Lessons to be learned from the last asylum backlog clearance exercise

Last week the asylum process formally got moving again as the Illegal Migration Act 2023 (Amendment) Regulations 2024 came into force and so I thought it was a good opportunity to review the highs and lows of last year’s backlog clearance exercise.

The impact assessment for the new regulations provides an update on the size of the backlog as follows:

7. According to provisional internal Home Office Management Information: 126,106 people made asylum applications between 07 March 2023 and 16 July 2024. Not all of these people are still part of the backlog, as some of them have had their claims decided. The backlog of claims awaiting an initial decision consists of those who arrived before (and haven’t received a decision) and after 07 March 2023, and as of 16 July 2024 stood at 89,985 cases (relating to 125,385 people – main applicants plus dependents) which is the latest available provisional data at the time of writing.

Entirely predictably, the Home Office is now in another backlog clearance exercise and the Home Secretary has said that the new Bill will include processes for fast-track decisions. As we have seen last year, existing processes can be used in order to fast-track decisions. Any proposal for formal timescales for asylum cases to be processed must take into account the availability (or more specifically the lack of availability) of legal aid lawyers, who will be essential in the safe and lawful functioning of any such system.

I am sure I will have much more to say as and when we do see the Bill, however this new backlog clearance is now underway so let’s have a look at where things went right and (more frequently) wrong.

Questionnaires

The use of questionnaires for high grant countries, with a view to making asylum grants without an interview, is a sensible move to be welcomed. The questionnaire process has been improved considerably from when first launched, but the Home Office had been forewarned about all of the problems that were then experienced. Recently, there seems to have been an increase in people being invited to multiple asylum interviews, even where a questionnaire has been completed.

It is important that the use of the questionnaire remains tied to decisions being made without the need for an interview, or only a very truncated one where absolutely necessary. The questionnaire must not just become another part of the process (creating more work for a resource thin legal aid sector) with no impact on whether or not a full substantive interview takes place.

Homelessness

In order to avoid newly recognised refugees becoming homeless, the Home Office should extend the “move on” period, the period of 28 days that a person can continue to access asylum support after being granted leave. In the last three months of last year, statistics show a 363% increase in people being made homeless after being required to leave asylum accommodation, amounting to 5,140 households.

Charities have been advocating for years for a longer period of time between the grant of refugee status and the termination of asylum support, as the current period of 28 days is insufficient for people to become self-sufficient.

It is important to remember that a change was made last year that allows a Universal Credit claim to be made with a grant letter and the asylum registration card – there is no need to wait for the biometric residence permit. As 28 days is very obviously not enough time to find a job and get paid and so making this claim should be the first thing that people do on receipt of the grant letter.

Of course, if people were permitted to work in roles not restricted to the Immigration Salary List (as recommended by the Migration Advisory Committee) while waiting for a decision then they would no longer face the current 28 day cliff edge of losing support. This would dramatically reduce the risk of homelessness and the number of Universal Credit claims that need to be made.

Withdrawals

Over 24,000 asylum claims were withdrawn last year, most were cases where the Home Office deemed the claim withdrawn. This backlog clearance tactic was initially rolled out with a highly questionable legal basis for doing so, before the immigration rules were amended to make those practices lawful.

Late last year the guidance was changed to make withdrawal of claims by the Home Office even easier. The Home Office has then been refusing requests for claims to be reinstated made by people who very clearly still wish to pursue their asylum claim.

To state the incredibly obvious, these practices should be stopped immediately and in particular barriers removed for people who are actively trying to reinstate their asylum claims, without pushing them into the fresh claim process.

Appeals backlog

While it makes sense to focus on the high grant nationalities first, leaving the more time consuming refusals until last has consequences. Specifically, for the First-tier Tribunal which has seen a huge increase in the number of asylum appeals received in the six months ending March 2024. Making all the refusal decisions together in a very short period of time would be pouring fuel onto this fire.

The problem of the high number of appeals pending in the First-tier Tribunal is then exacerbated by the lack of legal aid lawyers available to help appellants prepare and have their cases heard properly. This means that everything takes longer, and there is a clear risk of justice being denied and people with good claims being rejected.

The First-tier Tribunal is refusing adjournment requests from people who are trying to find a lawyer, forcing them to represent themselves. Anecdotally, it appears that the issue of a lack of legal representatives may now be starting to make its way into the Upper Tribunal, as people who had to represent themselves in the First-tier Tribunal and have had their appeals dismissed now seek to challenge those decisions.

This problem cannot simply be ignored. As I have said previously, the failure to provide legal aid at the front end of asylum cases means that more work is moved to the point of detention and removal. There are still legal aid lawyers available in detention and cases that were not handled properly at initial stage will be picked up and fresh claims and judicial reviews lodged here. This is an incredibly inefficient way to run the system.

Conclusion

With so many examples of mistakes made in 2023 there is no excuse for repeating them this time. Many of these issues could be mitigated if we had a fully functioning legal aid sector. Further, it is crucial to remember that these are asylum claims and people’s lives are on the line in many of these cases, others will face persecution if not offered protection here. It is of the utmost importance that we ensure that they are able to have their cases decided fairly as well as quickly.

Interested in refugee law? You might like Colin’s book, imaginatively called “Refugee Law” and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.