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We no longer know who lives in the country, are unable to remove those
with no right to be here and lack a plan to resolve the situation

To the layman, this week’s story that an Afghan sex offender could be
given refugee status because his behaviour towards women may put him at
risk in his home country is absurd. For those used to Britain’s asylum
system, it’s par for the course.

After all, just a few weeks ago we heard a similar tale, when the Clapham attacker Abdul Ezedi was granted asylum despite his criminal convictions.
As a former immigration official noted of that decision: “It’s not a
glitch that you get sex offenders let in the third time around. It’s how
the system is meant to work.”

Over the last year, immigration has hardly left the headlines. Politicians nominally in control of the country have fulminated about the abuses of
the asylum system that have seen small boat crossings surge, bringing
29,437 people to our shores last year, and on course for a new record high
in 2024. They’ve watched as changes to the legal migration system sent the inflow soaring to 1.2 million, and started to unwind the mistakes they
made with dependent visas for students and care workers.

In the last few days, focus has shifted back to the Rwanda plan. Having
come to grief in the Supreme Court and the House of Lords, Rishi Sunak is
now threatening to leave the European Convention on Human Rights (ECHR)
should the human rights court block the scheme.

But even if the planes start taking off, there’s another problem waiting.
While Westminster can design whatever immigration policy it likes, it
appears increasingly unable to enforce it on the ground.

A day in court
The best way to understand what this means is to see it first hand.
Immigration and asylum tribunal cases are open to the public. If you’re
willing to set aside a few hours, you can sit in the gallery and see what Britain’s immigration system looks like in practice.

What you may not be able to do is find out how the case is resolved.
First-tier immigration and asylum tribunal decisions are not published.
The only way to get access to the result is to apply directly to the
president of the court, and hope they decide in your favour.

The cases I saw were chosen at random, with no indication of their
contents beyond the broad codes given in the list of hearings – HU for
human rights claims, PA for what we would call loosely asylum cases.

The immigration court I chose sat off a roundabout opposite a Tesco
superstore. Outside, planes taking off and landing at Heathrow rumbled overhead. Inside, the courtrooms were quiet enough for the ticking clocks
on the wall to be audible. Green signs in three languages warned those
waiting their turn not to eat, smoke or drink.

Most of the attendees sat in groups, chatting in apparent good humour. A
few were tense and alone. A lost-looking interpreter tried to work out
which of the courts he was meant to be attending, and staff members
shuttled back and forth directing people to hearing rooms. They were
polite, friendly and highly taken aback that someone had turned up to
listen to cases. One security guard audibly swore when told by another why
I was there.

The first case turned out to be a tourist who had overstayed. She had come
from India for a holiday with her husband in 2021, visiting children who
had emigrated to the UK. Her husband had sadly died during their visit. Struggling to cope, she had been staying with their children since. Now,
in 2024, years later with her right to stay long expired, she was fighting
to stay permanently.

Human rights laws appeared to present a promising avenue for her
representative to argue that she would face significant obstacles to functioning on her own in India, and so could not be made to leave.

To start with, she was receiving therapy for depression in the UK, and it
was argued that mental health issues were unlikely to be as well cared for
in India. One child gave evidence as a witness. Despite having lived in
the UK for 18 years, they were deemed to have limited English skills, so
the interpreter stayed to assist them. The point was hammered home that
the woman had said she would “end her life” if made to leave.

Other medical issues were discussed and disputed. The Home Office
presenting officer did their best to make the case against allowing her to stay, although it was interesting to note that facts or assertions were
rarely directly disputed. When the lawyers examined the notes entered as evidence, it was unclear in one instance whether the doctor had actually
seen the patient, or merely written down the description given by the
daughter. Nobody appeared to have simply checked directly with the
surgery.

In addition, while her family could afford to pay for a carer, and her own financial security would not be an issue, she would lack emotional
support. Her family in India consisted of a single sister, who was old,
and to whom she no longer talked. Not only that, but, as her
representative reminded the court, the Home Office advised against
travelling in the country as a lone woman. Would we really send her back
to that?

