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The reality of Priti Patel’s “bespoke” humanitarian routes

The reality of Priti Patel’s “bespoke” humanitarian routes

On 28 February 2022 the Home Secretary told the House of Commons that a “bespoke humanitarian route” was being introduced for those fleeing the unlawful invasion of Ukraine by Russia. The word refugee was notable in its absence from that and from the subsequent speech a day later.

The original announcement amounted to some minor concessions to the existing family visa route, although the position since then has shifted to a slightly more inclusive offer.

A “sponsored humanitarian visa route” has also been announced which requires sponsors to provide housing and integration support. There is no indication of when this will open. It could be months away. Help is needed right now. The government continues to insist that applications are made on official forms and fingerprints registered and official translations of documents provided. This massively slows the process and it simply does not meet the needs of the refugees it is supposed to be helping.

Any or all of these requirements could be waived. The invasion took place on 24 February 2022 and since then the GOV.UK page “UK visa support for Ukrainian nationals” has been updated nine times (as at 6 March 2022). It remains an inadequate response, and the UK government’s lack of generosity in its response stands in stark contrast to that of the rest of Europe.

This is deliberate policy and it does not need to be like this.

New Plan for Immigration

The shift we have seen in the past year to this concept of “bespoke” schemes for those fleeing persecution appears to be part of the New Plan for Immigration which was published on 24 March 2021. In what was presumably meant to be viewed as an attempt to balance out the many horrors contained in the policy paper, the government stated that:

We will maintain clear, well-defined routes for refugees in need of protection, ensuring refugees have the freedom to succeed, ability to integrate and contribute fully to society when they arrive in the UK.

To achieve this, we will strengthen the safe and legal ways in which people can enter the UK.

In reality the plan promised merely to maintain “our long-term commitment to resettle refugees from around the globe” while dropping the numerical target of 5,000 per year. The one concrete promise was immediately to grant settlement to resettled refugees. That has been swiftly forgotten.

The plan also talked vaguely of ensuring resettlement programmes are ‘responsive to emerging international crises’ and ‘work to ensure more resettled refugees can enter the UK through community sponsorship’.

The main focus was on reducing what are sometimes called ‘spontaneous arrivals’ of refugees. This is the fancy term for what happens when your country is invaded or a civil war breaks out or you are targeted for persecution and you flee without stopping to apply for a visa first. The plan was to reduce such arrivals by treating those that did arrive in the UK even worse than is already the case in the hope this would somehow put them off coming to the UK at all.

Nationality and Borders Bill

The worst parts of the New Plan for Immigration are soon to become legislation. But none of the “strengthening” of safe routes has made it into the draft Bill at all. That pretence has been dropped and the government declines to even commit to a resettlement figure.

The thread running through the Bill is the principle that refugees should claim asylum in the first safe country they reach. By implication, a refugee wishing to come to the UK would wait in their country of origin and apply for a new humanitarian visa or would wait in a refugee camp in an adjacent country and hope they were one of the very few to be plucked out of it for resettlement.

Back in May 2021, the Immigration Law Practitioners’ Association response to the consultation was that:

This proposal appears to suggest that in a situation where people are facing a life-threatening situation in their country of origin, that they should remain there while the Home Office, operating a system beset with delays and poor decision making, considers whether they should be granted entry to the UK. No explanation is given as to why a person would risk their life to do this, and this seems completely unworkable.

This prediction has been borne out firstly with the government’s response to Afghanistan, and it is happening again now with Ukraine. In both cases, the Home Secretary announced a “bespoke” response for those fleeing their homes.

Whatever happened to the “bespoke” Afghan scheme?

On 18 August 2021, the government announced the “bespoke resettlement route for Afghan refugees”, stating that the scheme was not yet open and further details would be announced in due course. The government said that up to 5,000 people would be resettled in the first year, and up to 20,000 in total. Operation Pitting, which evacuated British and Afghan nationals when Kabul fell to the Taliban, ran from 14 August to 28 August. Where people were evacuated and needed leave to remain in the UK, if they were not eligible under the pre-existing ARAP scheme then the government said that they would be “guaranteed a place under ACRS”. As those already evacuated were included in those numbers, the target figure for the first year was met and exceeded (with ACRS numbers closer to 7,000) through the evacuation alone.

