‘I spent a day in Britain’s asylum courts – and found out why the system is fundamentally broken’
To the layman, this week’s story that an Afghan sex offender could be given refugee status because his behaviour towards women may put him at risk in his home country is absurd. For those used to Britain’s asylum system, it’s par for the course.
After all, just a few weeks ago we heard a similar tale, when the Clapham attacker Abdul Ezedi was granted asylum despite his criminal convictions. As a former immigration official noted of that decision: “It’s not a glitch that you get sex offenders let in the third time around. It’s how the system is meant to work.”
Over the last year, immigration has hardly left the headlines. Politicians nominally in control of the country have fulminated about the abuses of the asylum system that have seen small boat crossings surge, bringing 29,437 people to our shores last year, and on course for a new record high in 2024. They’ve watched as changes to the legal migration system sent the inflow soaring to 1.2 million, and started to unwind the mistakes they made with dependent visas for students and care workers.
In the last few days, focus has shifted back to the Rwanda plan. Having come to grief in the Supreme Court and the House of Lords, Rishi Sunak is now threatening to leave the European Convention on Human Rights (ECHR) should the human rights court block the scheme.
But even if the planes start taking off, there’s another problem waiting. While Westminster can design whatever immigration policy it likes, it appears increasingly unable to enforce it on the ground.
A day in court
The best way to understand what this means is to see it first hand. Immigration and asylum tribunal cases are open to the public. If you’re willing to set aside a few hours, you can sit in the gallery and see what Britain’s immigration system looks like in practice.
What you may not be able to do is find out how the case is resolved. First-tier immigration and asylum tribunal decisions are not published. The only way to get access to the result is to apply directly to the president of the court, and hope they decide in your favour.
The cases I saw were chosen at random, with no indication of their contents beyond the broad codes given in the list of hearings – HU for human rights claims, PA for what we would call loosely asylum cases.
The immigration court I chose sat off a roundabout opposite a Tesco superstore. Outside, planes taking off and landing at Heathrow rumbled overhead. Inside, the courtrooms were quiet enough for the ticking clocks on the wall to be audible. Green signs in three languages warned those waiting their turn not to eat, smoke or drink.
Most of the attendees sat in groups, chatting in apparent good humour. A few were tense and alone. A lost-looking interpreter tried to work out which of the courts he was meant to be attending, and staff members shuttled back and forth directing people to hearing rooms. They were polite, friendly and highly taken aback that someone had turned up to listen to cases. One security guard audibly swore when told by another why I was there.
The first case turned out to be a tourist who had overstayed. She had come from India for a holiday with her husband in 2021, visiting children who had emigrated to the UK. Her husband had sadly died during their visit. Struggling to cope, she had been staying with their children since. Now, in 2024, years later with her right to stay long expired, she was fighting to stay permanently.
Human rights laws appeared to present a promising avenue for her representative to argue that she would face significant obstacles to functioning on her own in India, and so could not be made to leave.
To start with, she was receiving therapy for depression in the UK, and it was argued that mental health issues were unlikely to be as well cared for in India. One child gave evidence as a witness. Despite having lived in the UK for 18 years, they were deemed to have limited English skills, so the interpreter stayed to assist them. The point was hammered home that the woman had said she would “end her life” if made to leave.
Other medical issues were discussed and disputed. The Home Office presenting officer did their best to make the case against allowing her to stay, although it was interesting to note that facts or assertions were rarely directly disputed. When the lawyers examined the notes entered as evidence, it was unclear in one instance whether the doctor had actually seen the patient, or merely written down the description given by the daughter. Nobody appeared to have simply checked directly with the surgery.
In addition, while her family could afford to pay for a carer, and her own financial security would not be an issue, she would lack emotional support. Her family in India consisted of a single sister, who was old, and to whom she no longer talked. Not only that, but, as her representative reminded the court, the Home Office advised against travelling in the country as a lone woman. Would we really send her back to that?
