Updates, commentary, training and advice on immigration and asylum law
Free Movement review of the year 2022
Every year I try to take stock and look ahead to the coming year. Last year I picked out delays in the asylum system, historically low figures for the removal of failed asylum seekers, low levels of asylum support and small boat crossings as major issues. Two of these have been major news stories. Asylum support levels became so incredibly poor that they were held to be unlawful. But the low numbers of removals is still barely considered an issue. I suggested that key aspects of the Nationality and Borders Bill were unlikely to be implemented, which I think has proven correct. And I suggested that staking one’s political credibility on the use of deterrent measures to reduce small boat crossings was “very, very unwise”.
I wrote that Patel’s political career “may in effect have already been ended by her tenure at the Home Office”. Barring some miracle comeback, that has surely proven to be true. Patel took control of a deteriorating situation — the asylum backlog was already going up and small boat crossings were already getting established as a route — and then fiddled while it burned. Boris Johnson was no help at all, obviously. Braverman is taking over an appalling mess which can hardly get much worse and is quietly but obviously getting managerial help from Rishi Sunak. Sunak will therefore be blamed for failures, not Braverman. Unfortunately, Braverman’s career may well outlive her tenure as Home Secretary.
The substantive news of the year was the asylum backlog. This has been building for quite some time and we’ve been banging on about it here on Free Movement for ages. This year the backlog exploded from 84,000 individuals in the queue at the end of September 2021 to 143,000 at the end of September 2022. It became a major news story and prompted very belated action by Rishi Sunak, who has been forced to personally look into the situation. Sunak has placed Robert Jenrick at the Home Office to manage the practicalities. Suella Braverman is left fronting the department but little more.
It was certainly a busy year for Home Secretaries. We’ve gone from Priti Patel to Suella Braverman to Grant Shapps and back to Braverman. I’m not sure whether that counts as three Home Secretaries or four. It’s more than normal, certainly.
The Rwanda plan rumbles on in the background. I am not sure whether to class it as law or politics. It certainly seems more about politics given no-one, including Rishi Sunak, seems to think it will actually deter refugees from coming to the UK. He prefaced his asylum statement by saying that “any solution should be not just what works but what is right”. But there is a lot of international and domestic law to it as well, as the massive judgment handed down just before Christmas shows.
The Rwanda Plan has the potential to dismantle the international system for the protection of refugees. That is a feature not a bug, as they say. Government advisers have been quite clear that they know better than the international statesmen and refugees who were responsible for drafting the Refugee Convention. They actually want to destroy the international refugee protection regime. Their arrogance and their recklessness are genuinely breathtaking.
The main event for lawyers ought to have been the passage of the Nationality and Borders Act 2022, which was presented by then Home Secretary Priti Patel as if it were a landmark piece of immigration legislation. So far, it has had almost no discernible impact on anything. The abortive Rwanda flight was conducted under legal powers dating from 2004. Many of the changes to day-to-day practice will eventually be felt, but they only took effect for asylum applications made on or after 28 June 2022. Because of the delays in the asylum system, these cases will not reach us for quite some time. Other changes require adjustments to the tribunal procedure rules, but the Tribunal Procedure Committee will need to consult on and draft these first.
The major impact so far is only felt by a relative small number of people, but it is a really awful impact. The changes to criminal law were rapidly enacted. These made it a criminal offence to enter the UK to claim asylum without prior permission. I understand several hundred prosecutions have been brought as a result. We will see how these cases develop over the coming year, I imagine. Lawyers will be testing the extent to which the ex parte Adimi case from 1999 holds good today as a defence. Watch out for big cases on this in the coming year.
From the perspective of an external observer, the simplification project seems functionally dead, although the Law Commission is apparently working on something. Meanwhile, the immigration rules are more rather than less complex.
