How to fix Britain’s broken asylum system

Asylum is often seen as a simple morality tale—the generous spirited are in favour of it, the hard-hearted against. And we certainly read plenty of high moral dudgeon directed at the Home Office’s pedestrian response to the Ukraine refugee crisis. Much of that criticism was deserved. The lack of preparedness and then the inability to adapt quickly under pressure and allow in anyone with a Ukrainian passport, especially those with relatives here, while sorting out the bureaucracy once they arrived, was indeed dismaying.

But the tale relayed for almost a week from almost every media outlet—from the BBC via the Telegraph and Spectator to the New Statesman and Observer/Guardian—of a shamefully mean UK compared with the hospitable Europeans failed to mention one salient fact: for more than ten years the EU Schengen states have allowed visa-free travel from Ukraine. Moreover, the country where most of them have gone, Poland, has had several hundred thousand Ukrainians working legally in the country for years, many of them doing the kind of jobs that Poles have been doing in the UK (as part of the westward migration domino effect). Germany has had something like 135,000 Ukrainians, compared with about 20,000 Ukrainian nationals in the UK mainly on temporary work schemes in the countryside.

So continental European countries, both east and west, simply allowed nature to take its course, though the EU did officially extend the 90 day visa-free travel agreement into a three year right to work arrangement.

The UK, by contrast, had to set up a new visa system from scratch at a time when, thanks to the continuing Channel crossings, it has been focused on abuse of the system and security concerns which are not wholly irrational.

The Homes for Ukraine scheme and a less bureaucratic visa scheme has now allayed some of the exasperation felt by a sympathetic general public, though less so the refugee lobby which wants all Ukrainians to be granted official asylum and so the right to stay here permanently.

Historically, Britain has had a rather less welcoming attitude to refugees than we like to think. The Kindertransport of 10,000 German Jewish children in 1938 did not extend to most of their parents and when 35 years later Ted Heath allowed in about 25,000 Ugandan Asians with British passports who were threatened by President Idi Amin only 6 per cent of the population supported Heath.

In recent years attitudes have shifted and there was active sympathy, including donations and support for refugees, during the Syria and Afghanistan crises. In all three cases there has been a conflict driven by an obvious villain—Putin, Assad and the Taliban—causing mayhem for civilians. Where Britain has a direct connection, as with Afghan translators or citizens of Hong Kong, the sense of responsibility is even stronger.

This casts doubt on the claim that white British people only extend sympathy to other white people. Nonetheless, Ukraine is probably benefitting from a kind of collateral sympathy derived from the greater familiarity that the average British person now has with the country’s neighbours to the south and west, particularly Poland and Romania, thanks to the great central and eastern European migration of the past 15 years.

The positive response to Ukrainian refugees—76 per cent of Brits support a generous refuge scheme with 17 per cent even saying they would accommodate a refugee in their home—also seems to be part of a wider liberalisation of immigration attitudes. The latest British Future/Ipsos survey found that the percentage wanting immigration reduced a little or a lot has fallen from 67 per cent in February 2015 to 42 per cent now. Over the same period the proportion who think that immigration has been overall negative fell from 41 to 29 per cent. Nearly two-thirds of people have welcomed a scheme that in principle could give British passports to about 3 million people from Hong Kong.

But opinion tends to zig-zag around on this issue and responds to events. Anxiety about immigration rose in step with rising numbers after the election of New Labour in 1997, moving up a gear with the Balkan refugee surge around the turn of the century and then with free movement from the former communist countries in 2004. Discomfort with free movement was clearly a significant factor in the Brexit vote.

But since then, and maybe partly because of legal immigration now being under clear national control, both public attitudes and the immigration policy regime have both liberalised in the UK. (There was a similar zig-zag in the US with Obama’s relative openness followed by Trump’s wall and, in reaction to that, more benign attitudes that are now swinging back again to greater control thanks to events at the Mexican border.)

The newly liberal attitudes to immigration in the UK have arisen at a time of almost no immigration at all during the Covid years – the real test will be whether they survive net immigration levels rising to 300,000 or 400,000 a year. And what the academic Rob Ford calls ‘event-driven liberalism’ does not always last.

