Posted on June 10, 2011

We’re Fighting a Losing Battle Over Asylum

Alasdair Palmer, Telegraph (London), June 4, 2011

Seventy per cent of applications for asylum in the UK are rejected. But only one in 10 of those who apply for asylum here will be deported. Although some of the failed asylum seekers go home voluntarily, most of the rest end up staying. Whatever you think about whether we grant too many people asylum, that represents a defeat for the system–and a defeat for the rule of law.

The law says that most of those who settle here after applying for asylum should not be allowed to stay. But stay they do–and after about five years, their initially illegal settlement is endorsed by both the state and the courts. That’s why, last week, the Home Affairs Select Committee condemned the situation as “indefensible”.

Why isn’t the law being enforced? Part of the answer is that we are not very good at keeping tabs on people once they have lodged a claim for asylum. About 20 per cent of the 403,500 people who have applied over the past decade have disappeared: no government official knows whether they have stayed or left the UK. But in asylum’s upside-down world, that’s “resolving” their claim.

Our asylum law is also full of loopholes, the biggest of which has been made by Article 8 of the European Convention on Human Rights: our old friend, the “right to family life”. If you seek asylum, and you manage to have children here, you gain the right to stay: the children are entitled to live here because they were born here, and the state does not have the right to separate you from them, which is what would happen if it sent you back to your country of origin.

Senior officials at the UK Border Agency, the government organisation responsible for policing immigration and asylum, tell me that the right to family life is the reason why tens of thousands of asylum seekers have been granted leave to remain here permanently without any contest–even though it believes their asylum claims are bogus. There hasn’t, as the Select Committee suggested, been a decision to grant a general amnesty. It is simply that the agency’s lawyers have looked at the cases of those who have had children while in Britain, and decided that there’s no point in going to court: the Government would lose. So there has been a pragmatic decision to throw in the towel.

Anyway, going through the legal procedures can sometimes take years without reaching a definitive conclusion. Ruling on an asylum case in the Court of Appeal in April, Lord Justice Ward said that “I shake my head in despair, if not disbelief, at this extraordinary process, which occupies so much court time.” His despair is understandable: the woman at the centre of the case had first sought the right to settle in Britain a decade ago. Her claim was rejected, but she then switched to claiming asylum.

That, too, was rejected, but it slowly worked its way through the maze of appeals until it reached Lord Justice Ward–who found that he could not resolve it either, but had to send it back to an asylum and immigration tribunal. Which means, as he ruefully observed, “another hearing, and more expenditure of public money on legal costs on both sides, probably with more appeals to follow”. The woman hasn’t yet gained the right to stay here. But she’s gained the right to fight her case, which turns out to be a pretty good equivalent.

The UK Border Agency may have finally got the backlog of asylum cases under control. But that doesn’t mean that it has asylum seekers under control. Manifestly, it has not. Claiming asylum remains the best hope that someone hoping to escape the misery, poverty and corruption of a developing nation has of gaining residence in Britain. So we can expect the numbers coming here, whose claims are without merit, to rise–and for it to be impossible to enforce the law in all but a minority of cases.

It isn’t impossible to make the system work, but it will require an enormous commitment of money and manpower, and possibly a major change to the way the law operates. In these constrained times, is that really likely to happen?