Human beings crossing the English Channel are making headlines again. The number of people who reach the UK via this extremely difficult, dangerous but lawful route is minuscule, and the total number claiming international protection here insignificant compared with the situation in many other countries, yet these stories continue to be at the centre of media attention.

The Prime Minister recently weighed in on the matter, referring to people seeking protection as “stupid“. Meanwhile, the Home Office has been attacking the lawyers who represent them. It is no surprise that the government has chosen to militarise the seas, rather than deal with the root causes.

One element of the government’s response has, unlike the RAF planes now patrolling the Channel, flown under the radar. But it is even more alarming because of what it might mean for the future of human rights in the UK.

Threats to sabotage the asylum process

The Times reports:

Priti Patel, the home secretary, is working on a ‘fair borders bill’ due to be introduced this year, according to Whitehall officials preparing the draft legislation. It is intended to stop people drawing the asylum application process out by making them submit all their grounds for refugee status when they apply, rather than being able to submit new reasons later.

Foregoing the lessons learned from the Windrush scandal, this would make the asylum process a much more hostile proposition for those who successfully enter the UK to request international protection. The idea is to require a person applying for asylum to include all the reasons for doing so in their application immediately and prevent them from introducing further information as their application progresses.

It’s unclear whether the Home Secretary intends this to apply to the initial asylum application — for example, by requiring all asylum grounds to be disclosed at first screening — or is taking aim at further submissions. Further submissions is the process where a person who has failed in their first asylum application can make a fresh application where further information or reasons for protection have materialised.

Either way, it is immensely difficult to turn the asylum application process into a restrictive, strictly rules-based process like the rest of the UK immigration system. Previous attempts to do so have failed — often being found unlawful in light of the UK’s international legal obligations. 

Asylum rights are protected by treaty

The asylum process is founded in international law. The 1951 UN Convention Relating to the Status of Refugees (the Refugee Convention), and its 1967 Protocol, provides the principal framework. The Refugee Convention defines who is a refugee, and outlines refugees’ rights. It also specifies the assistance and rights a refugee is entitled to, as well as refugees’ obligations to their host country.

Within this framework, other international legal instruments are relevant, including the European Convention on Human Rights (ECHR). The European Union has also developed a Common European Asylum System which seeks to establish minimum standards for the reception, examination and treatment of asylum seekers.

Throughout these documents is an understanding that applications for asylum must be examined thoroughly. Those applying for asylum must be afforded every opportunity to put forward their reasons for international protection. So the Home Office simply cannot put its fingers in its ears and sing “la, la, la” when someone is trying to explain their reasons for claiming asylum — no matter how late in the application process that information is revealed. 

The Home Office knows all this. To get around it, officials have in recent years moved the battleground to credibility. The idea is that if a person claiming asylum reveals information late, then it reduces their credibility and therefore their asylum claim may not be genuine.

Reasons why asylum seekers may hold things back

But there are valid reasons why information can be revealed late, and the Home Office accepts this. Its own guidance says that “caseworkers must examine, investigate and research the available evidence and, if appropriate, invite submission of further evidence” — all “in co-operation with” the asylum seeker.

This is only logical. People seeking asylum will not always know what parts of their claim are relevant. Some may find it difficult to talk about traumatic experiences. There are many other reasons for late disclosure of evidence including age; gender; variations in the capacity of human memory; physical and mental health; lack of education; social status and cultural traditions; feelings of shame; and painful memories, particularly those of a sexual nature.

Think back to the worst thing that’s ever happened to you in your life, and then remember how hard it was to talk about it. Now multiply that by 100. Then imagine having to talk about this experience hours after arriving in a new country, after a long and arduous journey, to a government official who you’ve only just met, through an interpreter, in a government building, as part of an application process you do not understand. It’s simply not realistic to expect these individuals to reveal everything instantly. Very often, further details of trauma are only revealed because the person has developed a relationship of trust with a lawyer over time.

Even when the Home Office attempts to challenge credibility due to late disclosure of information, there’s a low threshold for accepting a person’s credibility. Caseworkers need only accept the facts of the asylum claim to be reasonably likely — not to be certain or convinced. All in all, if the asylum application is prepared well, it becomes difficult for the Home Office to challenge late disclosure.

Brexit an opportunity to water down refugee protection

So how will the Home Secretary be able to deliver on her pledge? It’s possible she doesn’t understand all of this terribly well — or she might be putting into motion a long-term plan to water down rights after the end of the Brexit transition period.

As Colin has written about asylum after Brexit:

There is no reason to think that the UK will reduce standards of reception, treatment and recognition of asylum seekers and refugees. Undoubtedly, though, leaving the minimum standards regime of the Common European Asylum System opens up the possibility that the UK could do so. This is the very point of “take back control” after all.

The government said in its 2018 white paper on immigration that “we remain committed to the Refugee Convention”. As mentioned above, the ECHR also plays an important role. It is often thought that the continued application of international law should ensure there is no diminution in the treatment and protection of asylum seekers post-Brexit.

But the reality is that these instruments do not provide the same level of detail and clarity about the standards of the asylum application process as the Common European Asylum System, and there are aspects of CEAS that are simply not replicated within them. Scrapping CEAS laws would mean that the UK would no longer be required to comply with the procedural safeguards and standards set by EU law. Fundamental protection would still be provided under the ECHR and the Refugee Convention, but the asylum process could be made much more hostile towards the person seeking protection.

Those back-up treaties are not necessarily safe for all time. The 2005 Conservative manifesto included a commitment to withdraw from the Refugee Convention. Proposals to repeal the Human Rights Act 1998 and leave the ECHR are often floated by the Tory right, even if they have been shelved for now. It is not hard to imagine that, if the eventual form of Brexit does not satisfy the hard right, ECHR withdrawal will become a substitute for a hard Brexit and be on the table once again. That really would give the Home Secretary the tools to make her pledge a reality.

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.

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