How new asylum rules creating a temporary refugee status will fuel exploitation
Following news that the government were looking at Denmark as a source of inspiration for future asylum policy, the new Home Secretary Shabana Mahmood announced a raft of major changes to the UK asylum system. The proposals amount to a major overhaul of UK asylum policy, and in particular the rights and entitlements that asylum seekers and refugees can expect during their time in the UK.
The reforms are seen as the latest in a series of efforts to curb asylum claims in the UK, focused mainly on those arriving in small boats across the English channel, but also increasingly from those making claims after arriving on work or study visas.
Here, we will unpack the key changes related to the government’s settlement announcements, and analyse why they are likely to fail in their stated objectives.
Explained: The proposed changes to the asylum system
At the heart of the government’s policy paper “Restoring Order and Control”, is reforming refugee status itself so that it provides only temporary - rather than permanent - protection. Under the new rules, someone who is confirmed as a refugee will be granted permission to remain in the UK for an initial 30 months, which is only renewable if the government still deems that person as in need of safety. If not, they become liable for removal.
Confirmed refugees will have to wait 20 years before they can apply to settle permanently in the UK. The only exception to this will be individuals who arrive in the UK under one of the government’s approved resettlement schemes (see below) and those who transition onto a new Protection Work and Study route, who will be able to apply to settle sooner. They will no longer have an automatic right to family reunion, with this possibility reserved for those who transition onto the new Protection Work and Study Route.
There are other changes to the support framework for asylum seekers and refugees, too. The current legal duty to provide support, including accommodation to destitute asylum seekers, will be downgraded to a discretionary power. This means support can be denied for those who, for example, undertake work “illegally” or are disruptive in accommodation. Individuals who have some form of income or assets, but not enough to support themselves independently, will be required to contribute towards the cost of their asylum support.
The government also intends to scale up removals. The “one in one out” pilot with France will be scaled up, while removals to certain countries where regime change has taken place (such as Syria) will also be encouraged. The government has said it intends to penalise countries that refuse to accept their own citizens back.
Reform of the appeals system is also proposed, including a new independent appeals body to accelerate the consideration of asylum claims that the government deems are likely to have a low prospect of success, and a single appeal route to prevent individuals from delaying their removal by lodging late legal challenges.
There are other cursory references to changes the government wants to make. For example, the government wants to define how and in what circumstances people can make claims based on the right to private and family life enshrined in Article 8 of the European Convention on Human Rights (ECHR). It also wants to work with other countries on concerns that the Article 3 ECHR prohibition on “inhuman or degrading treatment” has been extended beyond its intended scope, frustrating the deportation of foreign national offenders. It also wants to be able to dismiss protection claims made by citizens of “manifestly safe countries” quickly after a single screening interview to prevent frustration of the removals process.
Despite having been debunked on a number of occasions by the anti-trafficking sector, the myth of “abuse” in the modern slavery system has once again been touted by the government, paving the way for yet more restrictions. The government intends to strengthen guidance to ensure that the failure to disclose information early is taken into account when considering the credibility of someone’s case. New legislation to clarify obligations, address potential misuse, while maintaining essential protections, has also been promised.
Finally, the government’s paper suggests there will be an increased focus on safe and legal routes for those that it deems are “truly refugees” to seek sanctuary. There are plans to introduce a capped route for refugee and displaced people to study in the UK, alongside a capped route for skilled refugees and displaced people to come to the UK for work, building on previous efforts on the Displaced Talent Mobility Pilot. Those arriving on these routes will be on the 10-year route to settlement, subject to wider consultation.
A permanent state of precarity for people seeking refuge
Our headline view is that beyond creating more work and administration for Home Office officials, the announcements are unlikely to stop people from claiming asylum in the UK (however they might arrive), nor will they act to increase the integration of asylum seekers and refugees into our communities.
In suggesting these reforms, much has been made of the UK copying Denmark’s system of temporary status for confirmed refugees. The Danish Institute for Human Rights has previously found that for those at risk of having their residence permits revoked upon review, there is a risk of losing the right to live and work in the country and being separated from family. The Institute’s analysis suggests that the process of revocation itself in Denmark is lengthy and extremely stressful for all involved whatever the outcome.
In addition, there is a lack of detail on the new Protection Work and Study routes. Given our previous work around the risk of exploitation for migrants on sponsored work routes, it would be quite perverse for refugees transitioning onto this route to have less labour market mobility and bargaining power. Similarly, the fact that confirmed refugees will now have to wait up to 20 years before acquiring settlement in the UK will place an entire generation in a permanent state of precarity.
