Shown below is the text of the response from Kent Refugee Help to the Government’s consultation document regarding the New Plan for Immigration.
Response to open question 45
Kent Refugee Help is a registered charity that supports foreign national prisoners and former prisoners after release. Our clients are men, though we also have contact with female partners and family members. We have been working to assist detained migrants since 2006 when we began helping detainees in the Dover Immigration Removal Centre to obtain their release.
Throughout the course of this work, we have witnessed the consequences of a Hostile Environment which has seriously impacted upon the mental and physical health of our clients. Our client group comprises of refugees and migrants, some of whom have an ongoing asylum claim or a protection element in their challenge to deportation. We have therefore focused mainly on Chapter 8 which deals with the proposals for foreign national prisoners and refused asylum seekers linking this to the intersection with the wider raft of policies.
We are extremely concerned about the proposed changes to asylum and immigration and law which will criminalize asylum seekers and increase destitution. These policies will result in many more vulnerable people facing homelessness, starvation and the possibility of imprisonment. This is especially reckless at a time when we are still struggling as a society with the effects of the Covid Pandemic and there is a universal need for secure, decent accommodation to prevent the spread of the virus and keep everyone safe.
We agree with many organizations who say the consultation is not fit for purpose because of its short duration of six weeks which coincides with an election period and the questionnaire format which does not make for awareness and proper analysis of the complexities of the situation for refugees.
We note the comments by CJ McKinney, Free Movement, A first look at the New Plan for Immigration” March 24 2021, Bonus points for “safe and legal” arrivals that the word “illegal” or derivative appears 74 times in the document. Linking the process of claiming asylum, a right enshrined in international law, with the notion of illegality creates the impression that it is a criminal act without any discussion of the true facts. The stigmatization of asylum seekers has already given ammunition to far right groups who attacked asylum seekers in Napier and Penally Napier Barracks. A government impact assessment of the use of these military placements to house refugees published in the Independent indicated that this was a political choice designed to appeal to voters who would welcome tough and punitive immigration measures. The proposal to further discriminate against those who arrive in the UK by irregular routes by deeming their asylum claims “inadmissible” will fuel racist scapegoating and violence, also compromising the safety of the majority.
Additionally, we note that 200 groups have signed a letter from Women for Refugee Women, published in the Independent which states that the policies of the New Plan will harm both men and women by unjustly denying refuge on the basis of how they travelled to the UK.
Chapter 8, Enforcing Removals including Foreign National Offenders Deportation and Destitution
This section starts by stating the government’s responsibility to “ensure the swift return of those not entitled to be in the UK.” This includes 10,000 foreign nationals “Many of whom have committed serious offences” The government fail to mention that only 26% have been convicted of crimes of violence. (Prison Reform Trust, Bromley briefings 2021) and that many have families here and good cases to challenge their deportation. They link foreign national prisoners with 42,000 failed asylum seekers, “who have not left the UK.” Both are demonized and classified as undesirables. The plan is to increase deportations and diminish asylum support (Section 4 accommodation) by implementing provisions contained in the 2016 Immigration Act which actively promoted a Hostile Environment for migrants. These provisions were not implemented at the time because concerns were raised by local authorities and other stakeholders about the overwhelming strain on statutory and voluntary services if thousands of people became destitute. The Asylum Appeals Support Project (ASAP) state in their submission that these measures will create, “significant harm to individuals, families (including children) and to wider society.” It will not achieve the desired effect as people will not leave but will be forced to live precariously and it will be more difficult for them to engage with the Home Office. ASAP state the importance of consulting fully with local authorities and other stakeholders. The measures will place an increased burden on local authorities whose funds have been decimated by central government-imposed austerity.
The category of Foreign national prisoners includes asylum seekers and refused asylum seekers. Many depend on asylum support for a release address. This can be an address for immigration bail if they have no means to obtain a private address or if an address provided by their family or friends is rejected by the Probation Service. Some of our clients have remained in Section 4 accommodation for more than a decade after release because they cannot resolve their situation. As well as the current delays in processing asylum claims there are historic cases such as fresh claims which remain unanswered leaving people in an unacceptable limbo.
The Government also mentions an intention to frustrate the grant of bail for people who have not complied with immigration processes. The hostile environment of immigration control demands compliance in impossible and cruel conditions e g. people are expected to report to an immigration centre although they have no recourse to public funds to meet travel costs and only a certain proportion are considered eligible for a free travel pass. In the first Covid lock down reporting was suspended but in the second, everyone was required to report and travel in the height of the Pandemic when many hospital admissions and deaths were triggered by the new variant. A KRH client whose wife was pregnant became seriously depressed because he was worried, he might catch the virus and pass it to her and their unborn child. Despite representations made by his solicitor he was still expected to report. The stress resulted in him becoming physically ill and unable to meet his reporting obligations.
