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Briefing: the Nationality and Borders Bill, Part 2 (asylum)
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Briefing: the Nationality and Borders Bill, Part 2 (asylum)

MPs will give the Nationality and Borders Bill 2021 its second reading on 19 July. One of the Bill’s main objectives is to make the asylum system “fairer and more effective”. Most of the clauses supposedly directed to that purpose are in Part 2 of the text, making it the heart of the Bill in many ways.

This briefing examines Part 2 in some detail. It is a rather sprawling set of provisions touching on various areas of the asylum system, so we will necessarily jump around between seemingly unconnected areas. Most of the material has been contributed by several different barristers from the immigration team at Goldsmith Chambers: Sarah Pinder, Samina Iqbal, Alexis Slatter and Krystelle Wass, kindly coordinated by Emma Harris. The deputy editor can safely be blamed for any errors; we will in any case look to update this briefing to reflect any significant amendments as the Bill progresses through Parliament.

Differential treatment of asylum seekers

Clause 10 sets out the differential treatment of refugees based on their method of arrival in the UK. It divides refugees into two categories: “Group 1” and “Group 2” refugees. Group 1 refugees are earmarked for better treatment.

In order to be a Group 1 refugee, the following conditions must be met:

(2) The requirements in this subsection are that—

(a) they have come to the United Kingdom directly from a country or territory where their life or freedom was threatened (in the sense of Article 1 of the Refugee Convention),

(b) they have presented themselves without delay to the authorities. 

Subsections (1) to (3) of section 34 apply in relation to the interpretation of paragraphs (a) and (b) as they apply in relation to the interpretation of those requirements in Article 31(1) of the Refugee Convention. 

(3) Where a refugee has entered or is present in the United Kingdom unlawfully, the additional requirement is that they can show good cause for their unlawful entry or presence.

There has been a valid effort to try and incorporate the language used in the Refugee Convention into the clause itself. The phrases “coming directly from a territory where their life or freedom is threatened”, “presented themselves without delay” and “good cause” are all directly taken from Article 31(1). Clause 34 deals in a bit more detail as to what can be considered as having come directly.

The consequences of the designation as “Group 1” or “Group 2” are set out in clause 34(5) and (6). It essentially affords the Secretary of State or an immigration officer the power to treat the two groups differently, including the family members of those groups. The language does however say “may treat Group 1 and Group 2 refugees differently” so, at the very least, it seems to be something over which discretion can be exercised and therefore hopefully argued. 

Only examples are given on the practical implications of being in one group or the other. These include variations as to periods of permission to remain or the road to settlement. This provides an unwelcome uncertainty for refugees and seemingly allows the Home Office unfettered discretion to pick and choose the “refugee package” a person will be given.

This uncertainty will undoubtedly have an impact on refugees’ ability and desire to integrate. We are too often confronted with the real mental health issues that are caused by people not being able to see a clear path to long-term protection. 

The differential treatment of asylum seekers has attracted criticism from the UN Refugee Agency and the Refugee Council, which describes the new approach as flying in the face of the Refugee Convention. 

By Krystelle Wass.

Asylum accommodation

Clauses 11 and 15 build on the roaring success of Napier barracks as a dumping ground for asylum seekers.

Clause 11 allows asylum seekers to be housed differently depending on “the stage that their protection claim has reached, including whether they have been notified that their claim is being considered for a declaration of inadmissibility”. An accompanying “fact sheet” puts it more bluntly: reception centres will replace hotels.

Reception centres are already provided for under the Nationality, Immigration and Asylum Act 2002. Most of those provisions were never brought into force, but it looks like they now will be. In preparation, section 25 of that Act will be amended so that the maximum length of stay in a reception centre will no longer be six months. More precisely: the six-month limit (extendable to nine months in individual cases) will remain in section 25, but the Secretary of State will now have the power to change it to, say, 12 months or 24 months should the mood strike her.