At this point, alarm bells should be ringing. It should not be possible to enter on a tourist visa, stay for years, and then avoid deportation by
claiming the need to access public health services, or arguing that you
could not possibly function in the country you’d spent your life in. Even
the most compassionate among us would surely argue that we cannot be
expected to take on the cost and burden of caring for the citizens of
other countries in their old age, rather than expecting their government
or family to fulfil their own obligations.

Yet these tactics do seem to work; cutting people off from NHS services,
or forcing them to return to their life as it was can be intolerable to
our compassionate state, which instead invites them to stay. This urge sometimes leads to absurd outcomes. In one case, an illegal migrant who
raped a woman at knifepoint avoided deportation after a tribunal found he
would “experience genuine difficulties being able to access a regular
supply of his necessary medications”, and be at “real risk of social
isolation and stigmatisation”. Better, instead, to let him live in
Britain.

A long stay
The second case was again picked at random; of the two due to begin when
the first ended, it was the one that started soonest. Again, it was a straightforward case of overstaying. The appellant had been given a 14-
month study visa, and failed to leave on time. The visa was issued in
2007. Rather than stay for 14 months, she had stayed for 17 years.

This hearing followed a slightly different format. The appellant’s representative laid out their case. The judge listened. The Home Office presenting officer remained silent because they weren’t there; the
department had chosen not to send anyone to attend.

Again, the health of the applicant was raised. They had a serious and
extensive operation scheduled to take place on the NHS; if they were sent
back to India, this plan of treatment would be significantly disrupted,
even if they were able to afford it.

In this case, the second obstacle was that deportation would constitute a
major disruption to her married life. In the time she had stayed in the
UK, she had married an Afghan man who had taken British citizenship. He,
in turn, would most likely be unable to join or even visit her in India.

After all, not only did he lack Indian citizenship, he would most likely
be refused any application to even visit the country: in his time in the
UK, had received a prison sentence of 11 years for a serious offence. Even
if India decided to let him in, the British authorities would look askance
at letting him leave: he had been released on an extremely restrictive
licence.

Given this, the argument went, and considering that if the appellant was
forced to return to India, she would likely be able to return to the UK on
a spousal visa, did her overstay really warrant the disruption removing
her would cause? After all, the Home Office had made no effort to enforce
her removal for 17 years, even when she had applied for (and been denied)
the right to remain in 2013.

Although it was possible to sympathise with this argument, it also raised
some difficult questions. How had it been possible to stay in Britain for
so long when the Home Office had been made explicitly aware of the
overstay? After all, it was the length of her stay that had led to her developing the ties which were now being used to argue against ever
removing her; had she been swiftly removed a decade ago, there would be no claim to continuity of married life, or of NHS treatment. And on that
topic, how was it that the British taxpayer had found itself providing her healthcare?

Welcome to the Hotel Britannia
People come to Britain for a reason. You do not push a dinghy into the
waters of the channel, or spend your life savings on a plane ticket to
Heathrow for nothing. The attractions are straightforward: the world
speaks English, work is easy to find, and if you can get into the country
you have a good chance of staying.

Take the asylum seekers crossing the Channel. They aren’t coming because they’ve been misled by cunning people smugglers. They’re doing it because Britain is a good place to lodge a claim. Before appeals, France accepted
just 28 per cent of the claims it evaluated in 2022. Spain was a little
more generous at 42 per cent. Denmark accepted 52 per cent of the 985 applications assessed.

Britain accepted a full 76 per cent of the 23,870 claims it resolved,
making 1,625 more grants of asylum than Austria despite processing 15,130
fewer applications. No country with more cases resolved had a higher grant
rate than the UK.

Our generosity doesn’t stop there. If your claim is denied – or even if
you have no claim at all, and simply fail to leave when your visa expires
– you may well be able to stay. The problem with Britain’s borders, at the
most basic level, is simple: we don’t know who’s here, and when we do,
it’s very hard to make them leave.

In 1998, Britain stopped checking the documents of people leaving the
country as it was “an inefficient use of resources”. While we had some
idea of who was coming in, we no longer knew if they were leaving. It
would take until 2015 for exit checks to be reintroduced. By 2017, two
years worth of data had been gathered, showing 10 million people whose
leave to remain in the UK had expired. For 601,222 of these, there was no evidence of their departure.

