One of the promises that helped to drive the Brexit vote was that to ‘take back control’ of immigration. Unlike the hard targets set (and missed) by previous governments, ‘control’ is as much a matter of perception as anything.

Thus since the referendum public concern about immigration has waned, even before the Government introduced its long-awaited points-based immigration system – which as we noted last year actually gives Ministers huge scope to make the actual regime as liberal as it needs to be.

But it is also why the issue of the Channel boats is so potentially damaging. Even if the total numbers of people crossing this way are small, the phenomenon is a visible symptom of loss of control. It could thus undermine public confidence in the Government’s entire approach to an extent far in excess of its actual impact. And as the Home Office shows in its new policy statement, New Plan for Immigration (NPI), small boat crossings have in any event ballooned to 50 per cent of all ‘detected irregular arrivals to the UK’ during 2020.

So something was going to have to be done. But what?

A two-tier asylum system

Of all the changes in the NPI, the most eye-catching is the creation of a two-tier asylum system. Put simply, an applicant’s pathway and odds will be very different depending on whether or not they reached this country via legal means. From Chapter 4 of NPI:

  • “Ensure those who arrive in the UK, having passed through safe countries, or who have a connection to a safe country where they could have claimed asylum, will be considered inadmissible to the UK’s asylum system;
  •  Seek rapid removal of inadmissible cases to the safe country from which they embarked or to another safe third country;
  • Introduce a new temporary protection status with less generous entitlements and limited family reunion rights for people who are inadmissible but cannot be returned to their country of origin (as it would breach international obligations) or to another safe country;”

Or as described from the perspective of of the lobby group Refugee Action: “…these reforms punish refugees simply for how they enter the country, creating an unjust “two-tier” system of refuge.”

But the Home Office’s logic makes sense. Dismantling people-trafficking networks is a complex and time-consuming business, but an elementary step is taking away the prize that criminals use to persuade people to pay for their services. It is also fair to point out that anybody crossing to the UK from France is already in a safe country in which they could claim asylum – and has almost certainly passed through several more.

Carrot and stick

NPI backs up this bifurcation of the asylum process with both carrots and sticks – although being a Home Office document, the ratio favours the sticks.

On the carrot side, Chapter 2 sets out various ways in which the Government aims to “strengthen the safe and legal ways in which people can enter the UK”. These include making the system more flexible so it can adapt to emerging crises, giving the Home Secretary new means to help people “in extreme need of safety”, more integration support, and efforts to help applicants who actually qualify under the points-based system to immigrate that way.

The sticks are more numerous, and set out in greater detail in subsequent chapters. The central features are reforms to the appeals process to prevent failed applicants and their lawyers gaming the system, plans for offshore processing of claims, measures to improve the rate of removal for Foreign National Offenders (FNOs), et al.

Appeal reform is the bit that’s likely to really rile the lawyers. From Chapter Five: “Our end-to-end reforms will aim to reduce the extent to which people can frustrate removals through sequential or unmeritorious claims, appeals or legal action, while maintaining fairness, ensuring access to justice and upholding the rule of law.” According to NPI, this will be effected by introducing a ‘one-stop’ system, which basically means that an applicant must present all their potential grounds for staying in Britain at once, instead of appealing on one and then another if that appeal fails.

Citizenship reform: a missed opportunity

Chapter 3 outlines “reforms we will make to British Nationality law will finally address historical anomalies”. But it ducks the bold, comprehensive overhaul this area really needs.

Giving the Home Office more flexibility to waive the rules which saw Windrush victims barred from claiming British citizenship because the Home Office had locked them out of the country are obviously welcome and overdue. So too is giving the Home Secretary “an ability to grant citizenship in compelling and exceptional circumstances where there has been historical unfairness beyond a person’s control”, although the acid test of that will be whether the various Commonwealth servicemen fighting to stay here qualify for such an intervention.

But despite boasting in the foreword about the Government’s bold decision to create a new pathway to citizenship for Hong Kongers with British National (Overseas) passports, Patel makes no mention of reducing the excessive hoops that such people need to qualify for residency and citizenship in the UK compared to other Commonwealth nations such as Canada. Nor has she taken the opportunity offered by the move on BN(O)s to offer the same generous treatment to the relatively small number of people with other forms of second-class British citizenship, such as British Overseas Citizens.

I recently teamed up with Andrew Yong of the Global Britons campaign to write a paper for the Adam Smith Institute setting out some concrete, practical steps the Home Office could take to put some meat on the bones of the ‘global Britain’ rhetoric. It’s unfortunate that the Government has decided, for now, to continue to render people with British passports effectively stateless.

Will it work?

Politically, the most salient part of this report will be the parts focusing on asylum overhaul. Whilst NPI doesn’t include actual criteria by which it could be judged a success or failure, two obvious potential pitfalls spring to mind.

First, the UK is currently bound to a web of international commitments and legal obligations in this area, and the proposals will doubtless be subject to legal challenge. A thought which might lend some urgency to the Government’s parallel overhaul of judicial review.

Second, there’s the simple question of enforcement. Shiny new processes won’t add up to much if people continue to simply abscond. The introduction of immigration concerns as a new ground for refusing bail, and plans to expand the ‘asylum estate’ and reduce reliance on off-site facilities such as hotels have clearly been included with this in mind.