Why Britain’s asylum system is broken

The picture was taken at the start of March. It featured a young man giving a two-finger salute while on board a small, migrant-packed dinghy, crossing the channel into the UK.

Over the past few years, we have become used to images like this of the so-called small-boats crisis. And no wonder – since 2018, when figures first started being recorded, well over 150,000 migrants have arrived illegally on our shores in precisely this way.

But this particular image was different. This young man was a Palestinian migrant called Mosab Abdulkarim Al-Gassas, also known as Abu Wadee. Wadee, alleged to be an avowed supporter of Hamas, had made videos appearing to show him with an assault rifle and calling for all Jews to be killed. If these allegations are proven, this is a man who poses a danger to the citizens of the UK and who loathes our values. And yet there he was, happily headed straight for the Kent coast.

It was an image that captured well the absurdity of our asylum system – a system that seems to enable potentially dangerous individuals, while impeding those genuinely in need of refuge. Wadee was arrested at the border and has now been charged with immigration offences. But this is an exception rather than the rule.

Take the case of Turkish national Hakan Barac, who entered the UK two years ago as an asylum seeker. Incredibly, while applying for asylum, he spent his time posting pro-Islamic State videos on social media. He championed the likes of al-Qaeda frontman Osama bin Laden and ISIS leader Abu Bakr al-Baghdadi. At the beginning of April, a judge at Bristol Crown Court sentenced him to three years and nine months in prison for glorifying terrorism. Given his tendencies, it does raise the question as to why he has been allowed to remain in the UK for so long.

On a different tack, what of the case of Gjelosh Kolicaj. At the start of last year, the judiciary ruled that this crime lord from Albania, who holds both British and Albanian citizenship, must also have the right to remain in the UK thanks to his human right to a family life. Kolicaj was jailed for six years for smuggling £8million of his gang’s profits out of the UK. The National Crime Agency has warned that he poses a threat to the public and, following his release from prison, is likely to return to a life of crime. And yet he is still the UK’s problem.

Then there’s the case of a man of Sudanese origin, known only as ‘S3’, for legal reasons. He entered the UK illegally 18 years ago and was granted asylum on the grounds that he might be tortured in his homeland, even though he regularly returned to Sudan in the intervening period without any issues. In 2016, British security services discovered that he had actively disseminated pro-ISIS propaganda across social media, prompting the Home Office to strip him of his citizenship while he was abroad. But he soon managed to enter the UK illegally for a second time. He was then granted the right to remain in Britain indefinitely, and the right to lifelong anonymity, on the grounds that he might face torture in his homeland. According to MI5, he remains a serious security risk.

It should be clear to any right-thinking observer that the UK’s asylum system is not fit for purpose. In light of this, the Labour government has this week tried to tighten up the asylum-application process. It has announced that anyone who has committed a sexual offence will be prevented from seeking refugee status. It will no doubt strike most people as crazy that sex crimes were not automatically disqualifying in the first place.

Still, such piecemeal reforms are not enough. The dysfunction runs deep in the asylum system. As it stands, it allows unsuitable people to stay, encourages human trafficking and works against those genuinely in need of refuge. It is also outside of democratic control. This means that decisions regarding asylum claims are taken largely behind closed doors, defying any public accountability. And when the public does get to hear about them, they are detailed in absurdly complex legal judgments.

The UK should provide a home to those fleeing persecution. But the current system is working against that objective. The rules as to who gets to stay here have effectively been delegated to the judiciary. And whatever else they are, judges are not democratically accountable and often make decisions that sound bizarre to members of the public. If we want a safe and humane asylum system then the starting point must be to re-establish a fundamental element of the process which has been lost – namely, democratic accountability.

To understand how dysfunctional our current system is, we should consider the recent decisions of the Upper Tribunal Immigration and Asylum Chamber (UTIAC), which routinely make the headlines only because they are publicly available.

For an asylum case to reach the UTIAC, an applicant must have first appealed a Home Office deportation order at the first-tier tribunal. Staffed by junior members of the judiciary, the first-tier tribunal has the power to overrule the Home Office. Only if the decision of the first-tier tribunal is appealed do cases reach the UTIAC. And only then do details of the cases become public. This shows how decisions taken over immigration and asylum applications are often being made by a handful of judges out of public sight.

The reporting of the cases that do reach the UTIAC can be very partial. But it generally gets the key details right. The picture that emerges is very worrying.

