1 Past and current criticisms of the
asylum system |
1. Asylum is protection given by a country to
someone who is fleeing persecution in their own country. The UK
is a signatory to the 1951 United Nations Convention relating
to the Status of Refugees which sets out the basis on which someone
is considered to be a refugee. The Convention states that a refugee
is a person with a fear of persecution because of their race,
religion, nationality, political opinion or membership of a particular
social group. An individual seeking asylum must therefore show
that they have a well-founded fear of persecution due to their
race, religion, nationality, political opinion or membership of
a particular social group, and that the authorities in their country
are unable to provide protection or that the individual is, owing
to that fear, unwilling to avail himself of the protection of
that country. The definition is forward-looking, so even if a
person has been persecuted in the past, they will not be able
to successfully claim asylum unless they can demonstrate that
they will be persecuted in the future. A person must also be outside
their country of origin in order to be recognised as a refugee.
2. If an individual does not qualify for refugee
status, they will also be considered for protection or permission
to remain in the UK on two other grounds. Firstly, to qualify
for humanitarian protection, a person must demonstrate that they
would face a real risk of suffering serious harm on return to
their country of origin. Serious harm means either the death penalty;
torture or inhuman or degrading treatment or punishment; or a
serious and individual threat to a person's life or safety in
situations of armed conflict. Secondly, an individual can further
apply to remain in the UK on the basis that a return home would
breach their human rights. Human rights claims can form part of
an asylum claim under the Convention but they can also be made
separately. The convention contains a number of 'articles' of
protected rights. Most human rights claims are based on Article
3 (prohibition on torture and inhuman or degrading treatment)
or Article 8 (right to respect for family life and private life).
Time taken to receive a decision
3. The time taken to receive an initial decision
to an asylum claim has been increasing in the recent past. As
we have previously noted, just over half of asylum claims receive
an initial decision within a year but during 2012there was a 63%
rise in the of the number of new asylum applicants who have waited
more than six months for an initial decision.
4. The human cost of delays in decision-making
is significant. As the Migrant and Refugee Communities Forum told
We have seen professionals who have been de-skilled
because they were not allowed to work for eight years. We have
seen women stuck in abusive marriages, unable to leave their husbands
because they were the principal applicants and the women would
not have had status or support alone. We have seen victims of
torture whose mental health has further deteriorated through years
of uncertainty while waiting for the outcome of their claim. We
have seen families torn apart and those left behind suffering
yet more as they are unable to join their loved ones who have
no family reunion rights for the years that they are stuck in
the asylum application system.
5. John Vine, HM Chief Inspector of Borders and
Immigration, spoke of discovering nine cases which had taken 323
days to get an initial decision,
and referred to another where the applicant had been waiting fourteen
years for a final decision.
Another witness told us about meeting someone who had waited sixteen
years for a final decision.
Natasha Walter highlighted a particular case as an example of
the difficulties which applicants face as a result of the length
of time which they remain within the system, citing the example
of the hardship faced by one woman who had waited for 11 years
for a decision and was not entitled to any support for her children.
6. The Scottish Refugee Council found that 49%
of women had waited more than two years for their current status,
compared to 22% of men. They cited several possible reasons for
this difference, including poor quality decision-making, poor
credibility assessments and lengthy appeals processes in women's
cases. One cause of
such delays is possibly the fact that women tend to have more
complex cases as they are more likely to be trying to escape family
or community persecution as opposed to state persecution. We examine
the issue of gender sensitivity in the asylum system in more detail
7. We consider it wholly unacceptable that anyone
should have to wait longer than 6 months for an initial decision,
let alone the delays of many years for those caught in the legacy
backlog. Ministers must not allow people who claim to be fleeing
persecution to be left in limbo for so long ever again.
8. Such a slow decision making process is partly
caused by the necessary allocation of staff and resources to clearing
the 'Legacy Backlog'. In July 2006, the then Home Secretary published
a report on the Immigration and Nationality Directorate (IND).
One of the key highlights was the large number of unresolved asylum
cases, totalling around 500,000. These were to be dealt within
five years or less, and became known as the legacy backlog.
The deadline for those cases to have been resolved was the summer
of 2011 yet at the end of March 2013 there were still 32,600 asylum
cases which had yet to be concluded.
