Why the UK's New Plan for Immigration misrepresents the facts and could be in breach of the law

Professor Helen Stalford is Professor of Law in the University of Liverpool Law School and Principal Investigator on the ESRC funded 'Lives on Hold: Our Stories Told' - The Legal and Social Impacts of Covid-19 on Young Unaccompanied Asylum-Seekers in England project.

Home Secretary, Priti Patel’s, recent announcement of a New Immigration Plan, aimed at radically overhauling the UK’s immigration system, is the latest indication of the Government’s increasingly hostile and distorted perception of the motives, needs and rights of the most vulnerable migrants. Among other things, the reforms aim to significantly limit the circumstances under which migrants can claim asylum or other forms of protection in the UK, impose new restrictions on the availability of leave to remain for those who have entered the UK ‘illegally’, and introduce stricter age assessment processes for children and young people who arrive on their own.

Researchers involved in the Lives on Hold, Our Stories Told (LOHST) project are concerned that the New Immigration Plan is likely to have particularly injurious consequences for children and young people seeking asylum, the very group that the Immigration Plan alleges to protect. Indeed, the proposals are based on a misrepresentation of the empirical evidence, and potentially breach international law.

Importantly, initial responses from young unaccompanied asylum seekers involved in the LOHST project highlight how the very announcement of these proposals, even before they have been implemented, are heightening anxieties and uncertainty to an unbearable level, and compounding the risks of young asylum seekers being exploited or going missing.  As one young person expressed:

Do you know how we’re all feeling? Frightened, having nightmares. Everyone thought that this period (of COVID-19) had made people reflect, had made people feel and see what it is like to be locked, scared and hopeless. But I guess we were wrong. All our dreams and hopes have been destroyed. Right here, today, I am more scared than ever.

The ‘deserving’ migrant

The UK’s new asylum plan seeks to create a reward and punishment system for supposed ‘good’ and ‘bad’ refugees, determined on the basis of whether they have entered the country ‘legally’ or ‘illegally’. In fact, the Refugee Convention, which is binding on the UK authorities, makes no distinction based on the circumstances of entry. Rather, it offers protection to anyone who is outside their country of origin and ‘has a well-founded fear of persecution for reasons of race, religion, nationality or membership of a particular social group’. If adequate state protection is not available in their country of origin, they cannot be returned, regardless of their mode of entry into the state considering their claim. Those protected by the Convention usually flee their countries and seek refuge in other countries spontaneously, even if that means entering via ‘illegal’ routes. To confine protection to those who arrive via legal routes alone, would allow countries such as the UK to significantly limit its obligations with respect to international protections  simply by restricting the number of so called ‘legal routes’ of entry.

Two other young asylum seekers on the LOHST project noted points to this effect:

Refugees fled their home illegally because they are forced to and don’t have the luxury of choosing a safe legal route.

Asylum seekers/ refugees fleeing persecution or life-threatening reasons cannot always find a legal way of travelling. Does this really make a claim not “genuine”?

We often wait years for the claim to be heard, housed in sub-standard accommodation. Many of us are clinically depressed, desperately worried about our future and barred from working or studying. Now the home secretary has decided that our lives are not miserable enough, and must be made more so by the knowledge that the leave to remain could be revoked at any time. If this isn’t entirely unreasonable and inhuman I don’t know what is anymore.

Another young person described the Hobson’s Choice of his migration trajectory

My dad sent me away at the age of 17 in the hope of a safer life. As far from that horrifying life I was living, I was constantly thinking that the air I was breathing would be my last. I was sent away because of a blood feud…I was banned from my friends and family for something I hadn’t even done. Life has never got easier for me. From a blood feud, to a runaway immigrant, to a slave trying to survive, to a teenage boy living in a car wash.

In fact, the UK’s so-called ‘legal’ routes of entry are increasingly limited in scope, especially for unaccompanied asylum-seeking children. Specifically, following Brexit, the UK withdrew from the Dublin III Regulation, which previously enabled unaccompanied child asylum seekers who had already entered other EU Member States to enter the UK for the purposes of being reunited with family members and having their claims assessed in the UK. In 2016, 558 children arrived into the UK under the Dublin III Regulation, increasing to 1676 across 2017 and 18. In 2019 a further 164 children were transferred via this provision. The UK Government has yet to replace the Dublin III Regulation with an alternative system, meaning this route of entry is currently unavailable. Another recognised ‘legal’ route no longer available to children is the so-called ‘Dubs transfer scheme’, introduced under Section 67 of the Immigration Act 2016 after its main proponent, Lord Dubs, committed the government to transferring a limited number of vulnerable unaccompanied asylum-seeking children (UASC), particularly from the Calais refugee camp and other refugee camps across Europe. However, the scheme was discontinued in the summer 2020 after the UK met its modest quota of re-settling only 480 children, leaving thousands of unaccompanied children still stranded in refugee camps across Europe. Reacting to the New Immigration Plan, Lord Dubs commented: ‘the Home Office has closed the only two legal routes for refugee children stranded in Europe, leaving many children in highly perilous situations.’

Another unaccompanied young person seeking asylum involved in the LOHST project reflected on these points from his own personal experience:

Priti Patel’s new immigration rules are making this hostile environment that has been created way more hostile and there is a complete lack of empathy. We are people that have been through a lot and we have not chosen to come in the UK in a certain way. Life has made us. A lot of people die while trying to cross the border and I fail to see how she can make us have less entitlements because of something that wasn’t in our hands. The fear of being returned back home at any time…is completely unhuman and it’s something that will be at the back of our minds and will not allow us to build a safe future for ourselves.

