Written Evidence by the Jesuit Refugee Service UK (ASU0025)

About JRS

The Jesuit Refugee Service (JRS) accompanies, serves and advocates alongside and for the rights of refugees and forcibly displaced people. JRS UK supports people made destitute by the asylum process through advice, casework, practical support, emotional befriending, creative and therapeutic activities, accommodation, and specialist legal advice. JRS provides an outreach service supporting people detained for the administration of immigration procedures at Harmondsworth and Colnbrook, including befriending, social visiting, and casework. JRS ran outreach to the asylum camp at Napier barracks for two years from autumn 2020.

Question Responses

Is it compatible with the UK’s human rights obligations to deny asylum to those who do not use what the Government calls “safe and legal routes”?

It is a fiction to suggest granting asylum only to those who use ‘safe and legal routes’ complies with the UK’s international human rights obligations:

Non-penalisation of refugees for entering a country of intended asylum irregularly is fundamental to the 1951 Refugee Convention.[1] Connectedly, penalising refugees for how they travel ignores the realities of forced migration, such that it is incompatible with the obligation to provide refugees protection. Most refugees have no choice of how they travel.
Key to stated government rationale for penalising those not using ‘safe and legal’ routes is that refugees should claim asylum in the first ‘safe’ country. However, global provision for refugees could not function if all refugees claimed asylum in the first safe country they came to. Most refugees are hosted in developing countries, and the UK receives fewer asylum applications than most other European countries.[2] There should be no prohibition on passing through other countries to reach a final destination; such a restriction implicitly discriminates against those with financial resources and connections (who could fly directly) and those without.
Vanishingly few formal routes exist for refugees to come to the UK, and these are mainly confined to refugees from specific countries. JRS UK works with some refugees who have arrived informally and explain they first tried to apply for resettlement, to no avail. Punishing refugees for not using ‘safe and legal’ routes is therefore doubly wrong.

Testimony

Aaron was a young teenager when he had to leave Eritrea without his family. Aaron’s father had been conscripted into the country’s brutal military service and did not arrive back at his base after visiting his family. The army arrived at Aaron’s house and threatened to take him. Aaron had no choice but to flee. “People really suffer”, he says. “They don’t want to leave their country but their country forces them because military service in Eritrea is the worst thing. You have to serve the military forever.” He left Eritrea and spent two years looking for safety before he arrived in the UK. He travelled via Sudan and Libya, which were very dangerous. He then went to Italy, where he felt unsafe sleeping outside under bridges, and to France, where he ended up in the Calais jungle. “They didn’t treat us like human beings” he explained. He came to the UK in the back of a lorry. “I wasn’t expecting anything,” he remembers. “I just escaped to keep my life, to be safe. That’s the most important thing.” Aaron was in the UK asylum system for 7 years before finally being recognised as a refugee. He was initially refused asylum and had to submit a fresh claim.

Is the policy of relocating asylum seekers to third countries consistent with the UK’s human rights obligations?

Relocating asylum seekers to third countries is an abrogation of our duty to provide protection to refugees. Commenting on UK government plans for relocation, the United Nations Humanitarian Commissioner for Refugees [UNHCR] states “The primary responsibility to provide protection rests with the State where asylum is sought.” It especially contravenes our obligation to offer sanctuary to offload responsibility to a much poorer and less stable country: “Arrangements should be aimed at enhancing burden-and responsibility-sharing and international/regional cooperation and should not result in burden-shifting.”[3]

Additionally, such relocation poses a high risk of further human rights abuses: Out-of-country processing has resulted in severe human rights abuses in the rare other contexts where it has been attempted. Australia’s offshore detention regime on Nauru and Manus Islands, in Papua New Guinea, meant years of human suffering. Twelve people have died since the policy began in 2013. Adults and children have suffered inhumane treatment and medical neglect, and years of indefinite detention led to self-harm, widespread suicidal ideation, and suicide.

Plans to relocate asylum seekers to third countries must be abandoned.

Are the rules on detention and processing, and the treatment of detained asylum seekers, consistent with the UK’s human rights obligations?

Incarceration for the purpose of immigration control is seriously concerning from a human rights perspective, as its proportionality and necessity is dubious. Furthermore, in the UK, immigration detention is administrative and has no time limit; it is subject to far fewer safeguards than deprivation of liberty in the criminal justice system, as the JCHR found in 2019.[4] These issues are compounded in the case of people seeking asylum, to whom we owe a particular duty of protection.