Consider the now notorious case of Klevis Disha. He entered the UK in 2001 as an unaccompanied minor when he was 15 years old. Though born in Albania, he said he’d been born in the former Yugoslavia in 1986, and claimed asylum on the grounds he faced political persecution. He was granted exceptional leave to remain in 2005 and then indefinite leave to remain later in the same year. He met his partner in 2006 and had two children.

Two decades later, he was caught by the police in possession of £250,000, suspected to be the proceeds of crime. He was later given a custodial sentence. In 2021, then home secretary Priti Patel stripped Disha of his UK citizenship.

Facing deportation to Albania, Disha promptly appealed the home secretary’s decision at a first-tier tribunal, arguing that it would breach his right to a family life under the European Convention on Human Rights (ECHR).

With respect to both Disha and his partner, the first-tier tribunal judge found in favour of the Home Office. However, the judge still blocked Disha’s deportation on the grounds that his son would be adversely affected by the decision, and could not go to live in Albania. The Home Office then took the case to the UTIAC. The upper tribunal found that the first-tier tribunal had not properly identified legitimate reasons for his son not being able to live in Albania:

‘We can only see in the decision a single example of why C [Disha’s son] could not go to Albania… “C will not eat the type of chicken nuggets that are available abroad”. We are not persuaded that the addition of this sole example approaches anywhere near the level of harshness for a reasonable judge to find it to be “unduly” so.’

In other words, the only element of the first-tier tribunal’s judgment which suggested that Disha’s son could not be taken to Albania was his dislike of ‘foreign chicken nuggets’, as the press described it. The tribunal understandably rejected this as a sufficient reason to block the deportation.

That the UTIAC eventually arrived at what seems to be the correct decision is not especially comforting. If the first-tier tribunal’s decision had not been appealed by the Home Office, then not only would it have stood, it would also never have been made public.

The first-tier tribunal certainly seems to be in the habit of making bad decisions. In another case, a Pakistani national imprisoned for multiple sets of offences, including sexual assault and assault by beating, was served with a deportation notice which he then challenged. While he was appealing his deportation, he was convicted of the sexual assault of a female under 13 and given a further prison sentence.

Despite this, the first-tier tribunal allowed his appeal against deportation. It found that he suffered from ‘alcohol-dependency syndrome’, and said that should he be deported to Pakistan, where alcohol is illegal for Muslims, he would be imprisoned and subject to inhumane and degrading treatment. This, the tribunal argued, would violate Article 3 of the ECHR.

Again, we only know about this because the decision was appealed by the Home Office at the UTIAC. The latter found that the first-tier tribunal had failed to properly assess all of the circumstances related to the man’s drinking.

His case is now being reconsidered, but we won’t know what the next first-tier tribunal eventually decides unless the case is again taken to the UTIAC. So, there is a risk that a convicted sex offender will avoid deportation because he cannot control his issues with alcohol.

Lawyers may care about the labyrinthine laws and procedures used to make these decisions. But understandably, the public is only concerned about who gets to stay and why. If we are to have any hope of creating a more humane system, we need to fix the laws that generate outcomes that seem ludicrous to members of the public.

One of the principal sources of the current mess is the 1951 Refugee Convention. Formulated in the aftermath of the Second World War, when millions were displaced across Europe, it was designed to provide legal protection for those who could not safely return to their country of origin because of persecution. It was soon incorporated into British law.

The convention defined a refugee as someone with a ‘well-founded fear of being persecuted’ based on race, religion, nationality, political opinion or membership of a particular social group. It also introduced the principle of ‘non-refoulement’, meaning that the UK could not deport or return a refugee to a country where he or she would be at risk of persecution.

The convention was conceived as a response to a particular historical moment. Hence, it limited refugee status to those affected by events occurring ‘before 1 January 1951’. States could also choose to apply it only to refugees from Europe. But in 1966, an additional protocol to the convention extended its geographical remit to the whole globe and removed the pre-1951 limit on its application.

The protocol remains the only formal amendment to the Refugee Convention in its history. Therefore, a law that continues to hold sway over our immigration system was passed in the middle of the 20th century and has been barely reviewed since.

But history, unlike the law, has moved on. UN estimates suggest that around 43million people worldwide would now be categorised as refugees under the convention. The job of a piece of law is to set reasonable boundaries on what the state can or cannot do. The Refugee Convention does not do this. Instead, it leaves the UK open to a completely unmanageable level of migration, for an indeterminate period.

Even the most ardent advocate for asylum must admit that the Refugee Convention is not fit for purpose. Yet no government in recent history has been brave enough to reconsider it. Leaving the Refugee Convention is thought to be politically unpalatable, but it really shouldn’t be. It has long since failed to keep up with the reality of global migration flows.

