Updates, commentary and advice on immigration and asylum law
New course on Immigration Act 2016 available now

Analysis: What does Theresa May’s speech mean for immigrants and refugees?

Yesterday Home Secretary Theresa May gave a speech on immigration and asylum issues at the Conservative Party conference in Manchester. It was a nakedly political speech that was clearly intended to appeal to the right wing of the Conservative Party. Theresa May is positioning herself to make a bid for the leadership of the party when David Cameron steps down as Prime Minister in 2020. It is difficult, therefore, to know whether to take the speech seriously and fear for the future or to dismiss it as a cynical and empty rant.

As ever, the truth lies in between. There are some concrete proposals that will be very harmful to refugees but much of what she says is no more than unpleasant posturing.

EIN has the full text of the speech. I’m going to go through the immigration and asylum law parts and take a closer look at what it might mean. I’m not going to cover May’s loathsome and divisive posing on immigration as a social issue. That has been covered elsewhere, and in such a way that one wonders whether May has miscalculated and gone too far.

Students

Laughably, Theresa May blames students for the massive increase in net migration on her watch as Home Secretary. She says:

We welcome students coming to study. But the fact is, too many of them are not returning home as soon as their visa runs out. If they have a graduate job, that is fine. If not, they must return home. So I don’t care what the university lobbyists say: the rules must be enforced. Students, yes; over-stayers, no. And the universities must make this happen.

The economic and “soft power” and influence benefits to the UK of foreign students choosing to come and study here rather than the US, Australia or elsewhere get no mention. Instead, universities must be co-opted as immigration police. This is already Government policy so there is no clear change here and no new proposals, but there is certainly no softening of position either.

EU free movement

On EU free movement, Theresa May is no better than a vile pub bore.

EU nationals are also, apparently, to blame for May’s missed net migration target. This is because of the strong UK economy she admits (as if this were a bad thing) but she also implies that EU nationals are coming to the UK to claim benefits. There is no evidence whatsoever to support this, of course, but that is of little matter. In truth, EU migrants make up less than half of the net migration numbers and they come to work, not claim benefits.

She also blames free movement rule for family members of EU citizens, which “now mean anybody who has married a European can come here almost without condition”. Bizarrely, she suggests that EU member states should not be granting citizenship to migrants and refugees:

Many of those people will eventually get EU citizenship and the free movement rights that come with it.

She refers to Libyan people smugglers, suggests that Greece has “weak border controls” (what on earth should they do, shoot out the bottom of the boats?) and blames Schengen for onward migration.

Later in the speech, actually in the section on asylum, she offers some delicious “claim chowder“. Take note and lets see how long before she is proven wrong:

These problems have led some people to say we need a new approach, a new European approach that would involve a common immigration and asylum policy. To those people, I have a very clear answer. Not in a thousand years. We’re not seeking to regain control of our borders with one hand, only to give it away with the other.

My guess would be maybe 20 or 30 years at most. It gets worse, though, with as strong a renunciation of solidarity and collective responsibility as it is possible to imagine:

To those who say the problem is too great for nation states to resolve themselves, I say it can only be resolved by nation states taking responsibility themselves – and protecting their own national borders.

Each to their own, says Theresa May. In short, build up the fences and let the Greeks and Italians suffer the consequences of their geography.

No solutions to any of these diagnosed problems are offered, nor even any further political posing on “red lines” for the UK’s EU membership renegotiation. On EU free movement, Theresa May is no better than a vile pub bore.

A new plan for asylum

The “new plan” certainly sounds ominous coming as it does from Theresa May. She says there will be a new annual asylum strategy, the first version of which will be published next year.

This part of the speech starts well, though, noting that we “have a moral duty to help people in need. We should play our part.” It quickly veers off, and then some.

Compassion quota

May offers an artificial, abhorrent Sophie’s Choice to campaigners and lawyers

In essence, Theresa May proposes a compassion quota whereby only a very limited number of allowed places are available for refugees in the UK. These places can either be filled through a resettlement scheme or through direct claims for asylum by those refugees who manage, despite our best efforts, to reach these shores and claim asylum in person.

