Uncorrected oral evidence: Legislative Scrutiny: Immigration and Asylum Bill, HC 556
Oral evidence, 21 October 2026.
Chair
I am Alex Sobel, the Chair of the Joint Committee on Human Rights. Good afternoon and welcome to the ninth meeting of the new session of Parliament of the Joint Committee on Human Rights. This is my inaugural public evidence session as Chair of the Joint Committee. The committee is made up of 12 members, drawn equally from both Houses. Our role is to examine how public policy, including legislation and practice, impacts human rights of people in the United Kingdom. You can review our recent reports, including on human rights, the regulation of AI and the Northern Ireland legacy Bill, on our website. Our current thematic inquiry is on the impact of security, safety and protest on human rights. This is the first oral session of the inquiry on the Immigration and Asylum Bill, which is our current legislative inquiry. I would like to welcome our witnesses, Nadine Finch, former judge at the Upper Tribunal Immigration and Asylum Chamber; Imran Hussain, executive director of communications and external affairs at the Refugee Council; and Professor David Cantor, director of the Refugee Law Initiative at the School of Advanced Study at the University of London. I would also like to welcome Tony Vaughan MP, member of the House of Commons Justice Committee, who will be guesting at this evidence session. I want to remind Members and witnesses of the sub judice resolutions. As Members will be aware, the sub judice resolutions of both Houses mean that live legal cases should not be discussed in parliamentary proceedings. Please would Members and witnesses avoid referring to any live legal cases in our discussions today? I will ask the panel the first question. The Bill would bring into effect some of the reforms announced in the Restoring Order and Control policy statement last November. Is the Bill making major changes to the law on asylum and immigration, or are there more significant announcements in the policy statement being brought in by other means?
Professor David Cantor
A starting point for considering the Bill in the context of the policy statement is to say that it is not bringing forward many of the more important provisions that relate to community sponsorship and so on. Without that broader context and the basis in the legislation, the Bill itself stands as a rather haphazard array of different provisions relating to particular areas, such as this idea of a core protection status, the changes to the tribunal and the idea of a refugee tax. It is a bit of a mixed bag and the broader policy context that was set out last year in the statement is not given legislative grounding there. There is a particular risk, if one looks back to the statement, in taking other countries’ models as a point of reference. If one looks at the statement and the explanatory notes for the Bill, there are a number of assertions about the rationale behind the legislation that is being brought forward, and the policy measures as well, that seem relatively unsubstantiated by reference to, for example, appeal success rates and the role of the appeal system in the broader asylum structure of the UK. On the other hand, there are also some misapprehensions about other countries’ asylum systems, in particular that of Denmark, and how they work. My colleagues, I am sure, would equally be happy to talk through where those lie in later evidence.
Nadine Finch
I would slightly disagree with David, in that the way that policy is implemented, in terms of immigration, through the statement of changes to the Immigration Rules, which is an easy and quick way to do it, is also quite a dangerous way to do it. I would prefer to see more in legislation. This Bill has only things that really have to go through the legislation, so things that are creatures of statute, such as the First-tier Tribunal. The changes to what they require lawyers to talk about and take into account in terms of Article 8 are arguably something that has to go through statute. I am not sure about the core protection one but they obviously decided it was. We have things that they feel have to go through statute, so that is the difference. When you talk to people, and I quite often give talks to groups of immigrants, they are very confused, because they think everything has to go through the Bill, but it does not. They will ask me what is in the Bill and I say, “You also have to look at what’s in the Immigration Rules and settlement. That’s what’s going to impact on you”. Unfortunately, when the Secretary of State and her Department talk, quite often I find it difficult to know whether she is talking about policy or prospective legislation, so it is even more difficult. The people who are most impacted by what are gargantuan and very complicated legislation and rules are left really confused about what is happening. It is also important because, in the many things that are happening, the penalties attached to not complying in the Act are immense. It could be as much as not understanding that you have to send something into a certain office or having moved to a different place of detention so a letter does not get to you. The implications of not understanding are huge.
Imran Hussain
The first thing to say is that we have already seen big changes in the last couple of years. In 2024 the system was on the point of meltdown. Decision-making had really slowed down. Since then, decision-making has been prioritised. The speed at which cases are being processed has gone up as well. That is why we are seeing the numbers of people in hotels reducing. We have already had that in the sense of big changes. There are changes happening, as Nadine has alluded to, outside of the Bill, the most obvious being around core protection. I think in March we saw some of the provisions kick in there about refugee status being limited to 30 months. There are big changes in the Bill and we may get on to those kinds of issues, but clearly we are concerned about what is happening around appeals. The Refugee Council is also concerned about the policy of charging refugees. The other thing is what is missing. There is something big that is missing in the Bill and what the Government are doing outside of primary legislation, and that is about tackling the issue of poor decision-making. That is a long-standing problem in the asylum system. It is corrosive on the whole system because it has a human cost, but also it delays things and leads to greater costs in the system, whether it is accommodation costs or legal costs. We know that, when people appeal, of those who have an appeal determined about four in 10 win, but many others also win because the Home Office looks at the decision before it passes it on to the appeal authorities, sees an error and withdraws it. Our estimate is that the real success rate at appeal is closer to two-thirds. If you look at how many people are in the appeals backlog at the moment, it is about 90,000 cases. We have estimated, of those 90,000, how many are likely to win their appeal and, for those people, what the added cost to the system is in terms of accommodation and subsistence. We are looking at around about £1 billion of savings if the people who win their cases in the current backlog had received proper decisions first time around. There are huge savings there. That is one thing that I would urge the committee to focus on or recognise. That is a big challenge in the system but it is not really being addressed.
