On 26 May, the United Nations Refugee Agency (UNHCR) published a report ‘Asylum Screening in the UK: An audit of the UK’s asylum intake, registration and screening procedures and recommendations for change’ which identifies a number of problem areas. They visited registration and screening locations across the UK between June and November 2021, and audited 50 records of asylum claims made from the same time period. This very long report (202 pages) is well worth a read if you can find the time. Below I have highlighted some parts that I think are particularly interesting to practitioners.

This report is instructive in relation to the proposed changes set out in the Illegal Migration Bill, particularly around detention, increased use of inadmissibility processes, and proposals to send people to third countries, and in light of the identified shortcomings around screening. UNHCR also points out that these shortcomings are likely to result in increased litigation that the Home Office will be unlikely to successfully defend if these issues are not resolved [see for example 188, 201 and 493]. Recommendations are collated at pages 122 to 135.

Delays

During the audit period there were significant delays from the date of people’s first phone call to the Home Office to obtaining their screening interview. In November 2021, National Asylum Intake Unit staff said that there was a minimum of 12 weeks wait and that around 3,800 people were waiting. The knock-on impact that these delays have on people include difficulty in accessing asylum support and therefore legal aid. It is much easier to meet the requirements to open a Legal Help file where there is evidence that the client is in receipt of asylum support.

Importantly, and not published elsewhere, at [75] the report states that “[i]n order to mitigate some of these risks, the Home Office has adopted a practice of giving asylum-seekers a reference number for their initial call, which they can then use to contact Migrant Help and apply for accommodation and support prior to their formal registration appointment”. My understanding is that this method does help in some cases.

Informal barriers to registering a claim

The UNHCR uncovered practices that create a risk that people may be improperly prevented from claiming asylum. This includes staff at Croydon asking people who turned up without an appointment why they needed to claim asylum and then turning them away, telling them “that’s not an asylum claim”. No documentation was provided to people who are turned away in this manner.

At an airport, UNHCR witnessed border staff advocating for trying to persuade people to withdraw their claims and taking pride in their success in doing so, especially with younger adults [82]. One member of staff was named as being “good at it”.

Inaccuracies

Unsurprisingly, inaccuracies in record keeping are a theme throughout the report, which may be of use in cases where there is an issue with discrepancies between screening and substantive interviews. At [129], UNHCR reports the question “do you feel safe in your accommodation?” being” routinely omitted” from screening interviews. But the answer “yes” was routinely recorded.

In general, inaccuracies between screening interview and the minutes entered on a person’s file are noted at [86]. At [131] UNHCR records that the health section was not being read out in full, which “may contribute to the delayed disclosure of medical needs”. It follows logically that safeguarding issues are being missed.

UNHCR also noted supplementary questions, i.e. beyond those on the standard form, were asked but not recorded, even where the answers were recorded. This occurred in 27 out of 42 cases examined [217]. Only four of the 32 interviews observed by UNHCR were recorded verbatim, and 16 had “significant” changes to answers when written down [291]. In three screening interviews, people were refused interpreters or “otherwise persuaded” to carry on in English, and this was not recorded [299]. Apparently, professional interpreters are not used at Tug Haven [434] which may contribute to the estimate by staff that 70% of the information recorded is incorrect [433 and 461].

“The contention” and identification of illegal migrants

The Home Office apparently uses a phrase internally, “the contention”, which means establishing the person’s immigration status, including whether or not they are an illegal entrant [163]. UNHCR notes at [172] that the asylum screening and routing guidance does not list establishing “the contention” as one of the aims of the screening process nor does it provide guidance on how to do this. I do not recall encountering this phrase before, it does not appear in that context in the guidance on screening, and UNHCR has recommended that it is discontinued.

This “contention” decision is not put to the person before it is decided, and there is no formal mechanism for disputing it later. UNHCR has concerns about the processes they observed for deciding that a person is an illegal entrant in two situations [171]:

“(i) Where they entered the UK lawfully on a non-protection route and subsequently claimed asylum but either their intentions on arrival were not clear, or their visa route did not require them to have the intention to leave the UK in the future; and

(ii) Where they have not, as a matter of domestic law, entered the UK.”

The Home Office’s training on “the contention” is mainly focussed on illegal entry by deception [176], and includes the following:

“(i) The determination that someone has entered illegally via verbal deception and the service of legal paperwork to this affect requires a complete admission by the claimant.

