TAP0005

Written evidence submitted by the Public Law Project

1. Public Law Project (PLP) is a national legal organisation dedicated to promoting the rule of law, access to justice, human rights, and the accountability of government through casework, research, events and training.

2. We respond to this inquiry because of our expertise in immigration, digital government, and legal aid, our experience of the Asylum Transformation Programme through sector partners, and our membership of the Home Office’s Asylum Stakeholder Engagement Group on Decision-Making. Further, PLP acted for Freedom from Torture – an organisation specialising in support and advocacy for survivors of torture – in the pre-action stages of a potential judicial review challenge to the Home Office’s Streamlined Asylum Processing (SAP) policy.

3. PLP’s overall message is that the Asylum Transformation Programme requires considerably more transparency and clarity as to its content, evaluation criteria, and human consequences and that, while a streamlined asylum system is in principle positive, the effective funding of legal representatives to ensure that accurate and adequate information is provided by asylum seekers and to ensure fairness will be essential to make streamlining work.

4. This evidence will focus on five themes:

1.      The Programme’s transparency and evaluation;

2.      Streamlined Asylum Processing (SAP) and digitisation;

3.      Reducing the asylum backlog;

4.      The provision of asylum accommodation; and

5.       The implications of the Programme for the wider justice and legal aid systems and the need to effectively fund legal representatives.

5. Through these themes, we make the following recommendations for the Programme’s reform:

• Recommendation 1: For those without inside knowledge, it is difficult to obtain detailed information about the Programme. The Government should publish a single document setting out the different elements of the Programme and how they interrelate.
• Recommendation 2: The Government should publish its Evaluation Strategy for the Programme and the findings of its interim review of the Programme later this year. This should include publishing an Equality Impact Assessment for the Programme.
• Recommendation 3: The Government did not consult before introducing this Programme. While there has been consultation with stakeholders since then through Asylum Stakeholder Engagement Groups and amendments made to the Programme following our involvement in Freedom from Torture’s potential legal challenge, these amendments have not been made explicit in public policy. The Home Office should make those amendments transparent and clear.
• Recommendation 4: The Home Office should make further amendments to the asylum questionnaire and its associated processes, including: simplifying the questionnaire and providing access to translations of the questionnaire in languages common among people prioritised for SAP.
• Recommendation 5: The Home Office should urgently review how non-compliance refusals and deemed withdrawals are operating to ensure that asylum seekers are not denied essential protection and to reduce the likelihood of increased future costs.
• Recommendation 6: Where it does not already do so, the Home Office should provide a right to obtain an in-person interview instead of imposing an obligation to complete a digital questionnaire.
• Recommendation 7: The Government should re-evaluate its current approach to reducing the Home Office’s asylum casework backlog and invest in longer-term solutions, including up-skilling decision-makers and improving retention of staff, as well as simplifying asylum processing in a more effective and sustainable manner.
• Recommendation 8: As a matter of urgency, the Home Office should end the use of hotels as contingency asylum accommodation for families with school-age children.
• Recommendation 9: When the Home Office is responsible for providing contingency asylum accommodation, it should prioritise availability of school places in deciding where to house families with school-age children and provide families with specific support to liaise with local authorities to ensure that children can effectively access school education.
• Recommendation 10: The Home Office in conjunction with the Ministry of Justice should undertake a review of the capacity of immigration and asylum legal aid providers in the current asylum dispersal areas. This review should include speaking to providers to establish their actual capacity, rather than relying on a crude measure of capacity based on the number of 'matter starts' available on legal aid contracts. Following this review, the Home Office should commit to only designating an area as suitable for asylum dispersal accommodation if it meets a reasonable threshold of asylum legal aid provider capacity.
• Recommendation 11: The National Audit Office should conduct a detailed assessment of the implications of the Programme for the wider justice system, particularly the asylum appeal system and the legal aid sector.
• Recommendation 12: To ensure the accurate and fair resolution of asylum claims, the effective funding of legal representatives for asylum claimants will be critical. The Government should follow internal advice offered by civil servants that legal aid fees for asylum solicitors should be increased by 15% to attract specialist legal advice.

