Priti Patel’s pathetic plan to fix the immigration system

The controversial policy statement on the government’s New Plan for Immigration CP 412 (March 2021) claims that “in the year ending September 2019, 62% of UK asylum claims were made by those entering illegally – for example by small boats, lorries or without visas.” Priti Patel introduced her pathetic new plan by glorifying the UK’s “proud history of being open to the world” but reiterated her hard line that the UK has taken back control of its legal immigration system by ending free movement and introducing a new points-based immigration system allowing it to decide who can enter based on the work skills people have to offer, instead of their passport. Patel also said that the new Hong Kong British National (Overseas) route creates a new pathway to citizenship for over five million people. The changes have a threefold objective (i) to increase the fairness and efficacy of the system so that it can better protect and support those in genuine need of asylum, (ii) to deter illegal entry into the UK, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger, and (iii) to remove more easily from the UK those with no right to be here. Patel is arguing that if left unchecked, illegal immigration puts unsustainable pressures on public services and is against the UK’s moral interest, as it means people are put in the hands of ruthless criminals who endanger life by facilitating illegal entry via unsafe means like small boats, refrigerated lorries or sealed shipping containers. 

The new plan is divided into numerous chapters. Chapter one sets out an overview of current system and Chapter two sets out protecting those fleeing persecution, oppression and tyranny. Chapter 3 talks about ending anomalies and delivering fairness in British nationality law. Chapter 4 sets out disrupting criminal networks and reforming the asylum system and chapter 5 speaks about streamlining asylum claims and appeals. Chapter 6 speaks about supporting victims of modern slavery and chapter 7 discusses disrupting criminal networks behind people smuggling and chapter 8 concerns enforcing removals including foreign national offenders. Chapter 9 relates to engagement and consultation. All this makes fantastic headlines for the Home Office which is one of the most inefficient bureaucracies of all time and delivers extremely poor value for money and has a pathetic standard of service which is much worse than a third world country. But the government is keen to stress that its cunning plan will mark a step-change in its posture and will toughen its position against illegal entry and the criminals that enable it. The UK says it will take steps to discourage asylum claims via illegal routes citing Denmark as a positive example. The policy statement is accompanied by an engagement and consultation process that will run for 6 weeks from 24 March 2021 and the consultation ends on 6 May 2021. 

The government will increase the maximum sentence for illegally entering the UK and introduce life sentences for those facilitating illegal entry and it will end the use of hotels to accommodate arrivals. The UK plans to expand the asylum estate to accommodate and process asylum seekers including for return to a safe country. Priti Patel says she intends to differentiate between legal or illegal entrants with the result that:  

Those who prevail with claims having entered illegally will receive a new temporary protection status rather than an automatic right to settle, will be regularly reassessed for removal from the UK, will have limited family reunion rights and will have no recourse to public funds except in cases of destitution.

Also under the spotlight is the issue of “practice of making multiple and sequential (often last minute and unmeritorious) claims and appeals which frequently frustrate removal from the UK” which Priti Patel is planning on fighting using “a ‘one-stop’ process to require all rights-based claims to be brought and considered together in a single assessment upfront.” She also says that she “will also introduce a robust approach to age assessment to ensure we safeguard against adults claiming to be children.” Patel says “we are determined to bring lasting change to the system so that it is fair to everyone” by building up “an asylum system that helps the most vulnerable and is not openly gamed by economic migrants or exploited by people smugglers.” The idea is that criminality should not be rewarded and the UK should be “a haven for those in need.” She says that the “simple principle” of “fairness” will steer the new plan as “access to the UK’s asylum system should be based on need, not on the ability to pay people smugglers.”

As to the overview of the current system, the Home Office points out that 50% of illegal entrants came by boat in 2020 as opposed to 11% in 2019. The government also complains that the swelling costs of the asylum system to the UK taxpayer are excessive and points out that more than £1.3 billion was spent on it in 2020-2021, a rise of more than £300 million on 2019-2020 figure.

