The “New Plan for Immigration”

The New Plan for Immigration Policy Statement (March 2021) was recently published by the government as part of its consultation process on a series of proposed changes to the UK immigration and asylum system.

The proposals in the Policy Statement are wide ranging and, in some case, represent a radical departure from the way in which immigration and asylum applications have been processed previously. It is likely that many of the proposed changes contained in the Policy Statement will ultimately be modified, watered down or not pursued.

Whilst this means the proposals need to be taken with a pinch of salt, their content indicates the policy intentions of the government. This is an important document for anyone who practices in the field of immigration and asylum law, and we have taken a brief glance at some of the most eye-catching proposals.

A change to the standard of proof in protection claims

The Policy Statement proposes “strengthening” the well-founded fear of persecution test.

Currently, those with protection claims need to demonstrate that there is a “reasonable degree of likelihood” that they will face persecution or serious harm on return to their country of origin.

The new proposed test would have two elements.

The first element is that a person’s identity and the genuine nature of their fear is assessed against the civil standard of “balance of probabilities”. This element involves a credibility assessment.

The second element is that the objective question of whether a person would in fact face persecution on return to their country of origin would be assessed against the “reasonable degree of likelihood” standard.

How this test would work is unclear, and conceptually problematic.

Questions of a person’s identity and credibility are often central to the question of whether they would be at risk on return and cannot be separated without, in our view, a significant risk of breaching the UK’s international obligations.

For example, consider the case of undocumented Kuwaiti Bidoons, a group which is almost always considered at risk of persecution on return to Kuwait if their status as an undocumented Kuwaiti Bidoon can be established.

In such a case, questions of these individuals’ identity and credibility are ultimately determinative of the objective question of whether or not they would be at risk on return to their country of origin.

An undocumented Kuwaiti Bidoon asylum seeker may be found to not be credible when assessed to the “balance of probabilities” standard, but would be found to be credible when assessed under the “reasonable degree of likelihood” test.

In such a case, there would almost certainly be a “reasonable degree of likelihood” that they would face persecution on their return to Kuwait, even though they had failed to establish their identity meaning the two elements test would give an incoherent result.

Good faith requirement

The New Plan for Immigration also proposes a “good faith” requirement that would require appellants and their representatives will be required to act in good faith at all times.

Acting in “good faith” means bringing any claims as soon as possible, telling the truth and leaving the UK when they have no right to remain. If a person does not act in “good faith” this should then impact on their credibility.

It is currently an offence to provide immigration advice in the UK unless the individual is regulated by an approved regulatory body as solicitors and barristers are, or if they are regulated by OISC.

It is not immediately apparent whether the good faith requirement would require anything of legal representatives which they are not already obligated to do under their respective regulatory regimes.

It is also difficult to divine the effect of the good faith requirement for immigration applicants given that tribunals do take the majority of these factors into account when assessing credibility.

Practitioners will be aware of Section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004 which describes certain types of behaviour which negatively impact on a claimant’s credibility, such as failing to produce a passport without a reasonable explanation, or failing to claim asylum in another safe country if there was a reasonable opportunity to do so.

Following JT (Cameroon) [2008] EWCA Civ 878, these provisions are of limited practical relevance as the factors set out in section 8 are absorbed into an overall, holistic assessment of credibility which considers all of the factors.

If the good faith requirement becomes law, one imagines it will need to be carefully worded in order to avoid a similar fate.

And similarly the proposed requirement that judges attach “minimal weight” to evidence or grounds which a person raises after an early stage of their claim. This is something judges already do in practice, and so the need for, or possible impact of, such a measure is doubtful.

Less generous treatment of “inadmissible” claims

A further proposal in the New Plan is the establishment a two-tier system distinguishing between asylum applications made via legal routes, and other applications, where applicants have come via “safe” third countries which, under the proposals, would be considered inadmissible.

The Home Office will first attempt to remove applicants with “inadmissible” claims, much as was the case when the UK was a member of the EU under the terms of the Dublin Regulations III.

However, as the UK is no longer part of the EU, it does not have the same legal mechanisms to enable or effect such removals, and the Home Office is currently seeking establish new agreements with facilitate the removal of such “inadmissible” claims.

Where applicants with “inadmissible” claims cannot be removed, their cases will be considered substantively in the UK, stretching the meaning of inadmissible beyond recognition.

But the most striking thing about the proposals is that successful applicants who originally made “inadmissible” claims will only ever receive temporary protection status with “less generous entitlements and limited family union rights.”

Under the current system, refugees can apply for permanent status after 5 years leave in the UK. Under the proposals, refugees from “legal” routes would receive immediate grants of indefinite leave to remain.

In the absence of other information, it is presumed that applicants who receive temporary protection status would be able to apply for permanent status after 10 years leave in the UK as it the case for many other migrants in the UK. This suggests that extending the time before refugees are granted permanent residence is theoretically possible, but it is less clear if this can be done on a discriminatory basis.

Article 31(1) of the Refugee Convention requires that contracting states not impose penalties on refugees who illegally enter the UK or are illegally present in the UK providing refugees show good caused for their illegal entry or presence. This provision can be read as prohibiting the discriminatory system proposed in the New Plan and for 70 years this has been the orthodox interpretation of Article 31(1) in the UK.

As a result, any attempt to implement this two-tier system is also likely to result in a large amount of litigation.

Other matters

There are many other proposals in the New Plan which, for reasons of brevity, have not been discussed in detail but are worth highlighting:

• An intention to establish a system for asylum claims to be processed where the applicant is outside of the UK;
• The introduction of a “scientific approach” or scientific methods to age assessments, seeking to overturn the conclusion UK courts have reached that the evidence suggests that age cannot be reliably determined from “scientific methods”;
• Setting up panels of pre-approved experts (including medical experts) or requiring that experts be jointly appointed, which may provide the Home Office with a veto mechanism to exclude the evidence of troublesome experts from the tribunal; and
• Expanding the fixed recoverable costs regime to cover immigration judicial review, practically limiting the work which can be done on such cases.

Many of these proposals are contentious and could be fruitful sources of litigation.

Whatever comes of the proposals in the New Plan for Immigration, it is important to remember they are currently only proposals. Any changes which are affected will go through several rounds of review and amendment.