At this point, alarm bells should be ringing. It should not be possible to enter on a tourist visa, stay for years, and then avoid deportation by claiming the need to access public health services, or arguing that you could not possibly function in the country you’d spent your life in. Even the most compassionate among us would surely argue that we cannot be expected to take on the cost and burden of caring for the citizens of other countries in their old age, rather than expecting their government or family to fulfil their own obligations.
Yet these tactics do seem to work; cutting people off from NHS services, or forcing them to return to their life as it was can be intolerable to our compassionate state, which instead invites them to stay. This urge sometimes leads to absurd outcomes. In one case, an illegal migrant who raped a woman at knifepoint avoided deportation after a tribunal found he would “experience genuine difficulties being able to access a regular supply of his necessary medications”, and be at “real risk of social isolation and stigmatisation”. Better, instead, to let him live in Britain.
A long stay
The second case was again picked at random; of the two due to begin when the first ended, it was the one that started soonest. Again, it was a straightforward case of overstaying. The appellant had been given a 14-month study visa, and failed to leave on time. The visa was issued in 2007. Rather than stay for 14 months, she had stayed for 17 years.
This hearing followed a slightly different format. The appellant’s representative laid out their case. The judge listened. The Home Office presenting officer remained silent because they weren’t there; the department had chosen not to send anyone to attend.
Again, the health of the applicant was raised. They had a serious and extensive operation scheduled to take place on the NHS; if they were sent back to India, this plan of treatment would be significantly disrupted, even if they were able to afford it.
In this case, the second obstacle was that deportation would constitute a major disruption to her married life. In the time she had stayed in the UK, she had married an Afghan man who had taken British citizenship. He, in turn, would most likely be unable to join or even visit her in India.
After all, not only did he lack Indian citizenship, he would most likely be refused any application to even visit the country: in his time in the UK, had received a prison sentence of 11 years for a serious offence. Even if India decided to let him in, the British authorities would look askance at letting him leave: he had been released on an extremely restrictive licence.
Given this, the argument went, and considering that if the appellant was forced to return to India, she would likely be able to return to the UK on a spousal visa, did her overstay really warrant the disruption removing her would cause? After all, the Home Office had made no effort to enforce her removal for 17 years, even when she had applied for (and been denied) the right to remain in 2013.
Although it was possible to sympathise with this argument, it also raised some difficult questions. How had it been possible to stay in Britain for so long when the Home Office had been made explicitly aware of the overstay? After all, it was the length of her stay that had led to her developing the ties which were now being used to argue against ever removing her; had she been swiftly removed a decade ago, there would be no claim to continuity of married life, or of NHS treatment. And on that topic, how was it that the British taxpayer had found itself providing her healthcare?
Welcome to the Hotel Britannia
People come to Britain for a reason. You do not push a dinghy into the waters of the channel, or spend your life savings on a plane ticket to Heathrow for nothing. The attractions are straightforward: the world speaks English, work is easy to find, and if you can get into the country you have a good chance of staying.
Take the asylum seekers crossing the Channel. They aren’t coming because they’ve been misled by cunning people smugglers. They’re doing it because Britain is a good place to lodge a claim. Before appeals, France accepted just 28 per cent of the claims it evaluated in 2022. Spain was a little more generous at 42 per cent. Denmark accepted 52 per cent of the 985 applications assessed.
Britain accepted a full 76 per cent of the 23,870 claims it resolved, making 1,625 more grants of asylum than Austria despite processing 15,130 fewer applications. No country with more cases resolved had a higher grant rate than the UK.
Our generosity doesn’t stop there. If your claim is denied – or even if you have no claim at all, and simply fail to leave when your visa expires – you may well be able to stay. The problem with Britain’s borders, at the most basic level, is simple: we don’t know who’s here, and when we do, it’s very hard to make them leave.
In 1998, Britain stopped checking the documents of people leaving the country as it was “an inefficient use of resources”. While we had some idea of who was coming in, we no longer knew if they were leaving. It would take until 2015 for exit checks to be reintroduced. By 2017, two years worth of data had been gathered, showing 10 million people whose leave to remain in the UK had expired. For 601,222 of these, there was no evidence of their departure.
