New report: Can asylum processing be fast and fair?

Australian Kaldor Centre looks to Switzerland for lessons on asylum processing

Random picture of Switzerland. Photo by Tran Mau Tri Tam ✪ on Unsplash

The Australian Kaldor Centre published an interesting report today, A fair and fast asylum process for Australia: Lessons from Switzerland. The authors are respected academics Daniel Ghezelbash and Constantin Hruschka.

Essentially, the report suggests that accelerated asylum processes should be the default, that around nine months from start to finish is about the right time period to decide cases fairly whilst also safeguarding fairness for applicants, that there should be an escape route for complex cases and that the asylum seeker should be actively involved in the process. For example, interviews should be translated back to asylum seekers for verification and independent legal representation should be provided.

This is the summary set out in the report:

1. Upon lodgement of a formal asylum application, applicants are fingerprinted, given information about the procedures by an independent service provider (often an NGO) and informed about the availability of free legal representation. Applicants who do not waive the right to legal representation are assigned a lawyer. The assigned lawyer is present at all interviews conducted by the authorities.

2. Application filing is followed by a preparatory phase that lasts up to 21 days. In this period, the SEM conducts an initial (recorded) interview, which is retranslated back to the asylum seeker for verification. The purpose of this is to screen for vulnerabilities and gather information about the identity, age and country of origin of the applicant and the route taken to reach Switzerland.26 At this stage, the first triage takes place, with the SEM deciding whether the application should proceed, be cancelled or be found inadmissible.

3. Provided that the application is not cancelled or found to be inadmissible, the accelerated procedure begins immediately after the preparatory phase. It starts with the SEM conducting a second hearing on the applicant’s reasons for flight, after which the second triage takes place, with a determination made as to whether the decision can be made within eight working days under the accelerated procedures, or whether it should be transferred to the extended procedures for further investigation.

4. Where a decision is made under the accelerated procedures, the legal representative is provided with a draft decision and 24 hours in which to provide feedback. The SEM is required to take this feedback into account before issuing the final decision.

5. Where an application is transferred to the extended procedures, the timelines are more flexible, but the general target is to have cases finalised within one year. The extended procedures can include an additional interview, as well as investigations into the identity and country of origin of the applicant, medical examinations, consideration of further evidence and credibility assessments.

6. Applicants who are refused at any stage may submit an appeal to the Federal Administrative Court, which is generally the only review mechanism available for asylum matters. The court has the power to review both the merits of the application as well as errors of law made by the SEM. Applicants in the accelerated procedures must apply for review within seven working days,30 while the deadline for lodging reviews for applicants in the extended procedures is 30 days.

In Switzerland cases used to take around four years and now the average is about 100 days. The recognition rate has remained stable throughout the reform process, at around 60% of cases being granted.

What can we learn in the UK?

That 60% grant rate is the same as the current UK rate. Historically the UK grant rate was something like 20-30%, rising to around 50% in 2019 then as high as 75% (while strong cases from places like Syria and Afghanistan were being prioritised) and then falling back to around 60% more recently.

The UK has already adopted some of the recommended measures in order to process the asylum backlog. Not so much the safeguards, unfortunately. The current UK asylum process is very much something that is done to asylum seekers rather than with them. There’s always going to be an element of that in an asylum process but it could be mitigated by proactively providing resources to asylum seekers and involving them and their representatives more actively in the process.

There is huge political, financial and administrative pressure to simply process the backlog of initial asylum decisions here in the UK. It is understandable that short cuts have been adopted. Some of these are extremely short sighted, though, such as treating cases as withdrawn when really they are not and the person concerned remains in the country.

It would be good to see the new government start to think about how to reform the asylum process in the longer term, for once the initial decision backlog has been reduced. Properly screening for vulnerability, providing translations and actively involving legal representatives could all be part of that. Some pro-active support with integration for successful applicants is also important. The current approach is incredibly laissez faire.

In some ways, the UK asylum backlog of initial decisions is a solved problem. Although there is still a substantial backlog at the time of writing, it is being rapidly reduced. No new measures are needed in order to maintain that trend. As I’ve written previously, there are new emerging problems which are more intractable.

How about appeals?

The most pressing of these emerging problems for political and short term financial reasons is the asylum appeals backlog. This is less of an issue than the initial decision backlog because it is smaller: around 60% or more of initial decisions are positive, remember. But it is harder to deal with. I’m quoted in The Times this morning about this:

Appeal waiting times are going through the roof because of the need to work through the last government’s asylum backlog. The grant rate is still quite high at around 60% but the sheer volume of decisions means there are far more refusals than normal: nearly 40,000 in the year ended June 2024 compared to 7,000 the year before.

There simply aren't enough judges, hearing rooms and lawyers to process all those cases in a timely way. In the meantime the asylum seekers still need to be accommodated while they wait for their appeals.

More resources are needed for appeals in the short term and then once the backlog is cleared, the asylum system can go back to running at a fraction of the cost of recent years.

There is nothing in the Kaldor Centre report on asylum appeals. There is a review process in Switzerland but the report says nothing about it.

Dealing with appeals quickly and fairly is challenging. It is far harder to scale up and down the number of judges, hearing rooms and lawyers necessary for appeals compared to the number of junior civil servants deciding initial decisions. On the current UK appeals model, more resources are needed. And any reforms to the appeals process will be too late to deal with the current appeals backlog.

The new government has said nothing about how it will address the appeals backlog. It was a problem of which Labour’s home affairs advisers were aware before the election — I raised it with them and I imagine others did too — and it is something that civil servants have no doubt considered. But there’s been no external communications about any plans the new government has developed in the short time they’ve been in office so far.

As the initial decision backlog reduces, the attention of journalists is increasingly going to turn to the new appeals backlog. The government needs a plan.