The removals policy endorsed by the government is also likely to encounter issues. For people that do not have their stay extended, their removal from the country is not going to be guaranteed. This is what materialised in Denmark, where a number of Syrians who did not have their permits extended were not able to be removed and instead had to reside at detention and removal centres.
Though the UK government has also talked tough on imposing visa penalties on uncooperative countries that do not accept returns of their citizens, it remains to be seen how widespread this will be given the importance of maintaining good diplomatic relations and the government’s consistent rhetoric around working with international partners on labour migration issues. The same can be said for reinterpreting the scope of “inhuman and degrading treatment” within the context of Article 3 ECHR, which is unlikely to happen any time soon.
Write to your MP
If you believe the proposed changes to the UK's asylum and refugee system are wrong, write to your MP
On support and integration, the government wants refugees to contribute, but having their status reviewed every 30 months means that there is little incentive for employers to take these people on in employment. Equally, asylum seekers currently only have the right to work after waiting for a decision on their asylum claim after 12 months, once the Home Office has agreed to it, and even then, only in a limited set of roles. As others have noted, downgrading the duty to provide support to destitute asylum seekers is unlikely to change things in practice as there are other mechanisms for people to prevent destitution, such as Article 3 ECHR.
It seems like the government, yet again, cannot decide between actually being interested in improving integration and cohesion outcomes, or whether it just wants to appear performatively cruel towards refugees and asylum seekers.
Perpetuating modern slavery myths
It is also necessary to yet again call out the government’s misplaced criticism of the modern slavery system as being susceptible to abuse or vexatious cases. Disqualifications from the National Referral Mechanism (NRM) arising from bad faith are effectively exceptional cases, with only 19 bad faith disqualifications having been requested since its introduction on 30 January 2023 (of which 16 have been confirmed to date). Similarly, 808 disqualifications on public order grounds have been requested in the same period (682 of which were granted). This compares with a total of 15,838 positive reasonable grounds decisions made for adults in the same period.
The lack of data to back up the government’s claim that people arriving on small boats abuse the modern slavery system, is similarly compelling. Previous analysis by the Home Office on modern slavery referrals for people detained for return after arriving in the UK on small boats suggests that between January to September 2022, 93% of those detained who were referred into the NRM received a positive reasonable grounds decision.
In respect of disclosure of relevant information, the Home Office’s own statutory guidance notes that potential victims of modern slavery may have difficulties in disclosing details of their situation to the authorities and that “a delay in disclosing facts should not necessarily be viewed as manipulative or taken to mean these facts are untrue”. By repeating such an unfounded trope, the government is doing little to instil hope that it is taking the protection of victims of exploitation seriously.
Safe and legal routes lacking detail
In principle, we welcome an emphasis on safe and legal routes to the UK, however there is still much to be frustrated with here. The cap on these routes suggests that the number of individuals able to benefit from them will be relatively low - the Displaced Talent Mobility Pilot only provided up to 200 applicants with the ability to relocate to the UK for skilled employment. A 10-year route to settlement (confirmed in the settlement changes discussed below) represents an increase on the five years that recognised refugees already have to wait before obtaining settlement in the UK, which is likely to hinder integration and their ability to participate fully in civic life.
Similarly, much more detail is required on aspects of community sponsorship to ensure that the UK learns its lessons from the experience of the Homes for Ukraine Scheme, where displaced Ukrainians were sponsored by host families. Our previous work in this area suggests that community sponsorship, for all its benefits, can place immense pressure on host families to meet the needs of their guests, while strong oversight is essential to make sure everyone involved is safe and feels supported. There also needs to be a much stronger process in place for moving on after community sponsorship to prevent precarity (particularly housing need) at short notice - a state-led safety net will always be required.
What next?
Given the scale of the asylum changes, it is likely to be some time before they fully come to fruition. At least part of the announcements will require new primary legislation to be passed, though various aspects may be achieved by other legal instruments. One thing that we are sure of is that the changes won’t meet the government’s own goals around integration and reducing asylum claims.
As with its previous immigration white paper, the government wants to have its cake and eat it at the same time. It says that it wants better integration and community cohesion, but it also wants to appear tough on immigration. The inevitable tension between these two objectives means that the government’s approach is likely to fail and create more problems than it resolves, not least politically - murmurs of discontent from within the Labour party suggests this has already started to materialise. An obsession with “clamping down” on migrants rather than exploring more compassionate, sensible and consistent policy options means that there will likely be no winners from the government's proposals.