short term to ease some of the problems that were highlighted by Zoe, but could also help the productivity of the country. On top of that, further down the line those people would be more integrated; they would feel more part of a community; they would learn the language and the skills, and so on. In terms of their relationship with the benefits system, there could be an entirely different system. If people could contribute by working, there would be less pressure on the benefits system.
Q13 Chair: Just to pick up your comment about Brexit shortage occupations, should employment therefore be restricted to the shortage occupation list or should we look wider to things like those areas where we know there are significant pressures, such as the care sector or agriculture? Would you envisage—I can see Zoe is shaking her head, but you are the one that raised Brexit—a scenario where we could say that there should be some occupations where asylum seekers should have the right to work?
Dr Pulvirenti: As long as it is not discriminatory.
Q14 Dame Caroline Dinenage: What do you mean by as long as it is not discriminatory?
Dr Pulvirenti: If you narrow down to a certain category of work that was available for asylum seekers only and people with different citizenship would not be inclined to do that, then that is discriminatory. Any work opportunity should be open to both asylum seekers and people with British citizenship equally, otherwise it would be discriminatory on the grounds of nationality.
Jonathan Thomas: I have two specific points. One is a very basic point around the asylum process. I do not disagree with anything that has been said, but I think it is easy to think that the decision and the appeal process is like a legal case. It looks like a legal case, it is very confrontational and adversarial, but it is a very different type of case. It is the story of a person: none of their witnesses are there; there is not much evidence; and the Home Office are trying to pick that apart. Then, when it gets appealed, the lawyers are trying to pick through the story and consider whether it meets very specific threshold standards of a very specific part of international law. That can explain sometimes why the whole story does not come out or it comes out in a different way or it takes a very long time to decide what the story is. That is not a defence of the Home Office, but it is a very basic explanation.
On the asylum seeker right to work, there are a lot of angles of that and there are a lot of angles which are very rarely discussed from a moral, ethical, economic point of view. It seems to make a lot of sense that asylum seekers should be given a more liberalised right to work. I would put two main caveats; there are others. I think one is the whole public perception problem—public perception of what happens with failed asylum seekers. Are asylum seekers economic migrants? If asylum seekers were given the right to work before their claim was determined, Government would be opened up to having to defend that even more, and a lot of defence has to be done on that at the moment, so that would be another aspect of the issue.
Another very little discussed issue is, what is employer appetite for employing somebody whose claim might be determined negatively next week or next month or next year, when we are trying to get employers to invest in people, to invest in training? Are they going to do that if they think somebody might be subject to a negative decision? Certainly in Germany—where they have a more flexible approach to this—the government had to give employers comfort that the person was not going to be removed. Effectively they brought in this three for two rule where, if the asylum seeker got a job then they could stay for longer and they were guaranteed to be able to stay for a particular period of time. You can immediately see that that then slips back into my first point again of, what are the public going to think about that—if any asylum seeker who gets a job effectively has a greater right to stay in the country, even if the claim fails?
There is a lot of aspects to asylum seeker right to work, and the non-rights aspects—and I know that is not what we are here to talk about today—need to be investigated a lot more. It is a real risk that asylum seekers could be given the right to work and not many people will employ them.
Q15 Chair: Do you think that it has the potential to undermine what I am going to refer to as the ‘tier two visa system applicants’, people from overseas wishing to come here and work, that they might look at the asylum system and think, “Well actually, that is an easier route in, to be able to work in the UK without having to pay the visa application fees”?
Jonathan Thomas: Yes, there are people who want to get to this country quite desperately for various reasons. You see migrant flows will move between different routes. My concern is that this is undermining the country's willingness to accept refugees, because they are seeing refugees mingled with these other people, there is a lot of rhetoric around pull factors and whatever. I do think asylum seeker right to work needs to be viewed in that context.
To your point, the ‘tier two’, and we can talk about this a bit more, the extent of once you are in the country, a lot of people see that as nine tenths of the game won for them. If they are in the country and they get a quick right to work, that may well become even more attractive.
Q16 Chair: The next question is to both Jonathan—who I think has covered some of it—and David. Do you consider that a more supportive, individual rights-based process might increase numbers of people claiming asylum or seeking to come here to claim asylum?
