Updated: Apr 5, 2021
By Charlotte Rubin
On Wednesday, Home Secretary Priti Patel announced an overhaul to the UK asylum system. Under the new rules, a difference will be made between those asylum seekers who enter the UK legally and those who enter the UK illegally. The former, if they manage to demonstrate their genuine need for protection, will be granted indefinite leave to remain immediately. The latter will not be able to remain in the UK indefinitely at all. Instead, they will receive temporary status which will be regularly reassessed for removal from the UK. This is the case even if they show that they genuinely need protection and prove their right to refugee status.
In addition, and in line with other recent government proposals, criminal sentences are being prolonged for those in breach of the rules. People smugglers may now be liable for life sentences, whilst asylum applicants with criminal records who return to the UK after being deported could receive a jail sentence of up to five years. People entering “unlawfully” will be further punished with limited family reunion rights and limited access to benefits.
This approach forms a sharp break with 70 years of practice. People who have been forced to flee their homes to escape war and persecution are some of the most vulnerable people in the world. During the year ending March 2020, 35,099 people claimed asylum in the UK, of which the government granted 12,863 applications. Those whose applications were refused can ultimately be removed from the UK. In 2020, most applicants were from Iran, Albania and Iraq.
Asylum seekers are often victims of torture, exploitation, and inhumane and degrading treatment. The UK government has a duty – morally and legally – to protect them. Morally, it is a question of human dignity and protection from harm. Legally, it is a matter of obligations under international law, and specifically the 1951 Geneva Conventions which the UK signed and ratified together with 195 other countries in the aftermath of the Second World War. Under Art. 31 of the Convention relating to the Status of Refugees, contracting states (including the UK) cannot impose penalties on refugees who come directly from a territory where their life or freedom is threatened on account of the refugees’ illegal entry or presence in their territory, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
Ms. Patel’s decision to criminalize illegal migrants is reminiscent of the approach adopted in the US under the Trump administration. The US, unlike the UK, is not a member of all parts of the 1951 Geneva Conventions, and as a consequence has fewer human rights protections in place for asylum seekers and migrants. As such, in the US, crossing a border illegally or unofficially is a federal offence. People who get into the country illegally automatically generate a criminal record for themselves, leaving them with no viable route to settlement. Many migrants then find themselves in limbo for the rest of their lives. This is why we have seen pictures of separated families and deported parents; decades after parents crossed the border to the US unofficially, they are still liable for deportation whilst their American-born children are not.
Similarly, the route to settlement Ms. Patel offers is more symbolic than anything else, as the vast majority of asylum seekers and migrants are not able to travel legally for a variety of reasons. Thus, under the proposed new immigration system, an Iraqi asylum seeker must arrive legally in the UK in order to ever be able to indefinitely re-settle here. Let’s analyze what that means. An Iraqi fleeing the conflict zone he has lived in his whole life, escaping from the physical, mental and economic threats that staying in Iraq might entail, will need to first get a passport in Iraq, then give the Iraqi government (from which he is trying to flee) a head’s up that he is leaving the country, then buy a plane ticket and finally, get on a flight that arrives in the UK directly without passing through other countries. Under the two-tiered asylum system Ms. Patel wants to introduce, that is the only way he could ever resettle in the UK.
Does this sound like something even remotely within the realm of possibilities available to the fleeing Iraqi? Ms. Patel states that this new plan will protect the lives “being lost too frequently by people trying to travel and flee”, and that she intends to make profiteering from illegal migration to Britain “no longer worth the risk.” But for those who have nothing to lose, everything is worth the risk. The question remains: whose lives does Ms. Patel save when the new plan fails to recognize the underlying reasons for people fleeing, or the mechanisms by which they are forced to do so? Whose lives are protected when she fails to create safe and legal routes to asylum? Whose lives are at stake here?
Charlotte Rubin is a Queen Mary law graduate. She writes about immigration and human rights issues for Seraphus, the Justice Gap, Free Movement and other outlets.