Backlogs reduce faith in the capability of the system to
effectively identify (and protect) those in need whilst providing
a barrier to those who are not eligible under the 1951 Convention.
Evidence of this lack of faith can be seen on both the part of
the applicants and also the wider British public. John Vine noted
that the system is further undermined by the fact that some of
those with applications in backlogs within the asylum system who
may not have originally been granted asylum on the basis of their
claim will nevertheless be given leave to remain due to the time
spent in the country because of "inefficiency and ineffectiveness."
9. In his 2012 report on the UKBA's handling
of legacy asylum and migration cases, John Vine found that from
April 2011, the UKBA had made 8,000 checks against the Police
National Computer and the Warnings Index, which had resulted in
roughly 2,000 "hits". However, because results were
returned only in hard copy , they were not accessible to case
owners working on electronic systems. This resulted in the files
remaining within the "controlled archive" of cases where
the UKBA was unable to trace the applicant. The British Red Cross
highlighted cases where applicants had been regularly signing
in with immigration services, as required by the UKBA, only to
discover that their cases were in the controlled archive.
10. In 2009, as part of an investigation in to
the asylum process, John Vine uncovered a further backlog of 30,000
asylum cases which had been submitted after the introduction of
the New Asylum Model in 2007.
Alison Harvey, of the Immigration Law Practitioners Association,
suggested that the poor quality of decision-making had caused
There is no reason that I can see why there should
be any backlogs when the numbers of persons claiming asylum have
fallen so dramatically. There is not a big intake of cases. There
is no reason why they cannot be decided. I think we will continue
to have backlogs as long as we do not have sustainable decisions.
That is not going to help. We are not going to turn the cases
Maurice Wren of the Refugee Council believed that
the system itself was responsible for the build up of cases. He
raised concerns about the Asylum Operating Model which was introduced
in April 2013 which he described as a "backlog-generator".
We further discuss the concerns about the Asylum Operating Model
raised with us below.
11. The task of staff examining claims for
asylum is to judge fairly, not to make it as difficult as possible
for asylum claims to be made. While staff should be rigorous in
considering the merits of a case, and reject those which are not
meritorious, it is not their role to aim to reject cases, and
the culture of disbelief that has raised has no place in fair
'Culture of disbelief'
12. Another cause of distrust in the effectiveness
in the system is what has been termed the 'culture of disbelief',
which describes the tendency of those evaluating applications
to start from the assumption that the applicant is not telling
the truth. The term, first used to describe the asylum system
in 2008, has recurred repeatedly throughout our inquiry. It was
referred to in almost a quarter of written evidence submissions
to this inquiry.
One of our witnesses told us that he had left his screening interview
feeling intimidated, rejected and as though he had been branded
a liar from the outset.
He explained the impact that this had on applicants was
that they didn't trust the system to make the right decision as
they were disbelieved from the outset. He acknowledged the importance
of examining each claim but suggested that that was not currently
happening... they do not want you even to answer the questions.
When they ask you a question, they are trying to get your no to
be a yes and your yes to be a no.
13. A number of our witnesses likened such an
attitude to the historical attitudes ascribed to the police when
dealing with victims of sexual assault.
In many cases, the applicant's 'lack of credibility' will
be cited as a reason for refusal, with no more specific grounds
being offered for rejecting their story. One organisation highlighted
the impact which this could have on applicants.
Frequently the basis for the refusal is that the
asylum seeker is not believed. Cogent reasons for this disbelief
are often not offered. This is not to say that all asylum seekers
tell the truth, but rather that decision-makers are still prone
to disbelief without foundation, and to treating the asylum interview
and decision-making process as adversarial rather than as an exercise
of an international protection obligation. Since the asylum seeker's
story invariably involves distressing events, and sometimes deeply
traumatic ones, the effect of being disbelieved can be devastating.
We further discuss the issue of credibility below.
Quality of decision making and
lack of auditing
14. Two further criticisms raised by those who
submitted evidence to this inquiry were around the quality of
decision making and the lack of auditing of decisions. This is
perhaps unsurprising, considering that 30% of appeals against
initial decisions were allowed in 2012.