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Even now many people are welcoming Ukrainians because they assume the UK is offering short term refuge before they return home to rebuild their country. If the number of Ukrainians who look as if they might be staying for a long time or forever becomes very large opinion could change, as it did over the Balkan refugees in the early 2000s.

The other factor is control. The Ukrainian flow is not only a response to an obvious crisis, it is also being managed by the UK government. This is in sharp contrast to the continuing flow of people across the English Channel (still running at hundreds most days and heading towards 80,000 or 90,000 this year) which remains very unpopular.

Nevertheless, this window of generosity in the public mood is a good moment to propose a radical rebooting of our whole approach to asylum, here and throughout Europe. We need what Gerald Knaus of the European Stability Initiative has called ‘humane control’, meaning a rigorous clampdown on irregular entry but in return an opening up of safe, legal routes.

Knaus, who was a key figure behind the EU-Turkey Syrian refugee deal, is no populist, indeed his think tank is at the forefront of the struggle against populism in Europe, but he uses language quite like Priti Patel when talking about the political and moral disaster of uncontrolled irregular migration.

For Europe’s refugee mess of recent decades is not a morality tale but a wicked problem. And it is insoluble as long as we retain an absolute entitlement to claim asylum that takes no account of the merit of your case, how you entered the country or the numbers who might arrive alongside you.

The concept of a ‘well founded fear of persecution on grounds of race, religion, nationality, membership of a particular social group, or political opinion’ has been stretched in recent decades way beyond the system established in 1951 to protect Soviet dissidents from being returned—as German Jews had been returned to the Third Reich by Switzerland. It now potentially covers most people in conflict-ridden or authoritarian countries. Charles Clarke, former Labour Home Secretary, pointed out 15 years ago that hundreds of millions of people could now legitimately claim asylum in rich countries, not to mention those who piggy-back on the system as economic migrants.

The legal entitlement cannot be honoured because the number of people it potentially embraces, in a more mobile world, is not compatible with a welfare state and a stable democracy. So, in practice, to keep the numbers at a manageable level it has to be made very difficult to get here to claim asylum and then somewhat uncomfortable after you arrive at least until you get a positive result (support in the UK is pretty basic). We are condemned to hypocrisy and even a degree of brutality and this is the same story in most other European countries.

The ugly game of cat and mouse over illegal entry produces a Darwinian outcome in which mainly young men (about 90 per cent of Channel crossers) from better-off families in poor or oppressive or conflict-ridden countries (Iran, Iraq, Eritrea, Albania, Sudan) try to beat the blockade and, in effect, jump the queue. It is self-selection of the fittest.

Most British people want neither open borders nor a wall around the country, but irregular entry undermines the fairness of the asylum system, and a country’s right to control its borders and protect itself against bad actors, (a number of people convicted for Islamist terrorism in the past 20 years have had an asylum background).

Once people are in this country the chances of removing them are slender to non-existent. Last year only about 2,800 people were forcibly removed and almost all of them were foreign prisoners, failed asylum seekers are simply not removed and there are now more than 300,000 of them living in the UK.

People I know in refugee organisations say that, of course, they are not in favour of open borders and they are as fed up as anyone at the government’s failure to remove people who are not granted asylum yet remain in the country, expanding the population of people who live below the radar in a twilight world of insecurity and exploitation.

But you will seldom find them condemning the immigration lawyers who game the system and extend the process so that people can makes claims under article 8 of the Human Rights Act (HRA), supporting the right to family life. Article 3 of the HRA, on not returning people to places where they might be subject to inhuman treatment, is also often used, so that half of all permissions to stay are now granted under human rights law.

Nor will you find activists urging the government to sign return agreements with key countries like Iraq, which are another reason for almost zero deportations. (Why we don’t have one with Iraqi Kurdistan is a mystery, as is why people are coming from there at all, given that it is of the few bright spots in the Middle East.)

There is no need to rehearse in detail the well-known failings of the mechanics of the current system. It seems to be designed for about 20,000 asylum seekers a year and when around 50,000 applications were made last year (the highest number since 2003) by mainly irregular entrants—28,500 from the Channel, more than 8,000 on lorries—it seizes up. Two-thirds of applicants are waiting more than six months for an initial decision. But the system is hardly ungenerous. Few people are now in immigration detention, as so few are being deported, and around two-thirds of asylum applications are now accepted at first attempt.

