The government has announced the details of its much-trailed policy of treating some refugees differently to others based on their mode of arrival in the United Kingdom. The Home Office refers to this as “differentiation” but the word “discrimination” is equally apposite.

The changes are being made today because section 12 and other related sections of the Nationality and Borders Act 2022 come into force for asylum claims made on or after 28 June 2022. Some refugees will now receive what is being called “temporary refugee permission to stay” (as opposed to “refugee permission to stay”).

Who gets the new temporary refugee permission?

If a refugee is considered to fall into what the Nationality and Borders Act 2022 clumsily refers to as “Group 2 refugees” then they will be granted temporary refugee permission. Group 2 refugees are defined negatively as those who do not come to the United Kingdom directly from a country or territory where their life or freedom was threatened and present themselves without delay to the authorities.

Further detail of what this means is now set out in section 37 of the Act and a separate guidance document on Assessing credibility and refugee status in asylum claims lodged on or after 28 June 2022. These need to be read alongside Article 31 of the Refugee Convention itself and the key cases of ex parte Adimi and Afsaw. There will inevitably be litigation.

These Group 2 refugees are still refugees as defined by the Refugee Convention. They will still be referred to as refugees and they are still entitled to refugee travel documents, for example. But the conditions of their stay in the United Kingdom will be different in future.

What is temporary refugee permission?

We can see the differences in the following table, which I have adapted (almost word for word) from the new policy. In the original, the order of the various items is somewhat mangled, presumably to hide the fact that there are only two real differences:

Those two differences are:

1. the periods of grants of leave and time it takes to be eligible for settlement and
2. somewhat restricted rights to be joined by family members.

On the first of these, the policy goes on to instruct caseworkers that Group 2 refugees will almost always have their leave extended and settlement eventually granted:

In the vast majority of cases, it is likely that a person’s protection needs will remain and that further permission to stay or settlement would be granted on that basis.

The policy engenders uncertainty and inconvenience for refugees with an illusory, make-believe sword of Damocles suspended over their heads. Some refugees will inevitably miss application deadlines and fall into unauthorised status even though they are eligible to remain. The document anticipates exactly that:

Where an individual on a protection route does not apply for further permission to stay before their current permission expires or does not apply for further permission to stay at all, they become an overstayer and are no longer entitled to the benefits associated with a valid period of permission to stay on a protection route, for example permission to work.

The policy also creates additional casework for officials. Previously they had to consider and grant two applications per refugee: the initial grant of asylum plus the grant of settlement after five years. Now they have to consider and grant five applications per refugee: the initial grant, further grants after 2.5 years, 5 years and 7.5 years and the grant of settlement after 10 years.

Given the massive backlogs at the Home Office, this is plainly a total waste of everyone’s time and bound to make matters worse, not better.

The second seemingly-substantive change is to family reunion rights. Group 2 refugees will only be entitled to be joined by family members if they can show there would be “insurmountable obstacles” to their family life continuing abroad. For the vast majority of refugees, I would hazard a guess that this test will easily be passed. Where the family member resides in the country of origin, it is plain that a recognised refugee cannot return there and therefore the test is met.

Where the family member is outside the country of origin — for example in a refugee camp in a third country — it may be more complicated. I would still anticipate that there would be insurmountable obstacles to the refugee moving to that country, because the family member in the refugee camp will almost certainly be ineligible to sponsor family members to join them there legally.

Again, the test appears to create extra uncertainty for refugees, who will in reality almost always qualify. And it creates additional work for Home Office officials, who will have to apply the additional test but almost always find it satisfied.

Other differentiated features have been abandoned, at least for now. I thought it had been proposed at one point that Group 2 refugees would be prevented from working, but if there ever was such a proposal it was dropped some time ago and is certainly not in this policy. It would have been obviously and incontrovertibly incompatible with Articles 17, 18 and 19 of the Refugee Convention, which require contracting states to confer the right to work on recognised refugees lawfully staying in a country.

Similarly a proposal to deny access to benefits to Group 2 refugees has been dropped, at least for now. Any such denial would appear to be just as obviously contrary to Articles 21, 23 and 24 of the Refugee Convention, which require states to confer on refugees access to welfare entitlements equivalent to the access available to citizens.

How can a grant of temporary refugee permission be challenged?

Where a person finds out they are being treated as a Group 2 refugee, there is a formal “rebuttal process”, sketched out in the Assessing credibility guidance. Caseworkers are instructed:

Any individual who you deem to be a Group 2 refugee must be provided with an opportunity to rebut this provisional grouping. You must provide the claimant with a minimum of 10 working days to provide an explanation of why they are not a ‘Group 2’ refugee. You may provide an extended period of time for a response, including following a request from the claimant, as long as the extension is proportionate to the particular circumstances. In order to allow the claimant to provide relevant representations, you must make clear in your correspondence on which grounds you assess the claimant to be a ‘Group 2’ refugee, for example you must state if the claimant meets Section 12(2)(a), (2)(b) or (3) of the 2022 Act.

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The guidance goes on to provide a range of scenarios in which a person should, or should not, be put into Group 2.

There is no right of appeal or administrative review of a decision that a refugee falls into Group 2, so any challenges will have to be by way of an application for judicial review. This is likely to happen quite a lot, creating a whole load of new litigation for the Home Office to deal with.

Judges deciding asylum appeals will not make any decision on whether a refugee falls into Group 1 or Group 2. Officials granting refugee status after a successful asylum appeal will need to decide for themselves which type to allocate, taking into account anything relevant disclosed during the appeal and any related findings by the judge.

The policy exemplifies Priti Patel’s modern Home Office. It pretends to be tough as old boots but in reality it creates genuine but fairly minor problems for very vulnerable people with no likely policy outcomes achieved. What it does do is make more work for officials, thereby worsening the backlogs in the asylum system. It is not just pointless; it is actually counterproductive.

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