The essence of clause 15 is that asylum seekers whose claim has been declared inadmissible (see below) will be treated as failed asylum seekers for the purposes of asylum accommodation. It does this by, among other things, amending section 4(2) of the Immigration and Asylum Act 1999 as follows: 

(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—

(a) he was (but is no longer) an asylum-seeker, and

(b) his claim for asylum was rejected or declared inadmissible.

If however a claim declared inadmissible is later accepted for processing, the person will no longer be classed as a failed asylum seeker. This seems like a recipe for putting lots of newly arrived asylum seekers into reception centres on the basis that they should have claimed asylum elsewhere, only to move them into regular dispersed accommodation months later when it becomes apparent that there is no elsewhere to send them and the claim will have to be decided here.

By Free Movement.

Place of claim

Clause 12 says that an asylum claim “must be made in person at a designated place”. A list of designated places follows. It is pretty much the same as the list of designated places already in the Immigration Rules.

As Colin pointed out last week, putting the list into primary legislation adds nothing to the Secretary of State’s evident power to designate places of claim, and indeed reduces her flexibility to change that designation (although the list can be tweaked by regulations).  The explanatory notes say that clause 12 provides “greater clarification” than the status quo but offers no other justification for the change.

By Free Movement.

Treating asylum claims as inadmissible

Clauses 13, 14 and 26 address the perceived abuse of the asylum system by people who are not in need of protection in their country of origin. The solution is to remove them to a third country without examining the merits of their asylum claims. Insofar as it seeks to do this without examining thoroughly the question of whether or not there is a real risk of the asylum seeker being denied access in that third country to an adequate asylum procedure protecting him or her against refoulement, it risks being found in breach of international law.

Clause 13 proposes to insert a new Part 4A into the Nationality, Immigration and Asylum Act 2002. This will be headed “Inadmissible asylum claims’” and contain sections 80A, 80B and 80C (the latter two are included in clause 14 of the Bill). Section 80A will deal with asylum claims from EU nationals whereas section 80B and 80C deal with asylum claims from non-EU nationals. 

EU citizens

Section 80A would empower the Secretary of State to declare asylum claims from nationals of EU member states inadmissible.  It mirrors provisions in the Immigration Rules that, in turn, transposed a protocol to the 1997 Treaty of Amsterdam in which EU member states agreed on how to handle asylum claims from one another’s citizens. Only where the EU national’s state had derogated from the European Convention on Human Rights in accordance with Article 15, or where the mechanism under the Treaty on European Union to suspend a member state over breach of EU values had been initiated, should those asylum claims be considered. 

Section 80A(4) retains the discretion to declare a claim from an EU national admissible in “exceptional circumstances”. It is questionable whether this provision provides an adequate remedy, particularly given the denial of a right of appeal against such decisions in section 80A(3). No country can be safe for all of its citizens and the UN Refugee Agency has long denounced discrimination on grounds of nationality. Issues remain about the consistency of the proposed provisions with the UK’s obligations under the Refugee Convention. 

Non-EU citizens

Post-Brexit changes to the Immigration Rules already allow non-EU asylum claims to be declared inadmissible. But policy guidance requires that the person be accepted by a third state before an inadmissibility decision can be made. At the time of writing, the UK has not — unsurprisingly perhaps — secured arrangements on return of asylum seekers with any “safe” country.

Clause 14 would provide a statutory power to declare asylum claims inadmissible if the claimant has a connection to a “safe third State”.  A “safe third State” is defined as a place where:

  1. the person’s life and liberty are not threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion;
  2. the person will not be sent to another state in breach of the Refugee Convention or Article 3 ECHR; and
  3. the person could apply to be recognised as a refugee and receive protection in accordance with the Refugee Convention. 

A claimant will have a “connection” to a safe third country if they meet any one of five conditions. These include circumstances where the Secretary of State considers it would have been reasonable for them to claim asylum in that third country. 