The Refugee Convention isn’t the only legal obstacle to a rational, humane asylum system. There is also the European Convention on Human Rights, which the UK became party to in 1953. The ECHR is designed to allow citizens to petition the European Court of Human Rights if they believe the state is impinging on certain fundamental rights. The convention became part of UK law in 2000 with the passing of the Human Rights Act 1998. This meant that all UK institutions had to take decisions in accordance with the ECHR and the judgments of the European Court of Human Rights.

One of these fundamental ‘human rights’, as set out by the ECHR, is Article 8 – the right to family life. This far-reaching right stops states interfering in a citizen’s ‘private life’, ‘home’ or ‘family’ unless certain conditions are met. The courts have further expanded the definition of Article 8, applying it to non-familial relationships and a person’s ‘physical and moral integrity [and] sexual and social identity’.

Article 8’s influence has been balanced in recent years by domestic laws made by our parliament. But there is still considerable evidence pointing to its continued impact on asylum cases. Indeed, between April 2016 and November 2021, out of 1,011 appeals against deportation allowed on human-rights grounds, 70 per cent were allowed solely on Article 8 grounds.

The relationship between Article 8 and deportation is complex and contested. The 2007 UK Borders Act increased the power of the state to make deportation orders against foreign criminals. For the first time in UK law, any non-national with a criminal custodial sentence of 12 months or more was automatically considered for deportation. As a result, lawyers defending those facing deportation have come to increasingly rely on human-rights law. It is this, some say, that has bolstered the reliance on Article 8 in recent years, rather than activist lawyers and judges.

What is undeniable is that the passage of the Human Rights Act has fuelled the influence of the judiciary in asylum cases. It means that all decisions regarding asylum must be taken with one eye on the jurisprudence of the European Court of Human Rights – an institution and system over which we have no democratic control. Developing a better asylum system requires us to have democratic control over the rules.

Polling suggests that the public wants an asylum system that is generous to the needy but tough on criminals. In 2014, a Find Out Now poll showed that 84 per cent of Brits support deporting migrants who commit violent crimes, and 85 per cent support deporting those who commit sex offences. A 2018 Ipsos MORI poll found that 60 per cent of Britons supported making it as difficult as possible for illegal immigrants to remain in the UK. However, the same poll indicated that a majority also favoured ensuring that those with a legal right to remain are not wrongly deported.

Ordinary Brits have an entirely reasonable approach to this issue. They don’t think people who have committed serious crimes should be able to stay here. But they also don’t want deportation orders handed out arbitrarily. They don’t express blind hatred towards foreigners, but they do expect those who seek to live here to respect the UK’s criminal laws.

This is not to say individual cases involving foreign-born criminals are easy to judge. I have sat in prison cells with people targeted for deportation. I have had to provide paperwork telling people that they will be separated from their family. It can feel as if they are being punished twice. In those moments, deportation orders can seem arbitrary and draconian.

But while decisions to deport people who have committed serious crimes shouldn’t be taken lightly, we should still expect foreign nationals to obey the law. Failing to do so can and should carry significant consequences for the ability to remain here. This is not evil or uncaring. This robust approach to foreign criminals allows us to be more humane to those genuinely seeking refuge and asylum here.

Moreover, the categories of asylum claimant we want to help need to be simplified. We should target specific schemes at those we can properly help and assimilate. The Ukrainian visa scheme – which granted Ukrainians affected by the war the chance to live in the UK outside the normal asylum system – provides a good model. At the same time, we need to ensure that we have the capacity and infrastructure to host those we welcome in. Our willingness to take applicants has to go hand in hand with our ability to accommodate them.

Most importantly, the asylum system – its processes and decisions – needs to be transparent and democratically accountable. This means significantly reducing the role of the judiciary, and empowering our elected representatives.

Our current legal framework, buttressed by human-rights laws, is completely unsustainable. It is a ridiculous fiction to imagine that we can continue to extend open-ended help to the entire transient population of the world. It creates inhumane and ridiculous outcomes, and often favours the undeserving over the desperately deserving.

‘Stop the boats’ does not need to be the empty slogan it was under former prime minister, Rishi Sunak. It can be a fitting call to regain democratic control over our increasingly irrational asylum system. We can no longer afford to ignore the two fingers being held aloft, in a small dinghy, off the coast of Kent. They are a sign of an asylum process that is well and truly broken.

Luke Gittos is a spiked columnist and author. His most recent book is Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, which is published by Zero Books. Order it here.