To lose one passenger might be considered careless; to lose half a million is farcical. Some of these people may have left the country, travelling through the Common Travel Area with Ireland, or using different documents, or simply falling through holes in the collected data; 201,301 records for people leaving the UK couldn’t be accurately matched to an inbound journey. But of the remainder, some will have decided to remain in the UK, living underground.
How large this population is a matter for guesswork; in 2005, the Home Office believed some 430,000 people were living in Britain without the right to be here. No subsequent estimate has been published.
What we do know is that the number has likely grown substantially since then. The last publication on exit checks, showed that 3.8 per cent of people who required visas to enter the UK were not recorded as leaving on time — a little under 92,000 people in 2019/20.
Removals blocked
Counting people in and out might make it easier to find those who overstay. But even if it did, we would still find it difficult to remove them. While immigration has risen to record highs, the number of people being removed from the country has fallen by 21,000 since 2009. Enforced removals, in particular, have plummeted. While this has been partially offset by a rise in voluntary removals, the overall trend is clear: the Government is finding it increasingly hard to remove those with no right to live in the country.
Take failed asylum seekers. Just 41 per cent of those who made a failed claim for asylum between 2010 and 2020 had been removed from the UK by June 2022. Among their number was the Liverpool bomber Emad al Swealmeen, who had his asylum claim rejected in 2015. The Home Office failed to deport him, allowing him to mount a fresh claim in 2017, which was rejected in 2020. A year later, he was still in Britain, and still free to attempt his attack on a hospital.
Part of the problem is simply one of resources. Real terms funding for removals fell by 11 per cent between 2015-16 and 2019-20. This year, the planned funding for immigration enforcement is just £537 million, or a little over 13 per cent of the £4 billion spent on supporting asylum seekers in the UK.
Given the mismatch between the scale of the challenge and the resources allocated, it’s little surprise that the National Audit Office found in 2020 that immigration enforcement teams lacked the capacity to fulfil their tasks; enforcement visits had fallen from 20,000 a year in 2015 to just over 11,000 in 2020.
Detention capacity is also an issue. The stream of appeals and challenges means detention spaces are quickly filled, and there is little political appetite for dealing with this issue; attempts to impose limits on the right to appeal in the Rwanda Bill were rejected by the Government. If anything, the overwhelming direction of policy has been to reduce the use of detention further.
In 2019, immigration minister Caroline Nokes wrote that the Government was committed to “a material reduction in the number of people detained an the length of time they spend in detention”, boasting that “by summer 2019, the immigration detention estate will be almost 40 per cent smaller than it was four years ago”, and that “95 per cent of those who are liable for removal are managed in the community”.
This has consequences. When the Government declared in January that it had resolved the backlog of asylum cases, it turned out that 17,000 cases had been resolved simply because the Home Office had lost touch with the claimants. Of the 5,000 immigrants originally identified for removal to Rwanda, meanwhile, only 700 are still in regular contact with the government. Without resources to keep tabs on people — and ensure they leave when necessary — the Government is fighting a losing battle in its attempts to maintain our borders.
Perhaps most troublesome, however, is the role of the legal system. As the National Audit Office noted, less than half of enforced returns planned in 2019 actually took place, with late legal challenges often blocking the process.
Rishi Sunak’s latest tilt at the ECHR is merely the latest in a long series of clashes between the Government and the courts. In the view of legal critics, judicial empire-building has slowly expanded the range of potential obstacles to deportations, making it difficult to ensure that flights can actually get off the ground. These delays, in turn, can eventually provide grounds for claims to permanent residency. It hardly helps, as one observer noted, that the Government appears to be extremely cautious in assessing its ability to challenge bad case law, or test the limits of international law.
A system on trial
Both of the cases we saw in court illustrated a major problem for immigration enforcement: when the Government is slow to remove people, they will tend to build up grounds for staying in the UK. The classic example is the asylum seeker who, when their initial application is denied, finds a sudden urge to join a church, finds Jesus, and with him a potential fresh claim for staying in the UK.