Chair
We will next move on to a series of questions about protection status.
Baroness Hamwee
As well as statutes, rules and all the rest of it, of course we have the refugee convention. Perhaps for context I will read Article 34: “Contracting states shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings”. The Bill supports the move from a model in which refugees receive permanent protection, as you have said, to a model in which there is a more basic and temporary protection, in fairly neutral words. Is this new model compatible with our obligations under the refugee convention? Three people are nodding a bit.
Imran Hussain
We are worried and share the views of UNHCR and others about whether this model of core protection is consistent with Article 34. We are talking about refugee status reviews every 30 months potentially for 20 years until people get settlement. That is maybe eight reviews. We have done some estimates of the added bureaucracy of having to do these extra reviews. For 10 years, that is a million extra reviews. Is that the best use of resources for a system that is overstretched? That is a question we have. If someone is given status for 30 months, that clearly has an impact on their stability and ability to find work and housing. We already know from Refugee Council services, which help refugees find employment, that employers even find the current five years difficult sometimes. There is a lack of certainty and sometimes they think it is not worth the risk of employing someone with five-year status. With 30-month status, it is going to be much harder for refugees to find employment, so it will be a real barrier to integration. As we have heard, Article 34 uses language such as “shall” and “as far as possible”. It is pretty clear what the obligations on the Government are. The suggestion that such a core protection as the Government are talking about is going to help integration is really difficult to understand.
Professor David Cantor
Article 34 is not a duty to nationalise refugees, but it does have very strong positive language about the steps that states must take to facilitate integration, assimilation and naturalisation. It certainly casts against regressive steps and things that will inhibit that process of refugees becoming assimilated. The provisions as they stand on this issue seem to go directly in contrary to the obligation that we have contracted into under the refugee convention. That is made even more difficult if you think about the context of refugees globally in today’s world, where refugee situations, because of long-standing dictatorial regimes, conflicts and so on, inevitably are protracted situations. We know that, for the last 30 years, it is nothing new. This is not a change that has suddenly come about. I think at the last counting the average refugee was at risk in refugeehood for 17 or more years, and that was 17 years and counting a couple of years ago. Reviewing refugee status every two and a half years not only inhibits integration, but also seems utterly outwith the factual context in which we have found ourselves, not suddenly in the last year or two, but over recent decades, and the world as it exists at present. The burden administratively on the Government, as one understands that some of these provisions are looking to recoup the costs of the asylum system, will be immense. If you think of the numbers of refugees in the United Kingdom presently, even if it were not applied retrospectively but applied only going forward, you are talking about an immense amount of work for the Home Office or whoever is tasked to do this. That seems utterly contrary to many of the more sensible aspirations around trying to cut costs and manage an efficient, effective and fair system that the Government set out in their statement.
Nadine Finch
Could I answer in a slightly different way? The refugee convention makes absolutely clear what classes of people should be protected and under subsidiary protection, but it also makes clear when that protection comes to an end. There has been no attempt to marry up with that advice from the UNHCR about when it comes to an end. The 30 months is very arbitrary. Why should you review it at 30 months? What has happened to that particular asylum seeker to mean they have fallen out of the protection of the refugee convention? There seems to be no connection between that and every 30 months. As David just said, if you look at the list of refugees and where they come from, a huge number come from places like Eritrea, Somalia and Ethiopia. I was a barrister and then a judge for many decades. The same places still produce refugees and there is no realistic view of them not producing refugees, so, again, why 30 months? The people who are caseworkers, lawyers and judges know that these people are not going home anytime soon. As David said, the Home Office is costing itself money, time and manpower or womanpower. At one time, it was talking about places it could fast-track, such as certain clans in Somalia or certain places in the Middle East that you knew you could not return to. There are other ways of dealing with it than in this very rough way of, “Every 30 months we will churn”. The Home Office is also not taking into account the fact that there are places where things have resolved and the vast majority of refugees have gone home. People do not necessarily want to live in Britain. They do not necessarily want to leave their homeland, culture, family and career and stay here. There seem to have been no pilot projects. There has been no research into why people go home. I find a 30 months temporary protection devoid of any real research. I cannot understand why. It is arbitrary. I would mention in passing that the Government also confuse Ukrainians with refugees. Ukrainians are not refugees; they are here under temporary protection. If there was another situation like Ukraine, they could model themselves on the temporary protection directive of the EU and say, “We’re going to offer protection because we think this is going to be a short-term situation”. I think they thought that Ukraine would be solved. There is that possibility. In another place there may be something that they think will soon be resolved and they could offer people temporary protection, but they have not even discussed that. They have not put temporary protection and asylum together.
Baroness Hamwee
There is so much I would like to pursue.
Chair
I was going to quickly ask a follow-up. Nadine, considering what you have just said, what would your view be of, rather than having an arbitrary period, having a review when the material issue changes in the country of origin?
