Discussion on The UK Government’s New Immigration Bill – The ‘Nationality and Borders Bill’

(Image from UK Parliament, https://bills.parliament.uk/bills/3023)

Student Advisor and TAP Deputy Coordinator, Ronan Leslie, discusses what the bill means and the possible effects it could have to those in need.

The UK government’s flagship immigration bill has recently passed its second reading in parliament and is heading towards committee stage scrutiny. As it stands, the Nationality and Borders Bill contains provisions which seem to contrast with the UK’s international obligations. The stated aim of the legislation is that it will streamline the asylum process and help clear a backlog of cases. However, in reality, it seems likely to make the system more hostile and inaccessible to those in need

Differential Treatment

Section 10 of the bill is entitled ‘differential treatment of refugees’ and, in essence, creates a tiered system of refugees in the UK. A refugee can be treated as ‘Group 1’ if (1) they have come to the United Kingdom directly from a country or territory where their life or freedom was threatened and (2) have presented themselves without delay to the authorities. Additionally, if entry to the UK is deemed unlawful a further good cause condition is to be satisfied. Any person who does not satisfy these conditions is to be treated as a ‘Group 2’ refugee.

Why is this important? Firstly, the bill allows for immigration officers, tribunal judges, and the Home Office generally, to treat Group 2 refugees and their families ‘differently’. Differently, in this context, almost certainly means status as a Group 2 refugee will be treated as an aggravating factor in your claim for asylum, whilst limiting leave to remain given on arrival. But not only this, the bill makes mention of a difference in treatment with respect to section 3(1)(c)(ii) of the Immigration Act 1971, or as commonly known, ‘no recourse to public funds’. This means the bill will aim to stop Group 2 refugees from accessing any sort of welfare funding while awaiting their decision.

Conditions for Group 2 refugees

Condition 1 states that a refugee must arrive directly from their home country. This is concerning not only because this means that refugees who wish to be treated as Group 1 must either fly to the UK legally and directly, but also in regards to a further provision, section 14, ‘Asylum claims by persons with connection to a safe third State: inadmissibility’. This section allows judges to find asylum claims inadmissible if they have a relationship with a safe third country. The bill goes on to detail some very wide conditions that qualify this relationship. Most notably, s14(80C)(4) qualifies the sufficient relationship as having been ‘present in, and eligible to make a relevant claim to, the safe third State’. This condition appears so wide it would see almost all Group 2 refugees have their asylum claims deemed inadmissible, as it is almost certain that a refugee, not arriving directly, will at some point travel through, and may have been able to claim in, what is deemed to be a ‘safe third country’. Whilst ‘safe third country’ rules are already in place as immigration casework guidance this will be the first time they are placed on a stronger statutory footing.

Condition 2 states that a refugee should present themselves to the authorities without delay, a condition which taken alone may seem reasonable. However, further provisions in section 12 of the bill detail the creation of a requirement to make claims at ‘designated places’ selected by the Secretary of State and give relatively broad discretion as to where these might be. Worryingly, it is not clear what level of delay would lead to a contravention of this condition, and whether refugees may be allocated into Group 2 status for simply taking the time to find an appropriate place to claim.

Legality 

The bill, which passed unamended, seems almost certain to face litigation in many areas, not least for its seeming violation of article 31 of the 1951 Refugee Convention (see legal opinion obtained by Freedom from Torture at https://www.freedomfromtorture.org/sites/default/files/2021-07/Nationality%20and%20Borders%20Bill_second%20reading%20briefing_Freedom%20from%20Torture_0.pdf ), and contravention of the UN Global Compact for Safe, Orderly and Regular Migration (Marrakesh Compact) which prohibits regression of asylum laws (see https://rli.blogs.sas.ac.uk/2021/09/08/from-the-consultation-for-a-new-plan-for-immigration-to-the-nationality-and-borders-bill/).

What shouldn’t be relied upon, however, is the notion that litigation will save us from the intentions of this bill once implemented. The impacts will be felt by a great many already vulnerable people and there is a risk that quashing aspects of it through litigation may create a backlash, feeding the culture war, and potentially triggering a removal of Britain’s obligations to other international treaties.

Conclusion

In the bill’s introduction, the Home Secretary states:

‘The rapid intake of asylum claims has outstripped any ability to make asylum decisions quickly meaning caseloads are growing to unsustainable levels’

The  solution to clearing the backlog should not, however, be one that makes more cases inadmissible, especially given that there are other ways of clearing the backlog whilst still complying with international obligations (see https://www.unhcr.org/uk/609123ed4.pdf).

There are many provisions to fear in this bill (such as a section that seems to outlaw the Royal National Lifeboat Institution (RNLI) from saving drowning migrants in the channel) and it is encouraging that many organisations are seeking to challenge it. In the meantime, we should continue to help and support as many people as we can before this bill makes what is already a merciless process a whole lot worse.

Ronan Leslie, Student Advisor and TAP Deputy Coordinator.

To receive monthly updates on the work completed by the University of Strathclyde Law Clinic straight to your email, please sign up here.