Will We Be Seeing More British Asylum Claims?

The Bureau of Democracy, Human Rights, and Labor (DRL) at the U.S. Department of State (DOS) has just released its 2024 Country Reports on Human Rights Practices, and at least one key ally won’t be happy with what DOS has to say. If I told you DRL asserts that “the human rights situation worsened in” the past year with “significant human rights issues” in a country, would you guess it was referring to the United Kingdom? Maybe we should prepare for more asylum claims from the “scepter’d isle”, as Shakespeare described it — and learn some lessons about both free speech and censorship abroad and our own overly complex asylum adjudication system.

DOS Country Reports on Human Rights Practices

At present, nearly 2.4 million asylum applications are pending in our immigration courts, and another 1.5 million are awaiting adjudication at USCIS — nearly 3.9 million in total, or more claims than there are residents of Connecticut.

Asylum applications are fact-specific, largely based on what’s happening in aliens’ home countries. As the Ninth Circuit has held, “country conditions alone can play a decisive role in granting relief”, but even the best-traveled immigration judge or asylum officer has only been to a handful of those countries. To fill that gap, DRL issues annual human rights reports on every recognized country in the world.

Not “Holy Writ”

Asylum officers often refer to DOS country reports, and both applicants and ICE attorneys commonly hand them up in immigration court. While it’s usually inappropriate for an adjudicator to rely solely on those reports when denying claims, courts have held they do have probative value in assessing aliens’ credibility.

Those reports are drafted by DOS officers in the countries in question, and those U.S. government agents living abroad logically know what’s happening in out of the way places like Burkina Faso and Bhutan, and have pretty good contacts in other, better-known venues like China and Nigeria.

One common criticism courts have had with DOS country reports, however, is that they present too rosy a picture of the human rights situation in certain countries. Consider the following, from Chief Judge Richard Posner writing for the majority in the Seventh Circuit’s 2000 opinion in Galina v. INS:

The Board [of Immigration Appeals, “BIA”] ought by this time to realize, moreover, that in the case of countries that are friendly to the United States, such as Latvia, the State Department’s natural inclination is to look on the bright side. We do not think the 1998 country report for Latvia can fairly be described as a whitewash, since it has rather tart things to say about the country’s judiciary, which it calls inefficient and corrupt, and about prison conditions, which it describes as deplorable, and about the prevalence of child prostitution, and about human rights abuses by police and members of the security apparatus (remember it said only that human rights are “generally respected”). The country report is evidence and sometimes the only evidence available, but the Board should treat it with a healthy skepticism, rather than, as is its tendency, as Holy Writ.

Still, DOS country reports are usually the most objective evidence available to immigration judges and asylum officers when evaluating asylum claims, and therefore the best view of what’s going on human rights-wise in any given country.

That said, keep in mind what Judge Posner said about DOS’s inclination to overlook human rights issues in “countries that are friendly to the United States”. Just because he was one of the most respected jurists of his age doesn’t mean he was always right.

DOS’s 2023 Country Report for the United Kingdom

Before reviewing the latest DOS country report on the UK, here are some “highlights” from last year’s, 2023 report, which begins:

There were no significant changes in the human rights situation in the United Kingdom during the year.

Significant human rights issues included credible reports of: crimes, violence, or threats of violence motivated by antisemitism; and crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons.

Under the heading “other societal violence and discrimination”, the 2023 DOS report claimed:

Hate speech, notably against Muslims, in some traditional media, particularly tabloid newspapers, was a problem, with dissemination of biased or ill-founded information. Online hate speech also was a problem. There were instances of societal violence against Muslims and attacks on mosques. After the October 7 terrorist attacks in Israel, Islamophobic offenses increased, and London police recorded a 140 per cent increase in Islamophobic offenses compared with the same month in 2022.

The only other reference to “speech” in that report came in the context of “acts of violence, criminalization, and other abuses based on sexual orientation, gender identity or expression, or sex characteristics”, when DOS had this to say:

In October, 246 NGOs submitted a letter to the prime minister criticizing Home Secretary Suella Braverman for singling out LGBTQI+ persons in her September 26 speech, in which she implied that “simply being gay, or a woman, and fearful of discrimination in your country of origin” was not sufficient to qualify for protection.

