Written evidence from Migration Watch UK (NBB0040)

Summary

1. We are a think tank with twenty years of experience in analysing developments in immigration and asylum policy. Our evidence on the Nationality and Borders Bill is below.

2. Along with the majority of the British public - see point 2(iv) below - we support the proposals in this important Bill that are aimed at deterring illegal immigration, stemming asylum abuse and tackling obstacles to enforcement. We suggest further action at paragraph 15. We welcome the Bill’s intention to address the following four key issues in particular:

i)       Illegal immigration - Rising unauthorised Channel crossings in boats underline the wider problem of worsening illegal entry[i] (along with overstaying[ii]) which are part of a larger European phenomenon[iii]. This growing issue both risks safety and puts unwarranted pressure on communities and services while causing injustice to law-abiding citizens, legal migrants and true refugees. Irregular entry is connected with the serious problems afflicting our asylum system (see 2(ii) below). It is the “most common method of entry for asylum seekers”[iv] - see Independent Chief Inspector of Borders (ICIBI) report, 2020[v]. Most of those coming here via unauthorised routes, whether by lorry or boat, claim asylum[vi], with a number released despite risks that they are not properly identified (creating potential threat to public safety), [vii] or housed/paid at taxpayer expense - many even after their asylum claim is rejected.[viii]

ii)     Asylum abuse - Overall asylum claims have fallen slightly during the pandemic[ix]. Yet the serious problem of asylum abuse may be worsening. The share of people claiming while in detention rose from 32% to 47% (2017-19). Even as most such applications are rejected, the government says claimants are ‘almost always’ released while their claim is processed, enabling absconding.[x] Lady Justice Sharp and Mr Justice Green have pointed to misconduct among some immigration lawyers who start court hearings to thwart attempts to remove failed asylum seekers[xi]. We agree with the former ICIBI who wrote in 2017: ‘There is... considerable evidence of individuals who have been issued with removal directions making “last minute” asylum claims... in order to frustrate planned removals’[xii]. Meanwhile, measures designed to help the victims of modern slavery / human trafficking are being used more and more by those who have broken the rules[xiii]. There is a requirement for major reform. 

iii)   Enforcement failure - It is vital to remove the proliferating obstacles to enforcement that have been coupled with an increasingly permissive approach by the government towards enforcement since 2017.[xiv] Both have led returns of foreign national offenders (FNOs) to fall, increasing risks to public safety, while asylum returns have dropped from 17,000 in 2006 to about 1,000 in the most recent year.[xv] There are 10,800 FNOs subject to deportation living amongst the public (Home Office)[xvi], as well as tens of thousands of absconders[xvii]. This must be decisively tackled.
 

iv)   Most of the public support measures to deter unauthorised Channel crossings -

1. 63% of the public say those crossing should not be allowed to settle here (Redfield & Wilton Strategies poll, 2020).[xviii]
2. 64% think it would be fair to remove people deemed inadmissible, with their asylum claim processed in another safe country (YouGov, 2021).
3. Over 60% also say those arriving this way should be removed (Ipsos, 2019).

Main content

3. A number of proposals in the Bill are similar to policies previously suggested by us, including possible measures relating to visa arrangements for countries that refuse to take back illegal immigrants (Clause 59)[xix], a form of fast-track appeal following the suspension of detained fast-track after a 2015 court ruling (Clause 24) and the creation of ‘one-stop shop’ asylum arrangements (Clauses 18-21)[xx]. We welcome the government’s proposals along these lines. We comment below on a number of specific measures.

a) Inadmissibility of asylum claims for those who came via safe country (Clauses 13-15)

4. Ensuring that those who come here on needless, deadly and illegal trips after spending time in safe countries are treated as ‘inadmissible’ would likely help to deter such journeys. Thousands of asylum seekers to the UK per year already made an asylum claim in Europe according to Home Office and Eurodac data[xxi]. A number of such claims in the EU may be outstanding but another segment will have already been rejected. This means that the UK may be receiving, via illegal entry, a share of Europe’s unknown but likely high number of failed asylum claimants[xxii]. It may also be relevant that asylum grant rates at first instance are much higher here than in France. Over half of claims were accepted at first instance in the UK during the year ending June 2021, while 20% of initial claims were accepted in France (Eurostat, Q1 2021)[xxiii]. It will be essential that those falling into the ‘inadmissible’ category are removed expeditiously. Inadmissibility must be more than simply a status on paper.

b) Removal to safe third country (Clause 26)