1. The Programme’s transparency and evaluation:

Recommendation 1: For those without inside knowledge, it is difficult to obtain detailed information about the Programme. The Government should publish a single document setting out the different elements of the Programme and how they interrelate.

6. The fact that the Programme has been established via a business case,[1] has internal objectives,[2] and has a Senior Responsible Owner (SRO) in charge,[3] would suggest that internally to the Home Office, there is a cohesive programme. However, the evidence available in the public domain is scarce, and detailed information about what the Programme practically entails is difficult to find for those without inside knowledge.

7. While the National Audit Office (NAO) provides invaluable insight, the public information at times remains contradictory. For example, decreasing reliance on hotels through additional dispersal accommodation is sometimes portrayed as part of the Programme,[4] while in other places it appears to be a separate programme.[5] Similarly, digitising the system is noted as one of the goals of the Programme in the NAO report and SRO appointment letter, but the NAO report also says the new system (Atlas) is being delivered through a separate programme.[6]

8. This is likely to promote confusion, even among experts working daily in the asylum system. In the interests of transparency and clarity, the Home Office should publish a single document setting out what the Programme entails and details of its practical implementation. This document should also make clear how the Programme relates to other operational reform schemes. A policy that affects significant numbers of highly vulnerable asylum seekers as well as UK taxpayers should be as clear as possible and the Asylum Transformation Programme is not.

Recommendation 2: The Government should publish its Evaluation Strategy for the Programme and the findings of its interim review of the Programme later this year. This should include publishing an Equality Impact Assessment for the Programme.

9. The NAO report has noted that the Home Office has prioritised reducing the legacy backlog and hotel use, which means that other projects (including improving the experience of people seeking asylum) are under-developed. It further notes that the Home Office is commissioning a broader evaluation of the Programme, with interim findings expected by December 2023.[7]

10. Given the issues flagged by the NAO and in our own evidence, we recommend that the Home Office publish its evaluation strategy for the Programme, set out what data it currently collects and its metrics for evaluating success, as well as the interim findings. Given that the Home Office has not already published an Equality Impact Assessment for the Programme, it should do so as part of its review later this year.

2. Streamlined Asylum Processing (SAP) and digitisation:

Recommendation 3:  The Government did not consult before introducing this Programme. While there has been consultation with stakeholders since then through Asylum Stakeholder Engagement Groups and amendments made to the Programme following our involvement in Freedom from Torture’s potential legal challenge, these amendments have not been made explicit in public policy. The Home Office should make those amendments transparent and clear.

Recommendation 4: The Home Office should make further amendments to the asylum questionnaire and its associated processes, including: simplifying the questionnaire and providing access to translations of the questionnaire in languages common among people prioritised for SAP.

11. SAP is intended to apply to manifestly well-founded “legacy” claims from asylum seekers who claimed before 7 March 2023, where it is possible to make a positive decision following the return of an asylum questionnaire, without having to conduct a personal interview with the asylum seeker.  It currently involves nationals from “high grant” countries (a grant rate of over 95%) – namely, Afghanistan, Eritrea, Libya, Syria, and Yemen. Normally, a claimant must be provided with at least 20 working days to respond to the questionnaire, and if there is no response, a reminder must be sent with a further 10 working days to return the questionnaire.[8] A similar accelerated decision-making process has also more recently been extended to claims related to Iran, Iraq and Sudan.

12. While aspects of SAP are positive, it has caused problems in practice because it was introduced without initial and proactive stakeholder consultation and engagement.[9] This is not a new problem; Wendy Williams’s Windrush review previously noted that the Home Office had not properly engaged experts outside the government in planning its policy.[10] The result is that SAP is unlikely to reduce the legacy backlog at the speed which the Government has intended, as confirmed by the NAO’s report.

13. Given that SAP is likely to be extended to additional countries – as it already has been – it is critical to identify and resolve problems early and consistent, good faith engagement with civil society and legal representatives will assist this.