As we have already noted, the rate of allowed appeals is higher
for women than men, and it is also higher amongst applicants from
certain nationalities. In 2012, 52% of appeals were allowed for
Syrians, 41% for Sri Lankans, 34% for Iranians,
45% for those form from Eritrea and 43% for those from Sudan.
15. UNHCR has identified a number of specific
failings in the quality of the UK's asylum decision-making
- failure by caseworkers to understand
the basics of human rights law;
- a lack of understanding by
caseworkers of the role of applicants' credibility;
- frequent use of speculative
arguments to undermine credibility;
- failure to apply the correct
methodology to credibility assessment; and
- lack of consideration of relevant
evidence and the placing of unreasonable burdens on applicants
to provide supporting evidence.
It is notable that three of these five reasons relate
directly to decision-makers' assessment of applicants' credibility.
16. UNHCR has also noted a tendency on the part
of decision-makers to apply an inappropriately high burden of
proof, meaning that sometimes minor discrepancies resulted in
every aspect of an applicant's claim being disbelieved or rejected.
This is despite the fact that in 2000, the Court of Appeal ruled
that decision-makers should adopt a particular 'approach' to pieces
of evidence, which they must take into account. The case owner
is required to make a judgement on:
- evidence about which they are
- evidence they think is probably
- evidence to which they are
willing to attach some credence, even if they could not go so
far as to say it is "probably true"; and
- evidence to which they are
not willing to attach any credence at all.
The Court noted that decision-makers should accept
evidence in the first three categories, that is, that unless the
evidence presented by the applicant is demonstrably false, it
ought to be accepted.
Asylum Aid told us that their research into the issue of the high
allowed appeal rate found a mismatch between the standard of proof
used by appeal judges, which reflected official guidance, and
the higher standard used by case-owners. They suggested that both
the criminal standard of "reasonable doubt" and the
civil standard of balance of probabilities were both higher than
the test set out by the Court of Appeal. They also suggested that
this discrepancy was likely to be more marked in cases involving
female applicants because of the type of persecution they are
likely to have experienced.
17. We are also concerned about decisions to
grant asylum to people who later emerge to be involved with terrorist
activity. Those who apply for asylum in the UK should be checked
against national and international law enforcement agency and
security service databases to ensure that we are not harbouring
those who intend us harm. We will revisit the issue of those who
use the UK asylum system to escape terror charges in their home
countries when we hold an inquiry in to counter-terrorism this
18. The substandard quality of decision making
is being compounded by the inability of case workers to learn
from their mistakes. John Vine told us that his recommendation,
in 2009, that the UKBA should analyse the reasons why it was losing
appeals in order to improve the standard of decision-making, but
that the recommendation had not been fully implemented.
19. The lack of auditing is especially worrying
as a number of witnesses made the point that there was suitable
guidance on many of the areas which will be mentioned within this
report - country of origin information, gender sensitivity, credibility
- and yet that guidance was not being followed by case workers.
Sarah Rapson, interim Director General of UK Visas and Immigration
at the Home Office, told us that where administrative errors or
incorrect decisions are identified then "steps are taken"
to ensure that case owners and their managers are aware.
However, a lack of formal auditing process means that when a refusal
is overturned at appeal as a result of the caseworker contravening
that guidance, there is no way of being able to monitor poor performance
by case workers which could then be dealt with by further training
or, in cases of persistent poor performance, performance management,
including potentially dismissal.
20. The Committee are concerned that the
length of time take to receive an initial decision may severely
impact on the health and wellbeing of asylum applicants. Not all
successful appeals are the result of poor decision making or administrative
failure, but decision-makers should be encouraged to view every
successful appeal as a learning opportunity. When an appeal is
upheld, the decision-maker should, as a matter of course, have
this drawn to their attention and be given an opportunity to discuss
the reasons for the appellate decision with a more experienced
peer or senior colleague. This process should be integrated into
the Home Office's staff development and appraisal system. Where
particular decision-makers consistently experience an appeal rate
which is significantly higher than average, this should be drawn
to the attention of their line management.