David Goodhart: Yes, I think it would act as a kind of magnet. The basic problem here is we tend to think of the asylum story as a sort of morality tale with hard-hearted and soft-hearted people taking different positions. It is actually an insoluble problem given the legal framework that we are working within. We have a legal framework which offers an absolute entitlement, with no reference at all to the numbers involved. Because of the way that the concept of persecution has been expanded in recent decades, that means that potentially hundreds of millions, if not billions, of people could legitimately claim asylum here. In a sense this means the only defence of the national border then becomes, unfortunately, first making it as difficult as possible to get in, and then making the experience relatively uncomfortable. We play this sort of cat and mouse game with asylum seekers.
We also end up creating a Darwinian system and I think this should be of particular relevance to your Committee, Chair, because all of the focus is on illegal immigration at the moment, obviously, and it is about 75%. Almost 30,000 people came in on boats, and another few thousand on lorries, which means that the illegal proportion of people coming to claim asylum will be 75% or something like that, and the vast majority of them are young men. I think something like 87% of people who come over on boats are men, and they are between the ages of 18 and 35, about 80% of them. They are middle class people from low income countries in most cases. You have to have $10,000 at least in order to take these journeys that most people have taken. These are not the wretched of the earth: the wretched of the earth are the people in the camps, the 40 million people in the UNHRC camps.
Why do we not focus far more on the people that we take in under the resettlement schemes? This is one area that functions well, that we can be quite proud of. Perhaps we should take in more women and children from the resettlement schemes, that seems to me the answer. The Red Cross are asking for 10,000 a year. At the moment it is probably running at about 2,000 or 3,000. I believe that is the approach that we should take, but we need to do something about the illegal flow because it undermines the system. People are essentially queue jumping and once they get here we have to make it a relatively uncomfortable system. Having said that, I do not think the current system is particularly draconian. We are currently allowing almost two thirds of applications through on the first hearing. Pretty well nobody is deported at the moment.
Q17 Chair: I want to ask you some specific questions. Are you saying that we should discriminate against men and in favour of women and children from refugee camps as part of resettlement programmes?
David Goodhart: We should discriminate against the illegal entry system, because —
Q18 Chair: No, you were talking about we should prioritise women and children from camps, is that what you are saying, no men from camps?
David Goodhart: Absolutely, yes.
Q19 Chair: You described our current system, apologies if I have misinterpreted your phrase, as “not uncomfortable enough”. What would you suggest to make it more uncomfortable?
David Goodhart: We are stuck in this situation because of the legal framework which has no sensitivity to numbers at all and which hundreds of millions of people could legitimately claim. We have to—
Q20 Chair: Can I just pick you up on that? If they could get here, hundreds of millions of people could legitimately claim? They are not able to claim from overseas?
David Goodhart: Exactly, and that introduces the Darwinian element, that is why it is overwhelmingly fit young men who are taking the risk of getting on lorries or getting into boats. You could say there is a massive bias against the people who really need our support, who are the women and children in the UNHRC camps. There is a much higher proportion of women and children who we accept under the resettlement schemes, and that is where our focus should be.
Chair: Zoe, you wanted to come in on that?
Zoe Gardner: I wanted to say, on some of those figures that David has been suggesting, it may be that he knows that it is 87% of the people arriving on boats are men, the majority is certainly men. Overall in the asylum system, it is roughly about two thirds men to one third women and children, over time. But people benefiting from family reunion are 90% women and children, and those are people who are coming after the men who have been sent to make that dangerous journey.
I just wanted to refer to a client that we are representing currently. He is an Arab Darfuri, he has ID to demonstrate that, his identity is not in question. He is definitely a refugee and he should be automatically granted status. His claim was initially delayed for six months during the inadmissibility process because he arrived on a boat. So far, he has been waiting a further six months in the ordinary asylum process. Meanwhile, his wife is waiting in a UNHCR refugee camp, in extremely dangerous circumstances. For now, he can hope that when he is recognised as a refugee which, given his identity he almost certainly will be eventually, his wife will be able to join him through family reunion. Under the Nationality and Borders Bill currently before Parliament there is a proposal to limit or remove the rights to family reunion from people who have made it to the UK under these circumstances, in which case she would no longer have a pathway to join him safely, and obviously would be incentivised to make that dangerous journey which, in his experience travelling through Libya, was unspeakably horrendous. In hers, I do not think any of us want to think about it.
Chair: There will be a lot of questions on the Nationality and Borders Bill in a moment, but I will turn to Jackie Doyle-Price for the next set of questions.
