When the small boats crisis began, it was seen by some in government as a positive sign. ‘It was an emblem of success,’ says Robert Buckland, who was solicitor general at the time. ‘If you remember, the previous mode of entry for migrants was on lorries.’ Heat scanners had been introduced at the Channel Tunnel in 2015, which meant more stowaways were being caught. The switch to boats, it was argued at the time, was a desperate tactic on the part of the people-smugglers. No one guessed what a problem it would become.

Back in 2014, the UK asylum system was coping: 87 per cent of cases were handled within six months. Now that number is just 4 per cent. The challenge of accommodating tens of thousands of applicants is too much for the Home Office to handle. The root cause appears to be the bureaucracy. ‘There will be people in the system for years waiting for their claims to be determined,’ says Buckland.

His long time in government gave him a ringside seat in this losing battle over law and asylum. He was solicitor general for five years, then justice secretary and Lord Chancellor. He was sacked by Boris Johnson in July’s reshuffle, and then brought back into cabinet in the dying days of Johnson’s premiership before becoming a casualty of Rishi Sunak’s ascendancy.

We meet to discuss what lies at the root of the asylum pile-up and how it got to 100,000 cases. It was recently pointed out to the Home Affairs Committee in the Commons, appeals are being processed at the rate of just two a week.

Buckland believes the problem lies with legal creep. Over the years, he says, the criteria for asylum have become ever more complicated. ‘The checklist and tests you have to apply are all extremely technical, with a myriad of different interpretations. If you’re a layperson trying to negotiate the immigration rules, I really think you’d struggle. You’d need a lawyer, and lawyers themselves will often struggle with the sheer complexity of those rules because they’ve been amended and re-amended so many times.’

If you lose a hearing, that’s not the end of it. ‘There’s a constant ability to appeal and appeal and appeal,’ he says. ‘So you can come at the last minute and say: “Oh, by the way, I’m gay.”’ And then start a fresh appeal on new grounds. One reform Buckland suggests is to demand that every asylum seeker is required to state their full case at the start, and not change their story later on. ‘It’s very important to incentivise early disclosure, to avoid this sort of repetitive set of applications on new facts. That happens very often in the system.’

Lockdown, he says, was a huge missed opportunity. The months of inactivity could have been the perfect time to cut the asylum backlog, given the lack of anyone coming into the country. The magistrates’ courts managed to make the switch to Zoom hearings, but the asylum complaints system could not cope. Britain left lockdown with an even bigger asylum backlog than before the pandemic. At present there are about 70,000 asylum seekers who have been waiting six months or more, and in the meantime they are legally prohibited from finding work or doing anything to support their families. Buckland says he has started to see this as an economic and moral failure.

‘We should take a leaf out of Denmark’s book and do more to give rights to work,’ he says. At present, an asylum seeker can apply for voluntary work after 12 months on the waiting list. ‘But why not make it six months? We’ve got thousands of people costing us money, standing idle – instead of being able to contribute. Or worse, actually doing work of an irregular nature.’

There are five refugee hotels in Swindon, his constituency. ‘I was in town on Friday and I saw the asylum seekers milling about with nothing to do. I’m a big fan of something called “time banking”, where if I mow your lawn, you give me something back in exchange – a meal, a voucher or something.’ But asylum seekers can’t even do that. ‘It’s just so unimaginative and a waste of resource,’ he says. ‘It’s costing the health service more as well, because all these people are turning up with mental health problems and other ailments. It’s a vicious circle.’

What would he do? ‘Let them contribute to the economy in a legitimate way. Let them pay tax,’ he says. But wouldn’t that encourage even more arrivals on small boats? Studies have shown no evidence of this, he says. ‘Let’s have a grown-up conversation. Until we have more automation, until we really harness more people who are economically inactive in the UK, we are going to need an element of migration to fill the job vacancies.’ UK vacancies currently stand at 1.2 million, near a record high. There are 5.3 million on out-of-work benefits, also nearly a record high.

It’s dangerous, he says, for any Tory to declare (as Suella Braverman did this week) that the system is broken. ‘The system has its problems, but we’ve been in control of it for 12 years,’ he says. ‘We have been trying to refine it, improve it, speed it up, with mixed results. That’s the reality of it. But I don’t think it’s broken.’

Sunak’s government is planning to introduce a Bill of Rights (drafted by Buckland’s successor at the Ministry of Justice, Dominic Raab) which intends to remove obstacles such as the European Court of Human Rights, which recently outlawed the government’s Rwanda deportation policy. Buckland believes the bill would make things worse. ‘It’s worse than useless. It threatens spawning a whole range of domestic rights which I think really sit ill with the English common law tradition. We already have the likes of [Labour MP] Stella Creasy saying “I want a right to abortion, so I’m going to amend the bill”. All these things suddenly become a political headache. It’s a real problem for people like me, who want to just keep the “rights culture” under control.’

A dispute over the Bill of Rights led Buckland to abandon Sunak and endorse Liz Truss during the summer’s leadership race. Even though Sunak sacked him from cabinet, the Tory party, he says, is ready to unite. His colleagues have ‘looked over the cliff. Some have even felt as if they were falling. This has made them realise that if we cannot make this government work, then we really are going to be out for a long, long time’.

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