Fixing the United Kingdom's asylum system
Is it really broken and can it be repaired rather than replaced?
Everyone can agree that the asylum system is broken. There is rather less consensus on how to repair it. The present government’s official position, expressed in legislative form in the Illegal Migration Act 2023, is that the asylum system is beyond repair. Instead of attempting to fix what is considered an outdated, expensive, broken model of territorial asylum the entire system is to be abolished. Any person arriving in the United Kingdom to claim asylum will briefly be detained and then exported to Rwanda or some other third country, which will assume full responsibility for them.
The Labour Party’s position — and the position of campaigners, charities and lawyers working with refugees — is that the existing system can be fixed by managing it more competently and humanely. Where the Labour Party differs from what some disparagingly refer to as the ‘asylum industry’ is in emphasising the need to reduce the numbers arriving to claim asylum through cooperation with other countries and in boosting the number of failed asylum seekers who depart from the country at the end of the process.
It is almost universally accepted that the Illegal Migration Act cannot, if it is ever implemented, operate as its progenitors purported to hope. Over 80,000 people claimed asylum in 2023. The government cannot remove tens of thousands of refugees to Rwanda per year and the scheme will not have a deterrent effect sufficient to reduce the numbers arriving to the hundreds or maybe low thousands that could perhaps, in theory be removed.
So, if the asylum system is to be repaired rather than replaced, what would that involve?
The territorial asylum model established after the Second World War is the least worst option available. The Refugee Convention was negotiated over the course of several years by diplomats, not ‘activist lawyers’. Those government representatives had in mind the failures of the various treaties in place before the Second World War, the present and future needs of refugees from the looming Cold War and the past refusal of many states, including the United Kingdom, voluntarily to admit refugees to their territories. A compromise was reached between state sovereignty and refugee safety: states have a right to try to prevent entry unless that would cause the refugee to be persecuted. But if a refugee does manage to enter a country, they should not generally be penalised for entry and would gradually accrue certain rights.
Neither state parties nor refugees have cause to be satisfied with that compromise. It has rapidly become traditional for the latest Home Secretary to make a grandstanding speech suggesting a new international agreement is needed. The reality is that no other solution is ever likely to be negotiated and agreed to replace the international settlement that has now been in place for nearly 75 years.
Is the asylum system really broken?
There are two totemic symbols of government failure on the issue of asylum.
The first is the dramatic increase in small boat crossings. These accelerated from zero in 2017 to 45,000 in 2022 before falling back again to 30,000 in 2023.
The second is the scale of the asylum backlog the government allowed to accrue, along with the corollary need to house asylum seekers in hotels around the country and the immense cost of doing so. The backlog peaked at some 175,000 outstanding decisions in June 2023 and had fallen to around 130,000 cases by the end of 2023.
There are other related issues, particularly the sheer bureaucratic hostility asylum seekers experience within the asylum system and their integration into society. But small boat crossings and the backlog are the two stand out issues. Solutions to these problems might well address the other issues at the same time.
Small boat crossings
Small boat crossings are beyond the direct control of the British government, although there may be indirect means of influencing the number of crossings. Agreement with the countries of departure to prevent people leaving or to accept peremptory returns might well have an impact.
Contrary to popular understanding, this was what reduced boat arrivals in Australia. The Australian authorities were able to detect and intercept a small number of large boats in the large body of water surrounding Australia and then safely take them back to the country of departure, such as Indonesia. This required the agreement of those countries of departure, something that requires an incentive. There has been little sign that the European Union as a whole or individual departure countries are interested in negotiating any such arrangement with the United Kingdom.
It is popularly believed that an alternative or complementary strategy is also available: treating refugees so badly once they reach the United Kingdom that this will deter others from following in their footsteps. This seems like common sense and has the apparent virtue of being actionable on a unilateral basis. But there is no real-world experience or research to suggest deterrent policies actually work. Refugees are not a homogenous group, networks of communication are highly incomplete and complex and the idea that desperate people with literally nothing to lose who are willing to repeatedly risk their lives can be deterred is inherently unrealistic. Reducing small boat crossings is therefore a very difficult challenge. Agreement with departure states might potentially make a difference but is very hard to secure.