Nadine Finch
I think that most people would accept that. A lot of the clients I had when I was a barrister went home, and would go home as long as they had a right of appeal and access to legal aid. I am going to talk about the Afghans. A huge number of Afghans, unlike some other places, were people who were illiterate and came from rural areas. For them, that would be quite a challenge. They may not understand it. There are other places that would be much more in tune with social media and they would know exactly what was happening. As long as people got a chance to understand what was happening and to appeal, because there may be individual circumstances around going back—for example, they could have done something to really harm somebody in a powerful position—it would be a much better way of doing it. I do not think that it would be more difficult either, and it certainly would not be more costly.
Baroness Chakrabarti
I declare a non-pecuniary interest as a council member of JUSTICE, whose legal director speaks on the next panel. Before I ask my planned question, I cannot resist following up on that point. The avenue of exploration that you have opened up as an alternative to what you see as an arbitrary period is very interesting. For example, would you feel comfortable with a statutory opportunity for the Home Secretary to trigger the potential end of refugee status, subject to appeal and so on, on the basis that there has been a change of circumstances in a particular territory? It would not be on the basis of a particular period, but on the basis of a finding of fact by the Government, subject to safeguards and appeals, where the Government press a button and say, “We are of the view, based on the following facts, that things have changed in whichever jurisdiction and we are proposing, on a certain date, to end refugee protection, subject to appeal” or whatever. Is that something that you would be comfortable with, or would you be concerned about potential problems there too?
Nadine Finch
I would have two other asks, now you ask me. One is that with children it might be slightly different. I used to represent a huge number of unaccompanied minors. For children, especially children who have been orphaned or have lived here only during their adolescence, it is different. For children, it may not be at all fair to say, “You have to go back”, because what would they go back to? They would not be in education there. They would have no language. They might have lost language skills. Children would have to be another category. As well as the appeal, I would want to see some expert advice in the Home Office. Having been a barrister and a judge such a long time, there used to be expert groups in the Home Office that were country-specific. They had a much better grasp of what happened. Now you just have people moved around, as far as I can see, from maybe the EU one day to deportations. They are not enabled to build up an expertise. It would work only if there were expert teams and experts called upon when needed.
Baroness Chakrabarti
This is my planned question. The relevant provisions of the Bill would allow for the introduction of a single definition of a protection claim and protection status, rather than an asylum claim or human rights claim and refugee or humanitarian protection status. Would this change affect the UK’s compliance with the refugee convention and/or human rights law?
Professor David Cantor
The point of reference for the UK’s obligations is the 1951 refugee convention, but also there are obligations that apply from human rights law that substantiate the category of humanitarian protection. The Bill as originally drafted was concerning in talking about a sole core protection status without giving further definition to that concept. There has been a move, I understand, with a recent amendment by the Government last week to introduce text in the Bill that speaks to the UK’s obligations under the refugee convention and gives a nod to humanitarian protection. Although that language is welcome and it is right that that should appear in the Bill, rather than simply being left to regulation and politics, it should be looked at much more carefully by Parliament and this committee in terms of the way in which those provisions are phrased. Some of the provisions do not go as far, in terms of the scope of protection that is offered, as the current law stands. There may be a question as to particularly whether the provision relating to serious harm is outwith interpretation in international law of how human rights law might prevent people being sent to countries where they have a serious risk of harm. It would be worth looking very carefully at that provision again and making sure that the language is right there. I will come back to the earlier question about cessation, which was the proposal made by Nadine. Cessation is what the refugee convention envisages. As a further ask, while cessation might very well be a useful way of approaching the kinds of issues being dealt with here, one would have to balance that by asking whether, given the length of some refugee situations, there is a point at which there is a need for thinking about settlement routes for refugees. I do not think that you can keep somebody in limbo, waiting for cessation indefinitely, so there is a balance to be had there. On the core protection provision, clearly there is some concern about the scope of discretion given to the Secretary of State in making further regulations around this. I think that the Joint Committee would want to send a very firm message that any further regulations would need to be very much in compliance with the UK’s international obligations under human rights law and the refugee convention.
Imran Hussain
Similarly to David’s point, on the face of it, having a single protection status for refugees and humanitarian protection, with similar rights, is sensible. We did not find the original Clause 21 straightforward to understand and follow. I am aware that there is a new Clause 35 that has replaced 21. There is some uncertainty from the Refugee Council’s point of view about what the Government are looking to do here. Is the changing clause a drafting change or is it meaningful? Have the Government changed their approach? I am not sure that I have anything else to add there, I am afraid.
Nadine Finch
I am concerned about having one single definition because I do not really understand why they want to do it. It would seem to me that the entirety of refugee convention status and humanitarian protection is actually quite difficult to grasp. Putting them both together may seem simple. It may save money but it concerns me that it might be a downgrading of international protection. It might be saying, “This is a much easier way”, and in the regulations you may suddenly find some slightly different descriptions.
Baroness Chakrabarti
You are concerned that it is a way of obfuscating the actual legal obligations on the state in relation to what are currently different legal categories.
Nadine Finch
Yes.
Baroness Chakrabarti
Are you just worried about the motivation, or are you worried about the outcome?
