Three signal government failures not identified. By Sheona York of the Kent Law Clinic
On 16 June the National Audit Office published a highly critical report on the Home Office’s plan to eliminate the asylum casework backlog by December 2023. It states that the whole transformation programme is at ‘amber-red’, meaning that delivery is ‘in doubt, with urgent action required and possible delays to delivery’.
Official critiques of government programmes often fall short of identifying the wider causes of the issues under study, or the wider impacts of policy failure. This report is welcome to the extent that it does consider some wider impacts of changes to the asylum system, including the costs of more or fewer appeals, the difficulties of more or fewer refused asylum-seekers requiring enforced removals, and the impact on local authorities of the various uncoordinated demands placed on them to house asylum-seekers.
However, the report fails to consider three very different issues which bear directly on the likely success or failure of the transformation programme, and on its wider aims. These aims are to achieve a system which is ‘fair, supportive and efficient, where decisions are made right first time and customers in need of protection receive it quickly, and all are treated with dignity and respect’.
First, speedier processing requires legal simplicity:
The report mentions the ‘simplified processes for specific cohorts’. This refers to the ‘asylum claims questionnaire’ which was introduced in February this year, to be completed by asylum-seekers from the five countries whose claims are most likely to be granted: Afghanistan, Yemen, Eritrea, Syria and Libya. That process has since been widened to include applicants from Iraq and Iran.
However the questionnaire is not at all simple to complete.[1] The ‘form’ is separate from the ‘questions’, which are complex and confusing. The instructions waver between requiring ‘brief’ and ‘full’ answers. The form must be completed in English. Failure to complete it results in what the NAO report refers to as ‘implicit withdrawal’ of a claim [para 3.12], which is resulting in additional litigation. But most important of all, the form persists in concentrating on a person’s journey to the UK, which. although important to a Home Office assessment of credibility, is not part of an asylum claim in international law. But the Home Office desire to retain the ability to refuse a person from, e.g. Eritrea who ‘could have claimed in France’ will have a direct impact on the whole programme. There is no returns agreement with France (or anywhere else in Europe). The overwhelming majority of Eritreans are not foreseeably removable,[2] and so, if their claim is declared ‘inadmissible’ on those grounds, will simply languish in the UK indefinitely, on State-funded support and accommodation. Those from the other four high-grant countries may in theory be removable, but only at great litigation cost. To achieve speedy processing of ‘legacy’ applications, the obsession with ‘having claimed asylum in the first safe country’ needs to be abandoned. This would have immediate benefits for staff considering the applications, as they could concentrate fully on the applicant’s actual protection claim: would they be persecuted for a Convention reason, or alternatively face serious harm in breach of art. 3 ECHR?
Arguably the same should be applied to any applicant, since if and so long as there are no returns agreements, it is immaterial whether a person could have claimed somewhere else. That ‘somewhere else’ simply is not interested, and won’t cooperate.
Secondly, curtailing rights may appear to lead to speedier processing, but will result in more unremovable failed asylum-seekers stuck in the UK for longer:
NAO staff and certainly Home Office staff may lack sufficient institutional memory to remember the 2007 New Asylum Model and the Solihull Early Legal Advice Pilot. Both of these were designed to meet the same aims. The 2007 models aimed to keep the same caseworker ‘from end to end’, achieving the whole process from application to grant or removal within six months. The Early Legal Advice Pilot aimed to achieve this through more of a shared burden of proof, involving the applicant’s lawyer from the beginning to achieve the fullest possible presentation of the case. This project was finally abandoned in 2013 as ‘not cost-effective’, but that analysis left out the impacts on the appeals system, the costs of dealing with later fresh claims, and the impact of all that on the asylum support system.
This NAO report notes the various Home office attempts to reduce numbers in the system by curtailing rights.
This includes ‘implicit withdrawals’ of claims from people who do not turn up to interviews. Anecdotal evidence from immigration lawyers and NGOs supporting asylum-seekers suggests that a fuller investigation of these is very likely to show a high level of error in the relevant decision-making. For example, an application was recently deemed withdrawn, where the Home Office had booked and paid for a train taking the applicant to Feltham for a substantive interview set for 13.00. The train was not due at Feltham station until 13.04, and Eaton House, the interview venue, is over 30 minutes’ walk away.
Applicants who do not complete questionnaires ‘without reasonable excuse’ are also treated as having ‘implicitly withdrawn’ their applications. The Home Office response to criticisms of the new questionnaire process included suggestions such as using ‘a friend’ or Google Translate to answer the very complex questions.
