As anyone who has had to do so will know, admitting that you were wrong can be very hard to do. Psychologists have studied why people find admitting they were wrong so hard and conclude that for many people, admitting they were wrong can be a threat to their very sense of self and can shatter all their past certainties. It can therefore be very difficult, even when we know we are wrong, for people to know how exactly to admit they were wrong to others in a way that doesn’t invite criticism and ridicule. One method is to write it down in a letter and send it to the relevant people. Judging by the way in which the Home Office announced it would be dropping the policy of “differentiation” in regards to assessing claims for asylum, that appears to be the UK government’s favoured method of admitting its mistakes.
On Thursday 8th May, the immigration minister Robert Jenrick MP published a written statement to the House of Commons that the differentiation rules for asylum seekers would be paused. In his statement to the House, Jenrick announced that all successful asylum claimants will be granted permission to stay in the UK under the same conditions, regardless of their method of entry or country of departure.
This would include asylum claimants who have already been designated as Group 2 refugees, who would retroactively be granted all the rights and entitlements of Group 1 refugees (those who came to the UK directly from a country where their life or freedom was threatened, made their claim immediately and entered the UK lawfully). The minister also announced that the government would expand the fast-track asylum claim process, whereby the initial screening interview is replaced by a questionnaire, to include all claims made between 28 June 2022 and 7 March 2023 by claimants from Afghanistan, Eritrea, Libya, Syria and Yemen.
Mr Jenrick acknowledged that differentiation, once the flagship of the government’s immigration policy changes, was being paused in order to reduce the backlog of pending asylum claims, thereby effectively admitting that the differentiation policy had contributed to the growth in the backlog.
Under the UK’s Nationality and Borders Act 2022, “Group 2 refugees,” defined as those not arriving directly from a country where their life or freedom was threatened, were granted temporary refugee permission from 28 June 2022 onwards. Though still classified and referred to as refugees, and entitled to refugee travel documents, the conditions of their stay in the UK would have differed moving forward.
The two major differences between Group 1 and Group 2 refugees were the length of stay granted and the time required for eligibility for settlement, along with more restrictive rights regarding family reunions.
While the guidance was to extend their stay more often than not and for settlement to be eventually granted, as it was expected that their protection needs would have persisted, in the long term this policy would have created uncertainty as time moved on, with missed application deadlines that may have led to unauthorised status even though the refugees in question would have been eligible to stay. Additionally, this approach increased casework for officials who first had to examine applications in order to differentiate them and then would have had to consider five applications per refugee—an initial grant, further grants after 2.5, 5, and 7.5 years, and settlement after 10 years, which exacerbated existing backlogs at the Home Office.
Regarding the changes pertaining to family reunion rights, Group 2 refugees were only able to have family members join them in the UK if they can demonstrate “insurmountable obstacles” to continuing their family life abroad. While this test might have been relatively easy for most refugees to pass, it created extra uncertainty and administrative work, as each case would have needed to be assessed individually, even though, in most situations, the requirement would likely have been met.
it was quite cruel to those affected by it; it created additional unnecessary administrative work for the government; it completely failed to tackle the supposed problem that it was meant to address; it made the government more vulnerable to legal challenges; it damaged the UK’s international reputation; and it was expensive. Furthermore, as time went on, its ineffectiveness and the knock-on effects that its inefficiency would have had on other aspects of governance (not to mention the associated costs) would have likely made it very unpopular, or at the very least would have had no effect on the government’s popularity. In every possible sense, the policy was at best pointless and at worst counterproductive.
As the pause of differentiation applies retroactively, it is likely that the numerous pending legal challenges will all be settled out of court, which will further help reduce the backlog but may prove expensive. The decision to place a refugee into Group 2 did not come with a right of appeal or administrative review (although the guidance allowed for claimants to rebut their grouping and explain why they should not be placed in Group 2 within 10 working days), so legal challenges were by way of judicial review, a costly and time-consuming process for all involved.
It is also good news for the tens of thousands of people (estimated to be over 166,000 at the end of 2022) who are still awaiting a decision on their asylum claims, as their applications will not have the differentiation assessment applied to them. Anyone who was either designated as Group 2 or who has a pending application that ends up being successful will receive the full rights and entitlements of refugee status. This will be especially good news for refugees hoping to bring their families to the UK, as they will no longer have to worry about their loved ones being refused entry to the UK.
There are, however, some caveats to this good news. The government’s Illegal Migration Bill (the subject of a future post in the near future) is currently making its way through Parliament. It was passed by the House of Commons on 26 April 2023 and is currently being debated in the House of Lords. While it is unclear what the final form of the bill will be or if it will ever become law, many of the provisions in its unamended form are significantly harsher than the Nationality and Borders Act and, among other things, those provisions would have made differentiation redundant. The fact that Jenrick, in his statement to the House, cited the Illegal Migration Bill and its harsher restrictions as a reason for suspending differentiation should indicate that the government’s instincts on this matter are not humanitarian.
The main reason for the abandonment of the policy of differentiation, according to the minister, was its ineffectiveness, both as a deterrent for unlawful entry into the UK and as a policy that could be implemented effectively. The elephant in the room for the government is that the provisions in the Illegal Migration Bill that are supposed to replace differentiation are just as unworkable, if not more so. It may be that before too long we will be examining the reasons why key features of that bill are being scrapped or even why the bill is being abandoned altogether, for the exact same reasons why differentiation has been paused. It can only be hoped that the unworkability of these draconian policies will be kept in mind by lawmakers when future laws and policies in this area are drawn up.
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