Nadine Finch
It is the outcome, I think. I am particularly worried in the context of the abolition of the First-tier Tribunal and the lack of legal representation. I should say that humanitarian protection is not used very much here, but it is used much more in Europe. I was part of the International Association of Refugee and Migration Judges and we did a series of guidances for the EU. The most tricky one was the qualification directive, which is like the humanitarian protection. It is a very large guidance, because it is a very difficult concept to grasp. It is when you do not fall under the classes of the refugee convention but you clearly are at risk. You might be at risk from civil war or some kind of attack within your own family. It is a much less-known protection. Having worked on that guidance, I am worried about us just saying, “We can put them both together”, because I was surprised how different they were once I worked on it. Of course, humanitarian protection is used here for people who fall out of the refugee convention because of wrongdoings they have done. We are going to come on to other repercussions for those people. There may be a connection to that. Humanitarian protection can be a very good thing but it needs to be well defined to give people protection, because it is not as easy to understand. There is not the case law on it as there is on refugee status.
Peter Swallow
The Bill would provide that a refugee who is considered a danger to the UK would no longer be considered to be lawfully staying in the UK. Transparently, this is something that I know many of my constituents will think is a very common-sense change to make. What are the implications of this change for refugees and those who cannot be removed from the UK on human rights grounds? In other words, how do you see this being effective in practice?
Nadine Finch
I can see why, on the surface, people ask, “Why we are keeping people who might have done something wrong here?” The problem is that we have a complication of the refugee status protecting people. If you look at the case law, you cannot send them back to be on death row or to torture. In reality, sometimes the Government have reached accommodations with the country of origin. I cannot remember the name of the case; one of you two might. There was somebody who had committed very wrong things and he was sent back, but there was an accommodation made. That is nothing you can put in legislation. I trailed what I was going to say about “unlawfully present”, because some of the protections in the refugee convention apply only to people who are lawfully present. One of them is a right to an appeal and a due process. If you are going to say that people are unlawfully present, we must make sure that they still have a right to due process before being returned, if they are going to be returned.
Peter Swallow
Everyone in this country has a right to due process under the ECHR, do they not?
Nadine Finch
It is not as simple as that. There are huge legal aid deserts within the country. You are allowed legal aid only on very limited grounds now. For things such as this, you probably are not entitled to legal aid. If you are entitled to legal aid, you cannot necessarily get it, because if you live in many rural areas there is no legal aid provision. There is no immigration lawyer. Say you live somewhere in Northumberland. There may be nowhere nearer than Liverpool or something like that. It sounds easy to say that people have a right. They have a right, but can they exercise it? If we are going to say that people have a right, is it a right in reality, or is it just on paper, and even if they are people we might find unpalatable? I will tell you a small story. Years ago, I was sitting in that box you have in the House of Lords, giving people advice. Some Lib Dem Lords were talking about the Terrorism Act. Some Law Lord stood up and said that the characteristic of our democracy is that we give the worst people a right to appeal and a right to be heard. He said, “That is how I class my democracy. We give the worst kinds of terrorists a right”. That is really important, even though these are people who we might find unpalatable. It is really important for our democracy that everybody gets that right.
Professor David Cantor
I will answer the question in a slightly different, probably drier and more legal, way, which is that lawfully staying is a concept in the refugee convention. It appears that the legislation is trying to say that anybody who falls within the exclusion from the refoulement protection in Article 33(2), in other words anyone who is a danger to society, is therefore classed as not lawfully staying. The impact of that, if that were followed through, would be that a recognised refugee who was seen as a danger would not have access to about five or six entitlements under the refugee convention that are given to refugees who are lawfully staying. They include waged employment, certain aspects of welfare and travel documents. It is not particularly clear to me why we would want to strip those particular entitlements from that class of individual. There is a question there about why this is being done and what the intended effect of that is likely to be. The second point is that lawfully staying is a term that appears in an international treaty. In other words, it is defined by international law and has an autonomous meaning in international law. Countries cannot simply legislate domestically for whatever they consider that term to mean. Broadly speaking, the commentary and doctrine around the refugee convention sees lawfully staying not as whether you are lawful but simply as a question about whether you have been recognised as a refugee and living here for a period of time. That, in essence, is what it means. In French, it is a résidence régulière. In other words, regular residence is what the concept entails.
Peter Swallow
So that we are really clear on this, is your legal point on this that it is not possible for any given state to retract that status once given?
Professor David Cantor
My point is that the status accrues on the basis of being recognised as a refugee and having lived in the country on an ongoing basis for a period of time. We have an obligation to recognise the rights that accrue on the basis of that factual situation. If we were to legislate contrary to that, there would be a question about compliance with the refugee convention, yes.
Imran Hussain
It is the same point really. The Government seem to be conflating Article 33(2) with lawfully staying. I think that it is a point that UNHCR has made as well. We would also question why we want to remove access to things such as employment, housing and social security from people in the country if they are going to be remaining in the country. We would also ask why the impact assessment does not say anything about the likely numbers of people affected by this proposal. That is something we feel is missing. We are not sure how many people it would be. I would suspect that it is a very small number of people, but that seems to be missing from the impact assessment.
Peter Swallow
Do you want to come back on that, Professor Cantor?
Professor David Cantor
It is unclear why this is the way to deal with the concern that one might have about a danger that an individual poses to society. The UK Government already have, if you like, undesirable but unreturnable individuals whom they deal with through a range of legislation that is already in place. What this adds is not quite clear.
Nadine Finch
Could I add something to what David said? When I read it, as somebody who practises in other law, not just immigration, I felt that they were using immigration law to deal with other things. Some people who are dangerous should be dealt with under criminal law or terrorism law. Why are they not being dealt with under those laws? Why are they suddenly trying to give the immigration law jurisdiction the burden of dealing with some of those people?
