Knee jerks, or dancing to the tune of public opinion? – Labour’s recent announcements on refugee status and student visas
Two recent, interconnected statements from Shabana Mahmood, the Home Secretary, will have significant impacts on the immigration landscape. Refugee status in the UK is changing, and the government appears to be unilaterally restricting valid student applications based on country of origin.
Immigration reform is not new, hundreds of changes have occurred in the last decade across multiple governments. However, the most recent would, it seems, be a response by the Labour government terrified of the advance of Reform.
The political soundness of these decisions is not the subject of this article, but the result of the Gorton and Denton by-election might suggest that flailing rightwards – towards voters who will never vote for you – is missing the point when there is a groundswell of support for more humane decision making, exemplified by the triumph of the Green Party.
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Claiming asylum in the UK
The right to claim asylum in the UK flows from several treaties and conventions which form part of international law. We have implemented those obligations through domestic law and via the Immigration Rules which are a form of secondary legislation updated by the Home Office and used to govern immigration applications.
In brief, anyone who is not British but is in the UK can claim asylum if they fear for their safety in their home country. A few countries are excluded, for example EU countries which are deemed safe, but, generally, anyone can claim asylum – this is a legal right, not a privilege.
Illegal entry
Entering the UK without a valid visa is illegal. This is true for those crossing by small boat or any other mechanism of entry even if they subsequently claim asylum. However, if a person is charged with the offence they may have a defence if they entered for the purpose of claiming asylum, claimed soon after arriving (within a reasonable time) and either came directly from the country in which they were in danger or without having reasonable opportunity to claim asylum in any safe country through which they travelled.
That last requirement may be contentious but is, ultimately, a question for the police, the CPS and the magistrates or jury deciding the case. Simply passing through a safe country does not automatically create a reasonable opportunity to claim asylum and there are myriad reasons why a person might try to reach the UK before claiming
Proposed Changes
Under the changes a successful asylum claim will result in 30 months leave to remain. Currently, a successful claim results in a 60 month (5 year) grant. Additionally, access to benefits will be restricted. Asylum status will lead to settlement (indefinite leave to remain) after a much longer period – between 10 and 15 years depending on mode of entry - so will need to be applied for over and over again.
Some of these changes might appear sensible, but they will cause cascade effects through the asylum system. These changes will not reduce the number of initial claims. People will still come to the UK and claim asylum – as they have a right to do. If successful, and these changes will not change the success rates of any claims, they will receive 30 months’ leave to remain. After 30 months, they will need to apply again for leave and, 30 months later, they will apply again and again.
Under the current system, an applicant engages with the Home Office twice, their initial application and 5 years later when they apply to settle. Under the new system, an applicant will engage 5 times in 10 years. The number of cases Home Office staff will have to consider will go up, not down, as people who would have settled churn round and round in a system that cannot handle the current level of claims, let alone repeat applications from those who have spent years in the UK.
The Home Secretary has made much of the proposal to evaluate claims again after 30 months. This reassessment already occurs in the asylum process. When a person applies to settle, currently after 5 years, their case is subject to “active review”. A Home Office decision maker will assess whether that person still requires asylum in the UK. Syria is a great example of this process in action. The fall of the Assad regime has led the Home Office to seek further submissions from all Syrian applicants who now need to show they are still in danger under the new Syrian regime.
Refugees who work and earn above a set amount can ‘switch’ into an enhanced asylum route which does lead to settlement but, generally, those fleeing danger are less likely to secure high earning jobs in the UK, less likely to work at all and are more likely to need state support. They are, after all, amongst the most vulnerable after being forced to flee their homes and undertake long, dangerous, journeys.
It should be noted that the children of refugees, and migrants more generally, perform very well in the UK and make amazing contributions. It might be suggested that if we can ‘tolerate’ one generation then the next will contribute to the UK far beyond what their parents ‘took’ from the UK.