To lose one passenger might be considered careless; to lose half a million
is farcical. Some of these people may have left the country, travelling
through the Common Travel Area with Ireland, or using different documents,
or simply falling through holes in the collected data; 201,301 records for people leaving the UK couldn’t be accurately matched to an inbound
journey. But of the remainder, some will have decided to remain in the UK, living underground.

How large this population is a matter for guesswork; in 2005, the Home
Office believed some 430,000 people were living in Britain without the
right to be here. No subsequent estimate has been published.

What we do know is that the number has likely grown substantially since
then. The last publication on exit checks, showed that 3.8 per cent of
people who required visas to enter the UK were not recorded as leaving on
time — a little under 92,000 people in 2019/20.

Removals blocked
Counting people in and out might make it easier to find those who
overstay. But even if it did, we would still find it difficult to remove
them. While immigration has risen to record highs, the number of people
being removed from the country has fallen by 21,000 since 2009. Enforced removals, in particular, have plummeted. While this has been partially
offset by a rise in voluntary removals, the overall trend is clear: the Government is finding it increasingly hard to remove those with no right
to live in the country.

Take failed asylum seekers. Just 41 per cent of those who made a failed
claim for asylum between 2010 and 2020 had been removed from the UK by
June 2022. Among their number was the Liverpool bomber Emad al Swealmeen,
who had his asylum claim rejected in 2015. The Home Office failed to
deport him, allowing him to mount a fresh claim in 2017, which was
rejected in 2020. A year later, he was still in Britain, and still free to attempt his attack on a hospital.

Part of the problem is simply one of resources. Real terms funding for
removals fell by 11 per cent between 2015-16 and 2019-20. This year, the planned funding for immigration enforcement is just £537 million, or a
little over 13 per cent of the £4 billion spent on supporting asylum
seekers in the UK.

Given the mismatch between the scale of the challenge and the resources allocated, it’s little surprise that the National Audit Office found in
2020 that immigration enforcement teams lacked the capacity to fulfil
their tasks; enforcement visits had fallen from 20,000 a year in 2015 to
just over 11,000 in 2020.

Detention capacity is also an issue. The stream of appeals and challenges
means detention spaces are quickly filled, and there is little political appetite for dealing with this issue; attempts to impose limits on the
right to appeal in the Rwanda Bill were rejected by the Government. If anything, the overwhelming direction of policy has been to reduce the use
of detention further.

In 2019, immigration minister Caroline Nokes wrote that the Government was committed to “a material reduction in the number of people detained an the length of time they spend in detention”, boasting that “by summer 2019,
the immigration detention estate will be almost 40 per cent smaller than
it was four years ago”, and that “95 per cent of those who are liable for removal are managed in the community”.

This has consequences. When the Government declared in January that it had resolved the backlog of asylum cases, it turned out that 17,000 cases had
been resolved simply because the Home Office had lost touch with the
claimants. Of the 5,000 immigrants originally identified for removal to
Rwanda, meanwhile, only 700 are still in regular contact with the
government. Without resources to keep tabs on people — and ensure they
leave when necessary — the Government is fighting a losing battle in its attempts to maintain our borders.

Perhaps most troublesome, however, is the role of the legal system. As the National Audit Office noted, less than half of enforced returns planned in
2019 actually took place, with late legal challenges often blocking the process.

Rishi Sunak’s latest tilt at the ECHR is merely the latest in a long
series of clashes between the Government and the courts. In the view of
legal critics, judicial empire-building has slowly expanded the range of potential obstacles to deportations, making it difficult to ensure that
flights can actually get off the ground. These delays, in turn, can
eventually provide grounds for claims to permanent residency. It hardly
helps, as one observer noted, that the Government appears to be extremely cautious in assessing its ability to challenge bad case law, or test the
limits of international law.

A system on trial
Both of the cases we saw in court illustrated a major problem for
immigration enforcement: when the Government is slow to remove people,
they will tend to build up grounds for staying in the UK. The classic
example is the asylum seeker who, when their initial application is
denied, finds a sudden urge to join a church, finds Jesus, and with him a potential fresh claim for staying in the UK.