That appears to be a legal opinion by Braverman, member of Parliament from the UK Conservative Party and at the time head of the country’s Home Office, which has jurisdiction over asylum claims.

In other words, it’s no different than a recent BIA decision holding an “alien’s sex or sex and nationality, standing alone, is overbroad and insufficiently particular to be cognizable” as a “particular social group” for asylum purposes in this country, but for some reason DOS included it in last year’s country report.

The 2024 DOS Report

Which brings me to the latest report, released on August 12 and formally captioned “United Kingdom 2024 Human Rights Report”.

Ominously, it begins:

The human rights situation worsened in the United Kingdom during the year.

Significant human rights issues included credible reports of serious restrictions on freedom of expression, including enforcement of or threat of criminal or civil laws in order to limit expression; and crimes, violence, or threats of violence motivated by antisemitism.

Unlike the three references to “speech” (including MP Braverman’s) in last year’s report, there are 18 separate uses of that term in the latest version, primarily in section 2 (“Liberty”) subsection (a) (“Freedom of the Press”).

It begins on a rather upbeat note, stating, “The law generally provided for freedom of speech, including for members of the press and other media, and the government generally respected this right” before dropping the dreaded conjunction “though”, as in:

though there were specific areas of concern, including involving restrictions on political speech deemed “hateful” or “offensive” as well as speech within “Public Spaces Protections Orders” areas (allowing local councils to limit speech rights within designated areas) and “Safe Access Zones” (limiting speech rights around abortion clinics). These restrictions on freedom of speech could include prohibitions on efforts to influence others when inside a restricted area, even through prayer or silent protests.

I’ll omit the references to legal prohibitions against expressions of “hatred” toward others based on immutable characteristics (except to note DOS claims they can land you in the clink), as well as restrictions on communications “deemed threatening or abusive and was intended to harass, alarm, or distress a person” (same) to get more quickly to the following:

The law authorized UK authorities, including the Office of Communications (Ofcom), to monitor all forms of communication for speech they deemed “illegal.” The Online Safety Act of 2023, which came into force in 2024, defined the category of “online harm” and expressly expanded Ofcom’s authority to include American media and technology firms with a substantial number of British users, regardless of whether they had a corporate presence in the UK. Under the law, companies were required to engage in proactive “illegal content risk assessment” to mitigate the risk of users encountering speech deemed illegal by Ofcom. Experts warned that one effect of the bill could be government regulation to reduce or eliminate effective encryption (and therefore user privacy) on platforms.

I’d assume UK officials have read George Orwell’s classic 1984 and would eschew portmanteau neologisms like “Ofcom” (or “Thinkpol”, “Newspeak”, “Minitrue”, etc.), but apparently not.

More importantly, however, that passage suggests Ofcom isn’t just interested in chilling speech in the UK, but elsewhere, too.

In that vein, the DOS report continues:

Expansive and unclear restrictions on potentially prejudicial reporting on ongoing court and tribunal proceedings limited the freedom of the press. In one instance, UK contempt of court laws forced U.S. magazine The New Yorker to geoblock British subscribers from reading an online article regarding an ongoing court case.

The department never tells us what that “one instance” involved, perhaps out of concern it will be “geoblocked”, too.

“Think Before You Post!”

There is quite a bit of specificity in that report, however, as it relates to UK government “censorship”, particularly relating to a July 2024 knife attack in the Merseyside region of England.

Under the heading “Censorship by Governments, Military, Intelligence, or Police Forces, Criminal Groups, or Armed Extremist or Rebel Groups”, DOS reports:

Legal restrictions on speech labeled as threatening, offensive, or constituting a “hate crime” applied to print and broadcast media including social media.