In any event, restricting benefits to refugees seems strangely cruel and will impact Local Authorities immensely. They have a statutory duty to care for children within their area. Asylum seekers cannot work unless their case has been undecided for 12 months, they struggle to rent and are usually housed in asylum accommodation which they must vacate once their claim is successful. This leaves the refugee, and possibly their family, needing to find work at very short notice in a country where they may speak no or little English and where they have no or little networks on which they can rely. These are exactly the people who need a social security network.
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Changes to student visas
The Home Secretary made much of the fact that certain nationalities had higher than normal numbers of students subsequently claiming asylum after coming to the UK. You can probably make a good guess about the nationalities – they’re the ones from massively destabilised countries with authoritarian regimes (Afghanistan) or open civil war (Sudan).
Again, a person in the UK who fears for their safety can claim asylum. This includes students. Obtaining a student visa is not a ludicrously easy thing. An applicant must be accepted by a UK school or university and satisfy the Home Office that they have the funds to study in the UK and the capacity to complete their course to an acceptable level. In short, they must show they are a genuine student.
A person can be a genuine student, and receive a student visa, and also be in danger in their home country. The fact that many Sudanese students claim asylum is a statement about the tragic results of the civil war in Sudan, not a comment on some supposed conspiracy or dishonesty amongst Sudanese students. To ban outright students from countries with high rates of successful asylum claims simply closes the door to those who can study, and potentially benefit the UK, and forces more people to remain in dangerous situations.
The UK has almost no entry routes for people in danger. We closed the routes for Afghan nationals (after leaking all their information to the Taliban) and there is no general safe route for those in danger. We accept very small numbers of people recognised by the UN as refugees overseas. This means that people need to cross in small boats, or enter in some other way, if their lives are in danger.
(Not) Stopping the boats
Making things harder in the UK has, repeatedly, done nothing to reduce the numbers seeking to come to the UK. Interviews and studies show, repeatedly, that the UK is viewed as a safe country by those seeking to get here and an upholder of human rights. Anglophone areas of the world tend to focus on reaching the UK and, unsurprisingly, Francophone areas (much of north and central Africa for example) go to France to claim asylum. Removing benefits, granting worse or weaker status, is not something that is likely to reduce crossings or entry numbers of overall claims, but it will further slow the asylum process by making people submit application after application and it will pass a huge burden to Local Authorities who will find destitute families that need to be cared for with stretched budgets.
The US war with Iran, the strikes by Israel into its neighbours, Iran’s retaliation against US allies in the Gulf and the myriad proxy wars being fought by nations means that asylum numbers will almost certainly rise as there are fewer and fewer places of safety.
Being cruel to these people is performative at best. It will not bring Labour political gains and the evidence is that there is sufficient support for more moderate positions that trying to do so is folly in the extreme. Investment in decision-making and the appeal system would reduce the amount of time a person is waiting for a decision. Allowing those people to work and pay tax and rent would reduce the burden of accommodating asylum seekers who cannot, in law, work or earn money. It would cost much less in the long run to invest in swifter decision making and Tribunal appeal processes than to maintain costly ‘asylum hotels’ and slower decision making. Denying access to benefits simply pushes the burden to Local Authorities. A refugee who earns an income is no more entitled to benefits than a British person earning the same. Encouraging people into the work force and facilitating integration is vastly cheaper in the long run but requires nuanced and sensible discussion which Labour appear to be terrified of at this time.
Navigating Complex Changes in UK Asylum Law
The UK’s asylum and settlement landscape is becoming increasingly complex, with frequent secondary legislation and shifting Home Office policies affecting long-term stability. At Latitude Law, our experienced lawyers provide expert guidance to help vulnerable individuals and students navigate these restrictive routes, ensuring applications are robustly prepared in line with current international and domestic law.
Get in touch with Latitude Law today by calling 0300 131 6767 or complete our contact form, and we will get back to you.
