In her speech on 6 October 2015, Theresa May appeared super confident in being able to control immigration through sheer political will. She proudly states that her government has, “rooted out abuse of the student visa system, and the numbers went down. We reformed family visas, and the numbers went down. We capped economic migration from outside the EU, and – despite the growing economy – the numbers remained stable.” She insists that those students whose visas have run out must return home. The Secretary of State further considers as unsustainable the numbers coming from Europe and sees as justified the Prime Minister ‘s targeting of the amount paid in benefits for those coming to the UK to work. She however acknowledges that there is a struggle in keeping low the numbers of immigrants coming into the UK however states that she will not give in.
Theresa May considers somehow that the asylum system is being abused and manipulated and as such her focus has now shifted to seeking to control not only the number of asylum claimants being allowed to enter the UK seeking protection but in particular those seeking to claim asylum whilst already in the UK. Even those individuals who have been granted leave as refugees are at risk of being ordered to leave the UK prior to obtaining settlement.
Theresa May is adamant that she does not want a common European asylum policy, but rather in her view what is required is a “new British approach” together with a “new international approach with nation states working together”.
Having regard to the proposed changes, the Secretary of State appears seemingly intent upon eroding the current protections that there are for asylum claimants and refugees.
THE PROPOSED CHANGES
(1)Reworking of the International Legal Definition of Asylum and Refugee Status
“In the longer term, I want to work with other countries in Europe, and the United Nations, to review the international legal definitions of asylum and refugee status. Because there is a huge difference between a young Syrian family fleeing the tyranny of ISIL or Assad, and a student who claims asylum once he has been discovered overstaying his visa, or a foreign criminal about to be sent to a prison in his own country”
The EU to which the UK is a member, already has a Common European Asylum System which seems to currently cover Theresa May’s concerns. Since 1999, the EU has been working to create a Common European Asylum System and has sought to improve the legislative framework which may be summarized as below :
(A)The Reception Conditions Directive or Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers:
The purpose of the Directive is to lay down minimum standards for the reception of asylum seekers in Member States. The Directive applies to all third country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State as long as they are allowed to remain on the territory as asylum seekers, as well as to family members, if they are covered by such application for asylum according to the national law.
The preamble to the Directive provides:
(1) A common policy on asylum, including a Common European Asylum System , is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.
(3) The Tampere Conclusions provide that a Common European Asylum System should include, in the short term, common minimum conditions of reception of asylum seekers.
(7) Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.
(19) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom gave notice, by letter of 18 August 2001, of its wish to take part in the adoption and application of this Directive.
For the purposes of this Directive:
(a) ‘Geneva Convention’ shall mean the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967;
(b) ‘application for asylum’ shall mean the application made by a third-country national or a stateless person which can be understood as a request for international protection from a Member State, under the Geneva Convention. Any application for international protection is presumed to be an application for asylum unless a third-country national or a stateless person explicitly requests another kind of protection
that can be applied for separately;
(c) ‘applicant’ or ‘asylum seeker’ shall mean a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken;
(e) ‘refugee’ shall mean a person who fulfils the requirements of Article 1(A) of the Geneva Convention;
(f) ‘refugee status’ shall mean the status granted by a Member State to a person who is a refugee and is admitted as such to the territory of that Member State…”
*The UK government opted out and is not bound by the recast Reception Conditions Directive ie Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection.
(B)The Asylum Procedures Directive or Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status:
The purpose of the Directive is to establish minimum standards on procedures in Member States for granting and withdrawing refugee status.
The Preamble to the Directive provides:
“(5) The main objective of this Directive is to introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status.
(11) It is in the interest of both Member States and applicants for asylum to decide as soon as possible on applications for asylum. The organisation of the processing of applications for asylum should be left to the discretion of Member States, so that they may, in accordance with their national needs, prioritise or accelerate the processing of any application, taking into account the standards in this Directive.
(16) Many asylum applications are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant. Member States should be able to keep existing procedures adapted to the specific situation of these applicants at the border. Common rules should be defined on possible exceptions made in these circumstances
to the guarantees normally enjoyed by applicants. Border procedures should mainly apply to those applicants who do not meet the conditions for entry into the territory of the Member States.
