The future

Of particular concern for our work and our clients are the following changes:

• The Bill differentiates between the types of accommodation provided for individuals according to the stage of their asylum claim, including whether their claim is (or is being considered to be) inadmissible, and their compliance history. Those housed in accommodation centres are likely to include asylum seekers and failed asylum seekers. People will be able to be held in accommodation centres if their claim has been deemed inadmissible, or if it may be. The Explanatory Notes worryingly describe the accommodation centres as “basic” and as designed “to increase efficiencies within the system and increase compliance.” There are concerns that these will replicate the inadequate conditions in Napier Barracks, which have been used as a pilot for future accommodation centres.
• The powers to detain are being expanded. More people are likely to be liable to detention, and for longer periods, due to the criminalisation of particular asylum claimants, barriers to getting bail, and the accelerated process for appeals made by those held in detention. The accelerated appeals process essentially reinstates the Detained Fast Track, which was found to be unlawful in 2015. The re-introduction is likely to result in cases being treated unjustly.
• The inadmissibility rules that were introduced on 31 December 2020, are now being put into primary legislation. It provides that asylum claims will be ‘inadmissible’ if the person has a ‘connection’ to a safe third country. This is likely to result in many people being trapped in limbo, in inappropriate settings, including accommodation centres.
• Priority Removal Notices (PRN) are being introduced. These can be served to anyone liable to deportation and removal. They will contain a cut-off date for people to provide the grounds and evidence for their claim that they should be permitted to stay and challenge removal. Any evidence served after the cut-off date will damage credibility, regardless of the strength of evidence. Those served with a PRN who fail to provide evidence by the cut-off date, will have any right to appeal expedited to the Upper Tribunal, removing an appeal stage which would otherwise be available. This is likely to have a serious impact on vulnerable people, because many people face difficulties with disclosure due to trauma and delays in accessing legal advice. Both of these result in understandable delays.
• Provisions to send asylum seekers to off-shore processing sites have been introduced. This removes the barrier to removing asylum seekers whilst they have a pending claim.
• The Bill also splits the standard of proof for establishing whether someone seeking asylum has a well-founded fear of persecution. This may make it much more difficult for people to establish the test for refugee status. Currently, asylum seekers have to establish that there is a reasonable likelihood of persecution. However, the Bill requires asylum seekers to show that they have a characteristic which could cause them to fear persecution (on the balance of probabilities), and that they do in fact fear persecution. This adds difficulties and complexities to the test for refugee status, and may result in more people being refused and detained.