Sir Desmond Swayne
I receive representations from residents next door to where refugees have been billeted. There are very significant cultural differences and that gives rise to tensions. Salt is rubbed in the wound by the perception that everything is free for the refugees. It strikes me that those social tensions would be, at least in part, assuaged if there was a perception that the refugees were making a financial contribution to their costs. After all, it seems a reasonable ask to make, does it not?
Nadine Finch
I am not sure that it is reasonable. I have been practising for such a long time. If you turn back before 1999, refugees were dealt with through the social security system. They got 90% because it was thought that they would not be here very long and therefore they did not need winter clothes et cetera. They were spread out through the country and in ordinary housing. There were some people who did not like them being in their street, but the antipathy towards them was nothing like it is now. If you put a whole load of young men in a hotel, it is different from having a young man in your street, where you see him at the shops and get to know him. The way that it developed is also incredibly costly. The privatisation of the immigration and asylum support system has enabled two or three huge firms such as Mitie, and I struggle to remember the others, to make a huge amount of money by acquiring hotels no longer in use, charging the Home Office a huge amount of money for them and providing very poor conditions. There is a hotel just down the road from me, which was quite a nice hotel, but it has not been maintained by the company. The food provided is really poor. In some ways, I am going to say to you, the refugees are not being asked to pay the Home Office or the taxpayer back. They are being asked to mainly pay the privatised companies that have benefited from privatising asylum support, whether it is in a hotel, individual houses—that does not really happen now—acquired military barracks or barges, none of which maintains an Article 3 standard in my view, but all of which are really costly. It seems to me that there should be a real review of what is needed. If you leave aside the cost of the accommodation, what is actually given to the individual refugee is minute. If they are in a hotel that has food as well, is it £9 a week they are given? If they are somewhere without food, they are given a princely sum of about £49 a week. That is probably what your constituents are thinking, that that perhaps is what they are given themselves, but what they will be charged is the huge amounts of money paid to the privatised big companies that are making money out of the Government. If your constituents ask them to repay, they would be repaying these big companies. They would not be paying the Government.
Sir Desmond Swayne
I am trying to get at the principle, rather than who is getting paid.
Nadine Finch
Let me go at it another way. If you are a person who has been raped or assaulted and you get protection, is it right to ask you to pay the hospital bill?
Sir Desmond Swayne
If you are a person who has paid gangsters very substantial sums to get you here, is it unreasonable to ask for a contribution for your keep?
Nadine Finch
I practised at a time when people came in to what was then Eurostar in Victoria and claimed asylum. It was cheaper and more manageable. If we had safe routes of entry, it would be cheaper and more controllable.
Sir Desmond Swayne
Come on. You live in a world of illusion.
Chair
This is what we are trying to get to with the inquiry, and I might pose this to Professor Cantor and then bring in Imran on it. If the Government introduce new powers to recoup the cost of asylum support, is it compatible with the refugee convention, particularly Article 29, which explicitly prohibits imposing duties, charges or taxes on refugees?
Professor David Cantor
There is a real question here. If you look at the measure in context, what are the Government asking for powers to do? The Government have not allowed people to work, and that is a decision that the Government have taken. They are not able to maintain themselves. Therefore they are forced into a situation, living often in substandard accommodation with nothing to do all day. Of course, as neighbours, no doubt, Sir Desmond, that is something that leaps to the eye. I can well understand that. These are people who have come here to seek protection. They are being asked to pay for costs for being in a position that they do not want to be in. There is a particular unfairness here. I am not sure that it has been noted yet. As I understand it, we are asking only the genuine refugee to pay these costs. For the person who is accommodated and found not to be in need of protection, presumably they are removed and the bill is wiped clean, if you like, whereas the genuine refugee is forced into a position of paying for the fact of being found as a genuine refugee. There is a distinct unfairness there before we even get to the question of distinct legal obligations. Before getting to those obligations, there is a real question about how this facilitates integration or assimilation. Going back to the earlier questions, do we really want to be pushing people who seek protection in our country into marginal positions where they feel like, whatever they earn, they can never quite pay off the costs of what they have come to owe to the Government, in a sense through no fault of their own, through being unable to work? When we come to talk about the law, the position is absolutely clear. It is an unlawful provision in relation to the refugee convention. Article 29 says, “The Contracting States shall not impose upon refugees duties, charges or taxes, of any description whatsoever, other or higher than those which are or may be levied on their nationals in similar situations”. The refugee convention is absolutely crystal clear. If you look at the commentary, I do not see that there is any wriggle room whatsoever in relation to this particular provision. It strikes me as deeply unlawful. If we were serious about cutting down the costs, we come back to my colleague’s earlier comments about making sure that first-instance decision-making is quick, effective and fair. That is the place to focus efforts if we want to have, one, a reduction of costs and, two, people going quickly through the system, so that people who are found to be refugees or in need of protection can actually contribute through finding work afterwards and paying taxes. That is how everybody expects to contribute to society economically, through work and taxes.