The Nationality and Borders bill currently struggling its way through parliament probably won’t make much difference to the Channel boats, at least in the short term. As Jonathan Thomas of the Social Market Foundation pointed out recently what is needed to break the flow across the Channel is either an agreement with France (after the election in April) or something really draconian, Australia-style—if you come on a boat you will not be turned back on the water but you will be removed somewhere else to have your claim processed.

This is regarded as outlandishly illiberal but it is not. The government is right to try to delegitimise irregular entry. As Gerald Knaus points out, push back plus off-shore processing is what happened with the EU-Turkey deal in 2016 at the height of the Syria crisis. And it worked. As has the hard-line Australian position on not coming by boat. Many lives have been saved as a result.

In the short term you have to hold a very hard line and accept that even people with a legitimate claim will not gain entry to the UK, though they will not of course be returned to somewhere dangerous (that would be against the 1951 Convention). Once that line is established the people traffickers get the message and don’t try to deliver people. So, it is just a small number of people who might find themselves in the transitional period on Ascension Island or wherever the offshore processing might take place (though still by UK officials).

But there has to be a very big quid pro quo, both politically and morally, to make up for the closure of irregular routes. And the answer is to significantly expand safe and legal routes. The proposal you most often hear from refugee organisations is humanitarian visas. But that is just a slogan, there is no workable version of them. Officials in British embassies cannot decide whether someone has a potentially good case for asylum and allow them to travel to the UK to find out if their hunch is correct, and even if they did they would swiftly find this route overwhelmed with applicants because once you are in the UK you don’t leave.

But UK governments have been managing several legal routes in recent years, most notably the resettlement schemes for Syrians and Afghans. This allows the most vulnerable, usually women and children, to be selected from UN camps, as opposed to the mainly young men who come via irregular routes. But there are other schemes too, the Refugee Family Reunion scheme and the Community Sponsorship scheme. About 180,000 people have come via safe and legal routes since 2004.

The Homes for Ukraine scheme has shown the potential of sponsorship schemes, which are most highly developed in Canada. People who have relatives in the UK should also be able to apply via those relatives. Both sponsorship and relative-based schemes have the advantage of being low cost and helpful for integration.

The resettlement schemes, which currently let in just a few thousand a year, would need to radically increase their numbers. And as well as turbo-charging existing schemes we could invent new ones. For example, although in most of the resettlement and sponsorship schemes it is public authorities or individuals in the UK choosing the refugees, it should still be possible for individuals to apply. We should certainly drop the historic rule that you can only apply for asylum from inside the country and also allow people to apply online in special cases.

Just as ending EU free movement and establishing control over legal migration has led to a more positive attitude to immigration in general, so ending irregular refugee flows and establishing bigger legal ones would probably allow the UK to take in more refugees each year. The Government could set a baseline target of, say, 50,000 a year, considerably more than have been coming, mainly through irregular routes, in recent years. Though the figure might have to be adjusted depending on events such as those in Ukraine and the UK’s absorption capacity.

Irregular flows would stop to a trickle in this scenario but there will still be people who will claim asylum having come in quite legally on a visit or student visa. The default assumption should be to return them if they are coming from somewhere like Iraqi Kurdistan or The Gambia, places that are safe and democratic but desperately need their educated young people and are badly damaged by brain-drain. But we can only do this with a returns agreement with those countries and that should have a quid pro quo element too. In return for taking back failed asylum seekers such countries should get more student scholarships or work visas or something that would help their development.

This asylum reboot proposal is not wholly original, Gerald Knaus has been talking about it for years, motivated by anxiety about how uncontrolled asylum has helped to drive populism in Europe. And it is, in a sense, the philosophy that underpins the asylum aspects of the Nationality and Borders bill. But the government has talked only about one side of it, the clamp down on irregular entry, and has not made the bigger more inspiring offer that we should be pursuing.

The reboot would be popular with UK voters, more than two-thirds of people say they do not think people who arrive illegally from a safe country should be allowed to claim asylum, and maybe with the more sensible end of the refugee lobby.

It would be popular in other European countries too, many of whom face exactly the same dilemmas, and it might make us less vulnerable to the use of refugees as a political weapon by Russia and other hostile powers. Perhaps it could be on the agenda for President Macron and Prime Minister Boris Johnson’s kiss and make up summit after the French election in April.