Most controversial, however, is the provision for the removal of a claimant to a safe third country with which the claimant does not need to have a “connection”. It says:

The fact that an asylum claim has been declared inadmissible… by virtue of the claimant’s connection to a particular safe third State does not prevent the Secretary of State from removing the claimant to any other safe third State. 

Removals

Clause 26 and Schedule 3 to the Bill amend section 77 of the Nationality, Immigration and Asylum Act 2002. Section 77 is headed “no removal while asylum claim pending” but the Bill would allow people with pending claims to be removed to a safe third country (defined as above). The explanatory notes state that this amendment “supports the future object[ive] of enabling asylum claims to be processed outside the UK”.

Clause 26/Schedue 3 also make it possible to remove asylum seekers to a safe third country whilst their claims are pending without having to issue a “clearly unfounded” certificate under Schedule 3 to the Immigration (Treatment of Claimants, etc.) Act 2004. Where the claim is deemed clearly unfounded, paragraphs 11 to 17 of Schedule 3 to the Bill remove even non-suspensive appeal rights. 

How legal is this? The European Court’s main concern would be whether effective procedural guarantees exist to protect a claimant against arbitrary refoulement: see M.S.S. v. Belgium and Greece [2011] INLR 533 and T.I. v. The United Kingdom [2000] INLR 211. It is well established that states seeking to expel asylum seekers to a third country without examining the asylum request on the merits have a duty not to remove them if there are substantial grounds for believing that such action would expose them to human rights breaches (under Article 3 in particular).

However, the duty not to expose the person to a real risk of treatment contrary to Article 3 is discharged differently than in cases of return to the country of origin. The main issue is whether or not the person will have access to an adequate asylum procedure in the receiving third country. In addition, where the alleged risk of ill-treatment concerns, for example, living conditions for asylum seekers in the receiving third country, that risk is also to be assessed by the expelling country. 

If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum seeker should not be removed to the third country concerned. See the case of Ilias and Ahmed v Hungary (application no. 47287/15).

By Alexis Slatter.

Evidence

Three clauses apply to supporting evidence. Importantly, these clauses do not apply just to asylum claims but to human rights claims as well.

Evidence notices

Clause 16 provides for a new procedure, at the Secretary of State’s discretion, to serve a person who has made a protection or human rights claim with an “evidence notice”. An evidence notice would require the person to provide any evidence in support of the claim before a given date. In the event that the applicant provides their evidence on or after the specified date, they will have to provide a statement giving reasons for providing it late.

There is no detail on how long applicants will be given to provide this information and whether the new procedure would have any form of flexibility built in (for example, to allow caseworkers to give shorter or longer periods for response depending on the circumstances). Flexibility seems highly unlikely given the Bill’s emphasis on regulating asylum claims.

There is also no detail as to when discretion might be exercised to issue such a notice. Will it be a standard notice, or only used in certain cases? If the latter, what are the factors that would govern use of discretion? Does it entail a shift towards a presumption in favour of corroboration? All these important questions are currently unanswered. 

Credibility

Clause 17 specifically addresses proposed amendments to section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Section 8 covers credibility in asylum or human rights cases. It instructs Home Office officials and tribunal judges alike (the “deciding authorities”) in how to assess the truthfulness or otherwise of applicants/appellants, and includes a list of the “kinds of behaviour” which “shall be treated as designed or likely to conceal information or to mislead”.

To be inserted into section 8 via Clause 17 are the following kinds of behaviour:

  • any relevant behaviour by an applicant that the deciding authority thinks is not in good faith (new section 8(3A)),
  • the late provision by the applicant of evidence in relation to the asylum claim or human rights claim in question, unless there are good reasons why the evidence was provided late (new section 8(6A)).

Evidence is provided “late” if provided pursuant to an evidence notice on or after the specified date.

“Relevant behaviour” is defined as meaning behaviour in connection with:

  • the claim itself (asylum/human rights),
  • an appeal,
  • any dealings with a person exercising immigration and nationality functions, or
  • a civil claim or judicial review relating to immigration and nationality.

