In recent months and years, the United Kingdom (UK) has increasingly shifted away from a robust asylum and protection framework and towards increasing reliance on inadequate bespoke ‘safe and legal’ resettlement routes. These words, ‘safe’ and ‘legal’, now form part of common discourse in British politics. They are evocative to a British public known globally for orderly formation of queues. However, they fail to account for individuals for whom there is no open lane, who have no knowledge or legal advice to assist them, who live in danger or are separated from loved ones, and who are thus left to navigate the shipping lanes of the Channel.
There is more to come, with an Illegal Migration Bill introduced to Parliament on 7 March 2023, but it is perhaps worth briefly taking stock of what has already come to pass. I will examine, through the prism of the heightened standard of proof ushered in by the Nationality and Borders Act 2022, the difficulties created by the Government in the current asylum framework, before considering the inadequacy of ‘safe and legal’ routes which have failed to provide refuge to many, including vulnerable women, girls and other minorities at risk in Afghanistan.
The Nationality and Borders Act 2022
The Nationality and Borders Act 2022 was one fundamental part of the UK’s detrimental shift. It reduces safeguards and avenues for protection: from its creation of a two-tier asylum system, maritime enforcement, and criminalisation of ‘arrival’ in the UK, to its introduction of accelerated and expedited appeals and scientific methods for age assessment. The Act also set new binding statutory interpretations of the 1951 Convention Relating to the Status of Refugees (Refugee Convention), to rewrite the law in a manner that undermines the humanitarian spirit of the Refugee Convention and departs from the clear jurisprudence of UK courts without good reason.
Heightened Standard of Proof
As a prism for the overarching systemic issues, space limitations permit me to focus on one little discussed reinterpretation of the Refugee Convention. Section 32 of the 2022 Act introduces a complicated split in the standard for proving that a person seeking asylum has a ‘well-founded fear’. It requires decision makers to test part of an asylum claim on the civil standard, ‘the balance of probabilities’, and part on the lower ‘reasonable likelihood’ standard of proof.
For nearly two decades prior to the heightened standard coming into effect on the 28th of June 2022, the UK applied a single holistic lower standard of proof. The proposed bipartite test was criticised by the UNHCR as ‘conceptually problematic’ and had previously been rejected by the Court of Appeal in 2003. In 2010, in HJ (Iran), the UK Supreme Court explicitly rejected the higher threshold: ‘Where life or liberty may be threatened, the balance of probabilities is not an appropriate test’. However, as with the definition of immunity from penalties in Section 37 of the Act, the rule of law did not prevent the UK Parliament from legislating away and reversing decisions of domestic courts in Adimi and Afsaw.
Even if the new standard of proof could be easily applied, the Government was warned by the legal community and civil society that the balance of probabilities test adversely affects certain individuals, who must prove their sexual orientation, gender identity, or that they are members of a particular social group such as ‘abused women’ or ‘women who have been trafficked’. Additionally, the test perversely impacts those who cannot conceive or articulate their subjective fear, such as children, and individuals with certain cognitive disabilities.
The importance of the introduction of the heightened standard of proof must be seen in the jurisdiction-specific context in which it is to be applied, and against the evidence of the Home Office’s culture of disbelief of individuals seeking protection. Although the Government claimed the new test was ‘appropriate to ensure that only those who qualify for protection under the Refugee Convention are afforded protection in the UK’, the evidence shows that nearly half of the appeals against the Home Office’s asylum, protection, and revocation of protection decisions are overturned by the First-tier Tribunal (Immigration and Asylum Chamber). In an attempt to further justify the test’s introduction, the Government cherry-picked Canada and Switzerland as ‘highly respected democratic countries’ with a higher standard of proof. However, in addition to other nuanced differences, there are foundational structural differences between the UK and those jurisdictions: in Canada, a first instance asylum decision is not made by a government department conducting immigration enforcement, but by a judge in an oral hearing, and on the Continent, including in Switzerland, legal traditions are inquisitorial.
Through this lens, the standard of proof test exposes the self-manufactured problem of the UK’s hydra-headed Government. One need only look at the events of recent weeks. On the one hand, the Government wishes to clear its backlog of over 160,000 people waiting for decisions. It has rolled out new streamlined processes for civil servants to do this, which include deciding applications on paper following a screening interview but without a substantive interview. However, to decide cases more quickly and grant manifestly well-founded claims made after the 28th of June 2022, it must grapple with the complexities in the system it has produced, such as the raised standard of proof. If people, including unaccompanied children, are to be judged against a higher standard of proof, set in primary legislation, they must be able to put forward the strong evidence needed to satisfy that standard. Access to legal advice and a legal representative to take the role of that adversary to the Home Office becomes crucial. However, access to legal advice and representation is deeply limited and impeded in the current crisis, due to the lack of investment by the Government in legal aid to render provision of free legal advice sustainable and viable in England and Wales.
‘Safe’ and ‘Legal’ Routes
‘Safe and legal’ routes are not the panacea for these ailments in the system. They cannot fill the lacuna left by the stripping away of a robust system of protection, which must include access to territorial asylum. They are a remedy to enable some individuals to reach sanctuary, but also a scapegoat used to justify the exclusion of other individuals in need of protection.
The UK’s predominant safe and legal routes are for Syria, Afghanistan, Hong Kong, and Ukraine. They are bespoke, nationality specific, and/or suffer from limitations and restrictions. Most bespoke routes fail to recognise resettled individuals as refugees, and some fail to provide them with family reunion rights. Without available publicly funded advice or representation, communities, civil society, and pro bono lawyers have sought to provide the necessary assistance to those making bespoke resettlement route applications. As for general refugee resettlement schemes, there are only three: the UK Resettlement Scheme, Community Sponsorship, and the Mandate Resettlement Scheme. In the year to December 2022, the total number of individuals resettled under these three schemes was 1,163. This number pales in comparison to the hundreds of thousands from Hong Kong and Ukraine who were resettled on bespoke routes in recent years. In spite of this, the new Illegal Migration Bill proposes to introduce a ‘maximum number of persons who may enter the United Kingdom annually using safe and legal routes’.
The fragmented bespoke Afghan resettlement routes elucidate the failings of restrictive safe and legal routes. Unlike the Ukraine or Hong Kong routes, the Afghan Citizens Resettlement Scheme is capped at 20,000 places for those who do not meet the restrictive requirements of the Afghan Relocations and Assistance Policy. The third pathway of the Afghan Citizens Resettlement Scheme was to offer a route to resettlement for ‘those who are particularly vulnerable, such as women and girls at risk and members of minority groups’. However, more than 18 months after Operation Pitting, the UK’s withdrawal from Afghanistan, this safe and legal route has yet to materialise for vulnerable women, girls and minorities.
If such women, girls, and minorities manage to reach the UK, they are subject to all the measures that have come with the Nationality and Borders Act 2022 and would come with the passing of the Illegal Migration Bill, a Bill that the Home Secretary would not confirm was compatible with the UK’s human rights obligations.
Clearly there must be a sufficiently robust, accessible, underlying framework for protection, that can be made more generous to respond to unprecedented historical situations, and account for the UK’s colonial or other moral obligations. There are such available frameworks in the Refugee Convention, the Global Compact on Refugees, and the European Convention on Human Rights, among other international agreements. The wheel does not need to be re-invented for every unprecedented situation; it must be maintained and supplemented, rather than disassembled.