Age Assessment Changes – The Climate of Disbelief

The majority of child refugees arriving in the UK have no documentation to prove their age and may, therefore, be subject to an age assessment. The New Immigration Plan proposes more stringent age assessment, which could be triggered when a young person appears to be ‘significantly over 18’. The current policy requires that the young person’s physical appearance and demeanor suggests they are over 25 years of age before age assessment will be requested. The plan also proposes the use of ‘new scientific technology’ to assess age, and the possibility for immigration officers (as opposed to social workers and other qualified professionals) performing the assessment. This is in spite of evidence from the Royal College of Paediatrics and Child Health that there is no single reliable method for accurate age assessments, particularly when the difference between childhood and adulthood might be a matter of months rather than years. Studies have shown that early life adversity, specifically where threat is a factor, accelerates ageing in young people. [1] Furthermore, it has been recognised by Coram Children’s Legal Centre that ‘there are wide variations in young people’s growth [and] ages of puberty’ between national and ethnic groups. Therefore, a child refugee is likely to appear older than their age, which presents the risk that their age assessment may not be accurate.’ With this in mind, it is widely accepted that age assessments must be holistic, beginning with each child’s ‘detailed history’, and a deep appreciation of the specific context of their individual migration journey.

There is no such provision in the New Immigration Plan to meet these requirements. Instead, the perverse logic underpinning the proposed reforms to age assessments is to ‘safeguard against adults claiming to be children’ in order to claim the additional protections available to them. The proposals state: “We cannot take lightly the very serious safeguarding risks if people over 18 are treated as children and placed in settings, including schools, with children. As well as the obvious safeguarding risks, it also reduces the resources available to help other children.” (p.22). This position places child asylum seekers on the backfoot and ignores the fact that there is statutory obligation on the government and its agents to safeguard and promote the welfare of children who are in the United Kingdom, in all immigration and asylum decision-making and processes.[2] This includes guarding against the reverse risks of wrongly assessing children to be adults, and thus inappropriately placing them in accommodation and other services along with adults.

The Fallacy of the UK’s Generosity

The Government presents its New Immigration Plan as ‘fair’ and consistent with a generous approach to asylum, asserting that ‘in 2019 alone, the UK received 36,000 new claims, a 21% increase on the previous year.’ In fact, current data indicates that the number of individuals offered asylum, leave or resettlement in the UK has fallen to its lowest level since 2014, 52% lower than in 2019. Pre-Covid, the UK granted asylum to 14,995 applicants in 2019. Germany granted asylum to nearly five times more applicants in the same period (70,320); France to twice that number (28,140) and Spain to 38,420. Greece, with a population of about one-sixth of the UK and a more fragile economy, granted asylum to 17,350 claimants in the same period.[3]

The Government further states that in 2019 the UK received ‘more’ asylum claims from unaccompanied children than any other European country. However, reports from UNICEF suggest that for the first half of 2020, out of the total number of children seeking international protection in Europe, 5% were registered in the UK compared with 37% in Germany, 14% in France, and 12% in Greece and Spain each.

Increased Delays and Hostility

The Immigration Plan suggests that its new ‘tough love’ approach to immigration decision-making will improve fairness and efficiency in a system that is characterised by delays and hostility. In reality, many of those delays are due to repeated appeals against unfair or ill-founded decisions, or hostile age-assessments. Indeed, many child asylum seekers ‘age out’ of the special protections and support available to children whilst awaiting a decision on their claim.

There is already an enormous backlog in asylum decision-making (estimated to be in excess of 56,000 outstanding claims) which has been further exacerbated by interruptions in asylum processes as a result of Covid-19. It is difficult to see how the proposed New Plan – with its questionable interpretation of the government’s international legal obligations - will reduce the likelihood of delays given the amount of appeals to which it is likely to give rise.  This point is captured by another one of the young people in the LOHST project

It won’t let us build a future.

The system is already broken with all these obstacles and delays in the processing of application and appeals.

Now, added to that is the stress of being returned back at any time.

In short, the New Immigration Plan, described by young asylum seekers as ‘cruel’ and ‘inhumane’, treats vulnerable migrants in need of protection as if they are criminals.  It will significantly compound what is already a widespread sense of social and legal paralysis and will exacerbate rather than reduce risks of exploitation and abuse.

The LOHST project team is grateful for the support of Jade Macari and Kellie Trebble in drafting this article, and for the direct input of the young unaccompanied asylum seekers who are co-researchers on the LOHST research project.

If you have any questions, or would like to find out more about LOHST, please visit www.liverpool.ac.uk/law/research/european-childrens-rights-unit/campaigns/lives-on-hold-our-stories-told/ or email LOHST@liverpool.ac.uk

[1] Colich, N. L. et al. (2020) ‘Biological Aging in Childhood and Adolescence Following Experiences of Threat and Deprivation: A Systematic Review and Meta-Analysis’, Psychological Bulletin, 146(9), pp. 721–764

[2] s.55 Borders Citizenship and Immigration Act 2009

[3] Eurostat data for the year ending 2019 (this is the most recent year with full comparable data across all EU Member States  - MIGR_ASYDCFSTA).