(17) A key consideration for the well-foundedness of an asylum application is the safety of the applicant in his/her country of origin. Where a third country can be regarded as a safe country of origin, Member States should be able to designate it as safe and presume its safety for a particular applicant, unless he/she presents serious counter-indications.
(18) Given the level of harmonisation achieved on the qualification of third country nationals and stateless persons as refugees, common criteria for designating third countries as safe countries of origin should be established.
(26) With respect to the withdrawal of refugee status, Member States should ensure that persons benefiting from refugee status are duly informed of a possible reconsideration of their status and have the opportunity to submit their point of view before the authorities can take a motivated decision to withdraw their status. However, dispensing with these guarantees should be allowed where the reasons for the cessation of the refugee status is not related to a change of the conditions on which the recognition was based.
(27) It reflects a basic principle of Community law that the decisions taken on an application for asylum and on the withdrawal of refugee status are subject to an effective remedy before a court or tribunal within the meaning of Article 234 of the Treaty. The effectiveness of the remedy, also with regard to the examination of the relevant facts, depends on the administrative and judicial system of each Member State seen as a whole.
(32) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed
to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified, by letter of 24 January 2001, its wish to take part in the adoption and application of this Directive.
For the purposes of this Directive:
(a) ‘Geneva Convention’ means the Convention of 28 July 1951 relating to the status of refugees, as amended by
the New York Protocol of 31 January 1967;
(b) ‘application’ or ‘application for asylum’ means an application made by a third country national or stateless
person which can be understood as a request for international protection from a Member State under the Geneva
Convention. Any application for international protection is presumed to be an application for asylum, unless the person concerned explicitly requests another kind of protection that can be applied for separately;
(c) ‘applicant’ or ‘applicant for asylum’ means a third country national or stateless person who has made an application
for asylum in respect of which a final decision has not yet been taken;
(f) ‘refugee’ means a third country national or a stateless person who fulfils the requirements of Article 1 of the Geneva Convention as set out in Directive 2004/83/EC;
(g) ‘refugee status’ means the recognition by a Member State of a third country national or stateless person as a refugee;
(j) ‘withdrawal of refugee status’ means the decision by a competent authority to revoke, end or refuse to renew the
refugee status of a person in accordance with Directive 2004/83/EC;
Withdrawal of refugee status
Member States shall ensure that an examination to withdraw the refugee status of a particular person may commence when new elements or findings arise indicating that there are reasons to reconsider the validity of his/her refugee status.
- Member States shall ensure that, where the competent authority is considering withdrawing the refugee status of a
third country national or stateless person in accordance with Article 14 of Directive 2004/83/EC, the person concerned shall enjoy the following guarantees:
(a) to be informed in writing that the competent authority is reconsidering his or her qualification for refugee status and the reasons for such a reconsideration; and
(b) to be given the opportunity to submit, in a personal interview in accordance with Article 10(1)(b) and Articles
12, 13 and 14 or in a written statement, reasons as to why his/her refugee status should not be withdrawn.
In addition, Member States shall ensure that within the framework of such a procedure:
(c) the competent authority is able to obtain precise and up-todate information from various sources, such as, where appropriate, from the UNHCR, as to the general situation prevailing in the countries of origin of the persons concerned; and
- d) where information on an individual case is collected for the purposes of reconsidering the refugee status, it is not obtained from the actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that the person concerned is a refugee whose status is under reconsideration, nor jeopardise the physical
integrity of the person and his/her dependants, or the liberty and security of his/her family members still living in the country of origin.
- Member States shall ensure that the decision of the competent authority to withdraw the refugee status is given in writing. The reasons in fact and in law shall be stated in the decision and information on how to challenge the decision shall be given in writing.
- Once the competent authority has taken the decision to withdraw the refugee status, Article 15, paragraph 2, Article 16, paragraph 1 and Article 21 are equally applicable.
