News that the Brexit transition period had ended, and that Britain had officially “taken back control” of its borders, failed to reach the 160 migrants who crossed the Channel in small boats over the weekend of 9-10 January. All of these people had, presumably, passed through France on their way to the UK – meaning that just days earlier, the Home Office could quite easily have returned many of them to another EU country. Post-Brexit, their future is grimly uncertain.
Thanks to new rules brought in by the government in mid-December, asylum seekers can now be returned not only to countries through which they have transited, or, if safe, to their home country, but to any state in the world that will accept them. However, since Britain lacks return agreements with third countries – though it may seek to forge them in future, using Australia as a model – the likelihood is that in the short term, increasing numbers of people will be stuck in indefinite immigration detention, waiting for the Home Office to decide what to do with them.
Until December, asylum seekers arriving in the UK from other EU countries, as the vast majority do, were dealt with under a regulation known as Dublin III. This EU law enables member states to determine which should take responsibility for considering an individual’s asylum claim. It sets out various criteria for doing so – including family reunion and protection for unaccompanied minors – but says that if no responsible member state can be determined, responsibility falls to the state through which the applicant entered the bloc (or more accurately, in which they were first fingerprinted). This provision – set out in section II.3.2 of the regulation – is also the source of the oft-repeated and inaccurate Home Office claim that “those seeking international protection should seek asylum in the first safe country they reach”; in fact, individuals have a right to seek asylum wherever they wish.
The UK fell out of the Dublin regulation on 1 January. Negotiations to extend Dublin post-Brexit failed spectacularly in August, triggering a rush of so-called “Dublin removals” and along with it, a catalogue of failings, from administrative errors to miscarriages of justice. Until the eleventh hour of the transition period, it remained unclear what would become of EU asylum arrivals post-Brexit. On 10 December, the Home Office finally clarified.
That day, the department quietly released changes to the Immigration Rules (under the Immigration Act 1971, such changes can be made without parliamentary oversight). The previous rules gave the UK only two ways of avoiding having to substantive consider an individual’s asylum claim: either by returning them to other EU states via the Dublin system, or by returning them to any “safe third country” with which they had a “sufficient degree of connection”, eg where family members resided. The new rules, effective from 11pm on 31 December 2020, “will allow us [the Home Office] to pursue avenues for their removal not only to the particular third countries through which the applicant has travelled, but to any safe third country that may agree to receive them.”
In other words, the government can now send asylum applicants wherever in the world they like.
Rules go on to say that removal can be to any country on earth, basically, and only obligation to consider the refugee claim in UK is if such removal there “within a reasonable period of time is unlikely” or Home Secretary decides to.
Immigration experts have expressed dismay at these changes. Zoe Gardner, a policy advisor at the Joint Council for the Welfare of Immigrants, describes them to Novara Media as “extreme”; in an article for Free Movement, deputy editor CJ McKinney writes that the new rules “appear to be a flagrant breach of the UN Refugee Convention”.
Few with any knowledge of the British legal system seriously expect the new rules to result in asylum seekers being removed to Timbuktu, however. “To try to send somebody back to a country they’ve never been to,” Gardner tells Novara Media, “that’s imminently challengable in the courts. And it probably won’t stand”. Immigration lawyer Colin Yeo concurs: “The rules … are replete with opportunities for legal challenge,” he says in a briefing for Free Movement, suggesting the rule changes appear designed to be so outrageous as to actively invite legal challenge. “I do not think the civil servants who drafted them expect the rules to be “workable” in the sense of removals actually taking place to safe third countries,” he writes. “The rules are about politics and presentation, not governance.”
