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If the Illegal Migration Bill is unworkable, what can the government do instead?
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The government’s new Illegal Migration Bill is the latest in the long line of attempts to deal with refugee arrivals by making life difficult for them. In so doing, it sidesteps the real issues, the reality of both the facts of the refugee issue in the UK and where our problems in addressing it actually lie. Based on the failure of increasingly ‘tough’ measures over the past 20 years to get a handle on the asylum issue, there is no plausible reason to think that these latest measures will make matters any better. In fact, as I have suggested elsewhere, they may make matters significantly worse.
But the government rightly challenges critics of this Bill, last year’s Nationality and Borders Act and the bizarre Rwanda scheme to provide alternative solutions. In this spirit, I’ve set out a few simple proposals for dealing effectively with refugee arrivals to the UK, minimising their potential for upset at the community level, and unlocking the economic and social contribution that refugees have long made to the UK, despite rather than because of recent ‘tough’ policies. Doing things differently takes courage, but these are sensible proposals and beneficial to all.
This post is the final post in a four-part series on the Illegal Migration Bill, ahead of the third reading in the House of Commons on Wednesday 26 April. You can read the first post on the potential breaches to the Refugee Convention here, and the second on whether the bill will help force refugees into illegality and danger here. And the third post on whether safe and legal routes could stop the boats here.
Part One: How does the Illegal Migration Bill breach the Refugee Convention?
Part Two: Illegal Migration Bill: helping force refugees into illegality and danger
Part Three: Could ‘safe and legal routes’ stop the boats?
Part Four: If the Illegal Migration Bill is unworkable, what can the government do instead?
My comments focus on three areas that I see as key. No doubt there are others, such as how the UK should structure its aid-based response to displacement situations outside the UK. But the focus here is on refugees arriving in the UK, as per the new Bill. There is also a question about how the UK deals with (i.e. removes) anyone claiming asylum who is found not to be a refugee. That issue is not specific to refugees but part of a wider debate about what to do with people who have no legal right to stay here. I trust these comments will be useful to this government or the next.
Basing UK policy on the reality of refugee movements
Debate on refugees is often intensely polarised, with views amounting to little else than a cipher for wider political stances. This is not to deny that different political responses can legitimately exist in relation to this issue. But it is a problem when our actual policy response to refugees starts to trade on imagined facts rather than real ones. In particular, fantasies that we can somehow cut ourselves off from these facts are never going to sustain a workable response to real refugee arrivals. Rather, we need to situate the country’s response to the refugee issue within the following key facts.
- Refugee flows are a fact of life. Refugees will continue to seek safety so long as persecution and war exist. Most, but not all, will do so in countries near to their own. Global refugee numbers do fluctuate due to war and other crises, which is what impacts the numbers arriving in the UK.
- But the UK is not a special case. All countries receive refugees. Many receive far more refugees than the UK, both in absolute terms and per capita. The UK receives relatively few by comparison, not only to major refugee hosts in the Global South but also to other countries in Europe.
- In the UK, once their status is recognised, refugees make an outsize contribution to our country’s economic, political, scientific and cultural life. Refugees who seek asylum here usually are better-educated, higher status and more entrepreneurial members of their societies.
- States will not accept an obligation to share out refugees globally. Therefore the international refugee system is based on the only realistic response to the refugee issue: territorial asylum where refugees arrive. The UK benefits from this global system, which minimises the need for onward movements.
- The chaotic situations that refugees flee, and the paucity of legal routes to travel to claim asylum, mean refugees often end up travelling by irregular means and routes. This is acknowledged by refugee law, which prohibits penalising for illegal entry or presence refugees travelling directly.
Fixing refugee status determination in the UK
The root of the asylum controversy in the UK is that our system for determining refugee status works so poorly. It should allow the country quickly to decide who is a refugee and who is not. But it is set up and operated so that most refugees do not have their claims properly recognised in a timely way. It results in an astonishing waste of resources: years of delays for an initial decision mean refugees have to be housed and supported at needless public expense (as the UK does not allow not-yet-recognised refugees to work), including in the ‘asylum hotels’ hated by all; and poor-quality initial decisions mean appeals are needed to properly determine many cases, with further delay, expense and public outrage. This makes the refugee issue inflammatory, costly and apparently intractable.