On 27 October 2021, over two months after the scheme was announced, the Home Secretary told the Justice and Home Affairs Committee that the government was still unable to “operationalise” the scheme:

Evacuation and moving people out was always our priority, clearly. Post evacuation, we have a scheme, the Afghan citizens resettlement scheme, which is one of the most ambitious in the world. We are not able to operationalise that scheme. Think about the discussion we have just had. We simply do not have the infrastructure or the accommodation.

In fact, when I announced that scheme I made it quite clear that we had to be assured, as with the Syrian resettlement scheme, that we could bring people over and, when we did, they would have accommodation and jobs to go to. This is basically our thinking on how we work going forward.

On 17 November 2021 the Home Affairs Committee was told that there was still no timeline for when the resettlement scheme would actually open.

It was 6 January 2022, almost five months after the Taliban took over Afghanistan, when the government finally announced that the ACRS was formally open and that the first family had been granted indefinite leave to remain. This was presumably a family who had been evacuated out of Afghanistan in August and granted an initial period of six months leave to remain outside the Immigration Rules, as the announcement said that the first to be “resettled” would be those who were already in the UK.

It is unclear whether anyone has been brought to the UK under ACRS since Operation Pitting. The intention is that UNHCR will start referring refugees to the scheme in spring 2022. The announcement also said that the Foreign, Commonwealth and Development Office would contact other people at risk in Afghanistan “to support them through next steps”, so it is possible that people may have come via this, but this is also unclear. There is no application process for the ACRS.

The announcement of the ACRS specifically tied the scheme to the New Plan for Immigration, stating “The ACRS demonstrates the government’s New Plan for Immigration in action, to expand and strengthen our safe and legal routes to the UK for those in need of protection.” Despite the New Plan for Immigration stating that the intention was for people to be granted “immediate indefinite leave to remain on arrival in the UK so that they benefit from full rights and entitlements when they arrive”, instead most of those who were evacuated from Afghanistan were granted six months of leave to remain outside the immigration rules, and have been left to languish in hotels since then. (Notably, there is no offer of indefinite leave to remain for anyone fleeing Ukraine.)

Many of the people who were evacuated from Afghanistan and granted the initial six months of leave have yet to be notified that they have been granted indefinite leave to remain, and there are concerns that some may end up overstayers due to this delay extending beyond their initial grant of leave. Further, it is unclear whether, or on what basis, the Home Office may decline to grant indefinite leave. Many people are likely to be refugees and could still apply for asylum, but this is apparently being discouraged by the Home Office. There does not appear to be any published casework guidance on the ACRS so it is also unclear how the Home Office will treat an asylum application by someone who is in the ACRS, and whether this will affect a grant of ILR.

An important point that many affected people will be unaware of is that granting them indefinite leave to remain without recognition of refugee status will have implications for their ability to reunite with their family, as well as other practical implications such as an inability to access student loans.

Bespoke schemes are utterly inadequate

We have seen with Afghanistan, and are seeing again with Ukraine, that it is simply not reasonable to expect people to wait in danger while new routes that they may not even be eligible for are decided on, set up and operationalised. It is understandable that these arrangements will take a certain amount of time, but it is irrational to expect people to risk their lives by waiting for what, at the point they need it, will be a completely speculative option.

As of 6 March 2022, it has been reported that only 50 applications under the Ukrainian family concession have been granted, out of 5,535 applications. The same day, UNHCR tweeted that the number of people who have fled is 1.5 million, calling it “the fastest growing refugee crisis since World War II”. The difficulty and delay in operationalising these “bespoke” schemes is precisely why we have and need the Refugee Convention, as it acknowledges the reality that people cannot be expected to wait in dangerous situations, and it protects those who have fled to save their lives.

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association.