The government has stated that “in the year ending September 2019, 62% of UK asylum claims were made by those entering illegally – for example by small boats, lorries or without visas.”

The 62% claim, that such a large majority of asylum seekers in the system entered the UK illegally, is not backed by factual data and the Home Office has not published any details about its calculation. This shows that Priti Patel’s pathetic plan to fix the immigration system is based on misrepresentations, something which she and her fellow ministers excel at. 

Since the asylum system is costing the taxpayer over £1 billion, the highest figure in the past 20 years, Patel wants desperately to disincentivise asylum seekers from coming to the UK illegally. She wants to change the system because she thinks that persons with genuine and important claims are suffering from delays as dodgy individuals are cramping up the system causing wastage of valuable judicial/court resources. Patel has a problem with asylum appeals despite the admission in her new plan that a study of asylum appeals between 2016-2018 showed that 43% of all asylum appeals are allowed. She has also got a problem with judicial reviews and stresses that 8,000 immigration judicial reviews were filed against the Home Office last year, 6,500 of which were at the Upper Tribunal and out of the 6,000 cases determined on paper, 90% were dismissed or refused and out of these dismissals 17% were certified as “Totally Without Merit”. Two thirds of the decisions which had reached permission hearing were dismissed. A similar proportion of cases were dismissed by a judge at substantive hearing. 

Under the proposed Temporary Protection Status (TPS) if an inadmissible person cannot be removed to another country, the Home Office says it will be obliged to process their claim. However, if they did not come to the UK directly, did not claim without delay, or failed to show good cause for their illegal presence, the SSHD will then consider them for temporary protection. TPS will be for a temporary period, no longer than 30 months, after which individuals will be reassessed for return to their country of origin or removal to another safe country. TPS will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution. People granted TPS will be expected to exit the UK as soon as they are able to or as soon as they can be returned or removed. 

The government wants to strengthen the well-founded fear of persecution test, it wants to ensure victims of persecution are properly protected while at the same time making it harder for unmeritorious claims to succeed. It thus wants to consult on a clear test against which any asylum claim can be assessed, putting in place a more rigorous standard for testing the “well-founded fear of persecution” a person must meet. This test will have two elements. The first element is that the person is who they say they are and that they are experiencing genuine fear of persecution. This will have to be proven to the standard of “balance of probabilities” including a credibility assessment, considering all the key evidence, including consideration of opportunities the person had to claim asylum in other countries. Further, if previous opportunities to make a claim have not been availed – or if a claim is contradictory  – then that could affect the credibility of a person’s testimony.

The second element will consider whether the claimant is likely to face persecution if they return to their country of origin. This will need to be proven to the standard of “reasonable likelihood”. If a person claims a persecution risk as a result of being part of a group, they will have to show that the group is suffering from systematic and widespread persecution. Alternatively, the claimant will have to establish a risk that is personal and individual to them.The Home Office will also clarify in statute the definition of “persecution” to transpose the key requirements for qualifying for protection, in line with the Refugee Convention 1951

Chapter 5, concerned with streamlining asylum claims and appeals, states that the  taxpayer is picking up the bill for sequential unmeritorious claims and appeals that can frustrate removal of those with no right to be in the UK. Thus, the Home Office will:

Develop a “good faith” requirement setting out principles for people and their representatives when dealing with public authorities and the courts, such as not providing misleading information or bringing evidence late where it was reasonable to do so earlier.

Introduce an expanded ‘one-stop’ process to ensure that asylum, human rights claims, referrals as a potential victim of modern slavery and any other protection matters are made and considered together, ahead of any appeal hearing. This requires people and their representatives to present their case honestly and comprehensively – setting out full details and evidence to the Home Office and not adding more claims later which could have been made at the start. 

Provide more generous access to advice, including legal advice, to support people to raise issues, provide evidence as early as possible and avoid last minute claims.

