The Weekly Round-up: Asylum System Overhaul

29 March 2021 by Hugo Murphy

In the news:

Home Secretary Priti Patel pledged a ‘fair but firm’ overhaul of the UK’s asylum system in the Commons on Thursday. The proposed measures aim to crack down on the criminal smuggling operations which helped 8,000 people cross the Channel by boat last year.

Under the Home Secretary’s proposals, asylum seekers would have their claims determined according to how they arrived in the UK. Those using ‘safe and legal resettlement routes’ directly from the countries they are fleeing, such as Syria and Iran, would obtain automatic permission to remain in the UK indefinitely. But anyone arriving with the aid of services offered by criminal smuggling gangs would only ever receive temporary permission to remain and would be regularly assessed for removal from the UK. 

The Home Secretary declared that such a regime would deter prospective asylum seekers from using the EU countries in which they first arrive as springboards for reaching the UK, and encourage them to make claims there instead.

The proposals raise political, legal and practical concerns. Labour’s Shadow Home Secretary Nick Thomas-Symonds said the plans lacked compassion and would do ‘next to nothing to stop people making dangerous crossings.’ Human rights lawyers questioned whether discriminating according to method of arrival would be compatible with the UK’s obligation under the UN Refugee Convention not to penalise anyone who has ‘good cause’ to enter a nation illegally. And other critics have warned that the scheme is unworkable in any case, since the UK has no legal arrangements for returning rejected asylum seekers to any EU countries following Brexit.  

In other news:

• On Thursday, MPs voted to extend emergency coronavirus powers for another six months. While some Conservatives rebelled on the grounds that the measures were ‘out of step’ with the roadmap out of lockdown, Health Secretary Matt Hancock insisted that the restrictions would remain in place ‘only as long as necessary’. He pointed to 12 provisions which were removed from the updated Act as no longer needed, including measures for retaining biometric data for health and security purposes. The once-unprecedented but now-familiar powers to shut down hospitality venues and detain individuals deemed at risk of spreading the virus will now remain available until September.

• Half of women have little or no faith in the CPS’s ability to prosecute crimes committed against them, a poll revealed amid the outcry over the murder of Sarah Everard. Men were found to have significantly higher confidence in the official prosecution service. These findings were announced only a week after the ONS published a survey indicating that one in 40 young women in England and Wales experience sexual assault each year, and after the Suzy Lamplugh Trust announced that demand for its National Stalking Helpline has risen by nearly 10% since March last year. Amidst these reports, the Government amended its Domestic Abuse Bill to require police forces to collect data on crimes apparently motivated by hostility towards women, in what some commentators have seen as a step towards making misogyny a hate crime

• A teacher at Batley Grammar School has been suspended after his decision to show pupils a cartoon of the Prophet Muhammad provoked protests outside the school. The school released a statement apologising ‘unequivocally’, explaining that ‘it is important for children to learn about faiths and beliefs, but this must be done in a sensitive way.’ In response, a Department for Education spokesperson defended teachers’ prerogative to raise controversial issues with students.

In the courts:

• Secretary of State for the Home Department v Starkey [2021] EWCA Civ 421 (26 March 2021). The Secretary of State won an appeal regarding her decision to refuse the Respondent’s human rights claim and to deport him to South Africa. The 2018 decision to deport the Respondent, a registered sex offender and paranoid schizophrenia sufferer, was based on the Home Secretary’s conclusion that public interest considerations outweighed competing concerns over the availability of treatment for the Respondent’s illness in South Africa. According to section 117C(6) of the Nationality, Immigration and Asylum Act 2002, tribunals may only quash decisions to deport foreign criminals who have been sentenced to a period of four years’ imprisonment or more if there are ‘very compelling’ reasons to trump the naturally strong public interest in their deportation. On the basis of a wide range of conflicting expert testimony, the First Tier Tribunal (Immigration and Asylum) held that the present medical considerations were insufficiently compelling to quash the deportation order, only for the Upper Tribunal to reach the opposite conclusion on appeal. The Court of Appeal, in turn, reversed that ruling: the Upper Tribunal had misunderstood how high the threshold stipulated by section 117C(6) is – a threshold its findings of fact were not capable of reaching.

• Newman v Southampton City Council & Ors [2021] EWCA Civ 437 (25 March 2021). The Court of Appeal upheld a High Court decision to refuse a journalist permission to access documents from a young child’s care and placement proceedings. The Appellant’s interest in the material derived primarily from her research into the high rates of under-fives being put up for adoption in the local authority. She had intended neither to identify the child nor to quote directly from the documents, but rather to use them to inform her broader research. Deciding such a matter involved a discretionary balancing exercise between the child’s Article 8 right to privacy and the Appellant’s Article 10 right to freedom of expression, set against the backdrop of the open justice principle. The Court of Appeal held that the High Court had identified and carried out that balancing exercise ‘with meticulous care’, and as such its decision should not be interfered with.

On the UKHRB:

• Sapan Maini-Thompson reports on the recent decision in Privacy International & Ors v Secretary of State for Foreign And Commonwealth Affairs & Ors [2021] EWCA Civ 330, in which the Court of Appeal held that a policy authorising undercover MI5 agents to commit criminal offences is lawful.
• Jake Richards discusses the Court of Appeal’s recent decision in The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356 and its significance for the law on vicarious liability for sexual offences committed by those in positions of moral authority.