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The Nationality and Borders Bill 2021: first impressions

The Nationality and Borders Bill 2021: first impressions

The much-hyped Nationality and Borders Bill is here. It mainly addresses asylum issues but there are some nationality provisions included as well, which we have already covered and will return to in another article soon.

My first impressions, reading through the Bill, are that

  1. A lot of it is already law so it isn’t actually very new at all.
  2. The bits that are new are likely to lead to a lot of uncertainty and litigation, which is good for lawyers but bad for refugees and the public purse.
  3. There is some genuine nastiness included.
  4. The Bill will only worsen the problems with the United Kingdom’s current asylum system.

The major problem with that system is that it takes far too long for the Home Office to decide an asylum claim. The number of people waiting more than 12 months for an initial decision was over 33,000 last year (ten times the number in 2010), according to recent research by the Refugee Council. This is bad for genuine refugees. It is, arguably, good for those whose cases ultimately fail.

It is worth remembering that the number of asylum claims made in the United Kingdom is historically low and actually fell last year. That the majority of the few asylum seekers reaching the UK are genuine refugees who will win their legal cases. And that there is no evidence at all that being unpleasant to refugees after they arrive deters others from coming in future.

What follows are my first impressions on an initial read through. Some may be wrong or have missed an important point and I welcome comments.

Means of entry

Criminal offences are addressed below.

Clause 10 ominously allows for “differential treatment of refugees” depending on their mode of arrival. I can think of no particular reason why this needs to be in primary legislation: the Home Secretary could always and indeed already does treat refugees differently depending on their mode of arrival.

The clause adopts the wording of Article 31 of the Refugee Convention on “coming directly from a territory where their life or freedom was threatened”. This wording was interpreted broadly and in line with the clear intentions of the drafters of the Refugee Convention in the case of ex parte Adimi, which we have discussed previously.

Clause 34, on the interpretation of the Refugee Convention, then arguably imposes a more limited meaning, however:

A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.

The differential treatment in question is not limited in any way but some examples are given including length of leave, requirements to meet for settlement, conditions attached to leave and treatment of family members: see clause 10(5). Creating a broad, unlimited power then setting out examples seems to me a strange way to draft legislation.

Clause 11 allows for differential provision of accommodation to asylum seekers depending on the stage of their claim and their compliance with various conditions. This makes it look like asylum camps like the Napier barracks will be used as a form of punishment for asylum seekers who travel via safe third countries or do not comply with conditions. Again, there does not seem to be any particular need for this to be in an Act of Parliament as the Home Secretary could already do this and indeed has been doing this. However, clause 15 seems to make an asylum camp the only form of accommodation to which some asylum seekers will be entitled.

Clause 12 adjusts the existing legislation on where refugees may claim asylum. Reading through the clause, I cannot immediately see the point of the changes, given that the Home Secretary was already able to designate specific places to claim asylum. The new legislation seems to reduce the Home Secretary’s flexibility.

Admissibility and delays

The Bill allows for asylum claims to be declared inadmissible if an asylum applicant is an EU citizen or has a connection to a safe third country. The new rules appear at clauses 13 and 14 by adding new sections 80A to 80C to the Nationality, Immigration and Asylum Act 2002.

These rules are not new. Essentially the same rules have already been in place since 1 January 2021 under the Immigration Rules. Not a single person has so far been removed to a safe country under the rules because no safe country has yet agreed to receive them. The only effect so far has been to increase the number of asylum applicants waiting for a decision on their cases. During that time, the asylum applicants, around 60-70% of whom are genuine refugees who will ultimately win their cases, are prevented from working and instead supported by the state, albeit in disease-ridden dormitory accommodation

What is new is that where an asylum claim is declared inadmissible, clause 15 seems to remove the right to normal asylum support and clause 11 to allow for the person to be put in differential accommodation, as discussed above.

Detention and removals

The power to remove an asylum seeker to a safe third country is introduced by clause 26 alongside Schedule 3. Any such removal depends on the agreement of a third country to accept the asylum seeker in question and no such agreements have yet been reached.

Clause 43 reforms the removal power in the Immigration Act 2014. I am not sure I am reading this quite right as it appears to introduce additional procedural safeguards, perhaps linked to the series of cases the Home Office has lost on so-called “removal windows“.

Under clause 45, there is a new consideration for those considering whether to release someone from detention on immigration bail. The decision-maker will have to factor in whether the person has “failed without reasonable excuse to cooperate” with the Home Office in various ways.

Down in the miscellaneous provisions is a power for the Secretary of State to delay or even suspend visa processing for citizens of countries which she believes uncooperative with removals. This looks a lot like a draconian “group punishment” clause which one would hope would never be used other than in negotiations with another country.

Appeals

Clauses 18 to 21 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. Rather than increasing resources for the efficient First-tier Tribunal, these will cause an appeal to be heard directly in the Upper Tribunal. Such appeals have to be determined “more quickly than an appeal under section 82(1) would, in the normal course of events, be determined by the First-tier Tribunal.”

Looks like we are back to single tier appeals, then, at least in some cases. There is no new idea under the sun, it seems. See further the Asylum and Immigration Tribunal, 2005-2010.

Upper Tribunal judges will no doubt be delighted about this (sarcasm: they won’t), and it seems likely that a load of First-tier judges will have to be moved to the Upper Tribunal. This creates huge pressure on judges to get it right first time and inevitably leads to more appeals to the Court of Appeal.