Restrictions on accessing a bail address will exacerbate indefinite immigration detention driving suicidal ideation and self- harm. 809 people were still held in prison at the end of their custodial sentence in June 2020. The European Committee for the Prevention of torture and Inhuman or degrading Punishment has stated that holding immigration detainees in prison is “fundamentally flawed.” Over £39m was awarded in compensation for the unlawful detention of foreign nationals between 2012 and 2020 (Prison Reform Trust, Bromley Briefings 2021).
Additional Linked Concerns, Chapters 4 and 7
Temporary Protection and punishment for Clandestine Entrants
Temporary protection of 30 months will replace the grant of 5-year status for those considered to have entered the UK illegally and cannot be returned. They will have no recourse to public funds and will be regularly assessed for removal. This shocking proposal will create another group of destitute people, vulnerable to exploitation such as trafficking and prostitution within the UK and imprisonment for crimes of survival such as using false papers to work because they have no other options.
In relation to this we are very worried about the proposal to increase the maximum sentence for entering the UK illegally. Free Movement state that the maximum is currently six months and it is not clear what this will change to. The separate offence of “facilitating” will now result in a maximum of a life sentence in prison of up to 14 years. Currently the average sentence is just over 3 years. In 2015 we supported the “Channel walking” refugees who were imprisoned for crossing the UK border with France via the Channel Tunnel when they came to seek asylum, despite the protection afforded by the Refugee Convention. They were shocked and traumatized by their treatment having expected to find sanctuary in the UK. We are aware of asylum seekers recently who have crossed the channel by boat to claim asylum here and have received trafficking convictions. They are confused and desperate for legal assistance with their asylum claims. It is very disturbing to learn that the government intends to drastically increase sentences, further criminalizing this very vulnerable group.
It is eminently clear that all the people working with asylum seekers, migrants and foreign national prisoners see a broken system which is bringing untold misery to thousands of people with genuine claims and heartbreaking stories. This could have been an opportunity to redress that hidden stain on our society but instead this plan will only serve to increase it.
We reject these proposals and urge the government to take note of the response from people who know the reality.
Kent Refugee Help
Responses to open questions which were included in the main body of the questionnaire
Chapter 2: Protecting those Fleeing from Persecution, Oppression and Tyranny
Whilst KRH welcomes any improvements in the treatment of resettlement of refugees we are extremely concerned that this is framed in such a way as to create a two tier system, treating individuals seeking to enter the UK directly as illegal and effectively criminals.
The 1951 Refuge Convention does not state that people should seek asylum in the first safe country they enter. That is for good reason as there are numerous and various reasons why someone would seek asylum in a specific country.
Chapter 4: Disrupting Criminal Networks and Reforming the Asylum System
It is not true that for the first time how somebody arrives in the UK will matter for the purposes of their asylum claim. Failure to take a reasonable opportunity to make an asylum claim in a safe third country affects credibility with serious consequences. KRH does not support the current position but is concerned that this statement is misleading.
Far from achieving the stated aim of ‘fairness’ this differentiated approach does precisely the opposite unjustly differentiating between vulnerable people.
The proposal on returns to a ‘safe country’ are unworkable and potentially inhumane. The current level of returns is low, even during the period of membership of the EU. This serves as an empty threat but in the meantime renders people to live in a permanent state of uncertainty in a precarious existence risking exploitation and increase in mental health issues. This will in turn of course add pressure to health and social services resources.
In spite of the fact that the Home Office has been warned about serious fire safety concerns and been advised by Public Health England that the dormitory-style accommodation at Napier barracks, which holds up to 28 men in a single block, was not suitable during the COVID-19 pandemic, it was announced that it will continue using the barracks as asylum accommodation until at least September 2021. The treatment of asylum seekers at Napier Barracks is indicative that in spite of Priti Patel’s assurances, their approach lacks compassion or humanity. For that reason and many others, KRH have serious concerns about the Home Office’s plans to ‘expand the detention estate with basic accommodation’.
