To cope with a record high backlog of asylum applications, the Home Office has announced it will instruct thousands of applicants to complete a questionnaire in English, instead of a face-to-face interview. If they do not do this within 20 days, their asylum application may be treated as withdrawn.
This “streamlined” procedure is expected to apply to about 12,000 people who claimed asylum before June 28 2022 from five countries: Afghanistan, Syria, Yemen and Libya, where there are armed conflicts, and Eritrea, where all adults are conscripted into prolonged military service in conditions that breach human rights. Anyone who leaves Eritrea without an exit visa (which in reality is unavailable) is liable to prison in conditions that, similarly, amount to serious harm.
People from these five countries have an asylum grant rate of over 95% in the UK. They are extremely likely to get asylum eventually, regardless of whether they’ve already suffered harm in their home country.
With this in mind, it makes sense for the Home Office to fast-track these applications. There is no reason to keep people waiting in asylum accommodation for years, unable to work, study or be independent. And there is no point wasting Home Office resources on a full interview to understand their case, research the background and make a detailed decision. The individual circumstances are barely relevant.
The backlog of UK asylum applications awaiting decisions is around 166,000, and the new streamlined procedure should, in theory, be a good start on tackling this backlog. As an expert in asylum law and access to legal advice, I – like the Red Cross and the Refugee Council – have argued for it for years.
Yet in fact, the Home Office’s approach will make an already onerous process even more difficult for applicants.
The questionnaire demands a detailed statement of the person’s experiences before leaving their home country. It asks about their past employment, whether they sought help from the authorities in their home country, whether they tried moving to another part of that country before leaving, as well as the dates, costs and route of their journey to the UK.
These details are all irrelevant, because the UK recognises that it is too dangerous to return anyone to these five countries.
Complex questions
A letter which will be sent to asylum seekers with the questionnaire asserts that there is no need for legal advice. Yet, according to a leaked copy of the questionnaire published by the Guardian, it asks applicants:
Were you subject to human trafficking (the recruitment, transportation, transfer, harbouring or receipt of people through force, fraud or deception, with the aim of exploiting them for profit) or modern slavery (severe exploitation of other people for personal or commercial gain) during your journey to, or after you arrived in, the UK?
Reason for claiming asylum: because of your race, religion, nationality, political opinion or membership of a particular social group (e.g. LGBTQI+), or none of these reasons.
These are complex legal questions and definitions, even for someone who is both literate and speaks English. Most people cannot set out an account of the risk of persecution in their home country without some legal help.
And even though interpretation errors often lead to a refusal on the basis of inconsistency, the Home Office nevertheless suggests using “online translation tools”. Yet relatively few asylum seekers have wifi in their accommodation, or can afford data.
The Home Office alternatively proposes asking an English-speaking friend or relative to assist, or turning to a refugee support charity for help. It fails to mention that, legally, this could amount to providing immigration advice. It is a criminal offence to provide this without being accredited by the Office of the Immigration Services Commissioner, or another professional body.
Getting legal advice
There is no realistic prospect that legal aid providers can take on a combined total of 12,000 new clients in the next couple of months – at least not if they are to provide an adequate quality of service. Legal aid work is so poorly paid that few providers have been able to survive funding cuts introduced in 2013.
In my research on legal aid for asylum applicants, I found that in 2022, nearly half of UK asylum applicants would have been unable to access legal aid for their application.
There were 63,089 new asylum applications (not counting dependants) in the UK in the year to June 2022. Of those, around 58,000 were accommodated in England and Wales and 5,100 in Scotland and Northern Ireland, which have separate legal aid systems.
I found that in England and Wales in the year to August 31 2022, 32,714 new immigration and asylum legal aid cases were opened. Not all will have been new asylum cases, but this leaves a deficit of at least 25,000 people – significantly worse than the previous year’s deficit of around 6,000.
With just 20 days to complete the questionnaire, thousands more people will soon be urgently in need of legal advice, despite what the Home Office letter reportedly says. Its plan to require such a level of detail needlessly complicates the process, and will transfer the burden of the backlog to an already overstretched legal aid sector.
To tackle this, the Ministry of Justice needs to take urgent steps to protect what is left of the civil legal aid sector and rebuild capacity.
And the Home Office must remove both the requirement for asylum applicants to provide a full statement of their case, and the threat of treating claims as withdrawn if they do not complete the form in time. The backlog is of its own making – and now it risks ruining the solution.