The government’s apparent success with reducing arrivals in 2023 is not what it first seems and is likely unlikely to affect a long-term upward trend. There was a sudden and dramatic increase in the arrival of Albanian nationals in 2022, particularly young men. This ended soon after it began. There has been some suggestion the fall was due to an agreement reached with the Albanian government to facilitate rapid returns. In reality, the fall appears to have begun before that. It may be due to other actions by the British government but probably not the inter-government agreement.
The asylum backlog
The second major issue is the backlog of undecided asylum claims. Unlike small boat crossings, this falls squarely within the power of the United Kingdom government to manage. The backlog has created huge financial costs for the taxpayer. The mental imagery of asylum seekers staying in hotels has been politically toxic. The backlog is also terrible for the refugees waiting interminably for a decision. Their lives are on hold, they live in destitution-level support in unsuitable and temporary accommodation and they are prevented from working or doing anything productive. Some 75% are eventually being recognised as refugees and becoming permanent members of British society. Making their lives so miserable and difficult rather than helping them get on their feet is not good, long-term public policy. And, as we will see, barely anyone who is refused asylum leaves the country at the end of the process anyway.
The only group to benefit from the long waiting times are those whose cases will ultimately fail; by the time that happens they will have been living here for years and it will be even harder for the government to remove them than would otherwise have been the case.
The asylum backlog has therefore been an entirely avoidable public policy and political disaster of epic proportions. Public faith in the asylum system and the government’s competence has plummeted. The costs have been truly immense. And those costs have been met by raiding the international aid budget; a third of the already-reduced international aid budget last year was spent within the United Kingdom on housing refugees waiting for decisions from the Home Office.
To deal with the backlog, the government very belatedly recruited more officials to decide asylum claims. As late as the end of 2021 there were only 600 decision-makers in post. Braverman, during her second stint as Home Secretary, said she planned to have 1,300 caseworkers in place by March 2023, a target she managed to hit. Sunak then pledged in December 2022 to double the number then in place, which meant reaching a total 2,400 caseworkers. That number was hit in August 2023. This increase in staffing was matched by targeted reforms to the asylum process. Nationals from countries with a high asylum success rate were granted asylum without a time-consuming substantive interview. Albanian nationals were targeted for withdrawal or refusal of their asylum claims. There are limits to these shortcuts, given that officials have essentially run out of high grant rate nationalities and Albanians to process. Nevertheless, the asylum backlog is now considerably reduced from its peak and the number of staff in place combined with the high-level attention now being paid to the backlog within the department should mean that progress can be sustained.
That is, unless the government deliberately decides to stop processing asylum claims by implementing the Illegal Migration Act.
With the issue of the backlog of initial decisions on the mend, policymakers are now looking ahead to other issues. There are essentially two: what to do with asylum seekers whose claims are successful and what to do with asylum seekers whose claims are rejected. Supporting successful refugees can be relatively straightforward and also inexpensive. It is the second group who therefore raise the most difficult challenges. Many will lodge appeals which must then be determined. Those whose claims are rejected again should in theory depart from the United Kingdom voluntarily or involuntarily.
Lots of newly recognised refugees
The number of asylum decisions soared from 19,000 in 2022 to an astonishing 75,000 decisions in 2023. Of those, 50,000 decisions were grants of asylum. What happened next tot hose who were granted asylum? This is not an academic question. The initial decision backlog still stood at 95,000 cases at the end of 2023. There were nearly 70,000 new asylum applications last year. And in recent years around half of those initially refused asylum go on win on appeal, meaning a substantial proportion of those who are initially refused asylum will go through the same process in due course.
Newly recognised refugees will sometimes have been waiting years for a decision. During that time they are generally prohibited from working or studying, live on destitution-level support of less than £49.18 per week — or just £8.86 per week if accommodated full board in a hotel — and are housed in disused barracks, barges or sometimes isolated hotels. They then have 28 days’ notice between receiving proof of their new immigration status and being evicted from their Home Office asylum accommodation. Asylum seekers are generally prohibited from working, which means they have a very short space of time to find a job, get paid some money and find accommodation. It is an all but impossible task.