Q21 Jackie Doyle-Price: Following up on what David Goodhart has just said, of course yes, you could actually tackle the illegal immigration by adopting policies which favoured women from the camps and so on, but actually the real way of making it fairer would be speeding it up. Is that not where our resource should be, if we are a humane country? The questions earlier from the Chair about the restriction of rights are completely understandable where things are going to be turned around in six months. I think all of us, as Members of Parliament, have handled caseloads which have taken considerably longer than that, so is it not about speed? What is actually holding up doing things quicker and what proportion do not make that six months threshold?
Zoe Gardner: I do not know what proportion make six months any more, it must be extremely small. The average is between one and three years for an initial decision at the current time, and that does not include possible appeals. We are talking about an extremely long system at the moment, and it is clearly the key issue in terms of people's mental health and well-being, and also the interests of the country as a whole in terms of having a system we can have faith in to stop building up backlogs of people. It was reported just this week that 17,000 people in the asylum system have been waiting for an initial decision for 10 years or more. It is absolutely incredible; the lack of resourcing and prioritisation that has been given to high quality, efficient decision making in the Home Office.
Time and time again what we find at JCWI is that we do not actually get anywhere with an asylum claim until we threaten litigation, and then all of a sudden we get a response. As happened in a recent case, it has been an absolutely routine situation for us that somebody who has waited for several years for their appeal against their initial negative decision in the asylum system, when their day in court finally arrived, the Home Office representative said that they were withdrawing the case and within a week the person was granted refugee status. This is not a system that is working adequately for anybody involved; not the asylum seekers and not the country. Our resources, in terms of reforming it, should absolutely be in making the decision-making faster, better.
Q22 Jackie Doyle-Price: Following on from that, I visited a centre for unaccompanied children fleeing Afghanistan in Qatar and I was struck. I got a very clear message from the Qataris that in terms of the countries that were taking in these refugees, this country was slower than any other countries by a country mile. I just wonder if that is consistent and how we do compare with other countries?
Zoe Gardner: I am afraid I do not have that data: there are not many examples of extremely high-functioning asylum systems. Where one is better than the UK, it often falls down in other places. This is an issue that has been so greatly politicised over several years in all the countries which are receiving asylum seekers, and the response in all cases has been similar—investment in building up barriers to movement, and no investment in a humane and efficient asylum system that aims to give people the protection they need as fast as possible.
Q23 Jackie Doyle-Price: Can I perhaps ask Rosella, the tabloid popular—and probably most of our constituents—view of our asylum system is rather the same way that David Goodhart outlined, it is something very generous and we never deport anyone, and it is actually just being massively abused by young men who are wanting to come and work here. But I was very struck by the fact that actually quite often it is about men making the dangerous journey first. Perhaps you could share your observations about the speed with which we process claims, how humane they are and whether you have any international comparisons?
Dr Pulvirenti: The Refugee Council just published some data on the asylum applications in the UK in the last 12 months and I was looking at the data. It seems that the UK received 37,000 applications. Unfortunately these, as Zoe was mentioning, take more than 18 months to be decided. The problem with that is that once there is a rejection, asylum seekers have the right to appeal. These go to the judges and create a backlog in the justice system. The further problem with that is that the majority of the decisions are overturned. I cannot find the data now but if you give me a couple of minutes I will find it. So those asylum seekers are granted the status of refugee on appeal, which means that something goes wrong at the moment when the asylum application is first processed. Therefore, as I was saying before, the solution would be to look at the civil service system and check that they are readily equipped for their task.
David Goodhart: Can I just say, I do not think it is fair to say the majority of decisions are overturned. I think the pattern over the last 10 or 15 years has been roughly a third of people have been accepted on initial application, that rises to about half on appeal, and that is often because new information is provided and so on. I think everybody involved in this argument agrees that we are taking too long, and that is a part of the problem. It leaves people in limbo and in the difficult situation that Zoe has described.
We used to do it a lot better. I think as recently as 2014, about 80% of applications were dealt with in six months. The reasons we have slipped back are a bit of a mystery. It is partly to do with, you might say, the good consequence of a post-Windrush anxiety not to make a wrong decision. The Home Office is still somewhat traumatised by the Windrush scandal. It probably also contributes to the reason why first time acceptances have shot up to nearly two thirds in the last few months. The anxiety about making a mistake is intense, and that means that decisions are delayed. I do think that decisions are also being made at too junior a level; this is a point that has often been made. It is essentially executive officers—there are about 350 or 400 people making these decisions. These jobs should be much higher status, much better paid. Somebody was telling me that in Switzerland these jobs are really sought after. You have to have a law degree in order to be an asylum case worker, and it is considered part of the fast stream to promotion in the civil service if you have one of those jobs. But I think there is a serious post-Windrush problem that has made this situation a lot worse.
