The government is right that the asylum backlog needs to be urgently addressed, but the Illegal Migration Bill will not tackle the backlog in any meaningful sense and could cause devastating harm to the rights of some of the most persecuted people in the world and the international refugee system. There are two key ways to address the asylum backlog and promote access to justice: by increasing the productivity of Home Office asylum decision-makers; and by simplifying and prioritising some of the procedures involved in asylum processing.

The backlog

On 31 December 2022, 132,182 main applicants were awaiting an initial decision on their asylum application. That figure rises to 160,919 if we also include the dependents of these main applicants. Of the latter group, 68% have been waiting for more than six months. There is a wealth of evidence that highlights the detrimental effects of waiting on asylum seekers’ mental health and the ways that waiting can sustain the marginality of undocumented migrants.

Reducing the asylum backlog and the associated suffering it causes is without question sensible. However, the Illegal Migration Bill would only artificially reduce the backlog to the extent that it effectively creates an ‘asylum ban’. This is neither in line with the UK’s commitments under the 1951 Convention Relating to the Status of Refugees (Refugee Convention), nor will it reduce the number of applications that are currently waiting to be decided.

Instead, to reduce the asylum backlog meaningfully whilst improving access to justice, decision making (including the quality of initial decisions and the time taken to make them) must be improved. We consider that there are two main avenues to achieve this, that are both effective and humane.

Increase the productivity of Home Office asylum decision-makers

A 2021 report by the Independent Chief Inspector of Borders and Immigration on an inspection of asylum casework found poor workplace culture, low morale and high attrition. According to a recent letter to the Home Affairs Select Committee the annual attrition in the 2021/2 financial year was 46%. The Inspector cited pressure to meet targets, the downgrading of the decision maker role in 2014 and poor career progression  as key contributing factors to this problem.

A decline in productivity is borne out in official statistics, with the Institute for Government calculating that there has been a 62% decrease in asylum decision making rates between 2011/12 and 2021/22, despite an increase in the number of caseworkers. This demonstrates that simply increasing the number of caseworkers, as proposed by the Prime Minister in December 2022, will not alone address the productivity issues.

Improving productivity must not come at the expense of quality decision making. Automated decision-making is becoming a central tool of modern government, heralded by the Home Office as a way to “reduce costs” and “deliver more effectively”. It is probable that calls for a boost in productivity could be met by the automation of parts of the asylum decision-making process. However, automation is not a ‘silver bullet’.

A number of automated decision-making systems have been shown to produce discriminatory outcomes as a result of bias being inadvertently embedded within algorithms. These biases can also result in feedback loops, with biased models leading to biased outcomes. Instead of incorporating automating systems which run the risk of discriminatory outcomes, rates of productivity could be increased by investing in longer term measures to improve and upskill decision-makers and retain expertise in asylum casework teams. Such improvements would have a greater impact on the asylum backlog and prevent it from reoccurring.

Simplify and prioritise procedures in asylum processing, especially for countries with high grant rates

The Home Office has itself recognised that the complexity of asylum cases, paperwork provided by the individuals seeking asylum, and appeals against initial decisions play key roles in creating the backlog.

Reducing unnecessary processes in the asylum decision-making system could therefore reduce the asylum backlog. The United Nations High Commissioner for Refugees have recommended that the UK better triages cases to “enable those with vulnerabilities and/or meritorious claims to obtain the protection they need on a timely basis”, as well as recommending the introduction of simplified asylum case processing, for example through the use of “pre-filled caseload specific templates for interviews”. Applications from countries that have been identified as having high grant rates, such as Afghanistan, Syria, Libya, Eritrea and Yemen, could be suitable for such processes.

However, such simplification and prioritisation must not curtail access to justice in the way that, for example, the rushed and inefficient processes inherent in the new streamlined asylum processing policy do. You can read more about the new streamlined process here. Rather, any simplification and prioritisation must allow asylum seekers to meaningfully participate in the process and be supported by improved access to quality legal representation for asylum seekers. Improving the experience of waiting for a decision, for example by lifting the ban on asylum seekers working, would also help.

Recommendations on how to improve the sustainability of the immigration legal aid sector and access to it can be found in the Public Law Project and ILPA consultation response, here.

The Illegal Migration Bill would only artificially reduce the backlog 

Behind the 132,182 outstanding applications is at least the same number of individuals attempting to find safety and security. Even without the Illegal Migration Bill, long waiting times are likely to cause immeasurable suffering. The Bill will not only increase that suffering, but as a recent Free Movement piece highlighted, any ’success’ it can claim will be artificial. The numbers of people claiming asylum may fall, but the number of people who might otherwise have claimed asylum will likely remain the same. Instead, it will deter asylum seekers and victims of modern slavery and human trafficking from seeking the support they need, whilst damaging the rule of law and judicial independence.  Increasing productivity and simplifying processes in asylum decision-making, whilst improving the quality of initial decisions and increasing access to justice, is possible. But the solutions do not lie in the Illegal Migration Bill.

This piece was co-authored by Dr Jo Hynes, a Senior Research Fellow, and Mia Leslie is a Research Fellow at the Public Law Project.