- By derogation to paragraphs 1, 2 and 3 of this Article, Member States may decide that the refugee status shall lapse by law in case of cessation in accordance with Article 11(1)(a) to (d) of Directive 2004/83/EC or if the refugee has unequivocally renounced his/her recognition as a refugee.
The right to an effective remedy
- Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or
tribunal, against the following:
(e) a decision to withdraw of refugee status pursuant to Article 38.
- Member States shall, where appropriate, provide for rules in accordance with their international obligations dealing with:
(a) the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome;
(b) the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have the
effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States may
also provide for an ex officio remedy; and
(c) the grounds for challenging a decision under Article 25(2)(c) in accordance with the methodology applied under Article 27(2)(b) and (c).
*The UK government opted out and is not bound by the recast Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection
( C)The Qualification Directive or Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. :
The main objective of the Directive is, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and to ensure that a minimum level of benefits is available for these persons in all Member States.
The Preamble provides:
|“16)||Minimum standards for the definition and content of refugee status should be laid down to guide the competent national bodies of Member States in the application of the Geneva Convention.|
|(17)||It is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention.|
|(18)||In particular, it is necessary to introduce common concepts of protection needs arising sur place; sources of harm and protection; internal protection; and persecution, including the reasons for persecution.|
|(38)||In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified, by letter of 28 January 2002, its wish to take part in the adoption and application of this Directive.
Article 2 Definitions
For the purposes of this Directive:
The UK government opted out and is not bound by the recast Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (applicable from 21 December 2013).
(D)The recast Dublin Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person :
The Dublin Regulation establishes the Member State responsible for the examination of the asylum application. The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered EU irregularly, or regularly.
(E)The recast Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013:
EURODAC makes it easier for EU States to determine responsibility for examining an asylum application by comparing fingerprint datasets.
Having regard to the above Directives, further review of the international legal definitions of asylum and refugee status seems unnecessary.
(2)Strengthened ‘Safe Return Reviews’
“when a refugee’s temporary stay of protection in the UK comes to an end, or if there is a clear improvement in the conditions of their own country, we will review their need for protection. If their reason for asylum no longer stands and it is now safe for them to return, we will seek to return them to their home country rather than offer settlement here in Britain”.
The Home Office currently apply the following Asylum Instructions when considering the withdrawal of refuge status:
- Refugee leave;
- Cessation, Cancellation and Revocation of Refugee Status;
- Humanitarian Protection;
- Discretionary Leave;
- Active Review
Refugee status may be reviewed for example where there has been a significant and non-temporary change in the conditions in a particular country; on the basis of information relating to actions of the refugee or when a refugee applies for settlement or reaches the five year point.
Upon a review of refugee status, the home office may withdraw an individual’s refugee status, curtail their refugee leave and/or refuse their application for a further grant of leave. Where a review relates to information regarding the actions of an individual refugee either during or at the end of the five year period of limited leave, the UNHCR should be consulted on any cessation, cancellation or revocation decision.
Theresa May ‘s statements do not factor the scenario of political circumstances in a country seeming to improve yet worsen after several months. Upon her proposal a refugee may have protected status take away only to be returned to their country of origin and be caught up a dangerous circumstances several months later.
(3)Minimum Stay of Protection And Automatic Right to Settle
“For the first time we’ll distinguish between vulnerable people resettled from their region and those who claim asylum after abusing the visa system or having travelled to get here through safe countries. If you’ve spurned the chance to seek protection elsewhere – but we cannot return you to that safe country and you still need refuge – you’ll get the minimum stay of protection and you won’t have an automatic right to settle here. But for those who really need it, we will offer a longer stay of protection. Humane for those who need our help, tough on those who abuse it”
UNHCR officials, or the Red Cross acting on behalf of the UNHCR, may submit applications for the resettlement of individuals who have been recognised as refugees under UNHCR’s Mandate and who are unable to gain the protection of the countries where they currently are.
The home office policy is that all applications for asylum by mandate refugees will be considered within the normal asylum process. Mandate refugees have no entitlement to asylum in the UK and UNHCR recognition of mandate refugee status is not binding on the UK. However the Home Office accepts that in determining the asylum claim of a mandate refugee the decision maker must give mandate status due weight and take it into account when assessing credibility and determining the risk on return.
