Home Secretary Shabana Mahmood published her Immigration and Asylum Bill yesterday, claiming that it would ‘save the asylum system for a generation’. At the heart of her approach was the idea that the government would ‘open new legal routes for genuine refugees’ while at the same time ‘closing loopholes that have too often been abused’.
The 53-clause Bill runs to over 80 pages and would establish an independent immigration appeals authority. It would make changes to the way that the courts approach Article 8 of the European Convention on Human Rights, introduce a power to require payments from the recipients of asylum support and change rules relating to modern slavery.
Despite the Home Secretary’s best efforts, the Bill has been met with a strong degree of scepticism across the political spectrum. This is perhaps unsurprising. It is the tenth piece of legislation relating to asylum and immigration to be published since 2003.
Voters are unlikely to be persuaded by new rhetoric alone
The independent immigration appeals authority is designed to speed up decision-making, with appeals currently taking an average of 61 weeks to be determined. Mahmood argues that creating a single appeal route will ‘allow for faster outcomes’.
Yet, the new body would not be a court and its adjudicators would not be lawyers. Questions are likely to be posed about who will apply for these roles. These individuals will have to be recruited and trained, meaning that it is unlikely that the new body will be able to start hearing cases any time soon. And even though the Bill states that any appeal from this new body to the Upper Tribunal will have to be made on a ‘point of law’, this is not quite as restrictive as it may sound. One can expect a large number of claimants to argue that the new adjudicators have not understood their human rights arguments or have failed to take into account a material consideration.
Turning to the Article 8 provisions, there is some tinkering at the margins of the Bill. Looking more closely, particularly at the clauses relating to foreign national offenders, it is hard to see that the government will move the dial much.
The Bill will tighten the definition of ‘family member’ to exclude more distant family relationships. It also spells out more clearly the ‘exceptional circumstances’ in which a foreign national offender could resist deportation. Yet, despite the adjudicators being obliged to take into account the public interest and the seriousness of the offending, the Bill still allows them to consider the offender’s links to the UK and whether ‘there would be very significant obstacles to the person’s integration into the country to which they are proposed to be deported’. The Bill would also allow the adjudicator to weigh up the impact on the offender’s partner or child and whether ‘the effect of the person’s deportation on the partner or child would be unduly harsh’.
Proposals to ask asylum seekers to contribute towards the cost of their support and accommodation are perfectly acceptable in principle. The Home Office estimates that these costs amount to £4 billion a year. If individuals are able to pay, then such a scheme seems little different from expecting students to pay back the loans they take to go to university.
However, all the evidence suggests that the sort of means-tested pay-back scheme the government intends to introduce will raise relatively small sums in practice. The government’s own impact assessment notes that the monetised and non-monetised benefits of the measure are ‘uncertain’. It adds, quite frankly, that:
Overall impact remains unclear due to uncertainty around the scale of administrative costs to implement this measure and the extent to which recouping and deterrence benefits will be realised.
While Mahmood was busy promoting her new Bill, I spent much of yesterday at a roundtable at the University of Oxford discussing the Chișinău Declaration at a private session with academics, lawyers and officials. Adopted on 15 May, the Chișinău Declaration is a political statement by the 46 member states of the Council of Europe clarifying their views on the ECHR, specifically regarding migration. The British government sees the Declaration as complementing its domestic law reforms.
There was a broad consensus in Oxford that while the Declaration does not change the law and leaves the foundations of the ECHR untouched, it might well open space for European states to introduce novel new mechanisms, such as return hubs. It also sends a clear message to the European Court of Human Rights that states want to determine migration policy themselves.
On that note, the European Parliament recently voted in favour of the proposed EU Return Regulation. Assuming it is adopted by the Council, this would allow EU member states to establish processing or deportation centres in third countries, effectively permitting the transfer of individuals with no legal right to be in the EU to countries outside the bloc.
Ironically, having abandoned the previous government’s Rwanda scheme, Labour may now find that EU states will seek to establish something quite similar. Indeed, there is the possibility that the government will find itself the beneficiary of any such schemes if they act as a deterrent and reduce the overall number of migrants attempting to enter Europe.
The real problem that Labour will probably face with these reforms is that they are unlikely to have any immediate impact. It will take time to set up the new independent appeals body. Any new cases eventually taken to Strasbourg will take years to resolve.
This Bill’s success will be judged by whether it delivers outcomes that have eluded successive governments. Voters are unlikely to be persuaded by new rhetoric alone. They will assess Mahmood’s Bill on whether it delivers results rather than another promise that this time the system has finally been fixed.
Comments