14. Around 12,000 claimants from high-grant countries were deemed to be applicants where a personal interview could be omitted. They were sent questionnaires instead, asking them for evidence to support their asylum claim. According to information obtained by the media, 75% of the forms were returned but only 10% were completed properly.[11] The Home Office has not confirmed these figures but the NAO report states at 3.11 that: “In early May 2023, Home Office staff raised concerns that the rate and quality of questionnaire returns were lower than their assumptions.”[12]

15. An open letter by stakeholders and civil society organisations including PLP, the Immigration Law Practitioners Association (ILPA), Refugee Action and the Refugee Council described the questionnaire as “long, complex and poorly drafted”. In addition, it is only available in English.[13]

16. Since the introduction of SAP, through our membership of the Home Office’s Asylum Stakeholder Engagement Group (Decision-Making sub-group) and our relationships with immigration advocacy organisations, we are aware of considerable – and seemingly avoidable - inconsistencies in the implementation of this initiative. For example, some people are receiving reminders to return the questionnaire but had not yet received the questionnaire itself or a response to their extension request. Moreover, some questionnaires have errors – such as being sent to people already interviewed; with dates of birth that are wrong; with no reference number; and with no option to say ‘none of the above’ concerning identity documents held in the country of origin.

17. The open letter by legal representatives has highlighted some of the most important measures which the Home Office could take to reform the asylum questionnaire. These include simplifying the questionnaire by writing it in plain English and having accompanying translations.[14] The Home Office should implement these changes as a matter of urgency.

18. Following PLP’s involvement in the pre-action stages of a potential judicial review challenge to the Home Office’s policy brought by Freedom from Torture, we are aware that the Home Office has sought to address some concerns following SAP’s initial introduction. This has been confirmed through correspondence to the Asylum Stakeholder Engagement Group. For example, we understand that a claimant does have a right to obtain an in-person interview if they inform the Home Office that they do not wish to complete the asylum questionnaire. We also understand that, where a claimant does not complete the form, their claim will not be regarded as implicitly withdrawn for non-return of the form alone.

19. However, these amendments have not found their way expressly into public policy documents yet and so are inconsistent with the published policy. As a matter of urgency, these amendments should be made to the public documents so that the situation is clear for Home Office caseworkers, legal representatives, and asylum seekers.

Recommendation 5: Urgently review how non-compliance refusals and deemed withdrawals are operating to ensure that asylum seekers are not denied essential protection and to reduce the likelihood of increased future costs.

20. Outside the Home Office’s apparent concession in SAP cases, an asylum claim may be treated as withdrawn where the questionnaire is not returned in time. This is often referred to as a “non-compliance withdrawal”, “deemed withdrawal”, or “implicit withdrawal”. This is done under para. 333C of the Immigration Rules.

21. The NAO report says that the Home Office has nearly doubled its weekly decisions, but that 72% of the decisions in April 2023, for example, were ‘administrative decisions’, which include explicit or implicit withdrawals.[15] Moreover, there is evidence of an increase in the number of deemed withdrawals – particularly among Albanian asylum seekers.[16]

22. This is highly problematic. Experience suggests the Home Office is unreliable at logging changes of address and regularly posts documents to the wrong address.[17] This means there is likely to be a considerable number of inaccurate deemed withdrawals from the Home Office which will produce significant additional problems in future.

23. For example, many people treated as having withdrawn their applications will in fact still be in the UK – just at a different address from the one recorded by the Home Office. This is likely to lead to judicial reviews of the Home Office decisions to refuse applications. Further, the Home Office may have to renew the asylum claim once it realises the mistake, or the asylum seeker may seek to bring a new claim. This will take time, money, resources and effort from all concerned.

Recommendation 6: Where it does not already do so, the Home Office should provide a right to obtain an in-person interview instead of imposing an obligation to complete a digital questionnaire.