UNHCR may submit applications for the resettlement of individuals under the Gateway Protection Programme. The Gateway Protection Programme is operated by UK Visas and Immigration in partnership with the United Nations High Commissioner for Refugees (UNHCR). The programme offers a legal route for up to 750 refugees to settle in the UK each year, and is completely separate from the standard procedure for claiming asylum in the UK. Applications for resettlement under this programme are made to the UNHCR, which refers them to UKVI. Applications cannot be made directly to UKVI, to British diplomatic posts abroad or through other international organizations. All applications are assessed individually on their merits. Once applicants have been referred to UKVI, they carry out checks to assess; their refugee status; their need for resettlement (including whether their human rights are at risk in the country where they sought refuge, and whether they have long-term security in the country where they currently live); security risks (whether the applicant has committed a serious crime or represents a threat to national security, for example); their family status (including dependents and their relationship to the applicant); their health and the health of their dependents. UKV may refuse an application if they have good reasons to believe that resettlement in the UK would not be for the public good.
On 29 January 2014, the UK United Kingdom launched the Syrian Vulnerable Persons Relocation (VPR) scheme to provide protection to particularly vulnerable refugees who are considered to be at grave risk. Since that point, the UK has been working closely with the United Nations High Commissioner for Refugees (UNHCR) to identify those who are most vulnerable. The existing Vulnerable Persons Relocation Scheme, in place since early 2014, has been expanded in the last few weeks, with an additional 20,000 people currently living in camps in Syria, Turkey and Jordan intended to be resettled in the UK by 2020.
Having regard to current events, the UK government seems very quickly to be preferring granting refugee status by way of resettlement/relocation schemes.
The Qualification Directive, Article 24, seems to permit a grant of refuge status of less than 5years as it allows the issue of a residence permit for refugee status to be valid for at least 3years.
Where the reference to abusing the system means those applicants who claim asylum after having held leave for example as students, Article 5 of the Qualification Directive, specifically makes provisions for such claimants as there is a recognition that a well-founded fear of being persecuted or a real risk of suffering serious harm may be based on events which have taken place since the applicant left the country of origin.
(4)Even Faster Processing of Asylum Claims
“People who apply for asylum in the UK will be processed quickly and fairly. If they are approved, they will be granted our protection for the length of time that their home country remains unsafe for them to return. But if they are not approved, they must be made to leave the country quickly – and that’s exactly what our new Immigration Bill will do”.
There is already a system in place for processing asylum claims quickly.
Currently the home office apply the Detained Fast Track Processes policy. The detained fast track process is used to describe the two processes running mainly at IRC Harmondsworth and IRC Yarl’s Wood – the Detained Fast Track Process (DFT), and the Detained Non-Suspensive Appeals Process (DNSA).
Detained fast track involves detaining applicants for a short period, to make a quick decision, which if refused, will ordinarily be subject to quick appeal timescales. Detained non suspensive appeals involves detaining applicants for a short period, to make a quick decision. If refused asylum and if issued a certificate under Section 94 of the 2002 Act, applicants will not have an in country right of appeal.
Among other considerations, the home office apply the Detained Fast Track Processes Suitability Policy- an applicant may enter into or remain in detention fast track processes only if there is a power in immigration law to detain, and only if on consideration of the known facts relating to the applicant and their case obtained at asylum screening (and, where relevant, subsequently), it appears that a quick decision is possible, and none of the Detained Fast Track Suitability Exclusion Criteria apply.
As regards the Detained Fast Track Suitability Exclusion Criteria, Home Office policy is that certain individuals are unlikely to be suitable for entry or continued management in the detention processes. Detained Fast Track Processes Timetable Flexibility AI, explains when it might be appropriate for detention fast track timetables to be extended, or for an applicant to be removed from the processes altogether.
It therefore appears that there will be even more applicability of the detained fast track process and consequently inevitably even more legal challenges to the Secretary of State’s forthcoming policies and provisions in this regards.