Specific problems include:

Inadequate screening for vulnerability. Furthermore, the Adults at Risk [AAR] policy routinely fails to lead to the release of vulnerable people even once identified, instead leaving them to suffer further harm in detention. [5]
Detention is a deeply traumatic and dehumanising experience, which torture survivors routinely compare to torture.[6] The indefinite nature of detention places a particular strain on mental health.[7]
Detention obstructs access to the asylum process. It is difficult to access legal advice or gather relevant evidence whilst in detention, and the strain detention places on mental and physical health renders it difficult to engage with an asylum claim.

The use of detention under immigration powers must end. Until this is achieved, asylum claims should never be processed in detention.

Is the support available to asylum seekers under the legal aid, accommodation, and subsistence rules compliant with the UK’s human rights obligations?

Asylum seekers we support regularly struggle to secure legal advice. As it is virtually impossible to navigate the asylum process without legal advice, this interferes with right to fair hearing in asylum cases [8] and with the UK’s obligation to protect refugees.

Most asylum seekers we support in the community in London have no legal representation. Many are collecting evidence for a fresh claim. This is complex, and requires legal advice, but it is extremely difficult to obtain a legal aid-funded solicitor for this kind of work. Often, lack of good legal advice was key to the claim going wrong initially, so this problem becomes cyclical.
It has often proved impossible to refer individuals at Napier barracks to legal advisors. Individuals there have completed substantive interviews never having had legal representation.

Context is the vast reduction in the scope of legal aid funding in England over the last two decades, and consequent lack of legal aid providers and declining numbers of advisors.[9]

Accommodating asylum seekers at Napier barracks is inhumane. In-depth conversations with asylum seekers at Napier in late summer and autumn 2022 corroborate our wider experience of outreach to Napier, showing:

Due to overcrowded sleeping conditions and total lack of privacy, chronic sleep deprivation is pervasive, contributing to widespread profound anxiety.
Many residents report Napier feels like a prison; the site is bleak, walled, and securitised.
Many find the setting retraumatising as it recalls previous experiences of camps or incarceration, within the scenarios they fled or en route to the UK, demonstrating how the setting is specifically inappropriate as asylum accommodation.

Asylum seekers should be given safe and dignified accommodation within communities. Plans for asylum centres should be abandoned.

People refused asylum and declared appeals rights exhausted are left completely destitute, unable to meet their basic needs, and vulnerable to exploitation. We support people in this situation in London, and many are ultimately recognised as refugees. Their destitution is a deliberate aim of government policy, weaponised as a means of immigration control.[10]

No one should ever intentionally be made destitute.

To what extent has the enactment of the Nationality and Borders Act 2022 had an impact on the human rights of asylum seekers?

The impact of the Nationality and Borders Act is only beginning to be felt but we have serious concerns about its human rights implications. We have already highlighted:[11]

Discriminating against refugees based on mode of travel, which is at the heart of the Nationality and Borders Act, contravenes the Refugee Convention, as explained above.
Penalties for apparently delayed disclosure in asylum claims and modern slavery cases could deny asylum to many who need and are entitled to it. Asylum seekers face numerous interacting barriers to disclosure, including trauma, lack of understanding of the asylum system, barriers to legal advice
The raised threshold of proof in asylum determination places an unrealistic and disproportionate burden of proof on asylum applicants.

14/12/2022

[1] Dr Cathryn Costello, “Article 31 of the 1951 Convention Relating to the Status of Refugees”, UNHCR Legal and Protection Policy Research Series (July 2007), p.5.

[3] UNHCR, “Analysis of the Legality and Appropriateness of the Transfer of Asylum Seekers under the UK-Rwanda arrangement”.

[9] See Refugee Action and NAACOM, Tipping the Scales: Access to justice in the asylum system (2018); Wilding, J. Droughts and Deserts: A report on the immigration legal aid market (2019)

[10] Further details can be found in JRS UK, Out in the Cold: Homelessness among destitute refugees in London (2018).

[11] JRS UK written evidence to the JCHR toward their legislative scrutiny of the Nationality and Borders Bill (November 2021).