Reforming the asylum system

Steve Kneale, has shared a proposal for a possible solution the current crisis in the channel tunnel with people seeking to enter Britain for asylum through hazardous boat crossings organised by people smugglers.  These crossings are dangerous and this week resulted in tragic loss of life.**

I don’t intend to engage with the detail of Steve’s proposal here. I believe it is sound and balanced. That’s not to say that there aren’t potential challenges or objections I hope the proposal will looked at and discussed by those who are in a position to act on it.  Rather I want to follow on a bit further. Steve’s concern is about an immediate response to a specific problem. However he also recognises that there are bigger, longer term questions about how the whole system works, or doesn’t.

I want to talk a bit about the bigger systemic issues now, partly because Steve gave me advance sight of his post and that prompted a conversation between us about some of those things. Partly, it’s also because I believe that when we make quick fixes without actually addressing the bigger systemic issues that we tend to suffer from unintended consequences.

There are two systemic issues to consider. The first relates to the presence and activity of smugglers. I don’t intend to say too much on that here except to highlight that we like to think that we don’t have a problem with organised crime here in the UK but we do. This means that simply disrupting their current criminal activities will only result in them finding other ways to make money out of the misery of others. If they are not smuggling asylum seekers then they’ll be trafficking young women and girls for sex or it’ll be drugs or weapons.  So, there is a root cause that needs to be addressed here.

The other systemic issue is the asylum system itself.  Why do we think that people take the risky route of entrusting their lives into the hands of people traffickers, often at great material cost too and then getting into small boats to cross open sea whether that’s the channel or the Med?  Part of the answer is that they weigh up the odds of trying this route and going through existing official routes such as getting on a train at the Channel Tunnel or boarding a ferry. 

This isn’t just about people taking the boats. Officially, you are meant to request asylum as soon as you arrive.  Yet I know a number of people who over the years have arrived perhaps with a short stay visa and lived under the radar.  Now of course in some cases the reason is that they only used asylum when they were caught here having overstayed.  Yet, there are others – and there are court decisions to evidence this – where their claim was genuine and successful.

Again, I suspect that there is a concern that if you immediately identify yourself to the Home Office that it is much easier to remove you or that it is harder to prove and win your case.  The system means that there are many people who lose years of their lives in the system whilst it also means that yes there are people in that system or evading the system who perhaps don’t have a legitimate claim.

So, the question is whether or not it is possible to re-stack the odds so that safe and official routes in are seen as more favourable.  Steve’s article gets us thinking about the bigger systemic questions because he highlights how resolution needs to be about carrot, not just stick. It’s no good making the unofficial, unsafe options more difficult and dangerous still if the official/safe option is seen as unattractive.

That of course rests on a presupposition which is crucial to the whole question.  Steve’s proposal and my comment above rest on the presumption that we want people to find safe and official routes into the country. If our assumption is that there are many genuine claimaints and that we are under a moral imperative to offer refuge and safety then we’ll want to find ways to make it easy and straight forward for genuine claimants to enter the country whilst rapidly filtering out false claims.  However, if our starting point is that we don’t believe there are many or any genuine claimants or that even if there were that Britain is under no moral obligation to offer refuge (we are full up, it’s some else’s turn) then the Government will have no interest whatsoever in offer a free/safe route in. Their aim will be to make all routes into the country as hard and as hostile as possible.

There is therefore a crucial question for the Government to answer. I think a lot of people have their suspicions about what that answer really is which is why it is crucial that the answer is matched by actions.  For the record I believe that we do have a moral obligation to offer asylum to refugees.  That’s why, with Steve I believe we need safe routes in.

On the basis of that presupposition, here’s a further proposal.  Currently for a siginfificant part of the process the Home Office acts as policeman, prosecutor, judge and jury and that’s not helpful for due process. So often, what I’ve seen is that it is when a person gets in front of a judge that the case starts to change. But even then it’s a challenge. Often what happens is that the person is refused and appeals but the tribunal sees the case through the lens of the evidence and narrative as it already is presented by the Home Office.  They fail and repeat, their solicotr gathers paperwork and submits it. Officially it’s meant to be a fresh case with new evidence but the evidence isn’t easy to obtain and in fact the problem is not with the evidence itself but the narrative around it.  So, they keep repeating until eventually someone says “let’s try a judicial review.” Then the judge says “the problem isn’t the facts but the interpretation and application of law.” This restarts things afresh because now the case is being investigated from the right perspective. That’s when I’ve seen cases won.

This is behind my thinking.  The sooner we get people in front of someone independent, looking at the right evidence from the right perspective unincumbered by misdirects the better. This will make the system fairer and more effective.

So, my proposal is as follows:

  1. If someone enters the country through a recognised means then they will be immediately have their case processed as follows.
  2. If they are identified as on a list of countries where there is known danger then the presumption will be that their case is genuine. We won’t try and second guess their individual safety (I mean how can you distinguish that in the middle of a war zone, during a revolution or when a dictator is indiscriminately torturing and murdering their people). 
  3. Those on the “presumed” list will be automatically given leave to remain for a fixed period of time. Let’s say three years as a starting point. They’ll be found housing, have access to standard benefits and crucially be allowed to work. 
  4. Those who don’t fall into that category will have their case heard quickly in front of a judge.
  5. Additionally, the process will not be adversarial with the burden of proof on the claimant to provide the evidence. It will follow a more European investigative hearing process where the judge’s office will be responsible for assembling the evidence in order to make a fair decision. 

As with Steve’s proposal I’m sure there are difficulties and challenges but again, my aim here is to get us thinking about how we respond morally, compassionately and effectively to the issue.

See Steve’s original proposal here

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