24. In his inspection between August 2020 and May 2021, the Independent Chief Inspector of Borders and Immigration noted the following changes being envisaged by the Home Office’s digital transformation programme:

• A digital case prioritisation and allocation tool for Home Office caseworkers;
• An appointment booking tool; and
• The digital sharing of documents and decision progress tracking.[18]

25. We agree that there are significant advantages from greater digitisation in the asylum casework context. Allowing asylum seekers and their representatives to track the progress of their claims digitally, as well as enabling the digital sharing of documents, would be a substantial improvement.

26. However, should these digitising trends extend further – such as through digital-by-default asylum questionnaires – very considerable practical problems of access are likely to arise. Asylum seekers are likely to be “digitally excluded” given, for example, poor quality access to Wifi in hotels used as contingency accommodation; the possibility that their phone or laptop has been seized by the Home Office; and access to only limited internet data through low value phone contracts. There is also the risk that people in immigration detention required to complete a digital form may not be able to access to Wifi reliably in detention centres.

27. These points are supported empirically by the Red Cross’s 2023 report on asylum seekers’ access to healthcare, where it was found that asylum seekers’ internet access varied significantly according to the kind of accommodation, with internet access being very patchy particularly in Home Office accommodation. Moreover, the Red Cross found that many asylum seekers could not afford mobile data, broadband or digital devices such as laptops. This resulted in asylum seekers being reliant on support workers and others to access alternative devices which they had to share.[19]

28. Further, there will need to be specific consideration of groups such as the elderly, disabled people, people with sight problems, and those unfamiliar with digital platforms.[20] Consequently, we recommend that there should always be an option to request an in-person interview instead of completing the questionnaire online. Digital exclusion should never determine the outcome of an asylum application.

3. Reducing the asylum backlog:

Recommendation 7: The Government should re-evaluate its current approach to reducing the backlog and invest in longer-term solutions including up-skilling decision-makers and improving retention of staff, as well as simplifying asylum processing in a more effective and sustainable manner.

29. The aim of clearing the asylum backlog is an important one, and a crucial prerequisite for improving our asylum system. However, the approaches that the Government is currently taking are unlikely to have the promised effects.

30. In his speech of 13 December 2022, the Prime Minister proclaimed that due to the measures the Government was implementing, it expected to clear the asylum backlog by the end of 2023.[21] He stated that the Government was on track to achieve this in his recent speech of 5 June 2023.[22]

31. However, the report published by the NAO presents a different picture. The report notes that the Home Office is not making enough weekly decisions to clear the backlog by December 2023. Furthermore, to clear the legacy backlog (claims lodged before 28 June 2022), the Home Office has not been fulfilling its aim of keeping on top of claims lodged after 28 June 2022 when Part 2 of the Nationality and Borders Act 2022 came into force. While the numbers of outstanding legacy claims are therefore decreasing, there were 61,000 outstanding newer claims in April 2023, and the Home Office expects this could grow to around 84,000 by the end of the year.[23]

32. The Home Office has correctly identified that caseworker productivity must be part of the solution. However, the Home Office approach has simply been to hire more caseworkers. At the end of April 2023, only around half of all caseworkers were making asylum decisions, and only around 11% were fully trained and working independently.[24]

33. A 2021 report by the Independent Chief Inspector of Borders and Immigration noted poor workplace culture, low morale and high turnover.[25] Furthermore, the Institute for Government has calculated that there had been a decline in decision-making between 2011/12 and 2021/22, despite an increase in the number of caseworkers.[26] Simply increasing the number is therefore not an effective solution to reduce the backlog. Instead, the Home Office should invest in longer-term solutions including upskilling decision-makers through better training and improving retention of staff.[27]

34. The simplification of asylum processes is also an important part of the solution. However, as noted above, the SAP initiative is not working as planned due to complicated questionnaires and a lack of consultation. Most forms are being completed incorrectly, which means the Home Office then has to carry out interviews in the usual way.[28] Any simplification and prioritisation procedures as introduced by the Home Office must provide for accessibility for, and meaningful participation by, asylum seekers, and be accompanied by improved access to translation services and legal representation.[29]

4. Asylum accommodation:

Recommendation 8: As a matter of urgency, the Home Office should end the use of hotels as contingency asylum accommodation for families with school-age children.