Q24 Jackie Doyle-Price: Could I just ask Jonathan, because you have been waiting patiently?
Jonathan Thomas: I have quick points on four of those things. On legal representation there is quite a lot of evidence that Switzerland and the Netherlands seem to be able to process things faster, and they do that by keeping the legal process quite close to them rather than pushing it away. What happens here is it is pushed away, and then some of it goes to people like JCWI, who can fight it. When they fight it, they fight it phenomenally well by the way. I have been in immigration tribunals, and the Home Office versus a barrister who has been hired by JCWI or one of those other organisations, is often only going to go one way, and the migrant who is being represented is amazed. There are not many countries that would give the government the worse lawyer so that, I suppose, comes back to it, that there is an ethos of staying alive. If you get into the tribunal as a Home Office presenting officer—and this is not about them, this is about the system that they are trying to manage—if you know what day it is and what case it is and what country it is, you are doing a good job, versus the opposition.
On decisions and appeals, there is a lot of debate around how many people get accepted and how many do not. Asylum is very specific. Sometimes there is a load of people from the former Yugoslav Republic, sometimes there are lots of people from Afghanistan, sometimes from Eritrea. It cannot be said, “Oh, the majority don't get accepted”, or, “the majority do”, it completely changes from time to time. If we were having this conversation in the 2000s, the statistics would be different. There might be process changes, as David said, but actually there are a lot of factual changes.
On women versus men, I would say that one of the advantages we have seen in the resettlement scheme is that whole families can come together and they have done. A lot of medium to large size families have come together. You do not often get a name behind the statistic, the only time you do for people trying to get here is when they die. But when you look at those, the lorry or the boats, there are very rarely whole families in those situations, because they have had to split up to get here. Resettlement does try to deal with that.
On your point, everybody here accepts it should be done quicker, but I would come back to David's point that that still means that the majority of people cannot access the system in the first place, and I question the fairness of that. In comparing countries, people often make the point that Turkey or Lebanon house the most refugees, which they do. But this is not because they are more open about the Refugee Convention—Turkey has not signed up to all of the Refugee Convention—and in fact it is partly because actually those countries do not really give those people many rights. They take in all of these people, but in Turkey they do not have a right to work, which is why a lot of them have moved on. One of the ironies of the Refugee Convention is the states that really think that they have signed up to it and give people good rights if they get that magic refugee status, are the ones that people do find attractive to try and get to. Also that they are the countries where the state really tries to keep those people away because they think if they get here and they get refugee status, then they get access to this package of rights, which we are going to give them. If you do not give those people many rights, like Turkey, you are less worried about them coming in.
Q25 Chair: Can I interrupt? Jonathan, you have given us some real insight into how well JCWI does in cases. Zoe, can you tell us how you choose which cases you will fight?
Zoe Gardner: On the basis of need.
Q26 Chair: Okay, so what criteria?
Zoe Gardner: We have various helplines. The first thing to say is that the need vastly outstrips the capacity of not just JCWI, but the sector as a whole, to provide. There is a seemingly unending amount of cases, sadly, that are truly deserving. People who have clearly fled serious harm, torture, violence, and so on, who are trapped within or without the system. If they are lucky, they may hear of our helpline and they may contact us, and then our lawyers will make a decision based on their existing and extremely high caseload. If there is a truly compelling case, whether they can possibly —
Q27 Chair: What is a compelling case? Do you look at the characteristics of the case? Do you look at where they have come from? Do you prioritise women over men? People who are LGBT? What are the criteria the JCWI uses?
Zoe Gardner: We do not have strict criteria as in we do not discriminate on any particular grounds. However, we have some lawyers who may have expertise in dealing with cases of LGBT applicants. We have one lawyer who has done some amazing work on the country guidance related to Sri Lanka. If a Sri Lankan case comes to her, that might be one reason among many why she might choose to take it on. We are motivated absolutely by the need to protect people from the danger that they are faced with being sent back to and that is the basis on which we choose cases, and actually all organisations, as far as I am concerned—
Q28 Chair: I am sorry, I really want to drill down. You have much more demand than you have capacity?