Imran Hussain
Sir Desmond makes a point about people’s notion of fairness. For many people, that depends on the concept of reciprocity: you are getting things out if you put things in. The point here is that refugees do contribute and have contributed. They need this support, not out of choice but because they have had to flee persecution. That has been recognised. They are not allowed to work. They have no choice about how long they are in the system for if, due to maladministration, the Government using are hotels or, through bad decisions, they are in the appeal system. They have no choice and that is why these concerns about Article 29 jump out. The Government could do more to help refugees to be closer to employability and employment, and therefore contribute more. The barriers that this would create and other aspects of what the Government are doing to employment mean that my worry would be that, if this policy goes ahead, it will not be collecting huge sums of money. That would also undermine public confidence. There is so little detail about these provisions. I understand that there is a commitment from the Government to share some of the regulations as the Bill progresses, but how much is unclear. There was a press release that said it was £10,000, but we do not know. What is the threshold for when the repayments start kicking in? What is the payment rate? What is the mechanism? Who is going to collect this? Is it the Home Office, HMRC or DWP? That will make a huge difference. By definition, the people we are talking about were assessed as being destitute, and the test for destitution was pretty stark. There is an exception that this payment will not need to be collected if it forces people into destitution, but the destitution test is really stark. For that kind of test, it is expected that you have three sets of pants and socks, two vests or bras, two each of tops, skirts and trousers, and it goes on like that. When the Government make an assessment of whether you are too destitute to pay, they will be looking at that level of subsistence. We are really concerned about the legality and the impact. Also, there are the behavioural changes this might drive. Some people may seek to avoid a £10,000 debt and not take government support, which might mean that they are open to exploitation or they borrow, and that will have huge risks for them. The broader point is that, in addition to this measure and other measures, refugees already face pretty big barriers to employment because of the trauma they have gone through that has disrupted education or work and the lack of UK work history. This £10,000 debt really damages their integration chances. The Government have committed to producing an integration strategy for migrants. MHCLG made that commitment earlier this year. It is necessary for the Government to have a strategy. We have not had one for many years. Any such strategy is going to be hamstrung by this measure.
Chair
Did you have a short supplementary, Tom?
Tom Gordon
Imran Hussain has pretty much drawn out and teased out all the other things I had questions on, so I am fine.
Tony Vaughan
I will start by declaring two relevant interests. I practised in immigration and asylum law as a barrister for many years before my election in 2024. Also, I used to be in the same chambers as Nadine Finch and Ronan Toal several years ago. I am going to ask about the Independent Immigration Appeals Authority. This is Part 1 of the Bill, where decisions from the First-tier Tribunal Immigration and Asylum Chamber will move to this new authority where decisions are made by these adjudicators who do not need to be legally qualified, rather than judges. There will be no requirement that they are legally qualified. The overarching question is how far you think this authority will have the expertise to deal with human rights cases effectively. Do you think that the provisions are consistent with human rights law?
Nadine Finch
When answering this question, those of us on the panel are not defending our patch as lawyers, judges or academics, but we have practical experience of many years in quite how complex immigration law is. When I first became a lawyer, Macdonald's Immigration Law & Practice was a very slim volume. Now it is like an encyclopaedia. When I first practised, if you wanted to look at case law you went into a library in the family court building and there was a tiny couple of shelves. Now you would need a library for immigration law. Immigration and asylum law has grown and grown because the issues are very difficult and are highly contested, not because lawyers are getting paid for it, but because people’s lives and families are at risk. It is a very emotive subject and you have clients who are in deep trauma and had an extremely hard background. So there is all this mass of law. I can speak from experience as a judge because, when I went for my first training as a first-tier judge, I had mainly practised in asylum law and it was quite a deep learning curve for me to learn about immigration law, which I had not really been instructed in very much before. When I was an Upper Tribunal judge, I found that a lot of other judges came to ask for advice because some of them had not actually practised in immigration and asylum law. You have people at the top of their game who are asking advice from other people. I struggle to understand how you could possibly expect a non-legally qualified person to deal with the complexity and extent of the law. It is not like a magistrate, because the number of things a magistrate has to deal with are in the Green Book. The Green Book, if people do not know, is an advice book about things and procedures in the law. It is actually quite easy to understand. The Green Book quite often does not change for years. You can have somebody—a legal adviser—who takes the magistrates out and gives them a bit of advice. This is completely different. You would have to have an extremely diverse expert if you were going to place them with an un-legally qualified judge. You would also be double counting. Why have an unqualified person when you need to have another qualified person advising them?
Tony Vaughan
Pausing there, Nadine, are you saying that you do not think that a lay adjudicator would be capable of deciding this without a legal adviser or advice or supervision from the chief adjudicator or similar who is legally qualified?
Nadine Finch
Yes, and even then I doubt whether that would be sufficient. Articles 2 and 6 of the Human Rights Act compel the judge to have a duty to comply with human rights. I do not see how that person could do it. Maybe the adjudicator will not be subject to the Human Rights Act, but I think they will be and I do not see how they could actually meet that obligation. It is a nice idea in theory to make it more palatable to people and say, “You are going to be judged”. The people who are uncomfortable about migrants coming to the country have more of a say in who comes in and who stays. You are asking a huge amount of unqualified people. You are also ricocheting appeals up the chain. That is another question. There will be an Upper Tribunal, but it will be able to look only at the law, not evidence. For people who are not lawyers, one of the real challenges for people learning the law as professionals is to apply the law to the evidence. People may think that mostly asylum appeals are quite factual. “Where does this person come from? What do we know about that place?” It could be done by AI. Actually, when you see an individual case, it is much more complex than that. The law that has grown like Topsy around it is much more complex. Even at the first tier, that person would have to have a really strong grasp of the law that they had to apply to the evidence. They are also going to be asking some of these first tier to decide whether there is a grand appeal to the Upper Tribunal, which may be a complete waste of time and money, but it can be redone in the Upper Tribunal. Then, of course, I foresee that it will just go up and up in many cases.
