The Nationality and Borders Bill, which has passed its Second Reading in the House of Commons and is due to begin the ‘committee stage’ in the House of Lords on 27 January 2022, has three stated objectives:
- To make the system fairer and more effective so that we can better protect and support those in genuine need of asylum.
- To deter illegal entry into the UK breaking the business model of criminal trafficking networks and saving lives.
- To remove from the UK those with no right to be here.
Rhetoric aside, this Bill will do nothing to make our system fairer or more supportive. Freedom From Torture have described it as the 'biggest legal assault on international refugee law ever seen in the UK'.
As ever, the consequences will be widely felt, with 26,903 asylum applications made in the year ending March 2021. We agree with the United Nations High Commissioner for Refugees (UNHCR): the Nationality and Borders Bill is ‘fundamentally at odds’ with the UK’s international obligations under the Refugee Convention.
The Bill is premised on the false notion that asylum seekers must claim asylum in their ‘first safe country’ of arrival
There is nothing in the Refugee Convention which requires asylum seekers to claim asylum in their first safe country of arrival. Instead, the primary responsibility for affording international protection rests with the state whom the asylum-seeker asks for protection.
It is true that states can reach agreements about return: prior to the end of the Brexit transition period, the UK was a signatory to the Dublin Convention, which allowed EU states to transfer claims. Absent such agreement, however, there is no mandatory transfer within the Refugee Convention.
This principle is not only fair to refugees but equitable to states. If asylum seekers were required to seek protection in the ‘first safe country’ it would result in even more inordinate burdens on countries close to areas of conflict and instability. According to the UNCHR, there are 34.4 million refugees and asylum-seekers worldwide and 73% are already hosted in countries neighbouring their country of origin.
The UK is an island nation; most people will travel through so-called ‘safe countries’ before reaching the UK. A key aim of the Refugee Convention is state cooperation in ensuring the rights of refugees are protected and respected. Some states should not be disproportionately impacted compared to others.
Moreover, what amounts to a ‘safe country’ is culturally and personally contingent. Many asylum seekers hail from former British colonies. Often, English is their first or second language, and they have family in the UK. In addition, France – often the putative ‘safe country’ to which the government seeks to effect return – has been described by NGOs as suffering from a pervasive culture of police violence against migrants.
A state is deemed ‘safe’ when it safeguards the rights under the Refugee Convention. As outlined by Adrian Berry, a barrister at Garden Court Chambers, there is no mention of the need to safeguard other vital human rights, such as those under the ECHR.
Power to declare an asylum claim inadmissible where a person has a connection with a third safe State
The Secretary of State for the Home Department will have the power to declare an asylum claim inadmissible where a person has a 'connection' to a ‘safe’ third country. The definition of 'connection' is broad. Most notably, it allows the rejection of an asylum claim where:
- An individual has made a claim to a third safe state and the claim has not yet been determined or has been refused;
- An individual was previously present in and eligible to make a claim to a third safe state and it would have been reasonable to expect them to make such a claim but they failed to do so; or
- It would have been reasonable to expect the individual to have made a relevant claim to the safe third state instead of the UK.
Thus, an individual is removable not just if their claim has been rejected in a ‘safe’ third country, but in some instances even if they have never set foot there. This will not necessarily even depend on the consent of the ‘safe’ country to which the UK seek to return the applicant – indeed, to date, the UK has no bilateral agreements in place enabling return.
This provision risks breaching the non-refoulement principle. Non-refoulement is the rule that states must not return refugees to a country where there is a real risk of persecution, torture, or inhuman or degrading treatment.
Even if the third country to which an asylum seeker is initially sent under this provision is ‘safe’, the Bill does nothing to prevent that third country from returning them to an unsafe state or their country of origin and imposes no obligations on the Home Office to determine whether this is a real risk before effecting return.
Removal of an applicant while their claim is processed
At present, asylum seekers cannot be removed pending determination of their claim or appeal unless it is certified as ‘clearly unfounded’.
The Nationality and Borders Bill seeks to amend these protections; it would allow for the ‘temporary’ removal of a person while their claim is processed in broad circumstances. Countless offshore ‘processing centres’ have been mooted. What unifies them is that refugees would find it difficult to obtain proper legal advice and would be at risk of mistreatment in the interim.
Penalisation of refugees who reach the UK through irregular routes
Those who fail to enter the UK through so-called ‘safe and legal pathways’ stand to lose out on many crucial rights under the Refugee Convention, including the five-year path to settlement and the fundamental human right to family reunion.
The Bill also seeks to criminalise those who arrive in the UK without entry clearance, with a maximum sentence of 4 years imprisonment.
The problem with this is that ‘safe and legal pathways’ simply do not exist. As noted by the UNHCR, there is no such thing as an 'asylum visa'.
It is estimated that 90% of those granted asylum in the UK are from countries whose nationals require a visa to enter the UK. Those individuals would need either to apply for another form of visa – which is itself a criminal offence under section 24A of the Immigration Act 1971 – or to travel without a visa – and risk criminalisation under this Bill.
In other words, the Bill will criminalise the very act of entering the UK to claim asylum. This has two consequences. First, it will likely put the UK in breach of the Refugee Convention requirement not to penalise refugees on account of their illegal entry or presence if they present themselves without delay and show good cause for their illegal entry or presence. Second, on a practical level, it will push asylum seekers further into the hands of smugglers who promise entry to the UK without detection.
Conclusion
A fairer asylum system that deters people trafficking is something we should all support. But if the government was serious about those aims, it would create safe, legal routes of entry, rather than introducing measures that enable them to posture as ‘tough’ on trafficking while worsening the conditions that allow traffickers to thrive.
Countless organisations and professionals have opposed this Bill, from the UNHCR to Amnesty to the Joint Council for the Welfare of Immigrants. Should the Bill proceed, there is likely to be extensive litigation in the courts, in the hope of safeguarding the basic rights currently afforded to refugees.
Matt Ingham, Richard Milford (Citizenship and Immigration Team at Payne Hicks Beach) and Isaac Ricca-Richardson (Garden Court Chambers).