These provisions would only apply to new claims/appeals lodged after the Bill comes into force.

Late evidence

Clause 23 also targets “late evidence”. It again applies to both asylum and human rights claims and specifically seeks to address the weight that deciding authorities attach to late evidence. In the case of Home Office officials, this clause is also to apply to decisions about whether to certify a claim as “clearly unfounded” under section 94(1) of the 2002 Act and whether to accept or reject further submissions.

The clause provides for evidence to be deemed “late” if:

  • if provided after the date specified in an evidence notice (see above),
  • if provided after the date specified in a priority removal notice (see next section)

In the event of evidence being submitted late (within the meaning provided for), a deciding authority “must, in considering it, have regard to the principle that minimal weight should be given to the evidence”. This is caveated with the safeguard of “unless there are good reasons why the evidence was provided late”. This safeguard is welcome and should benefit vulnerable applicants in particular.

The principle of “minimum weight” recalls section 117B of the 2002 Act. Although less drastic, it is also similar to section 85A, which bars tribunal judges in certain appeals from considering evidence not previously submitted at the time of the application to the Home Office.

Comment

We do not know whether submissions to the consultation on these proposals were taken into account and, if they were, how. The context here includes international law and non-refoulement obligations to ensure that refugees get the protection they need and are not locked out by red tape. It is also important to consider these clauses against the backdrop of a consistent increase in processing delays for asylum claims on the part of the Home Office (despite a significant drop in the number of claims overall).  

The evidence clauses are lopsided. They do not apply to the Secretary of State, the other party in appeals: she is not subject to any “minimal weight” provisions if she seeks to adduce post-decision evidence against an applicant’s claim, for example.

The law on credibility and evidential assessments is well established.  As Lord Justice Sedley said in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11 (my emphasis):

Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and – sometimes – specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it.

Specifically in the context of section 8, the immigration tribunal expressed the following in SM (Section 8: Judge’s process) Iran [2005] UKAIT 116:

It is the task of the fact-finder, whether official or judge, to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof. Some aspects of the evidence may themselves contain the seeds of doubt. Some aspects of the evidence may cause doubt to be cast on other parts of the evidence… Some parts of the evidence may shine with the light of credibility. The fact finder must consider all these points together; and… although some matters may go against and some matters count in favour of credibility it is for the fact-finder to decide which are the important, and which are the less important features of the evidence, and to reach his view as a whole on the evidence as a whole.

The Supreme Court has also confirmed in Ruppiah v Secretary of State for the Home Department [2018] UKSC 58 that the existing “little weight” provisions in section 117B “cannot put decision-makers in a strait-jacket which constrains them to determine claims under article 8 inconsistently with the article itself”. 

It is unclear therefore what these provisions will add to existing law and practice on the assessment of asylum and human rights claims, given the breadth of regulation already in place, and the over-arching international and domestic legal principles that apply in such cases.

By Sarah Pinder.

Priority Removal Notices

Clauses 18 to 21 and Schedule 2 introduce “Priority Removal Notices”, as if adding the word “priority” will magically make it so. These can be imposed on any person liable to removal or deportation.

Priority Removal Notices seem to build on the existing “One Stop Notices” provided for in section 120 of the 2002 Act.  Under clause 18, someone given a PRN will have to provide the Home Office, by a certain date, with the same information they would under a One Stop Notice, plus any information relevant to a human trafficking claim.

The Bill itself does not say who exactly will be hit with these notices. The explanatory notes state:

Factors which may lead to a person being issued with a PRN will be set out in guidance and will include, for example, where a person has previously made a human rights or protection claim.

Clause 20 addresses the consequences of failing to comply. Any information relevant to an asylum, human rights or trafficking claim that arrives late is deemed suspect:

the Secretary of State or (as the case may be) the competent authority must take account, as damaging the PRN recipient’s credibility, of the late provision of [evidence], unless there are good reasons why it was provided late.