The speech implies that the quota should be the current total number of asylum claims:

I want us to work to reduce the asylum claims made in Britain, and as we do so increase the number of people we help in the most troubled regions.

The latest official immigration statistics show that around 25,000 people claimed asylum in the UK last year, and around half of them (46% to be precise) were ultimately recognised as refugees. This is down from a peak of over 84,000 in 2002, when the recognition rate was half what it is now.

Theresa May disingenuously suggests that it is immoral that the UK does not offer more resettlement places. It has been entirely within her power to offer more places through the UK’s existing resettlement scheme, introduced by David Blanket in 2002 and which has been running ever since. This has been separate to the new Syrian scheme. Last year, 809 refugees were resettled under Blunkett’s programme, making a total of 6,380 since the scheme began (data table 19q).

Like the sadistic concentration camp doctor, May ends with an artificial, abhorrent Sophie’s Choice to “immigration campaigners and human rights lawyers”:

What I’m proposing is a deal: the fewer people there are who wrongly claim asylum in Britain, the more generous we can be in helping the most vulnerable people in the world’s most dangerous places. And my message to the immigration campaigners and human rights lawyers is this: you can play your part in making this happen – or you can try to frustrate it. But if you choose to frustrate it, you will have to live with the knowledge that you are depriving people in genuine need of the sanctuary our country can offer. There are people who need our help, and there are people who are abusing our goodwill – and I know whose side I’m on.

Personally — and it is hard not to take this personally given what she says — I utterly reject the “one in, one out” premise of May’s nauseating compassion quota. No deal, Theresa. The fact that she even believes there are sides to be taken marks her out as tragically unsuitable for leadership. We can only hope that she never achieves her ambition.

Definition of a refugee

It is hard to pick out a single worst part of the speech but for my money this is it:

In the longer term, I want to work with other countries in Europe, and the United Nations, to review the international legal definitions of asylum and refugee status. Because there is a huge difference between a young Syrian family fleeing the tyranny of ISIL or Assad, and a student who claims asylum once he has been discovered overstaying his visa, or a foreign criminal about to be sent to a prison in his own country.

No, Theresa May, there is no difference. Persecution, death and torture are the same whatever your background. If the person has a well founded fear of being persecuted, he or she is a refugee. There are exclusion clauses to the Refugee Convention for war criminals and the like but student overstayers from repressive regimes like Eritrea or Syria are just as entitled to asylum as young families fleeing ISIL.

Happily there is zero chance of May managing to renegotiate the Refugee Convention or the EU Qualification Directive, but given the Conservative Party manifesto in 2005 included a pledge to withdraw from the Convention there remains that possibility, I suppose, if she is ever Prime Minister.

There is more, though:

For the first time we’ll distinguish between vulnerable people resettled from their region and those who claim asylum after abusing the visa system or having travelled to get here through safe countries. If you’ve spurned the chance to seek protection elsewhere – but we cannot return you to that safe country and you still need refuge – you’ll get the minimum stay of protection and you won’t have an automatic right to settle here. But for those who really need it, we will offer a longer stay of protection. Humane for those who need our help, tough on those who abuse it.

We learn here that distinctions are to be drawn between “deserving” and “undeserving” refugees, who will be discriminated against depending on their means of travel to the UK despite holding the same legal status. Whether this is lawful and compatible with the Refugee Convention is questionable (see Articles 7 and 34).

The Refugee Convention does not specify that a refugee must claim asylum in the first safe country through which he or she passes. There is an element of choice available to refugees. In the UK, this has been recognised since the landmark case of R v Uxbridge Magistrates Court (ex parte Adimi) [1999] Imm AR 560, in which Lord Justice Simon Brown held that refugees did not have to claim asylum in countries through which they pass to reach safety:

… I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s Executive Committee (‘ExCom’), and the writings of well-respected academics and commentators (most notably Professor Guy Goodwin-Gill, Atle Grahl-Madsen, Professor James Hathaway, & Dr Paul Weis), that some element of choice is indeed open to refugees as to where they may properly claim asylum.