Introduce an expedited process for claims and appeals made from detention, providing access to justice while quickly disposing of any unmeritorious claims.

Provide a quicker process for judges to take decisions on claims which the Home Office refuse without the right of appeal, reducing delays and costs from judicial reviews.

Introduce a new system for creating a panel of pre-approved experts (e.g. medical experts) who report to the court, or require experts to be jointly agreed by parties. 

Expand the fixed recoverable costs regime to cover immigration judicial reviews and encourage the increased use of wasted costs orders in asylum and immigration matters. 

Introduce a new fast-track appeal process. This will be for cases that are deemed to be manifestly unfounded or new claims, made late. This will include late referrals for modern slavery insofar as they prevent removal or deportation.

As for the Good Faith Requirement (GFR), anyone bringing a claim or a challenge in the courts and their representatives will need to act in good faith at all times and bringing any claims as soon as possible, telling the truth and leaving the UK when they have no right to remain. Failure to abide by the GFR may be considered when the Home Office or judge assess the credibility of someone’s claim, particularly in the context of repeat or unmeritorious claims brought close to any removal action.

If someone has not met the GFR then this will impact the credibility of their claim and testimony both in Home Office decision making and by the UK courts in any subsequent appeals.

The new one-stop process (OSP) will require people to raise all protection-related issues upfront and have these considered together and ahead of an appeal hearing where applicable. This includes grounds for asylum, human rights or referral as a potential victim of modern slavery. People who claim for any form of protection will be issued with a one-stop notice (OSN), requiring them to bring forward all relevant matters in one go at the start of the process. The UK will introduce powers that will mean decision makers, including judges, should give minimal weight to evidence that a person brings after they have been through the OSP, unless there is a good reason to find otherwise. This new process will not bar genuine claims from being considered but it will mean that the credibility of the individual and the weight of their evidence will be considered in light of their previous opportunities to present that evidence. Appeals against protection or human rights decisions will be to the First Tier Tribunal and then the Upper Tribunal as presently and will include modern slavery matters insofar as they prevent removal or deportation. 

The Home Office wants to ensure quicker processes for judges to review refusal decisions by the Home Office when no in-country right of appeal is given. This is intended to provide quick access to an appeal right for meritorious cases, while swiftly disposing of unmeritorious claims.

In order to increase the OSP’s effectiveness and ensure fair access to justice the Home Office will consider how access to legal advice can be improved at different points in the process. This includes ensuring that those prioritised for removal from the UK have access to a new legal advice offer. The government says that this new advice offer will support people to bring their claims at once when they are notified about removal action, rather than bringing late claims right right before scheduled removal or sequentially over an extended period of time.

There is also a focus on expedited appeals. The governments has stated appeals will be progressed online where appropriate and the process will ensure issues are narrowed in a case before the hearing. For matters that proceed to a final hearing, hearings will be shorter and more focused. This appeals system is said to ensure better value for the taxpayer, free up valuable judicial time and capacity while also preventing unmeritorious appeals that can be a way of preventing removal.

The new plan reiterates that England and Wales has a lot of immigration-related judicial review and the Home Office is moaning that when they do win they rarely recover costs.

As part of its drive to promote fairness, certainty and balance to the way in which costs are incurred in these cases, the Home Office wants a fixed cost regime to apply to immigration-related judicial reviews so the amount in legal costs  that the winning party can recover from the losing party are specified in advance. It is claimed that the parties will benefit from a greater degree of certainty in relation to the potential cost and risks attached to contesting a case. The government says it is considering introducing reforms to encourage the use of Wasted Cost Orders (WCO) in immigration and asylum matters by the court. To achieve this, the Home Office is proposing to introduce a duty on the Immigration and Asylum Chambers of the FTT and UT to consider applying a WCO in response to specified events or behaviours, including failure to follow the directions of the court, or promoting a case that is bound to fail. While the grant of a WCO is at the sole discretion of the judge, the government is considering the introduction of a presumption in favour of making one.