Any evidence provided after the PRN deadline will have to be accompanied by a statement explaining why this is so, which presumably will be the opportunity to show that there are “good reasons”.

Clause 19 says that Priority Removal Notices remain in force for 12 months after the deadline or the person becomes appeal rights exhausted, whichever comes first. This period is important because of clause 21, which provides for fast-track appeals for people who have:

made a protection claim or a human rights claim on or after the PRN cut-off date but while the priority removal notice is still in force.

These “expedited” appeals will go straight to the Upper Tribunal, bypassing the First-tier. The tribunal will be forced to change its procedure rules to ram these cases through quicker than would normally be the case. Its judges will be allowed to take cases out of the expedited process if in the interests of justice to do so.

By Free Movement.

Accelerated detained appeals and certification

The issue of fast-track appeals for people in immigration detention, which appears in Clause 24, has reared its head before. The “Detained Fast Track” system, as it was then known, was subject to extensive litigation and eventually found unlawful by the High Court in 2015. The Court of Appeal agreed, describing the rules as “systematically unfair and unjust”. 

In response, the government insisted that an expedited appeals process for detained immigration appellants was necessary, but acknowledged that this was a matter for the Tribunal Procedure Committee. The committee looked into it and concluded that “in order to ensure that such a system would deal with cases fairly, it would need to include rigorous procedural safeguards to ensure that unsuitable cases were not included within the fast track system”.

Now we have the Bill and the introduction of “accelerated detained appeals”. This process tries to address the concerns previously highlighted in the Detained Fast Track litigation, including detainees finding it difficult to access legal advice. 

For a case to be treated as an “accelerated detained appeal”, the Secretary of State will need to certify it as such. Only cases of a “prescribed description” can be certified, but the meaning of this term is left blank and will be fleshed out in regulations. In other words, we don’t know from the Bill what kind of cases will qualify for the fast-track process.

A definitive timetable is also included. A notice of appeal will need to be lodged within five working days (same as the Detained Fast Track) and the First-tier Tribunal will need to make a decision on the appeal within 25 working days.

Without more information on what kind of cases can be fast-tracked, it is difficult to see how this addresses the pitfalls of the Detained Fast Track. It also does not address the primary source of delay in the asylum system: initial decisions, rather than appeals. The Migration Observatory at the University of Oxford has highlighted that in 2014, 87% of asylum applications received an initial decision within six months. By 2020, that had fallen to 22%.  

Clause 25 is headed “claims certified as clearly unfounded: removal of right of appeal”. It amends section 92 of the Nationality, Immigration and Asylum Act 2002, which triggers an out-of-country appeal in claims that are certified as clearly unfounded. It appears through the amendments that such clearly unfounded claims will have no appeal option at all, not even out-of-country. This does not mean that a person is barred from challenging certification by way of judicial review, though.

By Samina Iqbal.

Interpreting the Refugee Convention

Finally, clauses 27-34 address the Refugee Convention. They seek to do four main things:

  1. Translate some EU asylum law, currently residing in secondary legislation, into primary legislation.
  2. Turn back the clock on core principles of asylum law in relation to the identification of a “particular social group”, and the test and standard of proof for asylum claimants.
  3. Remove the protection against penalising refugees in Article 31(1) of the Refugee Convention from some asylum claimants.
  4. Lower the threshold for the definition of a “particularly serious crime” for the purposes of the Article 33(2) of the Convention. 

Those who want more detail on each of these four points can find it in a separate companion article (this one being quite long enough already): The Borders Bill and the Refugee Convention by Rudolph Spurling.

Dedicated, professional and hard-working, the Goldsmith’s Immigration and Public Law Group are renowned specialists in their fields. Regularly instructed on high profile and complex challenges, including judicial reviews and public law considerations, we draw upon expertise in a variety of areas – immigration, EU law, criminal law, civil law, and family law – giving you access to a team of experts covering all aspects of Immigration and Public Law.

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