Recommendation 9: When the Home Office is responsible for providing contingency asylum accommodation, it should prioritise availability of school places in deciding where to house families with school-age children and provide families with specific support to liaise with local authorities to ensure that children can effectively access school education.

35. As has been widely reported in the public domain, the Home Office commonly uses hotels as contingency asylum accommodation where longer-term dispersal accommodation is not available. As well as being extremely expensive, there are serious concerns about the suitability of hotels as accommodation, especially for families with children. A hotel carpark – if the hotel even has one – is not a safe, healthy or creative place for children to play, explore and develop.[30]

36. We, therefore, agree with the Independent Chief Inspector of Borders and Immigration – and the Government’s own objective – to end the use of hotels for contingency asylum accommodation,[31] provided the alternative accommodation is more suitable for families and children. This should continue to be a priority.

37. However, on the basis that this may take some time to achieve, in this evidence we focus on the more specific issue of child asylum seeker’s access to school education and what can be done to support this in the short to medium term. In his 2022 report on contingency asylum accommodation, the Independent Chief Inspector of Borders and Immigration referred to children’s access to education as the most frequent issue cited with hotels used as contingency accommodation.[32] We agree with this concern.

38. In a related context, PLP is aware of significant problems arising from the Home Office’s provision of temporary – or bridging – accommodation for families as part of the Afghan Resettlement Scheme. We have been informed of multiple incidents whereby families are moved long distances at short notice to parts of the country where they have no community roots and despite children having established connections to an existing school.

39. For example, PLP was instructed in a case called R (HZ, MK and FM) v Secretary of State for the Home Department, which concerned a Home Office decision to transfer an Afghan family from London to Manchester, after the family had lived in London for a year and three of the family’s children had been attending school in the London Borough of Southwark.[33] The Administrative Court did not find the Home Office’s decision to be unlawful, but the case nevertheless provides an illustration of the Home Office’s failure to prioritise children’s access to education in a consistent environment and community. We can confirm that this decision is not under appeal.

40. There is currently no specific requirement for the Home Office to prioritise the availability of school places as a factor when deciding where to house asylum seeking families with school-age children. Nor is any specific support provided to refugee families to help them identify, contact or apply to local authorities for access to school education for their children.

41. Given the vital importance of education to children, PLP recommends that when the Home Office is responsible for providing contingency asylum accommodation, it should provide families with specific support to liaise with local authorities to ensure that children can effectively access school education. This could include providing specific funding to local or national charities, providing specific funding for local authority outreach for this purpose, and producing instructional literature for refugee families. These actions would demonstrate a commendable, good faith effort to prioritise the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children.

5. The implications of the Programme for the wider justice and legal aid systems and the need to effectively fund legal representatives:

Recommendation 10: The Home Office in conjunction with the Ministry of Justice should undertake a review of the capacity of immigration and asylum legal aid providers in the current asylum dispersal areas. This review should include speaking to providers to establish their actual capacity, rather than relying on a crude measure of capacity based on the number of 'matter starts' available on legal aid contracts. Following this review, the Home Office should commit to only designating an area as suitable for asylum dispersal accommodation if it meets a reasonable threshold of asylum legal aid provider capacity.

Recommendation 11: The National Audit Office should conduct a detailed assessment of the implications of the Programme for the wider justice system, particularly the asylum appeal system and the legal aid sector.

42. The Programme does not exist in a vacuum – it affects and is affected by the wider systems it is part of. The Programme risks putting additional pressure on two systems in particular: the legal aid sector and the asylum appeal system. This in turn is likely to have a detrimental effect on the ability of the Programme to deliver its aims.

43. The success of the Programme requires a healthy and sustainable immigration legal aid sector. In the context of an incredibly complex immigration and asylum system,[34] reducing the asylum backlog requires asylum applicants and appellants to make timely and comprehensive applications and to engage with their cases pro-actively, to allow cases to progress. The Home Office has correctly identified that the speed and quality of its decision-making needs to increase to reduce the backlog, but this needs to be supported by the immigration legal aid system for it to be effective.

