The Home Office’s approach to the backlog of asylum claims caused by the pandemic has been to ignore new asylum claimants and try to remove people from the country before they can hear their reasons for staying here. This is why it is more important than ever that immigration lawyers take on new asylum matters.
As you will all be aware, in 2020, there has been an increase in asylum-seekers arriving on to the shores of the UK by boat. Although the numbers of new asylum claimants have actually gone down compared to last year, these boat arrivals have caused a moral panic in some sections of the political sphere. Priti Patel has appointed a Clandestine Channel Threat Commander to lead the UK’s response to tackling illegal attempts to reach the UK.
The COVID-19 outbreak combined with the increase in boat traffic has also led to the Home Office taking steps to shorten the screening process and place the onus on individuals to provide them with information regarding their vulnerabilities. We have received confirmation from the Home Office that the asylum screening interview process has been shortened to avoid the amount of time that the Home Office has to speak to asylum seekers during the screening process.
The effect of shortening the screening process
Screening interviews have now started to take place in Yarl’s Wood which was turned solely into a Short Term Holding Facility at some point during the height of the pandemic (it now seems to have been partly converted back into an immigration removal centre for women). People are held in Yarl’s Wood for up to seven days whilst they are screened. This screening interview is done over the phone with the interviewing officer working from home. It is therefore unclear why these interviews needed to be shortened to avoid COVID transmission when 1) the person is detained for longer than they would be for the traditional Croydon screening interview and 2) the interview is done over the phone.
The questions omitted from the screening interview are:
- What is the basis of the asylum claim (no opportunity to talk about what ill treatment a person has suffered that is the basis of their claim).
- Describe the journey to the UK (no opportunity to raise red flags about travel through e.g. Libya – often a strong indicator of trafficking).
- Are there any family members in the UK (this would normally capture Dublin III hierarchy issues).
When these questions are asked properly with an interpreter, they often successfully pick up issues that lead to the Home Office taking steps to address the asylum seeker’s vulnerabilities. For example, if trafficking indicators are present, this should lead to the Home Office referring the asylum seeker into the National Referral Mechanism (NRM) for victims of trafficking. In the three months from June to August 2020, the Home Office referred 0 people out of approximately 1500 individuals to the NRM after they completed their screening interview at Yarl’s Wood.
Recently, following legal action bought by the Public Law team at Duncan Lewis, the Home Office have been asking people these questions just before their attempted removal and months after their initial screening.
Temporary accommodation
Once this screening interview is complete i.e. once the Home Office has fingerprints to ensure they can search for a EURODAC hit, the asylum seeker is released to a hotel. On the last count, there were 10,000+ people housed in initial accommodation around the country with no dispersal in sight. The vast majority of these people have no access to legal advice. These people all need representation.
On leaving Yarl’s Wood, the Home Office provides the asylum seeker with a Preliminary Interview Questionnaire (PIQ) in English and says they must return this in 20 days. This is supposed to provide an opportunity for people to raise any issues that were omitted as part of a screening interview. However, an interpreter would have been present for the screening interview: many clients do not speak English, let alone read and write English to the level required to complete a PIQ. Those seeking asylum need an immigration lawyer to help fill out the PIQ.
On the shorter end of the scale, people may remain in hotel accommodation for a few months. However, the average amount of time spent in initial accommodation has gone up dramatically in the last year. Many people are moved from hotel to hotel, unable to put down any roots, start any courses, or receive any medical treatment. After a few months, people may receive a letter saying that their asylum claim will now be dealt with in the UK, but that a decision is not expected for six months. We do not know what will happen after this as we have not got to this stage yet.
Army barracks and other accommodation
On receipt of the letter stating that the asylum claim will be dealt with, a person may also be moved to the Penally Camp, the military barracks in Wales. People sent there are supposed to be single men with no known vulnerabilities. However, in our experience, most of these men have mental health issues that they have not been screened for. The Home Office seems to rely upon the incomplete screening interview, the uncompleted PIQ and the ASF1 form (the application for NASS accommodation) to determine that people are healthy enough to be placed in a military barracks. Many of these people are transferred once a lawyer steps in to explain to the Home Office that these people do have vulnerabilities and should not be housed in a military barracks with shared shower facilities, six people per bedroom and no real access to healthcare.