5. The government says that Clause 26 creates a rebuttable presumption that certain specified countries are compliant with their obligations under the European Convention of Human Rights to the extent that an individual’s Convention rights under Article 3 (no torture or inhuman or degrading treatment or punishment) would be respected upon an individual’s return to these specified countries. The list of safe countries to which removal is allowed (set in an earlier form by the Nationality, Immigration and Asylum Bill 2002) should be updated, and published. This should help to guard Parliament’s intention in this regard against legal challenge. It may also be necessary to repeal s2, Asylum & Immigration Appeals Act 1993.

b) Temporary protection status

6. Under the framework created by this Bill, people who enter the UK and engage protection obligations under the Refugee Convention may be granted temporary protection status where they do not meet certain conditions. This includes circumstances where an individual does not come directly from a territory where their life or freedom was threatened, does not claim asylum without delay or, where relevant, does not show good cause for their illegal entry or presence. Reform along these lines is correct and necessary. However, we point to the danger that temporary admission simply becomes another stepping-stone to a permanent stay. For example, ten-year routes to settlement provide the means by which people are able to regularise their illegal entry and stay forever.[xxiv] There is a major risk that the illegal immigration problem, and asylum-related backlog, will continue to balloon unless the steady weakening of enforcement is completely reversed. If not, then, at the end of this, the government will have promised firm action but the problems will not have been dealt with in any substantive sense. Such an outcome would only add further to the huge strains that the asylum system presently faces, with over 100,000 cases in the total workload, including about 40,000 failed claimants who are subject to removal.[xxv]

c) Stronger powers for maritime enforcement (Clause 41 and Schedule 5)

7. Australia faced tens of thousands coming illegally by boat back in 2013. Supporters of their policy to address this suggested the achievement of deterring crossings (and hence saving lives) was built on two struts: 1) turning back boats 2) offshore asylum processing. The key message was that if someone came in this manner they would not be able to settle. It is right for the government to look into how lessons from the Australian experience might be adapted for the UK. Clause 41 and Schedule 5 would amend the 1971 Immigration Act so as to give immigration officers greater powers of enforcement. Such a change is reasonable, as well as in keeping with the spirit of changes already made by the Policing and Crime Act 2017 under which law enforcement officers (which the government says technically do not include immigration officers) are already able to intercept vessels for the purpose of preventing, detecting or prosecuting a criminal offence.

8. Evidence late last year to the Home Affairs Select Committee by international maritime law experts suggested that there is clear support in maritime law for states to be able to take ‘necessary steps’ to prevent passage of boats that are, e.g. unloading people in violation of immigration laws (see articles 19(2)(g) and 25 of the United Nations Convention on the Law of the Sea - UNCLOS)[xxvi]. Suggestions, for example most recently by French government ministers (and in 2020 by the ICIBI), that violence is increasingly involved in such crossings - and confirmation from the National Crime Agency (NCA) that these crossings are linked to organised crime[xxvii] - add weight to the belief that the passage of such vessels does not meet the definition of ‘innocent’ as set out by Article 19 UNCLOS.

d) Changes to support rules for failed asylum claimants[xxviii]

9. A March 2021 government policy document acknowledged that ‘individuals who have been found to have no basis to stay, [are] able to continue to stay in the UK, accessing support from the state while not co-operating with immigration directions’[xxix]. The intention to tackle this anomaly is welcome. Previously published research by the government noted that providing support to failed asylum claimants was wrong, sent a counter-productive message and should be curtailed[xxx]. Indeed, necessary statutory power to partially remedy this received Royal Assent in 2016. The question is - why has this not yet been enacted?

e) Tougher penalties for illegal immigration (Clause 37)

10. We welcome proposals to toughen criminal penalties for illegal entry, assisting illegal entry and for breaching a deportation order. However, although the statute book is replete with a number criminal offences relating to immigration control, most are rarely prosecuted, with an average of just 625 prosecutions per year between 2017 and 2019 (in contrast, there were over 100,000 convictions of people in the UK for not having a television licence in 2019).[xxxi] The statement by the Crown Prosecution Service that they will not seek to prosecute those entering illegally in small boats is concerning[xxxii]. It makes a mockery of the rule of law and will only encourage more dangerous and unnecessary trips, while ensuring a continuous, and growing, stream of profits for the people smugglers. The proposed legislative change in penalties via statutory reform would be far from sufficient in sending a message to deter such trips if it failed to be backed up by a much more determined enforcement regime.

f) Failures in enforcement are making the public less safe

11. We support the intention of the Bill to tackle obstacles that enable effective enforcement. The Home Office has said that there are eight legal avenues through which a person can seek to remain in the UK or challenge the decision to remove or detain them, while 5,000 people attempted to or succeeded in physically disrupting their removal from the country between 2017 and 2019[xxxiii]. Enforced removals of failed asylum claimants have plunged to the lowest on record, while returns of FNOs have also dropped since 2016[xxxiv].