44. However, the poor health of the immigration legal aid sector at present is likely to hamper the objectives of the Programme. Both legal aid deserts (where there are no legal aid providers in an area) and legal aid droughts (where any providers that remain are unable to take on any more clients despite having ‘matter starts’ available) are becoming increasingly common. The Law Society estimates that 66% of people in England and Wales do not have access to a local immigration and asylum legal aid provider. In the last year alone (April 2022 to March 2023) the Law Society demonstrate that there has been an 8.5% decrease in the number of immigration and asylum legal aid providers.[35]

45. The scale of the legal aid desert issue is so great that Dr Jo Wilding estimates that immigration and asylum legal aid provision in England and Wales is ‘not even adequate for first-time adult asylum applications’.[36] She suggests that almost ‘half of the main applicants (excluding dependants) who claimed asylum in the year to June 2022 did not have a legal aid representative.’[37]

46. PLP’s own research with Young Legal Aid Lawyers (YLAL) in a report called Overstretched & unsustainable: A case study of the immigration and asylum legal aid sector, indicates that young practitioners in the immigration and asylum legal aid sector face a barrage of overwork, financial unsustainability and serious emotional and wellbeing concerns, which is driving many to leave the sector. Nineteen percent of those we interviewed said they anticipated either leaving immigration and asylum legal aid practice or legal aid practice entirely within the next five years. There exists a high likelihood that the shortage of immigration and asylum legal aid providers and the concentration of those that are left in specific areas - most notably London - are set to be exacerbated.[38]

47. Furthermore, changing Home Office dispersal practices[39] are significantly increasing demand for legal aid in areas of the country with extremely limited (or no) legal aid provision. As a result, NGOs who do not provide advice themselves are at a loss as to where to refer people and there are high numbers of people unrepresented throughout the asylum process. The South West, for example, has only seven providers and only one of these is outside of Bristol, despite Local Authorities in the area supporting 4,603 asylum seekers.[40] Increasing the supply of dispersal accommodation without considering the legal aid provider base in these areas will increase pressure on the limited number of immigration providers in or near dispersal areas. There is also evidence that lack of legal aid increases the casework of parliamentarians.[41]

48. Relatedly, the Programme is likely to increase the number of asylum appeals. The Home Office estimates that the number of appeals could quadruple between July 2022 and March 2025.[42] However, PLP’s own research indicates that there is no capacity within the advice sector to undertake the additional work required to support an increased number of asylum appellants. The immigration and asylum practitioners we spoke to were routinely working over their contracted hours and finding it difficult to take leave. A majority of interviewees and survey respondents expressed a strong feeling that they were always working either at or beyond their capacity in the legal aid sector.[43]

49. If significant and urgent efforts are not made to put the legal aid system on a sustainable footing, the challenges the Programme has been set up to address in terms of reducing the asylum backlog and increasing the supply of dispersal accommodation are at risk of getting worse rather than better.

Recommendation 12: To ensure the accurate and fair resolution of asylum claims, the effective funding of legal representatives for asylum claimants will be critical. The Government should follow internal advice offered by civil servants that legal aid fees for asylum solicitors should be increased by 15% to attract specialist legal advice.

50. It is wholly unrealistic to expect a vulnerable asylum seeker, who may not speak English and who is likely to be in a state of shock and trauma, to fill in a complicated questionnaire without assistance and advice. Moreover, should the Streamlined Asylum Processing (SAP) be extended to lower grant countries, those claims are likely to involve more complexity as they will require more evidence to justify a successful claim. The involvement of legal representatives will, therefore, be essential in providing accurate and adequate information to accurately resolve a claim.

51. This highlights that for SAP to work, effective funding for legal representatives to help asylum seekers provide accurate and adequate information is critical. Internal advice to the Lord Chancellor is apparently that legal aid fees should be increased by at least 15% to attract solicitors to represent asylum seekers.[44] We recommend that the Government follows this advice.

June 2023