A EURODAC hit could also mean that a person is transferred to Brook House IRC. Here people often encounter difficulties in accessing a lawyer who would raise issues which should have been picked up at an earlier stage. If the Home Office follows proper screening procedures and provides the individuals with the support they require there would be no need for last minute legal claims.
When can people be detained?
Individuals can only be detained for a short period where their removal from the UK is imminent. In recent months we are unfortunately seeing a pattern where despite the pandemic and despite the lockdowns around the world individuals are detained with the aim of removing them from the UK where removal is not imminent.
Suitability for detention
Since the start of the pandemic, the majority of cases we have come across have been mishandled by the Home Office as it failed to discharge its duty to undertake risk assessments to determine suitability of detention and removability before detaining an individual. Under the Detention Centre Rules 2001 the Home Office has a duty to assess individuals to determine their suitability for detention. The Detention Centre Rules require the detained individuals to be seen by a doctor within 24 hours of their detention in order to determine their suitability for detention, especially if individuals are victims of torture, victims of trafficking or have any mental health issues that would render them unsuitable for detention. Often people are assessed by detention centre doctors only once referred by lawyers or by NGOs, where following the assessment they are given a Rule 35 report, which often contains errors and does not address the relevant issues properly. This in turn puts pressure on Medical Justice and other organisations to assess individuals in detention and produce Medico-Legal Reports addressing suitability of detention and other underlying issues that would render individuals unsuitable for detention or removal.
More and more we are finding that vulnerable asylum seekers who should be provided with support and are unsuitable for detention are nonetheless detained and are deprived of the support that they need. As described above, the screening interviews are not currently identifying the route of travel and so are not picking up trafficking indicators. The first time an individual has an opportunity to disclose any of this information is to their lawyers, who are often instructed at a late stage in the process, sometimes hours before an individual is scheduled to be removed from the UK.
Access to justice
Representing people detained under immigration powers and those who are victims of trafficking requires specialist knowledge and experience of dealing with such claims. Often we find that individuals detained in immigration removal centres are not properly signposted to allow them to seek legal advice and this, we fear, means that individuals are denied access to justice.
Over the last few months, and especially with the fast approaching deadline of our transition out of the EU on 31 December 2020, the Home Office has been seeking to remove people under Dublin III Regulations on twice weekly charter flights. We are not convinced that all of these people who are being considered for removal are being properly risk assessed. Legal action is then required to ensure that individuals are provided with legal advice on their rights. We stress that proper screening at the time that individuals arrive in the UK will save not only the court’s time and costs for all involved, but more importantly would mean that individuals are provided with the protection and support that they are entitled to.
The government has an obligation to provide protection to those who are seeking safety in the UK. However, we have lately been witnessing that the protection claims and decision-making processes are often contrary to these obligations. Just as the Home Office fails to properly screen individuals arriving in the UK and seeking protection here under the UN Refugee Convention, we are seeing a pattern of the Home Office failing to screen people when they are detained. The aim it seems is remove first and ask questions later.
When individuals are facing removal by charter flight they must be given at least 5 working days’ notice, they must also be signposted to legal advisers. However, this rarely happens and it often falls on charities and NGOs to ensure people are referred for legal advice. In fact the Home Office has a policy where they should not seek to remove individuals who have not had access to legal advice, and to cancel any removal directions, if they manage to instruct a legal adviser shortly before their removal. Again, we are finding that often the Home Office is refusing to comply with their own policy and denying individuals the opportunity to seek legal advice. Access to justice is a fundamental part of our society and by failing to ensure that individuals are provided with legal advice, the government is depriving individuals of this basic fundamental right.
The government will need to be reminded of the rule of law, perhaps by the courts, as the Home Office seems to disregard the law and principles on which our immigration system has been built. In recent months there have been two significant judgments. Firstly, the Supreme Court in R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 held that the Home Office treatment of Tier 2 workers was procedurally unfair. Secondly, and more significant to our discussion, the Court of Appeal in FB (Afghanistan) and Medical Justice v Secretary of State for the Home Department [2020] EWCA Civ 1338 held that the Home Office’s removal window policy was unlawful. However, despite these cases which demand basic procedure fairness – trends over recent months suggest that we will see more challenges against the failure of the Home Office to ensure access to justice to vulnerable individuals.
This note was prepared by Bahar Ata and Tom Nunn of Duncan Lewis