New legislation is apparently planned for the new year in order to prevent refugees ever settling in the UK. This would clearly breach Article 34 of the Refugee Convention:
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
It is also contrary to the spirit of the obscure European Convention on Establishment of 1955, which is technically only binding as regards nationals of other contracting states but which I think the UK has previously applied more widely on a voluntary basis to avoid nationality discrimination. Amongst other things, it effectively obliges the UK to offer settlement after ten years of residence. It’s not an insurmountable obstacle, as they say, but it would require drawing a formal distinction between people of different nationalities, something the government has so far strained to avoid.
Whether this proposal will really be taken forward and, if so, enacted in the simplistic terms suggested by Sunak seems doubtful. Apart from the legal barriers, it would require the Home Office to massively increase the number of asylum removals. This is cruel and impractical. Or it would require refugees to apply for temporary visas for the rest of their lives. This is also cruel and impractical, and it is also utterly pointless. That’s where we’re at, it seems.
With record high inward migration figures of over one million migrants arriving in the year ended September 2022, the government faces huge pressure from the right to reduce immigration. The increase was driven by the Ukraine and Hong Kong asylum visa schemes, a very substantial rise in international students and an increase in the numbers of skilled worker visas.
So far, Sunak’s government appears to be committed to the Ukraine and Hong Kong schemes. Over Christmas, Braverman’s team briefed The Times on her preferred approach: target spouses of British citizens, international students and shortage occupations. The article emphasises that this is not yet official government policy.
The minimum income threshold for sponsoring a spouse may be increased from its current level of £18,600. Even at this existing level the threshold causes hardship for some families because the level is above the minimum wage and requires full time working. Families are forced to live apart or live abroad. But in statistical terms, it affects very few migrants: just 28,257 spouse visas were issued in the year ended September 2022.
International students are in the firing line because the previous government plan to increase the number of international students actually worked.
Tightening up the shortage occupation list is literally the opposite of what Liz Truss was planning to do. Back then, Joanna Hunt explained that the shortage occupation list isn’t that big a deal these days. But it does seem odd to limit the entry of workers we think we’re short of. Particularly when there is a massive recruitment crisis in multiple sectors of the economy.
Migration Observatory warned that “net migration at the levels seen in 2022 cannot be assumed to be a ‘new normal’”. Perhaps the rate of entry for Ukrainians and Hong Kongers will drop. Perhaps the sharp increase in international students was a post-pandemic bulge of pent up demand. Perhaps the looming recession will reduce work migration.
In contrast, the right-wing Social Market Foundation think tank suggested that “Immigration at 1 million a year could become normal for UK”. If migration figures remain high — and perhaps even if they do not — it seems likely there will be some sort of political response, even if it is unlikely to have much of a real world impact. Immigration policy may end up going in the direction of asylum policy.
Rishi Sunak’s immigration and asylum plan
Rishi Sunak pledged to “abolish the backlog of initial asylum decisions by the end of next year”. The main element of the plan is to funnel huge resources into decision making. Until recently there were around 600 asylum decision makers. Now there are 1,200. Sunak wants 2,400 in place. That is potentially expensive and it will also absorb considerable management resources to recruit and train them. From where will the money, time and energy come? Is the Home Office headcount going to expand by that much or are staffing resources being diverted from elsewhere, via staff transfers or unfilled vacancies?
Simultaneously, Sunak also pledged to remove a lot of Albanians: “we will keep going with weekly flights until all the Albanians in our backlog have been removed”. As at 30 September 2022, there were 23,159 Albanians in the backlog. Even assuming he meant remove the ones who are not found to be refugees, that’s still a LOT of Albanians to remove.
AND Sunak committed to increase in-country Home Office enforcement activity: to “increase raids on illegal working by 50%”. The number of workplace raids is not routinely published as far as I can see, but we do know that 687 civil penalties were issued in the twelve months ending September 2022. The numbers have been steadily rising since the pandemic but are still very low by comparison to earlier years.