Zoe Gardner: Far more.
Q29 Chair: How are you choosing them? So, is it luck that the—
Zoe Gardner: Yes. Across the asylum system, it is dumb luck if you manage to get a decent lawyer, and most do not.
Q30 Jackie Doyle-Price: Back to your original point that probably those at most risk of harm are least equipped to advocate for themselves in the process, so legal representation seems to be key. I just want to ask you and Rosella some high level observations on the experience of people with protected characteristics in the system, and to what extent the Home Office is collecting data. Is the data they have useful? Does it actually tell the story in the data? For example, one can imagine that there are many people fleeing their country of origin because of LGBT. Are we really picking up their stories in the data?
Zoe Gardner: The Home Office does not record how many asylum claims are made, on the basis of fear of persecution because of sexuality, for example, or for any other reason, so it is very hard to know.
Q31 Jackie Doyle-Price: Would you say that they collect sufficient data on things like disability?
Zoe Gardner: Race, disability.
Q32 Jackie Doyle-Price: The data beyond age and sex?
Zoe Gardner: Beyond age and sex we do not have any.
David Goodhart: I think it does actually. Sorry, I think the Home Office does actually collect —
Jackie Doyle-Price: Could I just let Zoe please answer first? My question was directed at her.
Zoe Gardner: They do not publish data on what grounds people have sought asylum.
Q33 Jackie Doyle-Price: For us to take a view from an inequalities perspective, that data would be really useful. Would it be useful to you in your work?
Zoe Gardner: Extremely useful to have data on the basis of all different activities of the Home Office aggregated by race, by disability, by sexuality; those protected characteristics. It would be extremely useful for us to know.
Dr Pulvirenti: I agree with Zoe. Clearly, if we do not have data we do not know whether the legal system in place is working. Therefore, if we need to introduce some element to reduce the discrimination of the protected categories we do not know how much input, economic resources and so on that we need to give to the system because we do not have any data.
The first step, whatever we are going to agree today, is just to collect the data for the different categories. After that, we can discuss whether the legal system is fair to those people or not.
Q34 Jackie Doyle-Price: David Goodhart, you are challenging the evidence given, that there is data?
David Goodhart: I think there is LGBT data collected by the Home Office in relation to asylum. I was talking to Jon Simmons—the Head of Research—the other day who told me that.
Zoe Gardner: If they collect it, they have refused to share it in freedom of information requests.
Jackie Doyle-Price: No, it is more about publication of data really.
Zoe Gardner: They say they do not collect it.
Dr Pulvirenti: Even if they are available, they are not easily accessible.
Q35 Jackie Doyle-Price: In the interests of transparency, we ought to have greater sight of the data that the Home Office collects. I think we could all agree on that, could we not?
David Goodhart: Yes, definitely. We are worrying here about inequality and lack of rights. The group that is most vulnerable to inequalities and lack of rights is the hundreds of thousands of people in this country who live in the twilight zone of illegal immigration. We are adding to that stock of people every year to the tune of probably 20,000 or 30,000 because we do not deport people.
Q36 Jackie Doyle-Price: Or because we have an inefficiently functioning immigration system in general.
David Goodhart: Inefficiency counts for a bit of it. Lack of international agreements counts for a lot of it as well. Deportation seems like a very harsh thing, but anything we can do to reduce that stock of people living in the twilight world where they really are exposed and vulnerable would be a good thing. A lot of the people that drowned in the tragedy in November were coming from Kurdistan, Kurdish Iraq. We do not even have an agreement with Kurdistan to send people back. This is one of the relatively thriving parts of the Middle East that people are coming from. We have to get agreements with countries.
Jackie Doyle-Price: I think we are going to come to those issues later with questions on the legislation going forward. Ultimately what you are talking about is modern slavery. It is also the point that we need to go after the organised criminal gangs that profit from this. We could all do some more to call it out. One of the things I often say to my constituents when they raise issues like this is, “Do you take your car to a hand car wash?” We have all got a role to play in things like that, but I will leave it there.
Q37 Dame Caroline Dinenage: On this data issue, I just wondered how much of an outlier we are internationally on this. Are there other countries that collect this data better and publish it better? Who should we be looking to as a shining example of how to do this better? Is there anybody?
Zoe Gardner: I am not aware of any country that is a shining example. Again, as I say, often some areas where some countries do better, they do worse in other parts. In terms of the data, I have a feeling that there are countries that release this data. I could very easily find it and send that information to the Committee later.
