The New Plan for Immigration

On 24 March 2021, the Home Office unveiled a New Plan for Immigration (“NPFI”) which, if passed into law, would dramatically overhaul the current asylum system to the detriment of the most vulnerable asylum seekers. 

The NPFI seeks to create a two-tiered system, with anyone deemed to be an unlawful entrant receiving a lesser form of protection, limited access to financial support, and limited rights to family reunion.

The proposals fail to acknowledge that people seeking safety often have no option but to flee by any means possible. Resettlement schemes are not feasible for many of the most vulnerable refugees, for example people who are trafficked to the UK for exploitation or those who cannot take the risk that their national authorities might find out that they are trying to escape.

The Consultation

Between 24 March and 6 May 2021, the Secretary of State for the Home Department (SSHD) conducted a public consultation on the NPFI. The Claimants’ case is that the consultation was unlawful and discriminatory.

The consultation documents were only available in English and Welsh and people with lived experience of the asylum system had extremely limited ways to participate through focus groups. The consultation period lasted only 6 weeks, despite this being the most far-reaching reform to the asylum system in recent history. This effectively barred non-British nationals and asylum-seekers from participating, despite being those who will be most directly affected by the changes. For those who were able to respond, the questions were vague and misleading and crucial information was missing which would have enabled them to comment intelligently on the proposals.

On 6 July 2021, before publishing any response to the consultation, the SSHD laid the Nationality and Borders Bill before Parliament which aims to put into law many of the most worrying proposals in the New Plan for Immigration

The Claimants

The Claimants in this case are five asylum seekers who arrived in the UK this year. Two of them are victims of human trafficking. The SSHD is considering whether to treat their claims as inadmissible and to remove them to a third country under the new Immigration Rules brought in at the end of 2020. They have all suffered persecution in their own countries and have strong asylum claims; they have suffered torture, detention or violence against them and their family members on the basis of who they are and what they believe in.

They have lived experience of the asylum system in the UK, but none of them was able to give their views to the SSHD due to their limited English. They are highly anxious about these reforms and what they will mean for themselves and their families.

What are the next steps in the case?

The Claimants filed their claim for judicial review on 28 May 2021 and await a decision from the court on whether they have permission to bring the claim.

The main thrust of the SSHD’s defence to the claim is that the Court does not have the power to rule on her actions. Her position is that if it did so, the Court would be interfering with the sovereignty of parliament, because the consultation led to the bill which is now before Parliament.  This position is wrong and raises profound constitutional issues around the separation of powers.  If this were right, it would also leave the Claimants without any remedy against the discrimination and marginalisation which they have faced.

The Home Secretary has asked the court to refuse permission and to pay her legal costs. We urgently need your donations to ensure that the Claimants are protected against paying those costs in the event that the Court refuses permission.

If the Claimants are successful, they might get a declaration from the Court that the consultation process was unlawful. Parliamentarians scrutinising the Nationality and Borders Bill would be able to take this into consideration as it passes through Parliament. The case could also clarify the role of the Courts in situations like this which might prevent future attempts by the SSHD and other public authorities to conduct unlawful consultations with such flagrant disregard for the people who will be most affected by their proposals.

Why are your donations needed?

The Claimants are all eligible for legal aid, but the Legal Aid Agency has refused funding twice for all Claimants. Without legal aid, if the Claimants are not successful in their claim, they risk the Court making an order for them to pay the SSHD’s legal costs, which could run to many thousands of pounds.

In the event that the Claimants are not successful, Duncan Lewis has agreed not to charge the Claimants any legal fees, but any donations beyond what the Claimants need to cover the SSHD’s legal fees would also help cover the legal costs of representing the Claimants in the absence of legal aid.

If you are deeply troubled by the prospect of the SSHD’s reforms and wish to support these Claimants in their challenge, we ask that you to make a donation.

The legal team

The Claimants are represented by the Public Law Team at Duncan Lewis Solicitors which has an excellent track record of bringing complex judicial review claims to enforce the rights of their clients and which are of wider public importance. The Duncan Lewis legal team are Toufique Hossain, Jeremy Bloom, Simon Robinson, Nina Kamp, Jonah Mendelsohn, Lily Parrott and Rachael Sanders.

Duncan Lewis have instructed expert counsel Chris Buttler QC at Matrix Chambers who is described in Chambers and Partners 2021 as "head and shoulders above everyone else...his drafting is impeccable, he’s ferocious in court, and he turns cases around with his advocacy." The excellent Eleanor Mitchell and Tom Gillie at Matrix Chambers are junior counsel instructed on the case.

Please email [email protected] or [email protected] if you require further information about the case.           

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