AND the Home Office continues to make its own life harder by requiring refugees, many EU citizens and other migrants to make multiple applications before they are permitted to settle. In fact, Sunak wants to make that worse by preventing refugees from ever settling. Given almost none of these applications are ever refused, it would make a lot more sense to allow them all to apply for settlement much sooner. It would certainly be better for those forced to make stressful and expensive repeat applications. And it would be better for the Home Office to be able to focus resources on actual immigration problems rather than imaginary ones.
That all amounts to a lot of extra stuff for the Home Office to do. One obvious possibility is that it just doesn’t all happen. Another is that the new pledges are met but at the cost of other stuff not happening instead. Or perhaps the department has been abysmally managed in recent years and is capable of doing much more with no increase in resources. Or maybe there will be an increase in resources.
I doubt that the measures announced by Sunak so far are capable of genuinely eliminating the asylum backlog by the end of 2023, as he promised. We may see further policies announced later, like a targeted asylum grant policy for Syrians, Afghans and others with a very high grant rate. That would run completely contrary to Sunak’s policy of never allowing illegal entrants to settle but seems highly likely We can also expect the asylum grant rate to fall, I fear. I have no doubt the government would be pleased to see this happen as it has been suggested in some quarters that this acts as a pull factor.
Even if Sunak does meet his target, there are likely to be unintended consequences. Without an increase in resources, the Home Office as an institution will have been forced to do less of something else and will be distracted from some new issue. Back in 2005 the unrelenting focus by the Home Office and No 10 on asylum and enforced removal targets was arguably responsible for the deportation scandal that (rather unfairly) cost Charles Clarke his job. What would it be this time?
It is always hard to predict what crisis will next engulf the Home Office. We can be sure there will be such a crisis, though. The tactics of constantly expanding Home Office responsibilities and its operational sphere while shuffling limited resources around to meet political and media obsessions inevitably leads to unanticipated issues arising.
Here on Free Movement
According to our WordPress stats, we received 2.5 million page views from 1.4 million visitors in 2021. Google Analytics says 3.5 million page views from 1.3 million users. I’ve no idea which is more accurate, frankly. On either measure, though, our overall readership has declined slightly. But it’s not quantity, it is quality. Membership is up slightly, at 3,445 active members, up from around 3,300 last year, plus some university memberships by way of IP address access. We have 29k email subscribers, up from 26k last year. On Twitter, I now have 40k followers, up from 30k and @freemovementlaw now has 11.8k followers, up from 10k.
My top tweets of the year were in February on the co-incidence of the “overseas asylum processing” policy with the Russian invasion of Ukraine (4,118 retweets and 1.34m views), in June on alternatives to the Rwanda plan (4,223 retweets and 2.94m views) and in October with a chart of asylum backlog vs arrivals (3,068 retweets and 387k views). I never have any idea what tweets or other output will have reach or influence. If anything, I’d say the most influential of these three was the chart, which actually had the smallest audience.
On Free Movement itself, we published 415,632 words in 2022, in a total of 397 blog posts. That was more words but fewer blog posts than the previous year, and our average word count topped 1,000 words for the first time. We also had a change of personnel, with Josie Laidman joining as deputy editor responsible for the blog and Jasmine Quiller-Doust as deputy editor for training. Faye Clowes continues to manage customer queries and keep the show on the road. We’ve had a few software issues towards the end of the year with new users not being automatically signed up to courses properly. We’ll be overhauling and replacing the software early in the New Year and we might also conduct a light refresh of the look of the site, which has been fairly constant since 2017.
Away from social media and the blog, my concise textbook on refugee law, imaginatively entitled Refugee Law, was published, as was the updated paperback edition of Welcome to Britain. I’m still practicing part-time at Garden Court Chambers and will be attempting to finish a new immigration law textbook project with co-editors Bernard Ryan and Helena Wray. We genuinely hope to get it finished this year. But that’s what we thought last year…
I hope you all had a good new year and let us all hope that 2023 is better than 2022.