(5)Use of Alternative Identity Documentation To Effect Enforced Removals
“Sometimes, it isn’t the individual person who holds up their deportation but their home country’s government. In the absence of specific identification documents – which are often destroyed by the individual themselves – some countries deny the nationality of their citizen and refuse to take them back. This happens in thousands of cases every year. So from now on, we will use alternative documentation – copies of which exist for anybody who first entered the country on a legal, biometric visa – as proof of the individual’s identity. If any foreign governments refuse to recognise these documents – which, in many cases, they helped to produce in the first place – we will take retaliatory measures. The message will be clear – if other governments don’t play by the rules, there will be consequences”.
Section 35, of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 provides that the Secretary of State may require a person to take specified action if the Secretary of State thinks that the action will or may enable a travel document to be obtained by or for the person, and possession of the travel document will facilitate the person’s deportation or removal from the United Kingdom. In particular, the Secretary of State may require a person to provide information or documents to the Secretary of State or to any other person; obtain information or documents; provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye); make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom; cooperate with a process designed to enable determination of an application; complete a form accurately and completely; attend an interview and answer questions accurately and completely; make an appointment. A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State. A person guilty of an offence shall be liable on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.
It appears that Section 35 is not effective in practice- otherwise there would be no need to threaten foreign governments with non- cooperation to effect enforced removals.
(6)Invocation of the Spanish Protocol of the Amsterdam Treaty
“We will also – for the first time – invoke what is known as the ‘Spanish Protocol’ of the Amsterdam Treaty, which allows EU member states to treat any asylum claim by a citizen of another EU country as automatically inadmissible. It sounds crazy, but in the last five years, there have been 551 asylum claims in Britain from people from other EU countries – like Poland and Spain. All but a handful were turned down – but they cost over £4 million to the British taxpayer. So we will end this absurdity, creating space in our asylum system to help people who really need our protection – and saving taxpayers’ money”.
Currently any national from the European Economic Area (EEA) or Switzerland can apply for asylum in the United Kingdom and that claim must be considered. However, the EEA Regulations 2006 which apply to such nationals allow claims to be certified as clearly unfounded in certain circumstances because there is a presumption that any asylum claim from a national of an EU member state is clearly unfounded.
The Asylum Policy Instruction EEA/EU Asylum Claims, Version 2.0 Publication Date: May 2014 currently provides:
“2.1 The Treaty of Amsterdam
The Protocol on Asylum for Nationals of Members States, often referred to as the ‘Spanish Protocol’, is annexed to the Treaty of Amsterdam establishing the European Community and applies to EU Member States considering asylum claims from nationals of other EU Member States.
The Protocol considers that the level of protection afforded to an individual’s fundamental rights and freedoms by Member States means that they should be regarded as safe countries of origin. The procedures set out in the protocol for handling asylum claims from EU nationals (including dual nationals) must be followed. Although there are specific exceptions to cover deterioration in conditions within a Member State, normally the state considering the claim may either declare such a claim inadmissible, or consider it in the context of a presumption that it is ‘clearly unfounded’.
As the UK does not have a general procedure by which an asylum claim may be declared inadmissible (other than in the application of safe third country provisions – see the Asylum Instruction ‘Safe third country cases’) the claim must be considered within the substantive asylum procedure, albeit with a presumption that it is clearly unfounded.
This presumption can be rebutted and it would be appropriate to grant refugee status to an EU national who qualified. However, the terms of the Protocol require Member States to inform the EU Council of the fact that they have received and are considering such a claim”.
From the above Guidance, it remains to be seen whether new EEA Regulations will be published setting out the proposed changes in relation to dealing with asylum claims from EEA nationals.
For those who are considered to have “abused the asylum system ”, the UK government seems to consider that the current 5years is far too generous. Prior to August 2005, refugee status was normally granted for an indefinite period following a decision on the claim. Since then, the UK Government has sought to make those granted refugee status pass some “5year test” before being granted settlement. By indicating a strengthened review process for those already holding refugee status and a reduction of grant of below 5years residence for some types of claimants, this signals not just the start of erosion of protection for refugees but a more robust continuation.