This isn’t necessarily heartening: a flurry of new court cases will only gum up an already dysfunctional legal system, further obstructing asylum seekers’ access to justice. According to Gardner, such legal challenges are also intended to stoke resentment towards asylum seekers’ advocates; “It’s giving them [the Home Office] the ability to say, ‘Look at these lefty, activist, do-good lawyers, challenging our ability to get rid of people again.’” Such political agitation has violent consequences: Priti Patel’s verbal assault on “activist lawyers” reportedly inspired an actual knife assault. It may also, Gardner suggests, be a winning electoral strategy: “It’s almost like they [the Conservatives] are setting up lawyers to protect people from absolute madness, like being sent somewhere ridiculous, so they can feed their culture war, and ram more red meat to their base.”
This isn’t to say the new rules are pure political posturing with no practical effect on asylum seekers themselves. On the contrary, the results could be devastating for applicants, and precisely because the process for removing them is so unworkable. With no Dublin agreement with the EU nor any equivalent with other states, the UK will struggle to find anywhere to accept its asylum seekers. “In the short term,” says Sarah Singer, senior lecturer in refugee law at the School of Advanced Study, University of London, in an interview with Novara Media, “large numbers of people will be sitting in limbo, not having their asylum claim even considered, while the Home Office explores whether they can be removed to a third country”.
The only positive Singer sees in the new rules is the six-month time limit they impose on the Home Office’s search for a suitable destination, which she calls a “fantastic” addition; the UK having a peculiar appetite for cruelly protracted immigration processes and concomitant detention. Yeo is less optimistic. Since the new rules do not impose any sanctions on the Home Office for exceeding the six-month limit – for example, forcing an asylum applicant to be removed from immigration detention – it is, in effect, entirely notional. As he sets out in his Free Movementbriefing:
The guidance goes on to say that if no country has accepted the person’s “return” within six months then the person’s asylum claim should normally then be properly considered. That period can be extended however and is not a “hard” limit; it is easy to imagine plenty of cases not being admitted for consideration even though six months have elapsed.
It should also be remembered that this soft limit is only on how long the Home Office can take to decide whether to substantively consider an asylum claim; even if the department eventually decides in an applicant’s favour, the subsequent assessment process can drag on for months, even years. For Gardner, this spells “an indefinite process” – and in a hostile environment, a process likely spent in inhumane immigration detention (the UK is among very few European countries with no legal limit on such detention, though the Court of Appeal has clarified it must be a “reasonable period”).
Without any return agreements in place, the Home Office will be unable to start exporting its asylum seekers immediately. However, forging such agreements is probably the government’s longer-term ambition. Singer believes the UK is seeking to emulate Australia, which funds the island nations of Papua New Guinea and Nauru to build and run detention centres on its behalf. The benefit of this approach, at least for the Australian state, is that it allows it to abnegate responsibility for its asylum seekers, even while patently facilitating their detention.
Since 2012, the Australian Government has been sending people seeking asylum to Nauru and Papua New Guinea under a policy called ‘offshore processing’. It is a policy designed to deter people from coming to Australia by punishing people who have come here seeking our protection.
In their memo accompanying their rule changes, the Home Office explains that the old rules were overly lenient. “A stronger approach to disincentivise individuals is needed,” it wrote, “to deter claimants leaving safe third countries such as EU Member States, from making unnecessary and dangerous journeys to the UK”.
Singer notes that this was one of the big drivers of Australia’s offshore detention: migrants’ fear of ending up stranded on a remote Pacific island. Yet while this approach may have been marginally effective in Oceania, there’s no evidence it can be transferred to Europe. “Most of the research that’s been conducted in the last five years in relation to people travelling to Europe is that deterrent measures adopted by states don’t work,” says Singer. “If people want to come to the UK, it’s because they have family here, they speak the language, or have some kind of connection with the country. They’re not going to be put off by tweaks to the immigration system that they might not be so familiar with.”
Last year, four times as many migrants entered the UK by boat as in 2019, despite the Brexit drawbridge having supposedly been pulled up. This year, even more people fleeing persecution are likely to seek refuge on our shores – it is simply that when they land, they will find themselves at the mercy of a state ever less willing to respect their human rights.
The Home Office was approached for comment, but did not respond.
Rivkah Brown is a writer and the editor of Vashti.
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