Emily Hobhouse explores the how the Nationality and Borders Act is creating an asylum system that discriminates against asylum seekers who have arrived illegally in the UK.
What is the Nationality and Borders Act?
The Nationality and Borders Act (the “Act”) received royal assent on the 28th April. All provisions are now law and the measures within the act will be implemented over the coming months.[1] The Bill was first introduced in July 2021 to overhaul the asylum, immigration and trafficking provisions. It went through a lengthy ping-pong stage but on its fourth presentation to the Lords, Labour peers decided it would not be appropriate defeat the Act again, instead choosing to abstain.[2]
Compliance with the Refugee Convention
Baroness Chakrabarti, pitched a single final amendment requiring that the act be read and given effect in a way which is compatible with the Refugee Convention. The Refugee Convention was signed by the UK in 1951 and is the first truly international agreement covering the most fundamental aspects of a refugee’s life. It sets out the most basic rights which should be afforded to refugees by signatory states[3]. Baroness Chakrabarti’s amendment was rejected by the government. Tom Pursglove, the Minister for Justice and Tackling Illegal Migration told the commons that “it is simply, unnecessary, inappropriate and unconstitutional for the courts to have a duty to make declarations of incompatibility in circumstances where questions of compliance have already been determined by parliament”[4]. This is the first indication that the Government is not intending to be held to account in the courts for breaches of the Refugee Convention.
Sonali Naik QC from Garden Court Chambers described the Act at a recent Young legal Aid Lawyers event as “without a doubt the biggest legal assault on international refugee law since signing the Refugee Convention”.
The Current System: Resettlement and Asylum
There are two ways to become a recognised refugee in the UK. Firstly, the resettlement route. This is the transfer of recognised refugees from one state to another that has agreed to admit them and ultimately grant them a route to permanent settlement. The UNHCR is mandated to undertake resettlement. Of the 20.7 million refugees worldwide, less than 1% are resettled each year. In 2021, only 1587 people were granted protection through the resettlement scheme in the UK.[5] The UK government has also begun to create its own bespoke resettlement schemes like the BNO visas for Hong Kong nationals; the Afghan Resettlement Scheme; and the Family Visa Scheme and Homes for Ukraine for Ukrainian nationals.
The second route to settling in the UK as a refugee is through a successful asylum claim. There is no legal route to come to the UK specifically to claim asylum as there is no ‘asylum visa’. Asylum can consequently only be applied for once the person has reached British soil. An asylum seeker has 2 options: Enter the country legally, for example on a student or visitor visa, and make a claim within the country; or enter illegally, for example in the back of a lorry or across the channel[6]. Many asylum seekers are forced to rely on the illegal route due to the requirements and costs of other visas, for example owning a passport. This is illustrated by the fact that, of the 16,510 people who have crossed the channel in 2021, only 317 had passports when picked up by the border office.[7]
How the Nationality and Borders Act Creates a “Two-tier” System
The government contends that the Nationality and Borders Act seeks to “increase the fairness of the system to better protect and support those in need of asylum and to deter illegal entry into the UK, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger”.[8]
The Act does this by creating two groups of asylum seekers. Group 1 are the ‘good’ asylum seekers who have arrived by legal means like resettlement or bespoke schemes. These asylum seekers will receive all rights and protections under the Refugee Convention, for example routes to resettlement. Group 2, are those who have arrived illegally and will not be privy to such rights. They will only receive temporary protection with limited rights to welfare benefits, family reunion and resettlement.[9]
Family reunion is one of the safest routes to the UK and is particularly important for women and children. Limiting this route would restrict access to the safe route and leave families with the harrowing choice of being separated from their loved ones, or embarking on a treacherous journey to reach them in the UK. This penalising of refugees dependent on how they arrived in the UK, potentially discriminates against women and children who made up 90% of the 29,000 people who came safely to the UK in the last five years as part of family reunion.[10]
Offshore Processing
In addition to restricted rights, the Nationality and Borders Act enables the British government to send asylum seekers offshore. A £120 million deal has been struck with the Rwandan government to implement the plan. Upon arrival, asylum seekers are now screened for any possible reasons why they shouldn’t be sent to Rwanda. These include unaccompanied minors, some people with special circumstances, and Rwandans fleeing the Kagame regime[11].