Chair: That would be very useful, thank you.
Q38 Bell Ribeiro-Addy: I am going to be asking some questions about the Immigration and Nationality Bill and how all of you believe that it has helped or hindered the process. I am going to start with Jonathan. Have the Government advocates for refugee rights and the immigration law sector missed an opportunity to find common ground on addressing some of the problems in the asylum process, including abuse of the system and the challenges of removing people who have been refused asylum?
Jonathan Thomas: The short answer is yes. It sounds slightly strange being in front of this Committee with a former Immigration Minister who could probably answer these questions better than me but, anyway, she is not in that position today.
Chair: Any more. Ever.
Jonathan Thomas: Pieces of immigration legislation are generally doing two things. They are obviously bringing in law, but they are performative in how they are being supported by the messaging from the Government and how they are trying to be received by the public. If you were going to look at the highlights of what is happening here, the initial messaging around the new plan was very bullet pointy; here are four or five things that are going to play well in certain core markets that we need to play well with. They are obviously trying to address issues in the system around how you make asylum determinations, how you deal with people smuggling. They are addressing how you deal with modern slavery and they are trying to address various moving parts of this system.
Ultimately, they do not really address some of the key problems, which in one sense they cannot address because, as we have just said, removal is, to me, a key part of the issue. If you could remove more people who had gone through the system and had had legal representation and it was agreed that they did not meet the standards required to stay here, then I think there would be more support that the system was a real system with real consequences for people who failed it and, therefore, real benefits for people who did not. In order to do removals, you need to come to actual agreements with actual countries, and you need to co-operate.
The flipside of the system, of course, is if you are trying to disincentivise people arriving in certain ways, you need to incentivise other ways of people arriving. This comes back to this queue-jumping thing, which David mentioned, and has obviously been a big part of the messaging here. The problem is, of course, there just is no discernible queue. We like queuing in this country because when you queue in this country you know what you are queuing for. You can see that the queue is moving; you can see that it is administered fairly and it is progressing somewhere, which is what you expected when you joined the end of it. That is not really how resettlement works. It could work like that, but it is not how resettlement works. At the moment it is not clear how you get into that system. Also, the numbers being resettled through it are far too low for somebody to really choose that as an option.
In order to really manage the process—the Nationality and Borders Bill might be part of it—ultimately you have probably got two options. One, which I do not think the UK can philosophically go down and I really hope it cannot, is you have to be super nasty, way beyond what people think at the moment is nasty and you also need to be in a geographical position where you can pull that off. The UK maybe is, but Australia was in that situation and went down that route and was able to shut off direct asylum seekers coming there. Or you need to be able to return people and take other people in. In order to return people you need to co-operate with other countries, so you need to be super nasty or super co-operative. I feel like the UK is not really either of those things and, therefore, as a result the Nationality and Borders Bill will do some things, and things may change and we might say, “Oh look, the Bill did that”, but things change for lots of reasons. I do not think of itself it is really going to address this issue.
Q39 Bell Ribeiro-Addy: Thank you. Zoe, we know that legal aid was removed from various different mechanisms for people applying in terms of immigration back in 2012, I believe. What is the impact that that has had on cases and the whole sector since then?
Zoe Gardner: The cuts to legal aid have been absolutely devastating. Legal aid is still available for people making human rights-based claims to remain in the country, but the rates are extremely low. This feeds into the issue that I was describing earlier about the capacity in the sector being completely overwhelmed. There has been ongoing crisis mode for decades now, but it was made much, much worse by those cuts in 2012. Obviously, we are here talking about the asylum system, but it is inevitably linked with wider immigration questions. The fact that legal aid is not available at all in immigration applications that fall outside of our human rights framework also increases that difficulty and means that more people have to rely on asylum and human rights-based routes.
Q40 Bell Ribeiro-Addy: Do you have any figures on how successful they are in the use of the human rights route?
Zoe Gardner: I do not know what the proportion of people who are successful in making a human rights claim to stay in the UK is; I imagine that it is data that I would be able to find. In many cases—because of the long times that people spend in the asylum system and then again out of the asylum system if they are initially rejected—people do develop legitimate family and human rights-based claims to remain in the UK even beyond their initial asylum claims. That is, obviously, another feature of this lengthy process that complicates matters.
