The last couple of weeks have been intriguing for an immigration practitioner. Since the appointment of Theresa May as Home Secretary in 2010, the lives of those seeking refuge or simply a better life have become manifestly worse as the ‘hostile environment’ policy pushed them to the edges of society. The reality of the ‘hostile environment’ is that those who cannot prove their right to remain in the United Kingdom are being prevented from accessing services such as employment, housing, bank accounts and medical care as well as finding it impossible to regulate and obtain leave to remain through the tightening of the immigration rules, the culture of disbelief in asylum claims, cuts in legal aid and a hike in application fees. These policies have brought untold misery to those affected by it.
This policy has continued full steam ahead for the last eight years, with Theresa May’s immediate successor Amber Rudd continuing the ‘hostile (now ‘compliant’) environment’ policy, trying to find even more ways to cause harm to this class of people. The policy includes turning the population of the United Kingdom into immigration officers; civilians are forced to report people they believe to be breaking the stringent and complex immigration laws.
There was no sign of this policy ending and it seemed to be accepted as legitimate by much of the population, the media and the political opposition.
However, with the uncovering of the ‘Windrush Scandal’, the Home Office were suddenly being accused of causing horrendous harm to British citizens, with Home Secretary Amber Rudd being forced to apologise five times for the actions of her department towards the Windrush Generation and for misleading parliament. The intriguing aspect of this sorry account is that the Home Secretary for the first time in memory showed remorse for her actions towards the intended victims of the ‘hostile environment’.
The impressive and diligent reporting by journalists such as Amelia Gentleman in uncovering this scandal has also cast light upon the ‘hostile environment’. There appears to be a growing sense that the UK Government should not be treating anybody like this. Rudd pledged that she ‘will work to ensure that our immigration policy is fair and humane’ and one of her apologies revolves around not seeing the victims of her policy as human beings.
She was not able live up to this pledge as she was forced into resignation shortly afterwards.
It remains to be seen whether the unravelling of the Windrush Scandal will lead to a different and more compassionate Home Office under Rudd’s successor Sajid Javid. The viciousness and lack of regard for individual human beings is so ingrained within the department that it seems highly unlikely that such a cultural change can happen without significant surgery. In any event, it is far more likely that the Conservative reaction to this scandal is a political one, trying to defend the indefensible and pledge that it won’t happen again, rather than a sincere commitment to change.
One of the major areas of the hostile environment that desperately needs major changes is the asylum system.
One of the foremost principles of the UK legal system is that it is adversarial. Whilst other countries pass the responsibility to independent decision-making bodies, in the UK the legal system is designed to have qualified legal advisors representing each party. Of course, with the legal aid cuts of 2012, there are now great swathes of the law in which people are now not entitled to legal aid representation.
It is clear to anyone working in asylum law that the Home Office has systemic faults in its asylum decision making apparatus.
It seems as if the majority of asylum-seekers are found to be ‘not credible’ by the Home Office in the initial asylum decision. This means that the Home Office staunchly believes that these men and women, who have travelled for thousands of miles from warzones and from repressive regimes, are attempting to lie and cheat their way to stay in the United Kingdom.
Why is this necessary? Why can't the Home Office treat asylum-seekers with compassion and justice?
Part of the reason is incompetence and lack of training combined with cynicism.
2016 saw the shocking revelation that the Home Office were recruiting gap year students to decide asylum claims.
A whistle-blower in 2017 articulated their concern about the damage that these attitudes were having towards those in their hour of need:
If we don’t start taking this seriously – putting proper resources and support in place, and actively trying to retain staff instead of letting them burn out – the people who suffer most will be those who have turned to us for help in their darkest hour.
A further whistle blowing article in 2018 described the abject failures of the asylum ‘lottery system’:
“It affects the quality of the decisions,” said one whistleblower. “By the time you have been through the photos, the file, the news reports, it’s three o’clock and then you have to draft a report [a decision on someone’s claim, which can often be more than 20 pages long]. Can you do that in two hours?”
The Home Office have a fairly reasonable and nuanced policy for asylum decision makers to follow: Assessing credibility and refugee status. However, decision-makers routinely fail to pay lip service to their own guidance. Instead interviewees will be badgered by the interviewing officer with the intention of getting them to slip up, to be guilty of ‘inconsistencies’ in their accounts which are then used to undermine an entire claim (leading to a conclusion that they are entirely ‘not credible’). Another tactic is to manipulate and underplay country evidence to lead to the ultimate refusal.
The inevitable result is a generic, nonsensical and poorly reasoned refusal. An asylum-seeker must just be advised that this is what the Home Office is like.
Even after a refusal, the Home Office will make a final effort to tarnish the credibility of an asylum applicant in the Immigration Tribunal. Presenting Officers are rarely legally trained and will sometimes spend just a few minutes reviewing asylum papers before trying to persuade a judge that the asylum-seeker should not be granted international protection.
Sadly, their attempts often work, and the asylum-seeker is either condemned to go back through the system, seeking permission to appeal, or as is often the case, forced into the position of ‘Appeal Rights Exhausted’, where the ‘hostile environment’ makes them barely considered a human being.
A Tribunal Judge speaking at a bar council event gave a rather apt criticism of the situation at the Immigration Tribunal:
Immigration law is a total nightmare. I don’t suppose the judges know any more about it than the appellants who come before them.
However, the current state of the asylum system cannot solely be attributed to the individual incompetence and the cynicism of decision-makers and presenting officers.
The problems in the asylum system are systemic and can be attributed to directions from the Home Office. These individuals are told that they must be sceptical and that they must defend the indefensible. It seems clear that Home Office decision-makers are advised to look for reasons to refuse. Presenting Officers are incentivised with gift vouchers for fighting off appeals and reaching targets.
The Home Office are not concerned with ensuring that protection is granted to those who are truly in need of international protection and that justice is done. They are concerned with winning.
This ruins peoples’ lives.
The reason for this appears to be the toxic mixture of the adversarial British legal system and the ‘hostile environment’. The Home Office’s ‘hostile environment’ means that they wish to demonstrate that they are ‘tough’ on asylum-seekers. The adversarial nature of the British legal system means that instead of being of assistance to the Immigration Tribunal or ensuring that legitimate asylum-seekers are granted protection, the Home Office will fight to deny them asylum.
One of the most surprising things I have heard recently is a Home Office Presenting Officer confiding that, upon reading the papers, she couldn’t believe the Home Office were fighting the case. However, they are given directions to not concede cases.
This cannot be right.
If the Home Office are to be ‘humane and fair’, the department must not hide behind the adversarial legal system. Instead, the Home Office should assist in ensuring that justice is done in the asylum system, instead of being a hindrance.
Picture via EU2017EE on Flikr