The difficulties with credulous clerics accepting conversions at face
value have been covered elsewhere; the broader problem of people building claims to stay in the UK, whether on the basis of religious persecution,
the right to a family life, or some other combination remains. So too does
the problem of the Home Office failing to examine stories in depth.

It certainly does not help that, as we saw above, the Home Office does not always send a presenting officer to tribunals. The share of cases where no presenting officer attended has been above 10 per cent for five of the
last six quarters. This can put judges in a difficult position; their job
is to listen to and evaluate adversarial arguments, rather than to conduct inquiries of their own. When only one side is making a case in person, it
is difficult for this system to work.

Even when the Home Office does attend, one expert noted that it often
lacks the staff and expertise to properly analyse cases. Immigration cases
can be dismissed on relatively superficial grounds, even as the department fails to conduct the investigations necessary to spot outright
fabrications.

Take the example of a political separatist. In assessing such a case, the expert said, the Home Office would tend to rely on evaluating documents.
If a claimant said they had been beaten in their home country, and
presented papers from a hospital, the Home Office would scrutinise them
for spelling errors, wrong dates, and obvious inconsistencies. What it
would not do, said the expert, was check that the hospital actually
existed.

A welcoming environment
These problems are not new. In this context, it’s little wonder that the Government hit on the idea of the hostile environment: if you can’t stop
people from coming in, and you can’t deport them, you can at least make it
hard for them to be here, deter future arrivals and hope they leave on
their own. Checks on immigration status were introduced for renting
properties and taking jobs.

While this succeeded in creating difficult headlines for the Conservative
party — and shifting part of the cost of border enforcement to the
businesses and landlords who found themselves on the immigration frontline
— evidence for its success in encouraging people to leave is thin.

Part of this is beyond the government’s control; as one expert put it,
“people still stick it out as it’s worth it”. The benefits of living in
Britain are considerable, and very few will trade them in for an easier
time with the paperwork in a much poorer country. Far better to live in a sublet apartment, working cash jobs, than to return home.

Even so, there is low-hanging fruit for the Government to pick, should it
so choose. As the then-immigration minister Robert Jenrick noted, the
practice of gig economy companies allowing “unchecked account sharing”
makes it easier for illegal working to take place. Targeting the companies enabling these practices for immigration enforcement – and levelling
massive fines where possible – would end that rapidly.

The NHS passport to stay
Also ripe for reconsideration is the UK’s own system of doctors without borders. In both of the court cases we examined earlier, access to
healthcare was presented as a major obstacle to removing the claimant from Britain.

As things stand, the NHS is effectively open to the world. Anyone can
register with and see a GP, regardless of immigration status. Emergency healthcare is provided without charge. Secondary care is different; in
theory, those without the right to stay should pay for the treatment they receive. Anything considered urgent is delivered, and payment may be
chased later.

Even this barrier may be more permeable than it appears. As the BMA
helpfully notes, whether treatment is urgent is “the doctor’s decision
alone”, and consists of anything that “cannot wait until the person can be reasonably expected to leave the UK”. As the Government’s guidance sets
out, when an illegal migrant can be expected to leave is often unclear,
leaving room for ambiguity over what care might qualify. Hospitals, in
turn, can choose not to pursue debts in some circumstances, while the Home Office is under no compulsion to refuse immigration applications from
those who have accrued them.

Destination unknown
So even if Rishi Sunak withdraws from the ECHR, and rewrites human rights
law in the next nine months to make Rwanda work, there are still real
barriers to stopping the flow across the Channel, or fixing the holes in
our borders.

We would still be unsure who is actually living in Britain. Enforcement
would still be underfunded and overwhelmed. Deportations would still face
huge legal barriers, with a Home Office poorly equipped to evaluate cases.
And the pull factors drawing people from around the world would remain.

Yet as a depressing day in the asylum courts reveals, nobody should be satisfied with the status quo. A situation where the state is no longer
sure who lives in Britain, is unable to remove those with no right to be
here, and seems to lack any realistic plan for bringing the situation
under control is not sustainable.

https://www.telegraph.co.uk/news/2024/04/13/immigration-asylum-courts- home-office-rwanda/

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