Tony Vaughan
On that, you talk about appeals. I know that we are going to talk about that in a second, but you are saying that it does not make sense that a person should seek permission to appeal to the Upper Tribunal on a point of law when the adjudicator deciding the application will not be a lawyer. Is that what you are saying?
Nadine Finch
As I understand it, the unqualified people are going to deal with the initial grounds of appeal. I do not see how they could. The initial adjudicators when I was first a barrister were not legally qualified in the way that you or I were, but the vast majority of them had been district judges. I do not think that it was a legal qualification. I think that it was a Civil Service Foreign Office qualification. They had sat in courts and tribunals in Fiji and Uganda et cetera, so they had some practical experience of adjudicating in a court or tribunal. Somebody mentioned the Danish system, with which there has been a lot of confusion. Because I used to work in Europe, I phoned up the Danish Refugee Council, which put me in touch with the Danish Government’s asylum appeal body. I had a long chat with the guy. I did not understand this, but the Danish appeal system has three legally qualified people on the panel. It does not have any unqualified people. It has a judge, the equivalent of a barrister or a solicitor, and somebody from the Foreign ministry. I thought they were a civil servant, but the man on the other end said to me, “Oh no, in Denmark if you work at the Foreign Ministry you have to have a legal qualification. Otherwise how could you understand foreign countries’ law?”, which was not apparent to me. He just thought I was silly to think they would not be legally qualified. The Danish system has three lawyers, so it is not like the one that is being proposed. It did have some unqualified people a while ago sitting on a wider panel. They said that the problem is that unqualified people could go to two extremes. They could be too punitive or too sympathetic, and it was very difficult for those people. I know judges who I think oscillate between those. It is a very difficult thing to detach yourself when there is a human person in front of you. I am sorry; I do not know whether I completely answered your question.
Tony Vaughan
I think you did. Thank you, Nadine.
Afzal Khan
The Government’s aim seems to be to speed up this whole process idea. In your opinion, is it possible, without compromising the independence, the legal expertise and a fair hearing, to do what the Government are proposing?
Nadine Finch
Somebody, I think Imran, said earlier—and at the moment you can see it from statistics, although I do not always believe statistics—that the backlog and the delay is in the actual very initial decision by people in the Home Office. As I adverted before, they are not as skilled as they were previously, because they are not little experts in one country or dealing with women or something. They are not. If what you get coming out is confused, it takes much longer in the tribunal. Also, at the moment, the percentage of people winning appeals is very high. I think that nearly 40% of decisions by the Home Office are being retracted before they even get to an appeal. Some of their own internal reports are saying that the decisions are not up to standard. That is where the backlog is. If you have 40 decisions at the beginning, that is going to ripple through the whole appeal process. If you get a decision that is neat and they have looked at all the right things, it is very easy for a judge to look at it, but you get rambling things that they got from AI. There is a word some of the barristers use about these, which sometimes are not even about the country. People, in desperation, are trying to hurry up in the Home Office and using AI. In the middle of something about Somalia, you may get something about Fiji. That is where you need to look. It might be costly at the beginning to upskill those people, but the cost saving in the end must be immense if you want to make it quicker and cheaper.
Chair
On that point, I will direct this at Professor Cantor first and then bring you in, Nadine. If we have somebody who is unqualified employed to undertake this role, how long do you think it would take to train them to understand immigration law and human rights law to an effective level to be able to adjudicate?
Professor David Cantor
I would be happy to talk on the independence and impartiality point, but perhaps you are better placed to speak to that, Nadine.
Nadine Finch
I have done training, because I was attached to the University of Bristol. In the immigration world there is lots of training by lawyers of other lawyers and pupils. It is a very long process. Law seems very obvious when you read it in black and white in your book, but the implications around you are only apparent when you have seen how it plays out in practice. You can see that perhaps through case law and by talking to other people who are also experts. In a chambers like the one Tony and I were in, we had loads of people who were older than us and more expert. We could ask their advice. If you have a chamber of people who have no experience, you cannot even get that practical advice from them. Training would be a very long process and you might spend more. When you have employees at the First-tier Tribunal, they have all been trained. They have been trained as lawyers at university. They have gone to the Bar Council.
Chair
They have paid for their own training. Here, the state would have to pay for their training.
Nadine Finch
Their experience has added to them. You have people who are trained and experienced. There was some continuing training, but quite minimal actually, as a judge. Why would you do it? Why would you spend a huge amount of money training people when you already have them?
Chair
The issues around cost and speed might not be ameliorated by this change. That is good for us to know. The final question on this panel, you may be pleased to know, is from Lord Murray.
Lord Murray of Blidworth
I must make a declaration myself. I am a barrister in regular practice at 39 Essex Chambers. I do public law and I regularly do cases that touch on the immigration sphere. The Bill, as is before Parliament, as Mr Vaughan has explored, seeks to abolish the First-tier Tribunal. Mr Vaughan asked what was in effect my question about the viability of appeals on a point of law to the Upper Tribunal from a body where decisions are made by non-legally qualified individuals. I think, Ms Finch, your answer was that that is not a practicable approach. I do not think we heard a direct answer from Mr Hussain on that point. Perhaps I could ask you what your answer is.