It was made considerably worse in 2023 by a deliberate change in policy to start the 28 day period from receipt of the decision granting asylum instead of receipt of the formal immigration status document. There is often a delay of several weeks between these events. Because of the suite of hostile environment laws, employers, landlords and banks will not interact with a person without formal proof of their status, meaning that newly recognised refugees were left with just days to find new accommodation and a way to pay for it. Unsurprisingly, many became homeless. Those who understood the system approached their local authority for help, leading to local housing services being overwhelmed.
Some simple changes would ease the transition and save money.
Allowing more asylum seekers to work while waiting for their decision would mean they no longer needed asylum support at all from the Home Office and would also mean they were already standing on their own feet when they received a positive decision, as many eventually do.
Not every asylum seeker will be able to work or find work. For them, extending the move-on time between receiving their positive decision and being evicted from asylum accommodation would give them a better chance to find accommodation — which will often require them to find work first — and give local authorities more time to help them if necessary. The Red Cross has for years been recommending increasing this period to 56 days. It would cost the Home Office a little more but save money for local authorities.
An improved integration package, for example including language and career training, could also help these newest members of British society.
At the moment, refugees are granted five years’ of permission to stay and have to apply separately for settlement at the end of that period. Almost everyone who applies for settlement gets it, although some fall through the cracks when they omit to make the application. This grant of temporary permission makes it harder to find decent work because employers are reluctant to invest on a person who on the face of it look like they are required to leave the country on a given date. It also pointlessly creates more work for government officials and more uncertainty for the refugees themselves. Granting settlement to newly recognised refugees is another money-saving reform that would positively help with integration.
Lots of appeals
A total of 25,000 initial applications for asylum were rejected over the course of 2023. Many of these rejected asylum seekers will lodge appeals. Only 8,000 appeals were processed the previous year, so the increase in the number of asylum refusals presents significant challenges for the tribunal system and the Ministry of Justice. It is a situation that is likely to get worse because the percentage of asylum decisions which are refused is expected to increase now that many positive decisions have been fast-tracked. The initial decision backlog is shrinking. But the appeal backlog is growing.
Judges, court rooms and claimant lawyers are not so easy to recruit and deploy as lower grade civil servants. There is already a shortage and it already takes over a year for an asylum appeal to be heard. Legal aid rates for asylum work are so low that there are few asylum lawyers left willing to do the work any more. This may well be a cause for celebration for some but it risks serious unfairness and causes significant problems in the tribunal system. Unrepresented litigants are far harder for judges to deal with fairly and the processing time for appeals will increase further. Already, even before the increase in the number of appeals being lodged, around half of asylum seekers were unable to find a legal aid lawyer. That proportion is going to fall.
The backlog of appeals is a significantly harder problem to solve than the initial backlog of decisions. During the appeal process, asylum seekers continue to be accommodated by the Home Office. A protracted appeal process is therefore expensive. Although more resources will be needed to process appeals, there are plenty of good reasons to invest more in the short term.
Very few removals
There are two potential outcomes from a refused asylum claim. One is that the failed asylum seeker departs from the country. This departure might be voluntary or involuntary. This is the logical outcome of conducting an expensive asylum determination process; many would accordingly expect this to be the usual outcome. The other possibility is that the person remains in the country without permission even though their asylum claim has been rejected. In reality, this is overwhelmingly the standard outcome for failed asylum seekers.
Enforcing removal is often a difficult and violent process. Getting a person onto a plane who does not want to be there requires a high degree of persuasion or threatened or actual use of force. This is so even where the person is being removed to a country with which they are familiar. Removal to an unfamiliar country in which the person considers they have no viable future is likely to be even harder. Accounts of the level of resistance to removal on the aborted Rwanda flight in 2022 make harrowing reading.
Voluntary removals rely on persuasion and incentivisation. Those signing up will often qualify for a grant of money, the optics of which are unappealing from a media and political perspective. But such grants are in reality likely to be very considerably less expensive than enforced removals.