12. In the words of former Director General of Immigration Enforcement: “The number of removals is dropping through the floor… There is a whole system breakdown. The message to people here illegally is that there is no serious response by the authorities. From what I hear there is paralysis.”[xxxv] This is deeply concerning as a senior Home Office official has said some of those with no right to be in the UK ‘may pose risk to the public’[xxxvi]. In the government’s own words: ‘Detention plays a key role in securing our borders and maintaining effective immigration control’.[xxxvii]

13. Yet, despite the above statements, the HO has said that it is ‘delivering a reduction… in the numbers of those detained’[xxxviii]. The ICIBI reported in 2017 that there were over 50,000 absconders within a total reporting population of around 80,000 people. The changes contained in the Bill must be used to the full and built upon in order to ensure that the number of returns increases substantially. Meanwhile, detention should be employed more, not less.

f) The need for better resources and support for Border Force and enforcement personnel

14. As a 2020 report by the ICIBI highlighted, cuts to Border Force and enforcement functions - along with paltry pay, a lack of training and the dearth of leadership and support - have helped to seriously undermine the efforts of hardworking and dedicated staff to secure the UK border.[xxxix] According to Lucy Moreton, General Secretary of the Immigration Services Union, illegal immigrants ‘have very little chance of being caught’ due to a lack of resources and workforce cuts.[xl] Ms Moreton’s remark is completely justified. More work is reportedly being done by fewer people while enforcement since 2015 has declined. A 2020 National Audit Office report stated that Immigration Compliance and Enforcement [or ICE] teams, ‘do not have the capacity to undertake all tasks requested of them’.[xli]

Recommended action

15. As well as supporting measures in this Bill aimed at tackling illegal immigration, asylum abuse and obstacles to enforcement, we make the following recommendations:

a)      Inadmissibility must be more than just a status on paper - Tougher enforcement action is needed to ensure that inadmissibility means more than just a status on paper. For example, it is concerning that there have been so few removals of those arriving in small boats during 2021, despite 1,503 ‘notices of intent’ having been served to individuals to inform them that their case was being reviewed in order to determine whether removal action on inadmissibility grounds was appropriate and possible.[xlii]

b)     Removal to safe countries must be protected from legal challenge - The safe countries to which people can be removed (see Clause 26 of the Bill) should be enshrined in statute and published to protect Parliament’s will against legal challenge.

c)      Temporary admission must not become a stepping-stone to settlement - There is a strong risk these measures will be underwhelming in their effect unless supplemented by a much stronger enforcement regime and closure of regularisation routes which likely serve to encourage illegal immigration.

d)     Tougher enforcement - We acknowledge the measures in the Bill aimed at deterring repeated vexatious legal claims and which have the purpose of ensuring more FNO returns via reform of the Early Removal System and new ‘stop the clock’ provisions. However, much more will need to be done, including a substantial increase in leadership by Ministers and senior civil servants - as well as political courage backed by strong public support - in order to deliver more action to tackle unauthorised immigration and ensure more removals of those who have no right to be here, as well as prosecutions for illegal entry. Both would help to deter needless and deadly trips from safe countries such as France. The use of detention should also be expanded to prevent absconding, aid the tasks of enforcement staff and to protect public safety[xliii].
 

e)      More investment and support needed at the border - There was £47 million less in the 2019-20 overall net budget for enforcement than in 2015-16[xliv] and the ICIBI has pointed to instances where resources are being stretched with a problematic impact on enforcement effectiveness[xlv]. In 2018, the ICIBI also said that port staff had suggested that Border Force seemed to have been ‘resourced to fail’[xlvi]. There should be a long-term increase in resources devoted to immigration enforcement in order to support dedicated, brave and hard-working border personnel so they can do their job as effectively as possible. The morale problems pointed to by the ICIBI in his late 2020 report on small boat crossings are unacceptable and must be swiftly addressed through more training and support, higher pay and better working conditions for staff.

17/09/2021

7