Everyday difficulties when dealing
with the UKBA
21. Witnesses have raised numerous concerns about
UKBA practices which make life unnecessarily difficult for both
applicants and those involved in supporting them through the asylum
22. At present, all of those who wish to submit
an application for asylum must travel to Croydon, to the Asylum
Screening Unit, no matter where their point of entry to the UK
was. Those who are considered to be particularly vulnerable can
be screened in regional offices, but requests for this to happen
are not always agreed to. Debora Singer of Asylum Aid described
a case where a pregnant asylum seeker based in Scotland was required
to travel 440 miles overnight to Croydon for a morning appointment,
despite the protestations of the Scottish Refugee Council. She
went into labour on the steps of the asylum screening unit.
23. There were also complaints about the length
of time it took to get interviews at the Asylum Screening Unit.
The Immigration Law Practitioners' Association (ILPA) had received
reports of legal representatives being unable to contact the Asylum
Screening Unitone had organised a volunteer rota spanning
a fortnight so that they could continually attempt to phone the
Unit to arrange appointments but were still unable to get through.
Another had made more than 200 phone calls in a month but had
been unable to book any appointments.
A further criticism of the Asylum Screening Unit in Croydon
is that, unlike the regional offices, the unit does not offer
childcare, meaning that children are present when parents are
making their claim to the screening officer. This can inhibit
disclosure as many parents will not discuss acts of sexual violence
or torture in front of their children. Despite the fact that childcare
is offered at the regional offices, the letters inviting applicants
for interview still state that childcare is not available and
that they should not bring their children with them. This has
been repeatedly raised with the Home Office over the past two
years but the standard invitation letter has not been amended.
24. We recommend that the Home Office amend its
guidance to ensure that any applicant who is disabled or is pregnant
be offered a screening appointment at a regional centre. In cases
where the applicant is the primary carer of a child under the
age of 16 child care should be made available to those who need
it for their interviews, and this should be made clear in the
invitation letters. Where documents can be sent by mail or online
this option should always be highlighted to save time and cost
for Home Office staff and applicants.
25. We have been informed that there are often
occasions when there are issues with interpreters both during
substantive interviews and then again when the case goes to Court.
A common problem is the use of interpreters who do not speak the
applicant's regional dialect. For example, according to the Liverpool
Asylum and Refugee Association, 85 languages are spoken in Ethiopia
but the UKBA offers interpretation only in Amharic, the official
26. The impact of mis-translation is that any
discrepancies between previous and future accounts could be used
to cast doubt on the applicant's credibility. Having an interpreter
who cannot speak the applicant's dialect in court will stop the
case from being heard. One of our witnesses gave us this example
of mis-management in the case of an appeal by an Afghani boy whose
age UKBA disputed.
The first time the Home Office had not read up about
the case so it was adjourned. The second and third time an Iranian
interpreter was provided, who could not interpret the boy's village
language. The fourth time a Dari interpreter was sent to interpret
for the boy, it was confirmed by an appropriate adult who understood
the boy's dialect that he did understand what was being said,
and who then won his case.
The impact in this case is the cost incurred of the
court holding four sittings when the case required one sitting
and (as they had been wrongly allocated) the fees for the three
interpreters that could not do the job. All of this would have
paid for from public money. This was despite the fact that it
had been made clear, by those supporting the asylum seeker, to
UKBA exactly what dialect and language was needed to interpret
for their client.
The waste of public money in this case is concerning. Unfortunately,
several other witnesses have described similar experiences meaning
that this is not an isolated incident.
27. Whereas the provision of the right kind
of interpretation can be expensive, it can also be cost-effective,
particularly if it saves money being spent on unnecessary appeals.
To that extent this should not be an area where the Home Office
should be seeking to cut corners.
SUBMITTING FURTHER CLAIMS
28. Since October 2009 it has been necessary
to make further representations in person at the Liverpool Further
Submissions Unit. Given that on the majority of the occasions
it is simply a case of submitting documents rather than any sort
of substantive contact taking place,
many people have complained that it is overly onerous to expect
failed asylum seekers who, in many cases, have no recourse to
public funds to travel to Liverpool when previously applicants
and their representatives were allowed to send submissions via
post. Indeed, the
High Court has questioned the legality of refusing to accept submissions
of applicants who are destitute and therefore cannot travel to
29. We recommend that where applicants are
allowed to make further representations the option of doing so
by post should be re-instated.
