The result of this poor decision-making in the Home Office has created demand, cost and inconsistency throughout the asylum system.
There were two ways children from the Calais camp could be brought to the UK. The “Dublin children” – those who have a relative in the UK – have a right to enter under the Dublin III Regulation, which sets out a list of criteria which each European country has to consider when assessing a person’s asylum claim.
The “Dubs children”, those admitted under the Dubs Amendment to the 2016 Immigration Act, were admitted at the discretion of the Home Office. The guidance for this was not published until mid-November, some three weeks after the eviction of the Calais camp started. It essentially only allowed children under the age of 12, plus Syrian and Sudanese children under 16 to enter the UK. Those nationalities overwhelmingly succeed in their asylum claims.
So why not Eritrean children?
Eritreans on the outside
The asylum grant rate for Eritreans had already fallen from 86% to 42% in the year to March 2016 – out of 3,321 claims. This was after the Home Office issued new guidance to its own caseworkers in March 2015, advising that conditions in Eritrea had improved.
That guidance was based on a Danish Immigration Service report issued in November 2014. But that report was soon largely discredited: the key expert and two of the researchers for the report later publicly criticised it for “cherry-picking” the evidence. By mid-December, Denmark reverted to its former practice of granting asylum to most Eritrean applicants.
Yet three months later, the British Home Office began refusing Eritreans refugee status on the basis of the Danish report. Those who were refused had a right of appeal to the Asylum and Immigration Chamber of the Tribunal.
The result was a spike in appeals by Eritreans whose asylum had been rejected. There were 1,760 appeals in the year to March 2016, compared with 224 the year before. And of these appeals, 85% succeeded.
At a time when legal aid, and the budgets for tribunals and the Home Office have been cut, this poor decision-making created an extraordinary level of unnecessary demand for services. It’s hard to quantify the cost of roughly 1,546 extra asylum appeals. Some of those appealing will have been represented by a lawyer, some will have had interpreters. The hearings last around two to four hours each, most with a Home Office official present to argue against the appeal. Add to that the judge’s time to read court papers and write decisions, plus tribunal staffing and administration. This, of course, is on top of the stress for the person claiming asylum.
Tribunal judges have been deciding differently from the Home Office, primarily because they have had no credible evidence that Eritrean asylum applicants were less at risk than in the previous four years. The Upper Tribunal finally settled the matter with a new country guidance case for Eritrea in October 2016. It agreed that Eritreans were still at risk of cruel, inhuman or degrading treatment or punishment and forced labour under Articles 3 and 4 of the European Convention on Human Rights. This means most Eritreans should once again be granted asylum at first application, without an appeal – though of course there are still appeals in the system from the people who were wrongly refused because of the old guidance.
But it doesn’t end there. Everyone claiming asylum is facing significant delays. A New Asylum Model, introduced in 2007 to speed up processing, meant that all cases should be decided within six months. Asylum lawyers I’ve interviewed during my ongoing research say that even child clients are not being dealt with in that timetable.
What change in Home Office guidance meant for Eritreans
A solicitor I have interviewed for my ongoing research told me that her child clients almost always receive a letter after six months saying their applications will be considered in the next half-year. Most still don’t receive an interview appointment within that first year in the UK, unless she makes a formal complaint. Realistically, she finds it is not worth a judicial review of the delay – to force the Home Office to interview the child and decide the case – until a year has gone by.
Eventually, when she does start a judicial review claim, the Home Office immediately agrees to provide an interview appointment – and pay the costs of the judicial review application. All this demands work, costs money, and is unnecessary if the Home Office responded properly to correspondence in the first place.
Another lawyer I’ve interviewed in my ongoing research told me about the case of a Syrian client under 16-years-old who was still waiting for an interview after almost a year. This child is almost guaranteed to receive refugee status. The lawyer told me the case could be decided in half an hour, but the Home Office had not even looked at the case.
There is in effect no triage system for finding those easy cases, where success is more or less inevitable. This means some adults will be waiting months or years for a decision, while being unable to work and having to live on £36.95 a week in state asylum support. There appears to be no triage system for children’s cases either, even though they are recognised as vulnerable, and there is a real risk that the long delay will mean they can’t remember important details of what happened to them.
This poor quality decision making in the Home Office is leading to too many wrong refusals and creating costly demand in other parts of the system. The Home Office needs to be properly resourced, with properly trained and advised decision makers.
And it’s time we brought over those Eritrean children abandoned at the Calais Jungle demolition, since that’s what the Dubs Amendment was for.