Chapter 5: Streamlining Asylum Claims and Appeals
We are very concerned that the proposed reasonable grounds test and credibility will unfairly prejudice those who may have been victims of trafficking or slavery in placing more emphasis on objective evidence than on the claims of a victim when objective evidence may not exist or may not be reliable. In such situations it is often the case that evidence of such claims is in short supply. The emphasis on contradictions and lateness and in making adverse credibility is disturbing when placed in the context of research that suggests that these very issues are signs of trauma, a lack of control and that trafficking, and exploitation is likely to have occurred. In such cases removing traumatised accepted victims of torture would amount to a breach of the UK’s obligations under the UN Refugee Convention and those relating to torture as well as diminish its standing on the world st age. How can it maintain the moral high ground it the face of so many human rights abuses and torture around the world when this is how it treats those on UK soil?
The ‘one-stop’ process already exists in respect of asylum and human rights claims and is contained within s120 of The Nationality, Immigration and Asylum Act 2002. We submit that the proposed change is unnecessary because both immigration and protection applicants are already subject to this. However, it is very important to note that those who are suspected to be victims of trafficking and whose claims are subsequently investigated very often lack control of their own lives, are victims of those who engage in trafficking and modern-day slavery. They are traumatised by the experience and so cannot make trafficking claims, do not know how to or may not even realise that they have been trafficked or subjected to slavery. Claims for protection or trafficking often emerge piecemeal and require proactive investigation by those seeking to support victims and legal representatives in submitting these to first responders under the NRM, something that has been made much more difficult because of the huge changes to legal aid brought in by The Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Access to justice would be better served by the availability of good legal advice and representation from the outset and throughout the claim and any appeals. The provision of legal advice and representation in this sector is totally inadequate. Better legal advice and representation will help in ensuring that cases are properly researched and comprehensively presented and would likely lead to less appeals. KRH is concerned that the reference to the provision of ‘legal advice’ in the plan is a reference to limited advice and not to representation. KRH has experience over the years of the woeful lack of provision in this area which has been as a consequence of the cuts to legal aid generally and in particular in human rights claims and the harshness of the ’merits test’ as it works in practice.
Lawyers, be they solicitors, barristers or others (including OISC accredited immigration advisors), are already bound by their primary duty to the court to act honestly and in a forthright manner. This includes the duty to be honest and act ethically in respect of their dealings with the Home Office. The requirement to be honest and truthful is further incorporated into immigration and asylum application processes and already covers the work of the legal representatives involved.We maintain that claims can only be decided upon as unmeritorious after due process has been followed and they have been subject to a fair and just consideration of them including through the courts and judicial review. Case law in the UK has repeatedly demonstrated that poor quality decision making at all levels (including both the initial stage as well as the courts level) mean that the entire process is needed for fairness and justice to be obtained for individuals, not least because ‘equality of arms’ in accessing justice often does not exist.
We are concerned that a ‘speeded up’ process will result in an unfair and unjust process that fails to give proper weight to the court. We are further concerned that the proposed changes to the Judicial Review process will effectively undermine and sometimes exclude the role of the judiciary from their oversight role as one of the three pillars of a functioning democracy, with too much weight given to the executive.
Our concern around ‘pre-approved experts’ centres around the fact that it is only experts acceptable to the Home Office in style or substance (or both), who will be permitted to give evidence, when in fact a diverse range of experts are necessary to give evidence and shed light on subjects before the Home Office and the courts. The process of becoming ‘pre-approved’ may delay and inhibit experts from coming forward.
Chapter 6: Supporting Victims of Modern Slavery
There are concerns about the processes and delays in the current National Referral Mechanism, raised by the Anti-Slavery Commissioner in 2017, which have failed to be addressed. The NPFI policy statement fails to speak to any of these issues.
We strongly believe that modern slavery and trafficking should be excluded from any proposed fast track asylum process. It has been documented time and again how trafficking and slavery claims often emerge slowly as highlighted above.
The presumption must remain that all those who make such claims, must be taken seriously and have their claims fully investigated and determined in accordance with due process. Otherwise, there is a real risk of prejudice and assumption marring the ability of individual Home Office decision makers to properly refer cases to the NRM and determine based on the account, the circumstances presented and the evidence. We are further concerned that such prejudice and assumption will worsen the well-documented institutional cultural problem at the Home Office which resulted in the Windrush scandal.
Chapter 8: Enforcing Removals including Foreign National Prisoners
See Statement in answer to Q.45
Public Sector Equality Duty
It is clear that these proposals will have a potential negative impact on each and every protected characteristic. The Government needs to consider the overwhelming reaction from the sector most aware of the reality of the lives these proposals affect and engage in an effective and meaningful consultation with all those affected including refugees and migrants themselves.