The Home Office steadfastly repeats (as it did in the 2000’s) the suggestion that an applicant does not need a lawyer to make an asylum claim – they just need to say what happened to them. However, other parts of the system make it clear that an asylum claim is a highly-contested legal matter. First, giving advice on an asylum claim is a criminal offence unless the advice giver is a solicitor, or accredited to level 2 OISC accreditation and working in an OISC-registered organisation (Immigration and Asylum Act 1999). Secondly, the government itself provides ways of measuring the amount of professional time needed to advise and prepare an asylum claim. Legal aid is available, and, under the fixed fee arrangement for assisting with an initial asylum claim, nearly nine hours’ work is remunerated. Finally, even the Home Office’s own target work schedule expects a Home Office asylum caseworker only to decide 2.5 claims in a week, notionally allowing 14 hours for consideration of each claim. Given this, it is disingenuous to assume that an applicant could adequately carry out this work themselves.
The consequence of deeming an application to be withdrawn where an applicant cannot find a lawyer (as, for example, most of the people in Napier Barracks) will NOT be to process their claims more quickly, but effectively postpones proper preparation and decision-making to a later date, increasing costs of asylum support and subsequent litigation over a fresh claim.
Neither can this be dealt with by increasing the staff available to deal with removals. Removals are not held up by lack of staff, but by there being no functioning returns agreements, whether with ‘safe third countries’ or even the asylum-seekers’ countries of origin. In fact, the Illegal Migration Bill as currently drafted will prevent large numbers of removals, since a decision not to process a claim at all precludes a return to an applicant’s own country, which would be a direct breach of the Refugee Convention.
Lastly, the specific problems of finding accommodation for asylum-seekers, the wider issues arising from lack of coordination with local authorities, and even the impact on the overseas development and aid budget, must be traced through to the underlying shortage of housing in the UK, in particular rented housing at the lower end of the market, and social housing.
The NAO report notes that the current asylum backlog and claim numbers are the highest since March 2003, when the number of claims reached 80,000, involving over 200,000 people. Those numbers did cause considerable political anxiety, and were met with some Draconian policy changes. However, pressure on housing was not the issue. Following the Immigration and Asylum Act 1999, asylum seekers were being housed via the National Asylum Support Service (NASS) contracts with commercial providers, who used unlet and unsold properties and ‘hard to let’ Council accommodation, mostly in northern towns not suffering housing stress.
Now there are virtually no parts of the UK not suffering housing stress. There are virtually no such properties available in that way. Those properties have long since been let to and are occupied by ordinary hard-working individuals and families who ‘cannot get on the housing ladder’. Local authorities, who still owe duties under homelessness legislation, are unable to provide suitable accommodation even to those deemed by law to be ‘in priority need.’ A Guardian report 15/5/23 stated ‘the number of homeless families being housed by English councils in hotels and B&Bs for longer than the legal limit is at its highest in 20 years’.[3] The Clinic has clients who were rehoused in 2016 by a London borough to temporary accommodation in Kent – and who are still living in that same accommodation 7 years later. The housing authorities in the county of Kent between them have around 15,000 families on their housing waiting lists, with waiting times of between 2-3 years, and proposals for social housing in low double figures per year. [4]
Yet the NAO report discussed the question of finding asylum support accommodation, and the problems of cooperation with local authorities, as if this wider crisis did not exist. The fact is that unless local authorities are funded – and permitted – to build and let enough low-rent social housing to provide secure homes for the roughly 1/3 of the population who will never foreseeably be able to ‘get on the housing ladder’, there will never be enough ‘spare’ accommodation to accommodate asylum-seekers. [Nor, even, to accommodate refugees being resettled under ‘safe and legal routes’.]
And, surely, it cannot be acceptable as medium and long-term solutions to reduce housing standards for asylum-seekers to below those otherwise acceptable, such as filling hotels and B&Bs several people to a room, or waiving the requirements for houses in multiple occupation. It is surely unsurprising that local authorities do not want to receive large numbers of discontented and desperate young men effectively caged up in unsuitable rooms or ‘beds in sheds’. The NAO report does not show whether those proposals, or the proposals for using old military sites, have properly factored in the social costs of the suffering of the asylum-seekers themselves or the communities in which they are being dumped.
Once more, the National Audit Office reveals major issue in Home Office asylum administration, but yet without confronting significant issues which will stand in the way of solving them.
[1] See my blog post on Free Movement https://freemovement.org.uk/questionnaires/
[2] Within Baroness Hale’s definition set out in para 4 of Khadir, [2005] UKHL 39
[3] https://www.theguardian.com/society/2023/may/15/more-than-1600-homeless-families-left-in-english-hotels-and-bbs-past-legal-limit
[4] From Kent Live from a series of FOI requests: https://www.kentlive.news/news/kent-news/how-long-you-wait-social-3481060 accessed 20/6/23