If we look at the statistics on asylum decisions, they are classed either as grants, refusals or withdrawals. Refusals and withdrawals present the same issue: what to do with the person who no longer has a pending asylum claim. Some of those who withdraw their asylum claim will make a voluntary departure. But a very high number do not. A National Audit Office report in June 2023 revealed that many of these ‘withdrawals’ were actually what lawyers call non-compliance refusals: the asylum seeker failed to return a form on time, did not turn up to an appointment or something like that. Some asylum seekers may genuinely have deliberately disappeared. But experience suggests the Home Office is bad at logging changes of address, posts things to the wrong address anyway and that a certain proportion of these decisions will turn out to be wrong.
To illustrate the point, consider the number of Albanians who arrived in 2022 and what happened to them. Between March 2022 and December 2023, 17,000 asylum claims were made by Albanians, the vast majority during 2022. In that same period, 12,000 Albanian asylum claims were withdrawn. That is three quarters of all withdrawn asylum claims. Only 4,170 Albanians made voluntary departures since March 2022, though. A further 3,175 were forcibly returned, making a total of 7,345 Albanians who made enforced or voluntary departures during that period. More than half of the Albanians who arrived still remain in the United Kingdom, even though many had their asylum claims treated as withdrawn. Albanians are illustrative but also unusual. Around a third of all enforced removals were of Albanian nationals. While many Albanians may remain in the United Kingdom, the percentage of other nationalities who remain in the country at the end of an unsuccessful asylum claim is a lot higher than that.
Very few asylum seekers have been removed or voluntarily departed from the UK in recent years. This may be in part because there have been fewer failed asylum seekers to remove because of the comparatively low number of claims, the high grant rate and a lower volume of decisions. However, the long term trend looks a lot like diminished state capacity to enforce or encourage departure of failed asylum seekers. In total, there have been just over 100,000 asylum refusals and withdrawals in the last five years. In the same period there have been 15,000 enforced and voluntary asylum returns.
The reality is that even those who lose their asylum cases — a relatively small minority at the moment, given the rise in the grant rate — are likely to remain in the United Kingdom in the long term.
Immigration detention
Immigration detention is supposed to be for the purpose of removing those with no permission to remain in the United Kingdom. Immigration detention centres are formally called ‘removal’ centres. However, the number of detainees leaving detention to be removed from the country has fallen drastically since 2010. Around two thirds are now released into the community. This calls into question whether a decision to detain these people was the right one. The cost of holding a person in immigration detention is around £90 per day.
Immigration detention spaces are very limited compared to the number of failed asylum seekers, particularly bearing in mind that detention spaces are also needed for foreign national offenders, overstayers and refused entrants. Unless a government is willing to build large and expensive prison camps and then also use them — meaning long term detention of some, dawn raids, self-harm, suicides other manifestations or consequences of that degree of state coercion — the number of detention spaces is never likely to be sufficient to remove all those the government in theory wishes to remove. Detention is always therefore likely to be arbitrary, in the sense that it is a matter of good or bad luck whether any given individual in the pool of potential removees is actually detained and removed. Effectively, all it is being used for is to punish a small sample of a wider class of person.
If detention is to be used on a more rational basis, the issues are around how Home Office resources are organised and allocated, what groups if any are targeted for removal and what safeguards if any are used to prevent discrimination, abuse and the selection of ‘soft’ targets. For example, detaining for a prolonged period a foreign national offender who is never likely to be removed means that one detention space is blocked for a substantial period. The purpose is to give the department short-term political cover but it comes at the cost of not being able to use that detention space for other purposes. It is obviously bad for the detainee, it is pointless aside from the political cover it provides and it is actively harmful to wider departmental objectives.
The drift in recent years away from the use of detention for the purpose of removal is likely to be the result of a lack of focus on these difficult issues.
One simple reform that might force ministers and officials to put their house in order and use resources more effectively would be to introduce a 28 day limit on immigration detention. There are two ways this would help.
At the moment too many asylum seekers and foreign national offenders are detained for too long before being released into the community. Detention is totally pointless in such cases. A limit on the length of detention would end this misuse of resources.