Given that neither of our neighbours France nor Ireland produce any refugees (and May also proposes in her speech an automatic disbarment from refugee status for EU nationals anyway…) and it is virtually impossible for a refugee to reach the UK by legal means, the vast majority of refugees would on this analysis be considered to be abusers.

Refugee status as temporary protection

At the moment, refugees are granted a five year period of leave to remain. At the end of the five years, refugees will normally qualify for settlement and a year later for British citizenship. Criminal offending may disqualify a refugee from being eligible for settlement and there is a mechanism to review all refugee cases from a specified country if that country is deemed to be safe. This mechanism has never been triggered, however.

It sounds like this benign policy of welcoming and integrating refugees will end:

So we’ll introduce strengthened ‘safe return reviews’ – so when a refugee’s temporary stay of protection in the UK comes to an end, or if there is a clear improvement in the conditions of their own country, we will review their need for protection. If their reason for asylum no longer stands and it is now safe for them to return, we will seek to return them to their home country rather than offer settlement here in Britain…

People who apply for asylum in the UK will be processed quickly and fairly. If they are approved, they will be granted our protection for the length of time that their home country remains unsafe for them to return. But if they are not approved, they must be made to leave the country quickly – and that’s exactly what our new Immigration Bill will do.

Theresa May proposes that, uniquely amongst migrants to the UK, refugees will no longer qualify for settlement after five years and instead will be sent packing if their country is deemed to be safe. This possibility will hang like a sword of Damocles over their heads while they try to rebuild their lives here and it will create a huge amount of additional work for the already hard pressed Home Office. And why?

Net migration has risen to an annual total of over 330,000 under Theresa May. There are 25,000 asylum claims every year, half of which are successful. That leaves us with around 12,500 recognised refugees every year, many of whom will not be returnable at the end of five years because conditions in their country will not have improved. Really, what is the point of trying to remove the rest? They make up a tiny number. Can we not just let them get on with their lives here?

Housing refugees

In response to the outpouring of goodwill towards refugees this summer since the photographing of Aydin Kurdi’s little corpse, May proposes to facilitate private hospitality towards refugees:

So to help turn these acts of humanity into reality, we’ll establish a register of people and organisations that can provide houses for the settlement of refugees. We’ll develop a community sponsorship scheme, like those in Canada andAustralia, to allow individuals, charities, faith groups, churches and businesses to support refugees directly.

As long as the safety net of asylum support remains available, this policy has the potential to be very positive. It is the one glimmer of light in an otherwise very dark speech.

Removals

May makes some noises about getting tough on other countries that refuse to co-operate with returns of failed asylum seekers and other migrants being removed. She says that “retaliatory measures” will be taken against countries that do not co-operate.  What, like China, India, Iran and Algeria? These are entirely empty threats. The Government has made clear that trade is the number one priority for the Foreign Office. Rather ominously for David Cameron and Philip Hammond, though, May also calls for “the right kind of diplomatic leadership”, rather implying that we’ve had the wrong sort so far.

Summary

The rhetoric on students and EU free movement is increasingly strident but there are no concrete new proposals from May on these issues. Her speech is here little more than a rant.

On asylum, though, she brings forward specific proposals. She proposes to prevent refugees from settling in the UK and to discriminate against those refugees who travel through safe third countries to reach the UK (basically all of them). She plans somehow to reduce asylum numbers even further than the historically low numbers at present and if she can succeed in doing so says that she will increase the numbers of refugees being resettled.

She also proposes to renegotiate the definition of a refugee. Being as this would require the kind of multilateral co-operation that Theresa May so utterly rejects, this seems unlikely to get off the ground.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

Not yet a member of Free Movement?

Sign up for as little as £20 per month

Join Now

Benefits Include

  • Unlimited access to all articles
  • Access to our forums
  • E-books for free
  • Access to all online training materials
  • Downloadable training certificates
Shares