30. The British Red Cross have raised concerns
about the complexity of the Refugee Family Reunion process. The
application form for a family reunion visa is supposed to be filled
out by the applicant (rather than the sponsor) although this does
not necessarily happen as the application has to be filled out
online and the refugee who is already based in the UK is more
likely to have internet access. The form itself is described by
The British Red Cross as confusing and complex and they state
that guidance on filling in the form is difficult to find and
that many sponsors require professional support to complete the
application. The withdrawal of legal aid for family reunion cases
has been criticised by both the British Red Cross and the UNHCR.
The British Red Cross also pointed out that the application form
makes frequent references to maintenance and accommodation testing,
although these criteria are not relevant to the Family Reunion
process. Such references cause unnecessary confusion and could
result in sponsors believing that their family are not eligible
31. There are also issues with communication
across departments in the Home Office. As mentioned previously,
the British Red Cross described cases of applicants who regularly
'signed in' with authorities and yet found that their cases were
in the controlled archive as they were apparently unable to be
traced. Refugee Action raised the issue of refused applicants
who were engaging with the Voluntary Assisted Return and Reintegration
Programme and yet were forcibly removed.
Enforced removals often costs several thousand pounds per person,
so it makes no financial sense to remove someone who is about
to return home voluntarily. Refugee Action ascribes this to "competing
target priorities and internal communication break-downs within
the Home Office".
32. There are also indications that the departments
cannot effectively communicate with applicants either. We received
the following case study from Southampton and Winchester Visitors
On three occasions David received the letters inviting
him to his first interview after the date that the actual interview
was supposed to have taken place. On each occasion, it took frantic,
extremely lengthy calls by SWVG to exonerate him from the charge
that he had knowingly failed to appear. When he did finally attend,
the case worker didn't appear and the appointment had to be re-arranged.
John Vine has previously cited the low priority given
to customer service as an issue within the asylum system, commenting
that he found it "astonishing that there is such a little
focus on the customer for such a large Government Department."
33. We therefore welcome the commitment made
by Sarah Rapson to improving the customer service ethos of the
UK Visas and Immigration section of the Home Office and endorse
her view that "it must be right that the same way that we
would treat customers who apply through us through different routes
should be applied to asylum seekers. Possibly more so, because
they are some of the most vulnerable people that we deal with,
who probably do not complain."
34. Lack of customer focus has been one of
the main problems that has bedevilled the asylum system under
the UK Border Agency. We welcome the interim Director General
of UK Visas and Immigration's commitment to a more customer-focused
approach to asylum applications, and her acknowledgement that
this approach is all the more important because of asylum seekers'
vulnerability. We recommend that the Home Office carry out regular
customer satisfaction surveys among asylum applicants and the
groups who support them in order to monitor progress in this area.
Concerns about the Asylum Operating
35. In April 2013, the Government introduced
the Asylum Operating Model. Applications are triaged at the screening
interview stage and allocated to "decision pathways",
based on how long the case is likely to take to resolve and how
likely the application appears to be granted or refused. Detained
fast-track cases and cases where a person will be sent back to
a European country through which they passed en route to the UK
are expedited. Other cases are allocated to the green, amber or
red pathways, where green cases are those that are most likely
to be resolved quickly and red cases are the most difficult to
resolve. We were told by the Immigration Law Practioners Association
that a significant criterion is whether or not the application
has a 47% chance of being granted.
There is no longer a single case owner who handles the application
at all stages. The Immigration Law Practitioners Association (ILPA)
have said that the new model
appears to build on the worst faults of the current
system in that it attempts to judge and categorise cases before
they have been investigated, at the screening stage. Little is
known about a person at screening: their name (which may be in
dispute), their nationality (which may be in dispute), their gender,
their age (which may be in dispute) and how they arrived in the
UK (which may be in dispute). There are limited opportunities
for disclosure at screening. The screening interview is not designed,
and nor should it be, to investigate the substance of a claim.
A person may be distressed and fearful, tired and confused. A
relationship of trust and confidence is likely to need to be built
before a person will describe torture, rape or other abuse or
humiliation; it is unlikely to emerge at this very initial stage.