Dr Pulvirenti: The framework provided by the European Convention on Human Rights gives more rights to asylum seekers for a family reunion. Clearly, Article 8 has been used a lot in that, and also Article 8 has been used against the decision of sending back some of the asylum seekers. Also, there is the provision not to torture people, so non-refoulement, and Article 3 of the European Convention of Human Rights has been used. Actually, the human rights framework has been used as an umbrella for the shortcomings of the asylum system in the UK so far.
Bell Ribeiro-Addy: David, you wanted to come in?
David Goodhart: I was just going to say the Head of UKVI told me a couple of years ago that more than half of successful claims by asylum seekers are now made under human rights law rather than asylum. As Zoe says that will be partly because people are here for such a long time that they start making claims under the right to family life. Can I just make a brief comment about the Bill?
Bell Ribeiro-Addy: I have some more questions for you.
David Goodhart: Sorry, okay.
Q41 Bell Ribeiro-Addy: You have touched on the numbers of people that have been deported. The Migration Observatory say that approximately 17,081 people were deported in 2018; in 2019, approximately 12,841; in 2020, approximately 5,842. The UK has also rejected over 32,000 Afghan asylum claims since 2001, which means that more Afghans have been denied asylum or deported than actually offered safety under the Government's resettlement schemes. You had previously cited a slow appeals process as a possible reason for delays and backlog in the asylum process and the use of judicial review. Do you have any suggestions about how the appeals process can be made more effective, quicker and potentially more accessible to claimants?
David Goodhart: The Migration Observatory is almost always right, so I assume those figures are correct, but about four fifths of the deportations last year would have been foreign national offenders.
Q42 Chair: Can I just interrupt here? The sentiments of a former Immigration Minister are going to come out. Deportation is only for foreign national offenders. Removals are for failed asylum seekers. I think it is really important that we use the correct terminology or we will get in a terrible mess mistaking refugees and asylum seekers for foreign national offenders.
David Goodhart: Okay. I think the removals figure was something like 1,000 or 1,500. It has absolutely plummeted in the last few years. One of the problems that the Bill is trying to address is the gaming of the legal system. What very senior judges have complained about is the whole business of last-minute injunctions that mean that very, very few people end up on planes going home or back to where they came. As Jonathan pointed out, Zoe's barristers are very good. They run rings around the system. As Jonathan also said, we simply do not have enough agreements with the relevant countries, such as Iran, Iraq and Eritrea.
Iran is a tricky one but, like I said, Iraqi Kurdistan is somewhere that is flourishing, and Britain—through its armed forces and in other respects—has contributed enormously to the success of that part of the Middle East. We desperately need to do deals with more countries. I would be really interested to know whether any of the post-Brexit trade deals that we are doing include some sort of quid pro quo for taking back people who come here illegally.
We have recently finally struck a deal with India. India has been very reluctant to reach agreement. I think we do now have an agreement that they will accept people back so long as we can prove that they are indeed from India. I think that process is incredibly important. I do not know why we have not been putting more effort into getting these agreements with other countries.
Obviously, the stress of the Bill is on how to deal with illegal immigration. All of us are worried about the illegal aspect, but it does beg the question of legal routes. If we want to clamp down on illegal entry, how is it possible for people to make claims? I think Jonathan said there is no queue. Well, there is a queue, and I think it is the UNHRC camps, and I think we should accept 10,000 a year. That is the Red Cross demand, and I think it is not an unreasonable one. We should take 10,000 a year, but in return—and this could be part of clamping down on illegal entry—the UNHRC should take back people who have come illegally rather than talking about Ascension Island or Rwanda or whatever. If people are genuinely in danger I think they will probably get accepted here, but if for some reason they are not they will be safe under protection of the UNHRC. I do think we should also, and Jonathan’s written about this—
Q43 Chair: I am sorry, David. I am going to have to interrupt you. I am going to have to suspend the meeting because there is a division in the House.
Sitting suspended for Divisions in the House.
Chair: Bell, I hope you can find where you were, and we will get David, who I think was giving evidence, back on track.
Q44 Bell Ribeiro-Addy: David, I think you just had your last word to say, or was it a sentence?
David Goodhart: I was just going to say the word sponsorship, which I know Jonathan has written about. The challenge to people like me—who think that it is really important to clamp down on illegal entry—is how people are going to get here. I think resettlement is a huge part of it, but I think sponsorship can also play an important role. Jonathan has written interestingly about that.
Chair: Thank you very much for that.