Decisions to detain are currently opportunistic rather than planned. A person is encountered and detained without any investigation into or consideration of how or whether they might really be removed. Setting a limit on the maximum period of detention would force officials to do some advance planning before exercising the power of detention so that they removal was a realistic possibility before a person was taken into detention. Detention should be a genuine last resort. A person should be given a chance to take legal advice and make a voluntary departure before they are detained, not after.
Can the asylum system be repaired?
The United Kingdom asylum system is indeed broken. Politically-driven schemes like the noise around marine push-backs and Rwanda, the degree of departmental energy funnelled into unworkable, pointless legislation, the increased number of age disputes raised and similar have made the situation worse not better. It is kind to describe these activities as pointless. At best they represent an opportunity cost; the time spent on these activities could have been more effectively spent doing something else. In truth they are often counterproductive. Not only do they distract ministers and senior officials but they also actively make it harder to achieve purported objectives by creating yet more work for already over-stretched officials with limited capacity.
The asylum backlog is finally coming down, though. This is creating new problems but these are, for now, less visible and of less interest to the media and public. This creates some breathing space. With recovery underway, ministers and managers need to think about prioritising resources. This has to mean doing less of some things in order to do more of others.
The asylum system is not beyond repair. It requires competent focus on the boring day job instead of being distracted by pointless or counterproductive gimmicks. The Illegal Migration Act would make things worse if it were implemented. The idea that the Home Office is going to remove to Rwanda all of the tens of thousands of refugees still waiting in the existing backlog plus all those who are still arriving day by day is a fantasy.
Recent administrative changes show that positive asylum decisions can be made much, much faster than in the past. It took far too long to learnt his lesson. After all, it is not that hard to grant asylum to an Afghan, Eritrean, Sudanese or Syrian given they have a 98% grant rate or more. All officials needed to do was establish nationality, conduct security checks and issue the grant letter. Banned by ministers from consulting NGOs, the Home Office made entirely avoidable mistakes by issuing long, complex forms only in English and failing to fund any help to fill them in. Operating out of an isolated bunker is not an effective way to get things done.
The treatment of refugees in the backlog and when they receive a positive decision should be reviewed. Allowing asylum seekers to work after six months waiting for a decision would mean fewer becoming homeless when they are granted asylum, for example. Even just giving them a bit more time between receiving their immigration papers and evicting them might reduce the number who end up homeless. A support and welcome package for newly recognised refugees should be introduced, which would save money in the long run.
More resources urgently need to be channeled into asylum appeals and legal aid. The appeal success rate remains very high, suggesting that many unnecessary appeals are being lodged. Proper, realistic reviews of pending cases might reduce the appeals backlog and save considerable time and money. Monitoring of officials who wrongly refuse applications or reject an appeal review should be introduced. While there are upfront costs to these measures, any reduction in appeals and appeal waiting times saves the Home Office on the asylum accommodation bill.
The department’s approach to detention and removal needs reviewing. What is immigration detention really for? If relatively few failed asylum seekers can be removed then does the department want to focus resources on particular groups and what should happen to the rest? Is it acceptable to simply add them to the unauthorised resident population and allow them to regularise only after they have children or live below the radar for 20 years, as at present? The voluntary departure scheme needs reviewing and boosting. A targeted or earned regulation process would recognise the reality of the situation. For example, a form of tolerated status enabling failed asylum seekers who cannot be remove to work and earn their way to regularisation could be introduced, as currently operates in Germany.
The fundamental change in the asylum grant rate combined with the low number of asylum removals and departures, suggest it is time to scrap the deterrent policies established in the 1990s and early 2000s, when far fewer asylum claims succeeded. Michael Howard, then Home Secretary, told Parliament in 1995 that only 4% of asylum succeeded as did a further 4% of appeals. The ban on the right to work, the destitution-level support offered instead, the sometimes squalid accommodation and camps and the highly bureaucratic, faceless asylum process all absorb vast Home Office resources to administer. Deterrent policies, which belong to a bygone age, deter no-one. They merely serve to punish refugees who will ultimately get to stay in the United Kingdom in the long term. It is their interests and ours to help them integrate as soon as possible rather than first forcing them into a demeaning purgatory.