Successive governments have acknowledged that this aspect of the asylum system is ‘broken’ or ‘not fit for purpose’. The backlogs that regularly occur due to its inefficiency are a major headache for the government of the day and can leave refugees in temporary stasis for a decade or more. It is evident that fairy-tale schemes like sending refugees to Rwanda do not represent a workable fix to what is a British problem. But there is another way: reconfigure the system for determining refugee status so that it works well, quickly and fairly determining claims. Moreover, to the extent that it may be a concern for governments, there is no evidence that a well-functioning system is a draw for refugees. There are no grounds to think that it is a magnet for illegal migrants either, in fact quite the contrary. The following practical and achievable changes will benefit government, the public purse, communities and refugees.
- Fast-track not only manifestly unfounded but also manifestly well-founded claims by introducing an initial triage process so that nationalities with very strong claims can be rapidly granted status by administrative decision. This can be done, as the current measures to deal with the backlog show.
- Have first-instance determination of other (more complex) claims done by an independent, rigorous and fair decision-maker. As most asylum claims currently end up in front of judges anyway, frontload the process and reduce the need for large numbers of onward appeals.
- Establish a new unit tasked specifically with refugee status determination. This unit should be independent and have a technical (and less politicised) focus on implementing the UK’s incorporated obligations under the Refugee Convention etc. It might also serve to coordinate government response to refugees.
- Separate the unit from the Home Office, which should concentrate on its policing, terrorism and immigration portfolio. Once a decision on refugee status is taken, the file would then be passed to immigration (to deal with leave or enforcement), other departments and councils (to deal with integration etc.).
- Ensure an adequate and dedicated funding stream for the refugee unit, with a capacity surge plan in place for crises, to ensure that a backlog of cases does not build up and cause delays. Funding should not (as currently) come from the FCDO ODA budget, which should instead be spent on aid.
Stabilising the wider approach to refugees in the UK
The political focus on the issue of who is a refugee, and thus the system for refugee status determination, has led to comparative neglect of wider issues around what happens to refugees, especially once they are recognised. The UK is curtailing effective previous policy that gave refugees status, appropriate duration of stay, and rights, and now threatens not even to determine status but to send them to Rwanda. Yet there is good evidence that such ‘hostile’ measures have no real impact on the numbers of refugee arrivals or irregular arrivals. They increase costs for no evident gains politically or administratively. Meanwhile, the approach to refugee integration is fragmented, and a north-south divide in dispersal prevails, which shackles the potential of refugees as contributors to UK economy and society. The benefits from restoring greater stability to refugee status can be achieved through simple practical steps.
- Roll back ‘hostile environment’ law and policy that limits access to refugee status, reduces the length of stay granted and removes work and family union rights. For no discernible policy gains, this impedes not only refugee integration but also their economic and societal contribution to the UK.
- End impractical and costly efforts to send refugees wholesale or in large numbers to countries such as Rwanda. The UK should assume its own responsibilities towards refugees and instead invest these large sums of money in supporting a productive response to refugees in the UK.
- Develop and fund a proper national and institutional strategy on refugee integration. This should address how to connect work on the different dimensions of integration, whilst giving scope for local context-specific approaches across the country and working to overcome the north-south divide.
- Ensure that the refugee integration offer is the same for all refugees. Any bespoke entry or resettlement programmes for particular refugee nationalities must function in line with this offer. Such programmes must be additional to, and not in place of, asylum provided to other arrivals.
- Consider expanding safe and legal routes for refugees, as a potential way to deal with irregular and unsafe routes currently being used en route to the UK. There are no ideal solutions, but there are a set of broadly more workable options than are currently being employed.
A key defect of the Bill, and similar policy approaches, is to privilege short-term rhetoric over long-term effectiveness. Undermining the Refugee Convention and global system does not go in our favour. Trying to avoid giving refugee status to people who are refugees imposes huge costs and does not work. Making life miserable for recognised refugees is counterproductive and does not deter others.
The truth is that if the government concentrated its considerable energies instead on doing the basics properly, there would be little need for unworkable ‘new’ solutions. I hope that the proposals outlined here show that there are several areas in which a British government serious about getting a handle on the refugee situation could focus its activities. The present set-up is absurdly costly not only in terms of lives and talents wasted, but also in economic, political and reputational terms.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.