Imran Hussain
Asylum decisions are life and death decisions. We would be worried if that appeal level did not have a strong legal element there. They are very complicated issues. That is our main worry. Going back to the point about cost and speed, our focus would be on frontloading the system and getting the decision right first time.
Lord Murray of Blidworth
In the Bill, there is provision for a power to transfer decisions from the IIAA back to the First-tier Tribunal. There were various circumstances where that can occur. To what extent does that power address your concerns?
Imran Hussain
I might have to defer my colleagues on the panel on the legal side.
Professor David Cantor
In essence, it is a remittal process, as I understand it. Is that right, or is it a transfer back process?
Lord Murray of Blidworth
It is the power to transfer it.
Professor David Cantor
There is an issue though, before we get to that. It has not particularly been raised here, but there are serious questions about perceptions of independence and impartiality for the tribunal structure that has been proposed. It is very much the case that, if you look at international human rights law, whether it is the European Convention on Human Rights, to which we are a party, or the ICCPR—the International Covenant on Civil and Political Rights—a UN treaty to which we are also a party, under the provisions on the prohibition of inhuman and degrading treatment and punishment, and the prohibition on refoulement, in combination with the right to an effective remedy, the jurisprudence on that is very clear that decision-making in this area, particularly by appeals bodies, must be an impartial process. There are a number of decisions that say that it must be an independent body
Lord Murray of Blidworth
Professor, is that not to miss the point? You surely do not argue that this Parliament cannot legislate contrary to any international convention, aside from the human rights convention to which we are, of course, incorporated by reason of the Human Rights Act. On other conventions, this Parliament is able to legislate as it wishes.
Professor David Cantor
Under the ECHR, as I mentioned, Articles 3 and 13, those provisions are—
Lord Murray of Blidworth
You are not suggesting that the IIAA is contrary to Article 6, or are you?
Professor David Cantor
Article 6, as we know from the Maaouia decision, does not apply to immigration decisions, but the European Court of Human Rights has been absolutely clear that due process, including impartiality and independence, is there in immigration and asylum decisions as a result of Articles 3 and 13. That is absolutely clear in the jurisprudence. We have a group of 20 experts at the Refugee Law Initiative who have been working on this issue for the last year and that is our conclusion.
Lord Murray of Blidworth
As a matter of domestic law, as I understand your evidence, you are accepting that the Home Secretary’s policy is compliant with the only international obligation that affects domestic decision-making, which is the European convention.
Professor David Cantor
I take no view on her domestic powers. I am simply saying that the UK would be outwith its obligations under the European Convention on Human Rights were it to adopt a tribunal structure that was neither impartial nor independent or one of those two. If you look through the provisions of the Bill, there are certainly provisions in the early clauses relating to the IIAA as it is proposed that give one pause for thought on that point. I would strongly encourage the committee to look at that again and really push for the independence from the Home Office of this body in a much more forceful way. We have already, at present, a tribunal structure that is independent and is world respected. My colleague Nadine mentioned the International Association of Refugee and Migration Judges. The tribunal here holds great weight in that because of its judicial structure, its independence and the robustness and reasoned nature of its decisions. That is something that we should not all too quickly discard for something that looks, frankly, second best and questionable in legal terms.
Nadine Finch
On the independence, if you look at the actual wording in the section about the IIAA, it is clear that it is going to be part of the immigration and asylum system embedded in the Home Office. In terms of having adversarial proceedings, we are having the appeal body part of one of the bodies in an adversarial system, which is problematic. In terms of what you said about the FTT, I understood from the president of the First-tier Tribunal that it was being abolished. It is going to be there for a parallel time. As judges, they cannot speak up, so I am going to speak up slightly for them. They have had no information really, but they have been told they are going to be still there for a period of transition and then they will be abolished. I do not think that there is going to be an FTT hanging around to help them out after the first year or two.
Lord Murray of Blidworth
The understanding is that there is a backlog of some size in the tribunal. It is about 70,000 cases or something like that. The Government have yet to make a firm decision as I understand it. I asked a parliamentary question about this. The expectation is that the backlog will remain in the tribunal, so that looks like the tribunal will continue to exist for probably over five years.
Nadine Finch
There is going to be a problem of retention of a lot of people in the First-tier Tribunal of immigration appeals, because some of the people now as judges in the tribunals are quite young. It is in a career path, unlike somebody of my age, where it was at the end of my career that I was a judge. Lots of them are transferring into other tribunals, so there may be a retention problem building up in the immigration tribunal. Who is going to go into a tribunal that is just about to be abolished? That is just a practical thing from the tribunal.
Imran Hussain
We are talking about the backlog as it is now. We think that that backlog will get bigger in the next couple of years, so there is an urgent issue.
Lord Murray of Blidworth
You think it will get bigger.
Imran Hussain
Yes. We have had relatively high applications numbers. There is a backlog of the initial decision-making that the Government are going through, and then of course the underlying issues about poor decision-making, if you look at the throughput of appeal decisions being made. Our expectation is that that backlog will grow substantially in the next couple of years, so there is an urgent need for action. We think that that urgent need for action should be about getting the decision right first time, rather than building another massive bureaucracy and infrastructure to deal with something that may take a few years to come in line.
Chair
Thank you to the panel.