Have we failed to give them hope? Implications of the ‘New Plan for Immigration’
Published 23 June 2021
On March 24th 2021, the Home Office published its policy statement on a new plan for immigration. The statement puts forth three main aims:
To increase the fairness and effectiveness of the immigration system to better protect and support those genuinely seeking asylum.
To deter illegal entry into the United Kingdom (UK), to break down criminal trafficking networks and protecting those endangered.
To remove more easily those with no right to be in the UK.
In her oral statement to Parliament on 24 March 2021, the Home Secretary, The Rt Hon Priti Patel MP stated that the proposals represented “the most significant overhaul of our asylum system in decades. A new comprehensive, fair but firm, long-term plan…At the heart of our New Plan for Immigration is a simple principle: fairness…our new system will be faster and fairer and will help us better support the most vulnerable…and will fix our broken system”.
Yet, despite emphasis on this notion of ‘fairness’ almost 200 human rights, refugee, faith and legal organisations have labelled the six week consultation on the proposed changes as “vague, unworkable, cruel and potentially unlawful”. The plan seeks to introduce tougher criminal offences for those attempting to enter the UK illegally, including increased penalties for illegal entry. Although aimed at disrupting criminal networks, the proposed plan penalises vulnerable people seeking asylum if they arrive in Britain via unauthorised routes; their legal right to claim asylum will be denied, they will be held in warehouse style refugee ‘reception centres’, could be deported to third countries, and will be forced to reapply for protection every 30 months. For those who cannot be removed immediately, their benefits would be stripped, placing them in the No Recourse to Public Funds (NRPF) category. Such measures present a violation of the fundamental rights of the most underrepresented, vulnerable, and marginalised individuals in our society, including the right to private and family life, the right to liberty, and the absolute right against torture, inhuman and degrading treatment. Rights that were recognised directly by both the Court of Appeal in R (Sivasubramaniam) v Wandsworth County Court and the Supreme Court in R (Cart) v Upper Tribunal.
The UK is also a party to the 1951 Convention relating to the Status of Refugees (Refugee Convention) and to its 1967 Protocol. Article 31 of the 1951 Convention provides as follows:
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The Contracting States shall not apply to the movements of such refugees’ restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Of the Refugee Convention, Lord Bingham in the House of Lords observed “three broad humanitarian aims.” First, that contracting states would “afford a safe refuge to those genuinely fleeing their home countries to escape persercution” ensuring such refugees were not returned. Second, “to ensure reasonable treatment of refugees” within the country where refuge is sought and, finally, to prevent imposition of penalties for criminal acts “reasonably or necessarily committed in the course of flight from persecution or threatened persecution.”
By any reading there seems little, if any, compatibility between the core aims of the Refugee Convention and the new Home Office proposals. The government’s precarious and unfair proposal denies automatic right to asylum, poses risk of removal and increases penalties for refugees arriving in Britain via unauthorised routes. These measures not only amount to a blatant violation of Article 31 but fail, in all respects, to align with the spirit of the Convention.
The Home Office’s proposal further introduces “a new ‘one-stop’ process which will require people to raise all protection related issues upfront and have these considered together and ahead of an appeal hearing where applicable.” The Home Office will also introduce “new powers that will mean decision makers, including judges, should give minimal weight to evidence that a person brings after they have been through the ‘one-stop’ process, unless there is good reason.”
Immigration and asylum cases are often highly complex and require emotionally strenuous work. Claimants face many difficulties that include, but are not limited to, language barriers, understanding the legal process and navigating the legal system. Individuals at risk, those who have experienced violence, discrimination and hatred and individuals with mental health issues and/or physical disabilities may find it extremely challenging and difficult to disclose all protection-related issues up front during the ‘one-stop process’. This could result in violation of their right to a fair trial which is protected under Article 6 of the European Convention on Human Rights (ECHR). Moreover, the consultation itself has been branded as “poorly designed” and “inaccessible”, giving no opportunity for people to share their experiences of fleeing persecution or seeking refuge in the UK and is only available in English and Welsh, arguably excluding those who will be most affected by the proposed changes from responding.
The Home Office states that the new plan aims to “tackle the practice of making multiple and sequential claims and appeals which frequently frustrate removal from the UK”. The fast-track system is proposed to make quicker decisions and tackle meritless claims “which clog up the courts with last minute claims and appeals” but fails to persuade or convince us how this new system “will be faster and fairer and will help us better support the most vulnerable”. In Lord Chancellor v Detention Action, the court emphasised that “speed and efficiency must not trump justice and fairness.” 
Chai Patel, legal policy director at the Joint Council for the welfare of immigrants brands the proposals as “radical and dangerous changes to the UK’s refugee protection system, which needs serious considerations” labelling the new plan as “a sham intended to mislead parliament into believing there is merit to plans which will deny safety to people feeling war and persecution.” In order to address immigration and asylum policy in a way which genuinely protects those at risk, in the words of Tim Noar Hilton, chief executive at Refugee Action: “the government must scrap its proposed changes to refugee policy and work properly with stakeholders to create a system that is fair, effective and compassionate.”
 Home Office, ‘Home Secretary’s statement on the New Plan for Immigration’(Parliament, 24 March 2021)