In addition, as WCOs only cover the costs of the parties to the claim, the government is also considering introducing a mechanism to cover the court’s costs. If you ask me, the government constantly breaches directions and misleads the court in immigration appeals and judicial reviews so this bit seems like they are keen to throw the axe at their own feet. We have only won costs against the Home Office and never lost and WCOs against HOPOs are always welcome of course. 

Priti Patel also wants “to establish a quicker and higher-quality system of expert evidence to assist the discharge of justice.” She is thus considering introducing a new system for creating a panel of pre-approved experts (e.g. medical experts) who report to the court or require experts to be jointly appointed by the parties.

She says she wants to ensure the court is supported by the evidence of expert, accredited independent witnesses who can provide information so that judges are able to make decisions on cases with the best available information.

Priti Patel’s proposals have outraged and infuriated everyone. UNHCR said that “Anyone seeking asylum should be able to claim in their intended destination or another safe country” and added that the Convention does not “oblige asylum seekers to apply in the first safe country they encounter”. Patel’s plans to deport asylum seekers to EU will not work, warned David Blunkett who was Tony Blair’s Home Secretary between 2001 and 2004. Blunkett, who was himself extremely a very controversial figure in office at a time when more than 80,000 asylum claims were made annually compared with the present 30,000, accuses the government of “inventing a crisis that doesn’t exist”. Blunkett mocked Patel by arguing that there was not a “cat’s chance in hell” that she would strike bilateral returns deals with EU nations. Former officials in the Home Office also think that Patel is trying to “sound tough”, but new plain is useless because the UK is the end destination for asylum seekers and EU countries are fine with that. Patel’s crazy plans have been called “pie in the sky” by Steve Valdez-Symonds, Amnesty UK’s programme director for refugee and migrant rights, who added that even if such deals with EU nations were made by the UK, they were likely to be costly and inefficient. On the other hand, Patel believes that EU states have a “moral duty” and should agree to such deals about which she claimed to be “in discussions” with EU states. JCWI thinks that Priti Patel is inventing a distinction between “good” and “bad” asylum seekers and is creating more chaos and misery into an already-broken asylum system. Of course I would agree with all that. Lord Dubs, the child refugee campaigner who escaped the Nazis as a child, thinks that Priti Patel is encouraging criminality by removing legal routes to safety and concluded “this is driven by politics, not by a wish to have a sensible policy.” He thinks that Patel is “pandering to bad instincts”

Prior to the publication of her New Plan on 24 March 2021, the Home Office opted to publish a controversial press release on 20 March in which the Home Secretary  claimed an “alarming rise of abuse within modern slavery system” and claimed “major increases in child rapists, people who threaten national security and failed asylum seekers clogging up modern slavery system.” Barristers in the immigration field were aghast by Priti Patel’s wilful misrepresentations and explained that the press release violated the duty under the Civil Service Code to act with “integrity, honesty, objectivity and impartiality”. The government’s headlining was not at all supported by any type of evidence and was based on lies and fabrications. It was purely an effort to create media hype and demonise failed asylum seekers. 

The government, however, claimed that its points are established by “evidence, including published statistics and Home Office analysis” and make the argument that “our asylum system is broken and open to abuse” which is why it launched its new immigration plan. It is noteworthy that the Conservatives have been in power for 11 years now, one would hope that they would have fixed the problems plaguing the system by now but it appears that they were totally incompetent and failed to do so. More than 450 leading academics have criticised the new plan for being “completely unfounded in any body of research evidence” and they say in an open letter that it the crazy plan presents “deeply troubling echoes” of Australia’s Temporary Protection Visa which created a second class of refugees.

I personally think that Priti Patel is pretty pathetic and so is her new plan.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Australia, BN(O), Credibility, Crime, Expert Evidence, HOPOs, Human Trafficking, Immigration Rules, Judicial Review, PBS, Persecution, Refugee Convention, Removals, WCOs and tagged , , , , , , . Bookmark the permalink.

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