Migration 
Project officer, Elinor Mattey, explains the severity of the asylum backlog and how recent legislation might make it worse
The backlog
The asylum backlog is the amount of people seeking sanctuary in the UK awaiting a decision on their case. Recent freedom of information data obtained by the Refugee Council shows that the number of people awaiting an initial decision on their asylum claim has quadrupled in the last 5 years, reaching 122,206 in June 2022. The same data reveals that 40,981 people had been waiting between 6 months and a year. The scale of these figures is alarming, particularly because it means that many asylum seekers, including children, are living in limbo; a condition of uncertainty which has been described as ‘extremely damaging, cruel and unjust’.
The number of asylum seekers being held in detention has also increased. Although, the reasoning behind this is unclear since detention does not lead to faster decisions or removals (Free Movement). Processing centres are more likely to be overused, overcrowded and of poor condition; as seen in Manston. But the consequences of the delays go further. Most asylum seekers are living on only £5 a day and are not permitted to work in the UK. Many are separated from family and are only eligible for family reunion once refugee status has been decided. The broader consequence of delays and this period of uncertainty having devastating effects on the mental health of asylum seekers.
Why is there a backlog?
The backlog can be attributed to fewer decisions being made and an increase in asylum claims. Although, the slow processing of applications has played a bigger role in the backlog than the increase in the number of asylum applications themselves (HCHAC). The Institute for Government found that in 2021/22, there were 614 caseworkers making on average 5 asylum decisions per month per staff member, compared to 380 caseworkers making 13.7 decisions in 2011/12. An issue of quality vs quantity perhaps? The downgrade of the role of asylum decision makers in 2014 suggests that there are people of a more junior level making ‘life changing decisions’.
Although the Home Office has made plans to further increase staff to clear the backlog, the success of this measure is questionable considering recent changes to the asylum system.
Realities of the Nationality and Borders Act (NBA)
The NBA is, in many ways, fundamentally at odds with the UK’s international obligations to the Refugee Convention. But a crucial provision within the NBA which adopts a new interpretation of the Refugee Convention’s criteria for refugeehood is concerning, and likely to contribute to the backlog and its effects on asylum-seekers.
Without delving into the different standards of proof in legal systems; it is important to note that the NBA deviates from the well-established standard developed by specialist senior judges. It raises the standard of proof to a ‘balance of probabilities’; deviating from the low threshold which reflects the urgent risks associated with refusing an asylum claim and the difficulty in providing evidence. Whilst also maintaining the ‘reasonable likelihood’ standard of proof for another part of the asylum claim. With the new split standard of proof of different thresholds, and a lack of judicial clarification as to how it is to be applied, it is unlikely that junior level decision makers will be able to efficiently and fairly apply the complex NBA criteria. This could lead to further delays in the application processing and increased wrongful refusals of those in need of protection, especially considering the broader ‘refusal culture’ in Home Office ethics. It will also exacerbate demand on free legal advice services for appeals and expose people to living in limbo, at the expense of their mental health.
Our Access to Justice project hopes to raise awareness of the implications of issues such as the asylum backlog on accessing free legal advice on immigration status.