Asylum Aid, the Refugee Women's Strategy Group, the
Scottish Refugee Policy Forum and the UNHCR have all also highlighted
concerns about the Asylum Operating Model including the reliance
of the process upon information obtained during the screening
process, the increase in targets for staff and the reduction in
the level of seniority of the case owner.
36. It is too early to assess the impact of
the new Asylum Operating Model which was introduced in April 2013
but it is clearly a cause of concern among those who work with
asylum seekers. The risk is that the model becomes too dependent
on decisions made at a very early stage in the process which might,
as further information becomes available turn out to have been
based on mistaken assumptions. It is highly doubtful, in our view,
that an initial screening interview will always provide enough
reliable evidence to establish the chances of an application being
granted. This could lead to the generation of further backlogs
if cases are allocated to the wrong decision pathway and it is
important to ensure that, where the initial decision as to the
appropriate pathway proves to be wrong, the case can be moved
to the correct one. We recommend that the Home Office issue clear
guidance to case-handlers as to when cases should be transferred
3 Ev 79 Back
Ev 313, Summary Back
The Independent Chief Inspector of Borders and Immigration, An
inspection of the UK Border Agency's handling of legacy asylum
and migration cases, November 2012, p16 Back
Home Affairs Committee, The work of the UK Border Agency (Jan-March
2013), HC 616, Letter from Sarah Rapson and Dave Wood to the
Chair, 10 July 2013 Back
Ev 127, para 3.8 Back
Ev 49 [Asylum Aid]; Ev w6 [Naomi Roberts]; Ev w6 [Mrs Janet King];
Ev w39 [London Destitution Forum]; Ev 64 [Women for Refugee Women,
the London Refugee Women's Forum and Women Asylum Seekers Together
London]; Ev w45 [Quaker Peace & Social Witness and Quaker
Asylum and Refugee Network]; Ev w56 [Refugee Women's Strategy
Group]; Ev w77 [Migrant and Refugee Communities Forum]; Ev w82
[Bradford Ecumenical Asylum Concern]; Ev w125 [S Chelvan]; Ev
w133 [Churches Refugee Network]; Ev w144 [ASSIST Sheffield]; Ev
w160 [Scottish Refugee Policy Forum]; Ev w170 [TRP Solicitors
Ltd]; Ev 114 [Survivors Speak Out]; Ev w221 [Justice First]; Ev
w242 [Barnado's]; Ev w283 [Why Refugee Women]; Ev w306 [Huddersfield
Asylum Advice Service]; Ev w312 [Scottish Refugee Council]; Ev
w342 [Refugee Children's Consortium]; Ev 138 [Law Society] Back
Ev w146, para 19 [ASSIST Sheffield] Back
Appeal numbers taken from data supplied by the UKBA to the Committee
relating to Q1-4 2012 Back
A question of credibility, Amnesty Back
Ev w242, para 10 [North of England Refugee Service] Back
Ev 142, para 30 [Law Society] Back
Ev w189, para 9 Back
Ev 57 [Asylum Aid] Back
Qq52, 54, 175-6 Back
SR 05/08 Back
Ev 84, Appendix 1 [ILPA] Back
Ev w324, para 3.8 Back
Ev w168 [Suzanne Fletcher MBE] Back
Ev w133 [Churches Refugee Network]; Ev w144 [ASSIST Sheffield] Back
Ev 76 [ILPA] Back
Ev w40 [London Destitution Forum] Back
Ev w118 [Destitute Asylum Seekers Huddersfield] Back
Ev 133 [British Red Cross] Back
The Voluntary Assisted Return and Reintegration Programme (VARRP)
is operated by Refugee Action and is co-financed by the Home Office
and the European Refugee Fund. It provides support for those in
the asylum system and those with temporary status in the UK who
wish to return voluntarily and permanently to their country of
origin or to a third country to which they are admissible. This
might include help with obtaining travel documents and booking
flights, and measures designed to improve participants' employability
when they reach their country of return, such as job placements
and training. Back
Ev w64, para 30(b) Back
Ev w87, para 2.4 Back
Home Affairs Committee, The work of the UK Visas and Immigration
Section, HC 232-i, 11 June 2013, Q27 Back
Ev 76, para 4 Back