The difficulties with credulous clerics accepting conversions at face value have been covered elsewhere; the broader problem of people building claims to stay in the UK, whether on the basis of religious persecution, the right to a family life, or some other combination remains. So too does the problem of the Home Office failing to examine stories in depth.
It certainly does not help that, as we saw above, the Home Office does not always send a presenting officer to tribunals. The share of cases where no presenting officer attended has been above 10 per cent for five of the last six quarters. This can put judges in a difficult position; their job is to listen to and evaluate adversarial arguments, rather than to conduct inquiries of their own. When only one side is making a case in person, it is difficult for this system to work.
Even when the Home Office does attend, one expert noted that it often lacks the staff and expertise to properly analyse cases. Immigration cases can be dismissed on relatively superficial grounds, even as the department fails to conduct the investigations necessary to spot outright fabrications.
Take the example of a political separatist. In assessing such a case, the expert said, the Home Office would tend to rely on evaluating documents. If a claimant said they had been beaten in their home country, and presented papers from a hospital, the Home Office would scrutinise them for spelling errors, wrong dates, and obvious inconsistencies. What it would not do, said the expert, was check that the hospital actually existed.
A welcoming environment
These problems are not new. In this context, it’s little wonder that the Government hit on the idea of the hostile environment: if you can’t stop people from coming in, and you can’t deport them, you can at least make it hard for them to be here, deter future arrivals and hope they leave on their own. Checks on immigration status were introduced for renting properties and taking jobs.
While this succeeded in creating difficult headlines for the Conservative party — and shifting part of the cost of border enforcement to the businesses and landlords who found themselves on the immigration frontline — evidence for its success in encouraging people to leave is thin.
Part of this is beyond the government’s control; as one expert put it, “people still stick it out as it’s worth it”. The benefits of living in Britain are considerable, and very few will trade them in for an easier time with the paperwork in a much poorer country. Far better to live in a sublet apartment, working cash jobs, than to return home.
Even so, there is low-hanging fruit for the Government to pick, should it so choose. As the then-immigration minister Robert Jenrick noted, the practice of gig economy companies allowing “unchecked account sharing” makes it easier for illegal working to take place. Targeting the companies enabling these practices for immigration enforcement – and levelling massive fines where possible – would end that rapidly.
The NHS passport to stay
Also ripe for reconsideration is the UK’s own system of doctors without borders. In both of the court cases we examined earlier, access to healthcare was presented as a major obstacle to removing the claimant from Britain.
As things stand, the NHS is effectively open to the world. Anyone can register with and see a GP, regardless of immigration status. Emergency healthcare is provided without charge. Secondary care is different; in theory, those without the right to stay should pay for the treatment they receive. Anything considered urgent is delivered, and payment may be chased later.
Even this barrier may be more permeable than it appears. As the BMA helpfully notes, whether treatment is urgent is “the doctor’s decision alone”, and consists of anything that “cannot wait until the person can be reasonably expected to leave the UK”. As the Government’s guidance sets out, when an illegal migrant can be expected to leave is often unclear, leaving room for ambiguity over what care might qualify. Hospitals, in turn, can choose not to pursue debts in some circumstances, while the Home Office is under no compulsion to refuse immigration applications from those who have accrued them.
Destination unknown
So even if Rishi Sunak withdraws from the ECHR, and rewrites human rights law in the next nine months to make Rwanda work, there are still real barriers to stopping the flow across the Channel, or fixing the holes in our borders.
We would still be unsure who is actually living in Britain. Enforcement would still be underfunded and overwhelmed. Deportations would still face huge legal barriers, with a Home Office poorly equipped to evaluate cases. And the pull factors drawing people from around the world would remain.
Yet as a depressing day in the asylum courts reveals, nobody should be satisfied with the status quo. A situation where the state is no longer sure who lives in Britain, is unable to remove those with no right to be here, and seems to lack any realistic plan for bringing the situation under control is not sustainable.
