Following the Liverpool car explosion this month, for instance, it has emerged that the suspected terrorist killed by his own hand was a failed asylum seeker who had made several appeals since the initial rejection in 2014.

Repeated appeals

It was reported that at the time of the attack on Remembrance Sunday 2021, Emad Al Swealmeen was awaiting the outcome of his latest appeal. The home secretary Priti Patel described the incident as “a complete reflection of how dysfunctional, how broken the system has been”, and that she intends to change things.

But she has been criticised, once again, for further ‘lawyer-blaming’ comments which undermine the principle of the rule of law. She said: “A whole sort of professional legal services industry has based itself on rights of appeal, going to the courts day in, day out at the expense of the taxpayers through legal aid. That is effectively what we need to change.”

But there are already protections in place to prevent abusing the system with spurious appeal applications. The Home Office document for Home Office staff, Rights of appeal, published in December 2020, states: “The appeals system contains a number of controls to prevent abuse of the system. In particular there are mechanisms to prevent repeat representations giving rise to repeat appeals, late claims giving rise to late appeals that delay removal and deportation, and unfounded claims giving rise to an appeal that delays removal.”

To prevent repeat rights of appeal, HO staff are told to consider whether further human rights or protection submissions amount to a fresh claim. If a submission does not amount to a fresh claim (subject to exceptional circumstances), there is no right of appeal against a further submission being rejected.

If change is needed, there is the argument that there has been plenty of time for successive Conservative governments to make appropriate changes if it believed that was necessary. In the meantime, the law provides an appeals process for individuals whose asylum claim is rejected. Therefore, they have the right to legal advice and representation from specialist immigration lawyers within the boundaries of the law is currently stands.

In response to the home secretary’s comments, Law Society Stephanie Boyce said: “When people are subject to a life or death decision they should have a right of appeal to make sure of a correct outcome. People seeking asylum through the UK’s labyrinthine immigration system need the expert advice of lawyers to have their claim properly represented. 55% of claims are accepted at the first pass.”

“When it comes to appeals”, she added, “48% of these are upheld – clear evidence of poor decision-making by the Home Office and why the right of appeal is so important. It is this poor Home Office decision-making coupled with catastrophic delays that are crippling the asylum system.”

She said lawyers advising claimants in these cases are providing a public service and “deserve our gratitude for protecting the rights of refugees and ensuring justice is done”.