At the beginning of May, fifty asylum seekers were informed of the intention to move them to Rwanda within the upcoming weeks[12]., their asylum claims will be processed under Rwandan law and most shockingly, if granted asylum, they will not be able to return to the UK but must stay in Rwanda itself, or transferred to another safe country.
Of most concern is that the moving of asylum seekers to a different jurisdiction could lead to mistreatment of the asylum seekers out of the watchful eyes of lawyers and charitable groups in the UK. It has been compared to Australia’s now abandoned offshore processing which created unimaginable suffering, cost huge amounts of money and did not work in its strategy as a deterrent[13]. The UNHCR have accused the government of “shifting[ing its] asylum responsibilities” and “evad[ing] international obligations”.[14]Moreover, The Refugee Council have estimated the scheme will cost £1.4 billion a year.
Is it Legal?
Litigation will inevitably follow the implementation of the Rwanda plan. While the refugee convention has not been interpreted to prevent the removal of a refugee to a third safe country (see for example the Dublin System), such removals may be illegal if they breach the Human Rights Act. If asylum seekers are removed to a third country where they will be subject to inhumane or degrading treatment, the UK government will be in breach of Article 3. It is yet to be seen whether asylum seekers will be subject to such treatment but as there are countless LGBTQI+ and political refugees from Rwanda itself, there is significant cause for concern.
Cherry-picking Asylum Seekers
The Nationality and Borders Act is yet another piece of legislation aimed to restrict the rights of those fleeing persecution, and prevent legitimate arrivals in the UK who are claiming asylum. The draconian measures are backed up by the allegations that economic migrants are exploiting the asylum system[15]. However, these accusations are disputed by statistics. Most of those who arrive in the UK on small boats across the channel are recognised as refugees, including 89% of Iranians, 97% of Eritreans, 99% of Syrians and 47% of Iraqis[16].
In reality, the Nationality and Borders Act is an affront to the UKs responsibilities to refugees worldwide. It creates a two-tier system where asylum seekers are cherry picked according to the UK government’s discretion, instead of International Refugee Law. While the bespoke schemes are welcome, discrimination between those fleeing persecution is not. While it is yet to be seen whether such differential treatment is legal, it must not be forgotten that such treatment is in no way desirable.
[1] https://www.parliament.uk/business/news/2021/december-2021/lords-debates-nationality-and-borders-act/
[2] https://www.ein.org.uk/news/nationality-and-borders-act-become-law-labour-decides-it-would-be-inappropriate-house
[3] https://www.unhcr.org/uk/news/stories/2001/6/3b4c06578/frequently-asked-questions-1951-refugee-convention.html#_Toc519482137
[4] https://www.ein.org.uk/news/nationality-and-borders-act-become-law-labour-decides-it-would-be-inappropriate-house
[5] https://www.unhcr.org/uk/asylum-in-the-uk.html
[6] https://righttoremain.org.uk/toolkit/enter-uk-asylum
[7] https://www.telegraph.co.uk/news/2022/02/24/almost-channel-migrants-arrive-without-passports-told-shred/
[8] https://www.parliament.uk/business/news/2021/december-2021/lords-debates-nationality-and-borders-act
[9] https://www.refugeecouncil.org.uk/information/refugee-asylum-facts/differential-treatment-clause-11/
[10] https://www.refugeecouncil.org.uk/information/refugee-asylum-facts/differential-treatment-clause-11/
[11] https://www.politico.eu/article/uk-seals-deal-with-rwanda-to-offshore-asylum-migrant-seekers/
[12] https://www.theguardian.com/uk-news/2022/may/14/fifty-migrants-to-be-sent-from-uk-to-rwanda-in-a-fortnight-says-boris-johnson
[13] https://www.jcwi.org.uk/unspeakably-cruel-new-plans-to-send-asylum-seekers-to-rwanda
[14] https://www.ft.com/content/25fecf58-22c9-48d0-80c7-917a0ff81e3f
[15] https://www.politico.eu/article/uk-seals-deal-with-rwanda-to-offshore-asylum-migrant-seekers/
[16]https://twitter.com/mckinneytweets/status/1496797427013140484?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1496797427013140484%7Ctwgr%5E%7Ctwcon%5Es1_c10&ref_url=https%3A%2F%2Ffreemovement.org.uk%2Fis-it-legal-to-outsource-the-uks-refugee-responsibilities-to-rwanda%2F
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Photo Credit: “Migrant / refugee boat on the beach at Therma” by adamansel52 is licensed under CC BY 2.0.
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