Representing Refugees & Asylum Seekers

FEATURE

Representing Refugees & Asylum Seekers

Imogen Townley

I ask refugee Lawyer Imogen Townley, who works for Wilsons in London, about the implication for refugees and asylum seekers of the proposed Bill of Rights that was introduced to parliament in June 2022 and has had a first reading. It would repeal and replace the UK Human Rights Act of 1998 which incorporates and makes the rights contained in the European Convention on Human Rights (ECHR) domestically enforceable.

Imogen: I think that the biggest loss would be the ability to hold public authorities to account. And that’s something that the most vulnerable in our society rely on a lot more than people who are in more stable positions. Those in stable, comfortable positions can go through their whole lives without ever needing to call on the High Court to assist them. And there’s many examples of litigation which has brought meaningful improvement for vulnerable people, and whole classes of vulnerable people. Those outcomes just won’t be possible if human rights are restricted and relegated to have less importance.

The government has been talking about restricting the powers of judges for a long time. Some in government seem to think that judges are interfering in things they shouldn’t interfere with, and that they’re using human rights to circumvent legislation. I would say that successive governments’ fascination with the idea of withdrawing from the Convention or repealing the Human Rights Act is bound up in a desire to limit judicial power. There is also a move towards restricting the kind of orders that can be made in litigation. That would limit the powers of the Courts in a different way, and the Courts are really concerned about that.

Molly: What issues do you see being played out in relation to the people you advocate for?

Imogen: There are increased delays across all types of immigration applications, including asylum applications. There are also delays in Refugee Family Reunion applications, which are applications that can only be made by a Sponsor who holds refugee status or another form of international protection. Often the family involved in these cases has already been affected by extremely long delays within the asylum process. The Sponsor is only able to make the application after maybe two, three years of waiting for status in the first place.

We are talking about extremely long cumulative delays. Within the family reunion process, the service standard – which is the time in which the Home Office aim to make a decision within – was last year increased from 12 weeks to 24 weeks. The Home Office is now routinely taking longer than the new service standards to make decisions.

When we chase for these decisions we are receiving responses along the lines of, ‘we cannot give a timeframe for your application to be decided in’. Often that is after two, three years of cumulative delay in the asylum claim of the Sponsor being dealt with.

Molly: What is the effect of these delays on the people you work with?

Imogen: Many Applicants find themselves just left in limbo. Often the lead Applicant will have significant caring responsibilities. It’s their responsibility to keep their children safe, to keep the show on the road, often in a dangerous place where the Sponsor has fled and gained asylum from. Applicants remain in the region and must wait lengthy periods. Often there’s no way that they can get their children into schools. They can’t settle. And the depressing effect is stark. The level of hopelessness is so obvious when you speak to Applicants who are deeply resourceful in their day-to-day life because they have to be, but are completely disempowered by the waiting process. It is very depressing.

The legacy of this extended period of uncertainty exists in the children’s prospects of succeeding in education, in learning a new language, and also in the relationships that Applicants and Sponsors have. There’s often resentment about the delays because of a feeling that there must be more that can be done.

Molly: What can you do as a lawyer in these cases?

Imogen: We can bring challenges to the delay relying on the client’s personal particular circumstances. We can put forward evidence that an Applicant is in danger, which is implied to be relevant to prioritisation within the family reunion policy document, and we can put forward evidence of other particularly detrimental impacts that delay is having.

Unfortunately even then, the responses we’ve been routinely getting are brief, generic and inadequate. The decision making teams’ position is basically, ‘we acknowledge the delay. We cannot give a timeframe’. Our clients are supposed to rationalise this approach as reasonable. Although we do sometimes instruct doctors to comment on the psychological impact this approach has on people, it’s hard to capture the impact in evidence. The assessing doctor isn’t there at the point that the client is advised of and is trying to make sense of these very brief responses, which basically say, ‘we don’t care’

As the delays become more egregious and systemic, we are also developing arguments which challenge the failures within the system. I have been arguing that the fact that the policy doesn’t give more detail of what should be considered to be relevant when deciding which applications to prioritise is unlawful. The argument is that there’s a duty on the Secretary of State to make clear policy on which applications should be prioritised. At the moment there isn’t a working process by which people with urgent circumstances can have their cases looked at urgently, which I think is in breach of implied policy intentions.

We are also thinking about challenging the impact of these delays under the Equality Act. 