In the wake of an attack in Southport in which three young girls were stabbed to death, local and national government officials repeatedly intervened to chill speech as to the identity and motives of the attacker (later identified as Axel Rudakubana, a British citizen of Rwandan origins). The government called on companies, including U.S. firms, to censor speech deemed misinformation or “hate speech.” Director of Public Prosecutions Stephen Parkinson threatened to prosecute and seek the extradition of those who “repost, repeat, or amplify a message which is false, threatening, or stirs up racial/religious hatred.” The Crown Prosecution Service shared a video online stating that citizens should “Think before you post!” and threatening legal consequences for violations of the law. After the attack, numerous individuals were arrested for online speech about the attack and its motivations, though in some cases charges were later dropped.

Numerous nongovernment organizations (NGOs) and media outlets criticized the government’s approach to censoring speech, both in principle and in the perceived weaponization of law enforcement against political views disfavored by authorities. [Emphasis added.]

“Think Before You Post!” is good and hygienic advice for any reporter or social media maven, but when the entity offering that advice is the government and transgressions are met with legal sanctions, it plainly has a chilling effect.

DOS goes on to note that a man received an eight-week jail sentence in July “for posting a meme suggesting a link between migrants and knife crime”, and that in October, an unidentified individual “was convicted in England for engaging in silent prayer in violation of a ‘safe zone’”.

Potential UK Asylum Claims

In this country, those 3.8 million-plus pending asylum claims will be adjudicated under section 208 of the Immigration and Nationality Act (INA).

To prove eligibility for asylum under section 208 of the INA, applicants must show they’re “refugees” as defined in section 101(a)(42)(A) of the INA, in that they are unwilling to return home “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”.

As the regulations governing those “five factors” for asylum protection explain:

For purposes of adjudicating an application for asylum under section 208 … a political opinion is one expressed by or imputed to an applicant in which the applicant possesses an ideal or conviction in support of the furtherance of a discrete cause related to political control of a State or a unit thereof.

Plainly, many of the statements covered (and possibly chilled) by the UK speech laws as described in the 2024 DOS report would satisfy that “political opinion” definition.

That said, legitimate criminal prosecutions don’t constitute “persecution” on account of political opinion if the law in question is generally applied to all offenders and the prosecution is not a “pretext” to punish alleged offenders on account of one of those five factors.

“Understanding that persecution may appear in the guise of prosecution”, the Ninth Circuit, for example, has “carved out exceptions to the general rule that applicants avoiding prosecution for violations of criminal law are ineligible for asylum”.

Among those exceptions is “disproportionate punishment” for the offense in question, or a diversion from the process normally due under the legal system in question.

Therefore, if the UK only punishes certain opinions (as DOS notes UK observers suggest), cuts corners on prosecutions for such offenses, or imposes harsh punishments on offenders, prosecutions will begin to veer into the sorts of conduct that have been found to constitute “persecution” for asylum protection.

Why We Have an Asylum Backlog of Nearly Four Million Applications

Given that many of our laws and most of our most cherished legal processes are derived from the Anglo system of justice, we can all hope that even if the UK imposes speech restrictions on its citizens that would be unacceptable under our First amendment that the Crown at least gives defendants due process and doesn’t really discriminate in the application of those restrictions.

But immigration judges and asylum officers can’t assume either of those facts is true, which means if any UK national files an asylum application alleging persecution on account of political opinion, adjudicators can’t simply dismiss that claim — and the 2024 DOS country report offers plenty of evidence for applicants.

The reason there is a backlog of nearly four million pending asylum applications is that adjudicating those claims is time-consuming, requiring repeated and serial applications of facts to law, as the foregoing likely reveals.

It would be better and more efficient for the U.S. government to identify refugees abroad and offer them protection than to allow any foreign national who can make it to the United States to file an asylum claim here.

As I have explained repeatedly in the past, most illegal migrants under Biden weren’t coming “seeking asylum” so much as to “live and work here for the extended period it will take for their asylum claims to be heard”. That mocks our humanitarian protections and plays Americans for suckers.

Do I think the 2024 DOS UK country report will trigger thousands of asylum claims? It plainly could and if it does it will simply add to the crushing backlog at USCIS and in the immigration courts. Let’s just say there are lessons in that report for public officials in both Whitehall and Washington to ponder.