(ii) The “best chance” of confirming Verbal Deception is by asking the questions ‘How and when did you get to the UK?’ ‘Why did you come to the UK?’ ‘Did you ever intend to return to/why can’t you return to home country?’ ‘Was it always your intention to claim asylum?’ [emphasis in original].

(iii) An example of Verbal Deception is given. This describes a person who applies for and is granted a 6 month visit visa, arrives in the UK and is asked by the Immigration Officer at the airport what their intentions are. They reply that “they are here to visit for X amount of time, staying at X location and returning to [their country] on X date. The claimant then claims asylum and at the screening interview admits that it was always their intention to claim asylum and that they never intended to return to [their country].”

UNHCR raised several concerns about the training, including that the expectation that all refugees have “a single, unambivalent intention on arrival is unrealistic”, particularly in certain claims such as those based on sexual orientation [179 and 180].

UNHCR discovered that everyone who had arrived at Tug Haven (i.e. via small boat) was designated as an “illegal entrant” and that legal requirements for arrest and detention were not being complied with [419]. In response, the Home Office said that these were administrative arrests made under paragraph 17(f) of Schedule 2 to the 1971 Immigration Act.

But that is not what people were told. Form IS91Rs, giving reasons for detention, were not served on people and the situation was so serious that a senior Home Office staff member raised a series of internal complaints about it [footnote 262]. Other staff members were also uncomfortable about this process [421, see also 475]. A change post-Nationality and Borders Act 2022 was noted [422].

Interviews and assessments

UNHCR witnessed a concerning level of delegation of the interview process to interpreters [196 to 197]. They also saw interpreters assuming a role “significantly beyond interpretation only” [303]. The code of conduct for interpreters states that it is misconduct for interpreters to ask their own questions, instead of those of the interviewer. It also appeared that experienced interpreters were being used to help train interviewers [304 and footnote 35].

A truncated initial interview, described as a “minimum viable product” [250] was in use for those arriving by small boat at both the Kent and Midlands Intake Unit [261]. A manager at the Midlands unit described the process as “dreadful from a customer services point of view” and “pointless” and “bonkers” from a management point of view as everyone given this initial interview would need to be screened again [263].

And the identification of potential victims of trafficking also seems inadequate. Home Office staff were unaware of the relevance of a person’s travel history [190], and unaware that certain questions they needed to ask were for the purpose of identifying vulnerabilities and trafficking indicators [262].

Age assessments

Anyone who works on age assessment cases should read this section in full, as UNHCR notes that the age assessments they witnessed were not carried out in accordance with Home Office guidance.

One example details the age assessment of five young Kurdish individuals where no questions were asked and all of the assessments had been completed “within four minutes of the van door being opened”. No interpreter was present [349-350]. UNHCR also reports a staff member saying “[w]e had to make him over 25; it’s the resources, it’s the time” and a child of 12 was therefore sent to Yarl’s Wood for detention [466].

UNHCR recommended that the threshold for formal age assessments is reverted to the position where a person appears to be significantly over 25. They also recommended that data be published on the number of children considered to be over 18 and are then subsequently accepted as children.

Detention

There is much to be concerned about in relation to the treatment of people in detention. A senior manager reported that the detention of victims of torture is “routine” and that “every day” they identify people who are unsuitable for detention, including those who are mute or deaf. In one case they also detained a mentally disabled man who was completely dependent on his brother, but this was not noted in the paperwork [465].

Where staff tried to get someone released earlier than the five days permitted under the Short Term Holding Facilities Rules due to the identification of a vulnerability, they would get pushback from the National Asylum Allocation Unit. Sometimes:

“they were told that everyone had to stay for five days, and that the screening interview therefore had to be scheduled for day four, so that the detention would remain legal. They understood that this was because of a lack of accommodation or transport” [476].

Conclusion

This report could not make the dangers of the Illegal Migration Bill any clearer. It is very unlikely that the screening described in this report will be able to accurately identify those whom the Bill should not be applied to or those who have specific vulnerabilities that would mean they would be at risk of “serious harm”, as defined in the Bill. The timescales provided in the Bill to challenge these decisions are such as to make these “safeguards” practically meaningless, guaranteeing that people seeking safety in the UK will instead be sent to harm.