The delays in these administrative processes affect different groups of people differently. In Refugee Family Reunion applications, Sponsors and Applicants are affected differently, and we are exploring arguments that inadequate consideration has been given to that.

Molly: Can you give an example?

Imogen: In the family reunion context it helps to think about who forms the Sponsor group, and who forms the Applicant group. There is a lack of safe and legal routes to the UK. It’s stating the obvious that those who make dangerous journeys here are taking huge personal risks, and it is also obvious that within family units decisions will be taken that the stronger, more able members of the family will be the ones who embark on the journey. In many families units, fathers and husbands make the journey alone, leaving behind their children and female partners. Once settled with refugee status, Sponsors can then apply for refugee family reunion and re-unite with immediate (that is, partners and children only) family members. This results is that a high proportion of refugee family reunion Applicants are women and children, and delays are affecting them disproportionately.

Molly: Yes of course. Can you tell us a bit about your work in relation to human trafficking and forced marriage?

Imogen: The definition of trafficking is technical; to be recognised as a victim of trafficking a person needs to show that they have been the subject of an action, by use of a means, for the purposes of exploitation. Often ‘for the purpose of exploitation’ will involve the extraction of a form of labour, but not always.

Forced marriage often, but not always, involves extraction of a form of labour. The forms of labour most typically required from those subject to forced marriage is provision of sexual services and domestic servitude.

I’ve been working on an argument that forced marriage alone amounts to exploitation, even without any labour being extracted within the role, simply due to its transactional nature.

Molly: And what difference does challenging the definition of forced marriage make?

Imogen: For clients who have been forced into labour within a forced marriage, the distinction makes no difference, as they stand to be recognised as victims of trafficking based on the exploitation of their labour. But for a woman forced into a marriage which did not involve exploitation of her labour, recognition that forced marriage alone constitutes exploitation is necessary for recognition as a victim of trafficking.

Molly: I see. In much of what you have said, the nuance at stake is to do with challenging or circumventing the policy language, as the effect is that it can enable or block access for the client. What challenges do you meet personally as the advocate of women in forced marriages.

Imogen: It is necessary to be mindful of the different perspectives on forced marriage that my clients have and question my own assumptions. For example, I have a client seeking asylum on the basis of a fear of forced marriage at the moment. Whether forced marriage is acceptable or not is something that she questioned a lot before claiming asylum and instructing me. We are now working together on the basis that it’s not okay, it’s not normal, it’s not acceptable, and it’s not something that she can accept. But although she came to me with that position already formed, I have to be aware that that was a difficult place for her to reach. That involved a personal struggle. Her mother and her sisters are in such marriages, which she had fled, and they didn’t have abnormal lives in her mind, that was the norm. It is important as this client’s representative to acknowledge that she is coming to our discussions from a completely different perspective to my own. To ensure that her voice is faithfully represented it’s necessary to question my own assumptions constantly.

Molly: Thank you Imogen. What an insight into the creative litigation strategies that you and your colleagues deploy on behalf of the refugee and asylum seeking and forced migration community, who are lucky to find this kind of advocacy and innovation.

‘Language is power’ says Nataliia, and we glean through the narratives of the two Ukrainian women the ways in which a diaspora community works creatively to support its homeland; we witness too how refugee lawyers like Imogen challenge the policy maker’s language on their own terms via creative litigation strategies; and we celebrate how the refugee, asylum seeker, and forced migrant artists and poets who contributed their work to this issue ‘speak back’ so creatively in an increasingly hostile climate. ■

Molly Bellamy

Artist: Masoumeh Jafari. Source: The Guardian courtesy of Christies.

References:

1. Achiume, E Tendayi (2017) Reimagining International Law for Global Migration: Migration as Decolonisation’ 111 AJIL unbound pp 142-146, p145.

2. Basaran, T. Security Law Borders: Spaces of Exclusion (2008) International Political Sociology 2,pp 339-354, p1.

3. Crawley, H. and Skleparis, D. (2018) Refugees, Migrants, neither, both – categorical fetism and the politics of bounding in Europe’s migrant crisis Journal of Ethnic and Migration Studies. Vol.44:1 pp 48-64, p 59.

4. Harvey, C. (2015) Time for Reform? Refugees Asylum -seekers and Protection under International Human Rights Law. Refugee Survey Quarterly Vol.30 pp 43-60, p 44.