Asylum in Scotland: What more can the Scottish Government do?
The Home Office wants Nsaku to answer 200 questions over two hours to prove his right to asylum.
Sitting in his solicitor’s office, the 22-year-old slumps in the chair, head bowed, eyes averted. He says nothing. His mum Kamia (not their real names) speaks for him in English thickly accented with the inflections of Congolese French.
Nsaku has schizophrenia – auditory hallucinations, beliefs of friendships with rap mega-stars, messages from Jesus; heavy prescriptions and hospital stays. He is not, his psychologist says in papers seen by Holyrood, fit for interview about his asylum claim. But his future, and that of Kamia and his two siblings, is in the hands of the Home Office.
It’s a complex situation and there are no easy answers for a family who have now spent four years in the system, without work. But the UK asylum system is full of such cases – people with troubled pasts and troubled presents; people who have been shaped by turmoil and trauma and who are often as flawed or difficult as the rest of us.
And while immigration machinery is reserved to Westminster, there are calls for the Scottish Government to do more for families like this one within the scope of its devolved powers.
“It is so hard,” Kamia says. “Everyone in the community knows Nsaku. They see him in the street and they laugh at him.
“If the [UK] government refuse him, send him away, he will have no one. He cannot look after himself.”
It’s been four years since the family came to the UK from South Africa, and life is hard. It’s the second time they’ve fled for safety. Political persecution drove them from their native DR Congo, and a rising tide of xenophobia towards migrants in South Africa sent them moving again. “They were killing people like chickens,” Kamia says. “My business was attacked; my children were attacked.”
They came to the UK because she already has family here, but there has been no comfort. As an 18-year-old man, Nsaku was processed separately from the rest of the family and forced to live away from them in shared accommodation with other single men.
That’s when his mental health symptoms emerged, Kamia says, and though she begged to have him with her, that only happened when no one wanted to share a place with him any more, due to his troubling symptoms.
The Scottish Government and Scottish Parliament have repeatedly expressed their support for refugees and asylum seekers, taking actions like extending the voter franchise for Holyrood and council elections. That, they can do under the terms of devolution, despite immigration remaining reserved. The Scottish Government’s UNHCR-endorsed New Scots Refugee Integration Strategy, now being revamped for the third time, aims to help incomers settle.
Developed with Cosla and the Scottish Refugee Council, the strategy was built on input from more than 700 people from refugee and asylum-seeking communities. It takes a rights-based approach, covers everything from welfare to language, and states that people should be helped to integrate “from day one”.
A new version will come into force next year and a spokesperson says the Scottish Government has “long called on the UK Government to provide people seeking asylum with suitable housing within communities, as well as ensuring access to the essential services, support and advocacy they need, backed up by appropriate funding for local authorities”.
But there are calls for the SNP-Green government itself to go further for families like Nsaku and Kamia’s – within the reach of existing powers on housing, health, education and more. “There are things the Scottish Government can do,” says Savan Qadir of the campaign group Refugees For Justice. “They have real power.”
Qadir, a journalist and researcher, recognises Nsaku’s four-year wait to have his claim settled – because it took five years for his own claim to be finalised. A friend, he says, has been waiting 18 years. “It’s like taking a starving person to a fine restaurant and telling them they can’t eat anything,” Qadir explains.
Around 56,500 people claimed asylum in the UK over 2021. Overall, a total of around 110,000 people are awaiting initial decisions on their cases, and more than 70,000 of this group have been in limbo for six months or more. Claimants are entitled to a maximum of £40.85 per week and housed by state contractors on multi-billion pound contracts. In the year to March 2022, almost half (49 per cent) of all asylum decisions were overturned upon appeal to an independent tribunal.
It’s all handled by the Home Office, which has long been under fire for being unwieldy, inefficient and ineffectual. The claim, live for a succession of home secretaries, was levied at the department under Theresa May, who birthed the “hostile environment” strategy aimed at driving the number of asylum seekers down, and current post-holder Priti Patel has used this criticism as justification for her New Plan for Immigration, of which the Nationality & Borders Act is a part.
That legislation was passed in April – amidst opposition from Holyrood, the House of Lords, human rights organisations and what Patel called “lefty lawyers” and “do-gooders” – about provisions that create a two-tier asylum system, criminalising those who arrive without prior permission while promoting targeted schemes set up for the chosen few from chosen countries such as Afghanistan and Ukraine. The £120m provision to remove newly-arrived adults to Rwanda is the most controversial provision and has existing asylum-seeker communities worried. The system is “broken”, Patel has said, and the New Plan will fix it.
However, this plan and this Act “fundamentally undermines” the New Scots strategy, according to Professor Alison Phipps of the University of Glasgow. The Scottish Refugee Council, for which Phipps is an ambassador, wants the Lord Advocate to issue formal guidance to avoid prosecutions of asylum seekers under the new UK-wide criminal offence of “unlawful arrival”, and to establish a new system to identify and support victims of trafficking.
“Those with lived experience and those engaged in day-to-day work with people seeking sanctuary in Scotland are offered a warm welcome and hospitality, despite the persistence of racism and religious prejudice in this country.
