Can the Afghan Refugees seek asylum in the UK?

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
26 September 2021

Afghanistan’s crisis comes at a particularly difficult time in the UK immigration history.  The Nationality & Borders Bill was introduced to the House of Commons on 6th July 2021, and makes changes to the UK immigration system as it relates to asylum seekers and refugees, primarily by introducing a two tier system for asylum seekers arriving in the UK, differentiating based on method of arrival.  It looks to alter the current system for asylum claims and appeals beyond recognition.

The process of this Bill is being actively monitored by Immigration lawyers, the Law Society, and the UNHCR urged the UK Government to reject some parts of the Bill that conflict with its international obligations under the Refugee Convention.  Practitioners in the area believe that the creation of a two-tier system for cataloguing refugees based on their method of arrival does not recognise the sad reality, which is that people fleeing persecution, may use irregular and unorthodox means to travel to the UK, for example the refugees who are currently attempting to flee Afghanistan.  

The Law Society has asked the Home Office to reconsider elements of its travel and entry requirements to the UK for Afghan citizens that were in place before the Taliban took over.  For example, that those who wish to make an application to come to the UK will be able to do so from India or Pakistan, and not from Afghanistan.  However, not everybody can travel to India or Pakistan to make an entry clearance application or have a basis on which to come to the UK, other than asylum. Therefore, they will be fleeing persecution and might be using unorthodox ways of coming to the UK.  

Of particular concern is Clause 10 of the Bill as it is incompatible with the Refugee Convention because it states that refugees can be treated differently on the basis of their entry to the UK.  This penalises those arriving through irregular means by preventing them from having recourse to public funds or allowing differential treatment in whether or not family members can join them.  

Also, Clause 29 of the Bill changes the standard of proof for refugee status.  Currently under UK case law a refugee must prove a “reasonable likelihood” of meriting asylum.  The Bill would like to change the requirement to the “balance of probabilities” which is a higher threshold and more difficult to meet.  Would it really be reasonable to expect refugees from Afghanistan to meet a higher standard of proof and to put a greater burden on them to provide more evidence, given the current situation in their home country? 

Alarmingly, Clause 37 increases the penalties for illegal entry.  At present people seeking asylum in the UK do not enter illegally if they seek asylum.  The Crown Prosecution Service have already provided advice to prosecutors not to prosecute asylum seekers who are not involved in criminal activity, other than illegal entry. Therefore, it is highly unlikely that this clause will be enforced and prosecuted.  If that is the case, why do we wish to penalise and label those who flee persecution at the hands of the Taliban as illegal entrants?

Asylum and human rights lawyers argue that all asylum seekers should be able to claim asylum in the UK and that Clause 26 of the Bill that suggests that asylum claims can be processed outside the UK is to be examined. At the moment, there is insufficient information on how these plans are going to be compliant with international law and how removing an asylum seeker to a third country while the application is processed will be compliant with the UK obligations and the protections provided by the Human Rights Act. 

We are concerned that asylum seekers will not be able to seek legal advice to support their claim if they are outside of the UK jurisdictions whilst their case is being dealt with.  The Law Society is of the view that access to justice is a principal of fundamental importance and that access to justice and rule of law are the principles we should all support.  Undermining access to justice the Law Society states, “risks undermining the ability to promote the UK as a global legal centre”.

Back in 2015 the detained fast track procedure was found to be unlawful because it was found to be structurally unfair.  Immigration lawyers argued at the time, that the right to a meaningful appeal is an essential requirement when determining refugee status and therefore cases of this nature can never be accelerated.  Immigration lawyers are acutely aware that adequate time is necessary to acquire and consider relevant evidence, to identify experts and to prepare a case, either at the original stage of the application or at an appeal.  For the Secretary of State now to reintroduced the idea that cases can be dealt with under accelerated detainee appeals seems to be going back in time and also not to recognise that whilst avoiding delays is in everybody’s interests the delays cannot necessarily be attributed to immigration solicitors or asylum seekers. Creating an accelerated process for those in detention has an impact on all the cases and will push back those who are not detained further in the queue, creating further delays in a system that is already unduly long.

Finally, immigration lawyers play an important role in facilitating the functioning of the asylum process and we hope to be able to help Afghani asylum seekers and all refugees to the best of our abilities. We hope that the Home Office will come up with a coherent plan for the Afghani refugees, instead of penalising those that flee.