Clause 24 gives us “accelerated detained appeals”, the latest incarnation of the Detained Fast Track procedure designed to hustle asylum seekers out of the country with as few questions asked as possible. The Bill gives the Secretary of State the power to certify certain cases as suitable for an accelerated appeal. Only cases of a “prescribed description” can be so certified, and the meaning of prescribed description is left up to future regulations. The supposedly independent Tribunal Procedure Committee is instructed to introduce various time limits in primary legislation: clause 24(3).

There are several provisions which, yet again, seek to penalise the submission of late evidence in a case. These include clauses 16, 17, 20 and 23. My first impression is that there is little new here because there is already a requirement to state all the reasons for an appeal at an early stage and judges already question why late evidence is late. The equivalent provisions targeting human trafficking claims (clauses 46/47) may be more significant, given that there is no formal right of appeal against a refusal to treat someone as a trafficking victim.

The tribunal will be given the power to fine legal representatives for improper, unreasonable or negligent behaviour — including the Secretary of State. On the face of it, if I am reading this correctly, the Secretary of State’s representatives on earth (Home Office Presenting Officers) would become personally liable. I don’t think they’ll be terribly pleased about that.

Interpreting the Refugee Convention

Clauses 27 to 35 add various glosses to the wording of the Refugee Convention. It is never desirable to add domestic interpretations of an international treaty, but some of these provisions merely reflect the status quo. Clauses 28, 30, 31, 32 and 33 seem to replicate the provisions of the EU’s Qualification Directive. The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 that currently do this job will be repealed. A close reading may reveal differences but the new clauses look at least broadly in line with the old law.

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There is an issue with membership of a particular social group being defined in such a way as to overrule the Shah and Islam and Fornah cases from the Supreme Court but that is unlikely to affect that many cases.

Clause 29 is terrible: it introduces a split standard of proof in asylum cases and, possibly, a requirement for subjective fear. This looks inspired by the approach in the United States. Historical facts will be determined on the balance of probabilities standard and future risk on the reasonable degree of likelihood standard. This is likely to lead to a LOT of unnecessary litigation in the courts while judges work out what on earth it means and how it works in practice. This has all been settled law in the UK since the House of Lords case of Sivakumaran in 1987 so a Supreme Court case is basically inevitable. Ultimately it will probably make very little difference in real life. Most judges aren’t going to send an asylum seeker back to be persecuted if they think there’s a real risk of that happening.

Some provisions on “good faith” at clauses 17 and 64 fall into the same category: lots of scope for litigating what it all means but will probably make no real difference in real life. There is a similar requirement in Australia, which is no doubt from where the idea comes.

Clause 35 reduces the “particularly serious crime” definition applicable to Article 33 of the Refugee Convention from two years to one year. It is hard to see how this is compatible with the word “particularly”.

Criminal offences

As advertised, some of the criminal offences connected to immigration are being toughened up. The offence of illegal entry is being re-written and will attract a maximum sentence of 12 months or up to four years on indictment, up from six months now. On our reading of clause 37, it looks like any asylum seeker knowingly arriving without entry clearance or entering the UK without permission (“leave”) to enter will have committed an offence. If this reformed offence is actually enforced and prosecuted (unlike the overstayer offence, for example) it looks like we are talking about thousands of additional convictions every year and a significant growth in the prison population. It is also clearly in violation of the non-penalisation clause at Article 31 of the Refugee Convention and therefore in breach of international law. As we’ve discussed before, this does not prevent the government from introducing such a law as the Refugee Convention is not directly effective in UK law.

On “facilitation”, or assisting unlawful immigration, clause 37(4) appears to close off a defence currently relied upon by those prosecuted for piloting small boats across the Channel.

Helping an asylum seeker enter the UK will no longer need to be “for gain” to attract criminal liability. The core of the offence will read as follows:

A person commits an offence if—
(a) he knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the United Kingdom of an individual, and
(b) he knows or has reasonable cause to believe that the individual is an asylum-seeker.

It depends on how one interprets “facilitates”, but removing the stipulation about gain is an odd look for a Bill that professes to target organised crime. While someone working for an organisation that “aims to assist asylum-seekers” cannot be charged with this offence, someone who works for a more general-purpose charity like the RNLI and who helps an asylum seeker enter the UK may, on the face of it, be criminalised by this change.

The maximum sentence for the general assisting unlawful immigration offence is raised to life from 14 years by clause 38.

Human trafficking

We will have to return to this in more detail, but the changes to the trafficking support system look largely as advertised in the New Plan for Immigration. On the one hand, there are provisions such as clause 48 designed to make it a bit more difficult for people to be recognised as victims. People will also be disqualified from trafficking protections not only if they are a “threat to public order”, but also if they have claimed to be a victim “in bad faith” (whatever that means).

On the other hand, there will be a duty placed on the Secretary of State to provide “any necessary assistance and support” to potential victims, albeit that what is “necessary” is to be determined by the Secretary of State herself. Likewise confirmed victims will get permission to remain under a similar test of government-determined necessity.

Conclusion

Ministers are going to batter us over the collective head with the word “reform” in describing this Bill. True reform takes more than grafting extra complexity and nastiness onto existing asylum structures. What we need is faster, more efficient decision-making and more humane treatment of those who will ultimately be recognised as refugees. This Bill will lead to more delays and it punishes genuine refugees for having the temerity to come to seek sanctuary in our country rather than remain someone else’s responsibility.

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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