“This is because communities have united in a determination to stand firmly on the side of justice and international law, and to put the principles of New Scots Refugee Strategy into practice,” says Phipps, who also holds a UNESCO chair in refugee integration. “But this strategy is at risk because the Nationality and Borders Act now undermines it.”
Qadir, also of the University of Glasgow, says the Scottish Government should consider making the strategy into an Act, as in Finland, to increase its impact and raise its status. “When there’s an Act, there is law and there’s responsibility for all local authorities and ministries to deliver it.”
He backs Labour MSP Paul Sweeney’s campaign for the extension of free bus travel to all asylum seekers, regardless of age. Under-22s and older asylum seekers are already covered by national schemes, but Sweeney says that leaves too many unable to get around, and an investment of less than £400,000 would solve the problem – a proposal Communities Secretary Shona Robison says the Scottish Government is “investigating”.
There is, Qadir argues, a “big constitutional issue” around asylum and immigration. The Home Office won’t deal with MSPs on these issues, even when they’re representing particular constituents, and so Holyrood parliamentarians must look to the MPs who cover their patch to help. That’s not democratic, Qadir argues, and limits the impact Scottish Parliamentarians can have. “The New Scots Strategy is a reflection of what the Scottish Government wants to do and Labour, the SNP and Greens all support a better system. But when they try to make change, it’s blocked by the UK Government’s immigration policy.
“There are things that are still within devolved competencies in housing, health and education, such as addressing the shortage of Esol [English] classes,” he goes on. “These are all devolved.”
Jen Ang, co-founder and director of legal charity JustRight Scotland, agrees. “There are gaps in accessing further and higher education,” she says. “Currently, asylum-seeking students often have to access scholarships established by universities and other grant-making organisations. There’s no reason for that, it’s a question of changing the guidance on access to funding.”
There are also, she says, workarounds for supporting people who are classed as No Recourse to Public Funds (NRPF) and are ineligible for mainstream social security. The category includes people whose asylum or visa claims have been refused, but who may still have appeal rights and could ultimately gain leave to remain. The Scottish Government has to “bear in mind the restrictions” on this in its policies, Robison has said, including on housing and welfare.
But Ang believes more could be done. “NRPF prohibits people from taking some types of funding from the state. But there is nothing to stop the Scottish Government from starting pots of money to deliver housing, social care and health,” she says. “For example, [homeless] people leaving hospital have accommodation arranged by health boards.”
A blueprint for keeping destitute asylum seekers off the streets was published by Homeless Network Scotland (HNS) late last year. The Scottish Government is amongst the partners behind the Fair Way Scotland scheme, which uses housing association properties and cash from the Oak Foundation, Robertson Trust and Joseph Rowntree Foundation to reduce homelessness in this group. More money is sought and the programme is being launched “incrementally”, HNS says.
“We skirt around an issue sometimes and if the Scottish Government opposes these UK policies, as they repeatedly say they do, they also need to look at whether it would be meaningful to put money and resource into mitigating those policies in Scotland,” Ang says.
“The most pressing thing the Scottish Government can do is to mitigate the impact of the hostile environment, which includes providing accommodation to those who are NRPF and so destitute and homeless.”
The Scottish Government has its own strategy on ending destitution, with a focus on mental health. It gave £223,000 to Simon Community Scotland and Safe in Scotland in 2021-22 to help them meet the mental wellbeing needs of people with no recourse to public funds in Glasgow and Edinburgh, and recognises that this includes many people with post-traumatic stress disorder or similar issues linked to their experiences in their home countries.
In Glasgow, Kamia is looking for more help with Nsaku, and her own mental health. They are not NRPF, but Kamia, who has depression, is finding it difficult to cope. She draws strength from her Christian faith, worshipping in a congregation where most are asylum seekers, refugees or migrants. There are Salvadorans here, as well as Mexicans, Nigerians and now Ukrainians.
They’re coming for comfort, Pastor Wale Olabamiji says, as well as community, understanding and free food. His Potter’s House Prayer Ministry runs a food bank and is increasingly busy. Attendees are often heavy with worry. “We are doing what we can and we are trying to do more,” he says.
Funding for the ministry comes from donations and his legal practice, which also represents Kamia and Nsaku, who believes he is friends with billionaire rapper Jay-Z. “I have shame,” says Kamia. “People ask me, ‘how is your son?’ and I tell them he is suffering.”
“Kamia is effectively his carer,” Olabamiji says. “If Nsaku is given leave to remain, it will positively affect the whole family, because it will be hard to refuse them.
“When you see Nsaku, it is clear he is unwell,” he goes on. “He has no capacity for interview. The Home Office is calling him for interview based on the opinion of a psychiatrist who has seen him once over Zoom, which may have been in a lucid moment. His regular psychiatrist disagrees with this. It is totally unfair for the Home Office to keep delaying endlessly the grant of leave to remain for this client.”
“The government is committed to ensuring asylum claims are considered without unnecessary delay, but some cases can be more complex and take longer to process,” the Home Office said.
“Through our New Plan for Immigration we are fixing the broken asylum system to make it firm and fair, ensuring it is compassionate towards those who need our help, whilst seeking to stop abuse of the system.”