24 Oct 2016, 34 mins ago

The Immigration Minister, James Brokenshire, announced the latest Statement of Changes to the Immigration Rules, the third since the General Election, in a written statement to the Commons last Thursday. Amongst the changes, there are some major amendments to Part 11 of the Rules, which relates to asylum.

Revocation and refusal to renew a grant of protection (refugee status or humanitarian protection)

Mr Brokenshire claimed that the Rules were being changed mainly to clarify the circumstances in which refugee status and leave can be withdrawn. However, in the Explanatory Memorandum to the Statement of Changes, the Government says (at paragraph 7.11) that the policy intention is “to take a robust approach in cases where the application of these provisions is justified”. This suggests that the Home Office will henceforth be looking to revoke and refuse to renew refugee leave whenever possible. It also seems possible that the days of routine grants of indefinite leave after five years’ refugee leave are numbered (refugees are currently granted five years’ limited leave to remain, after which they can apply for indefinite leave to remain).

One significant change is in the new paragraph 339B of the Rules, which sets out that the revocation or non-renewal of a person’s refugee status can also lead to the curtailment or cancellation of not only limited leave to remain, but now also of indefinite leave to remain. The Rules previously only provided for curtailment of limitedleave, although there was already a power to revoke a refugee’s indefinite leave under section 76 of the Nationality, Immigration and Asylum Act 2002. However, the incorporation in the Rules of the power to curtail or cancel ILR suggests that the Government intends to make significantly increased use of it. The new paragraph 339BC of the Rules also allows for revocation of refugee status whilst the refugee is outside of the UK. The Government has already been making increasing use of powers to strip citizens of their nationality whilst they are outside the UK. Refugees with ILR might now also want to think twice before going abroad in case they find they can’t get back again.

A further point of note is that the Rules now refer to a grant of “refugee status” rather than “asylum”. It is unclear yet whether this will mean that successful asylum applicants will now only be able to obtain refugee leave. Up until now, where a person with existing leave (eg a Tier 1 (Investor) or even someone who already has indefinite leave) has been granted asylum, the Home Office is sometimes prepared to simply acknowledge their status as a refugee whilst allowing them to maintain their existing leave. It is unclear whether the Government now intends that such persons will only be granted refugee leave. However, the Explanatory Memorandum suggests it is more likely that the intention is simply to harmonise the terminology with that of the EU Directive on minimum standards for the qualification as refugees (the Qualification Directive), which uses the term “refugee status”, so that the provisions on revocation and refusal to renew “refugee status” can be more clearly implemented into UK law.

Asylum claims from EU nationals to be inadmissible

Another significant change introduced by the Statement of Changes is the handling of asylum claims from EU nationals, which will henceforth be automatically inadmissible except in certain, very strictly defined, exceptional circumstances. The Immigration Minister claimed that the current procedure for processing asylum claims by EU nationals goes beyond the UK’s international and European obligations and that treating such claims as largely inadmissible would both dissuade abusive claims and help to refocus resources towards those who genuinely need protection. This statement is in line with previous declarations of the Home Secretary, Theresa May, at the Conservative Conference in October this year, who announced her intention to invoke the so-called “Spanish Protocol” of the Amsterdam Treaty. The Protocol considers that EU Member States should be regarded as safe countries of origin due to the high level of protection afforded to fundamental rights and freedoms, therefore the claim can be considered either inadmissible or clearly unfounded by the receiving state.

One wonders why this change to the Rules was necessary at all. The number of asylum claims from EU nationals is very small. According to the Home Secretary, there have been 551 claims over the last five years, or about 110 a year, and the cost of processing those applications is said to be £4 million, a minuscule amount by government standards. Significantly, the Home Secretary said that “all but a handful” of these applications were turned down, thereby acknowledging that at least some of the applicants had a well-founded fear of persecution in their countries of origin. Those applicants will now be prevented from seeking protection in the UK.

The current situation in the UK is that the asylum claim of an EU national needs to be considered under the substantive asylum procedure, albeit with a presumption that it is clearly unfounded due to safe third country provisions. The power to certify applications as clearly unfounded prevents applicants from appealing against refusal of asylum whilst in the UK, and provides a perfectly adequate mechanism to deter abusive applications whilst still leaving the door open for genuine applications from within the EU. Under the Changes, all EU asylum applications will be declared inadmissible and will not be considered at all, unless there are exceptional circumstances. Moreover, as the Immigration Minister emphasized, there is no right of appeal against a decision to treat a claim from an EU national as inadmissible.

It is somewhat ironic that a government which regularly complains about the volume of immigration to the UK by EU nationals exercising their free movement rights, and which is currently seeking to renegotiate its relationship with the EU to reduce such immigration, is now relying upon EU law to justify taking a more restrictive approach to asylum than has historically been the case under domestic law. Indeed, it is striking that the Government, which could have chosen to subject the removal of the right of asylum of EU nationals to scrutiny by Parliament, instead decided to implement the Spanish Protocol by way of the Immigration Rules, which are effectively a statement of policy, rather than legislation. Given that Section 2 of the Asylum and Immigration Appeals Act 1993 states that nothing in the immigration rules shall lay down any practice which would be contrary to the Refugee Convention, the new Rules potentially conflict with primary legislation since refusal to even consider an asylum application is arguably contrary to the Refugee Convention. Regardless of the primacy of EU law, it is perhaps surprising that the Government did not see fit to implement this measure in a manner that would have allowed for parliamentary scrutiny, given the sensitive constitutional issues involved.

All of the above changes will affect asylum decisions made on or after 19 November 2015. This means that outstanding applications which might have been made many months ago will be subject to the new rules.