Legal Briefing

Effective amnesty in UK asylum system: an agency ‘not fit for purpose’

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Immigration | 04 July 2011

In early June the House of Commons Home Affairs Committee published a report called ‘The Work of the UK Border Agency (November 2010 – March 2011)’, which accuses the UK Border Agency (UKBA) of effectively creating an amnesty for hundreds of thousands of asylum seekers whose cases have been delayed for many years.

This is not a new problem, as the asylum system has been bogged down for over a decade in case backlogs, with many applicants waiting several years before a decision is taken on their case. The government has implemented numerous initiatives over time, including ‘certified’ cases (to limit appeal rights) and ‘one-stop’ appeals to prevent failed asylum seekers from using extended appeal rights to prolong UK residence. However, the system remains slow and recent cutbacks to public funding do not give much scope for likely process improvements.

Many media reports have noted the conclusion that the Committee reaches that UKBA’s success in clearing a backlog of around 400,000 to 450,000 unresolved asylum cases has been achieved:

‘Through increasing resorts to grants of permission to stay or the parking of cases in a controlled archive, signifying that the applicant cannot be found and the agency has no idea whether or not the applicant remains in the UK, legally or otherwise.’

The Committee also state that it is ‘indefensible’ that:

‘About 74,500 of the 400-450,000 cases – approximately one in six – the UKBA has been completely unable to trace what has happened to the applicant.’

Finally, the way the backlog has been dealt with effectively mounts to an ‘amnesty’:

‘We understand that ministers would have been unwilling to announce an amnesty for the applicants caught up in this backlog, not least because this might be interpreted as meaning that the UK was prepared more generally to relax its approach towards migration:

“But we consider that in practice an amnesty has taken place, at considerable cost to the tax payer.”’

As to immigration generally, the Committee repeats its view that it is a ‘mistake to include students as migrants unless or until the student makes an application or demonstrates that intention to wish to settle’. It also highlights the problem of hundreds of thousands of immigrants overstaying their visas.

In respect of Tier 2 of the points-based system for immigration (the route that provides for economic migration for employees), the Committee says:

‘It can function effectively only if there is confidence that sponsors will not abuse the system and that anyone who no longer qualifies for leave to remain is compelled to leave the UK.’

The Committee identifies the lack of resources that the UKBA has at its disposal to properly monitor and undertake compliance checks on Tier 2 sponsors.

Robust response

The immigration minister, Damian Green, responded to the report on 2 June:

‘We have known for some time that the asylum system we inherited was chaotic; some of these cases date back more than a decade and the UKBA was always clear that, because of the length of time that many of these individuals have been in the country, there would be no alternative to granting them leave to remain. There is no amnesty.’

Clearly the minister is seeking to underscore the fact that he inherited his department a year ago and this backlog was created under a previous regime.

Responding to the reports observations on the immigration system in general, Green added:

‘We are already radically reforming the points-based system and other routes of entry that have been subject to widespread abuse, and will reintroduce exist checks by 2015.

We are making greater use of intelligence to remove people with no right to be here and are concluding individual cases faster.’

It appears that confidence in the efficiency of the UKBA remains at a low ebb. Given the need to reduce rather than enhance resources as a consequence of deficit reduction, it is unclear how confidence in the mechanisms of immigration control can be established.