RLS response to Borders Bill: asylum under threat across Europe

20.07.2021

The Home Secretary’s Nationality and Borders Bill has just passed its second reading in the House of Commons. It comes at a time when access to asylum and the protection of human rights across Europe are under threat, and commitment to the Refugee Convention is more fragile than ever. Refugees are consistently demonised in the media, referred to as a threatened invasion or willingly confused with organised crime and illegality[1].

In this context, the government initiated a consultation process for its New Plan for Immigration, and RLS along with many civil society organisations expressed its concerns that the proposals did nothing to improve our asylum system, but rather addressed incendiary, populist and racist concerns about refugees. Unfortunately, the consultation process did not lead to a substantive change in direction.

A 2020 Ipsos poll found that globally seven in ten adults (72%) believe in the fundamental right of refugees to seek refuge – including in their own country - to escape war or persecution. This then raises the question: what can we reasonably ask of a person seeking asylum? This new bill appears to have been drafted without asking that question, yet that is the what the asylum system is meant to address (and what the government has stated is its goal in reforming asylum law [2]). In this respect the bill falls short across the board. Here are some of the most worrying developments:

Unlawful discrimination (Means of Entry)

The bill proposes a differential treatment of refugees based on how they entered the UK[3].

It sets out that refugees who enter the UK directly from the country they are fleeing and who have leave to remain should be subject to more favourable treatment[4] (and that other refugees and their family members should have shorter residence permits and be subject to additional requirements[5]). The proposal is based on a false distinction between legal and illegal asylum-seekers. It is legal to enter the UK to claim asylum without leave to remain – in fact, that is the point of seeking asylum.

The bill flatly ignores how and why people flee their country: refugees do not have leave to remain, that is why they need to seek asylum. Coming to the UK to claim asylum without leave to remain is generally the only option available.

The emphasis on direct travel is not new: with the recent designation of Turkey as a safe third country, the Greek government is pursuing the same policy, and the European asylum system risks becoming a morally bankrupt series of chain-pushbacks. Refugees are pushed back from one country to the next, in violation of the letter and spirit of Convention – the principle of non-refoulement.

Especially for a country like the UK, over-emphasising the safe-third country rule is disingenuous: the countries at its borders are not at war, and travelling to the UK will almost by definition involve passing through another European country. If the means of entry and safe third country requirements are applied in the way suggested by the bill, the UK would never have to accept any refugees. The logic underlying the proposals is that the United Kingdom should never be obligated to consider an asylum application, but rather that it can at its discretion shop around the world for refugees it is willing to accept.

This is not how the Refugee Convention was drafted: it places binding obligations on its signatories, and if the UK is serious about its commitment to international law, it has a moral obligation to apply it in good faith.

Moreover, the Home Office has so far failed to negotiate any returns agreements with former EU partners as safe third countries, and there is no evidence going forward that this is likely to materialise. The provisions seem to have no purpose but to penalise and deter, with no regard for achievability or efficacy.

Keeping families apart (Family Reunion)

Under the proposed two-tier system, those at risk of persecution in their country are denied access to family reunion[6], despite research demonstrating that refugees who join family will be more able to live a stable life and to culturally and economically navigate the new environment. This benefits the UK as a whole, while allowing refugees to live with their loved ones. No one benefits from keeping families apart.

Using refugees as bargaining chips (Detention and Removals)

Under section 59, the Secretary of State would reserve the right to cease processing applications for countries it deems uncooperative (for example, a country that does not accept refused asylum-seekers). This means the government could use refugees as a bargaining chip, to make the state they are fleeing accept more removals. It creates the scope for an absurd kind of “group punishment”, holding refugees responsible for the state they are trying to flee.

Misdirecting attention (Appeals)

In the New Plan for Immigration, the government has already expressed its desire to limit the scope for appeals which it argues are baseless and time-consuming. To focus on appeals is to ask the wrong question: there is a general consensus that it is the quality and excessive duration of Home Office decisions which are rendering the asylum system ineffective. Appeals exist to compensate for this – in fact, since 2017 more than a third of these appeals have been consistently allowed, which indicates that the Home Office routinely is making protection decisions that are not legally sustainable[7]. To politicise the appeal process is to misdirect attention.

Watering Down the Refugee Convention

The bill contains further “interpretation”[8] of the Refugee Convention. While domestic implementing legislation is crucial, there is a real risk that the Convention is watered down by adding extra hurdles to refugee recognition. For example, the bill further amends the controversial s8 credibility test, which in essence requires extremely high standards of cooperation with the asylum process (while the word “credibility” is never used in the Convention). This kind of requirement, which relates to interaction with the asylum process rather than with the basis of an asylum claim, widens the scope for refugees as defined by the Convention to be refused asylum.

Criminalising Civil Society (Offences)

Much like the famous délit de solidarité in France, the bill proposes to criminalise helping undocumented refugees enter the country (s38), even when there is no personal gain. This could include accommodating refugees in the UK. Despite stating that the government’s intention is to clamp down on human traffickers, they have removed the “for personal gain” element of this criminal offence, which is what defines human trafficking. Civil society which supports refugees is under threat across Europe, from the UK and France to Greece, Poland and Hungary.

The bill fits into a deeply worrying trend across Europe: it doesn’t address the issues in the asylum process, and creates new problems which undermine the human rights framework it is supposed to enshrine. We urge the government to think again.

There is a tendency to see the law as set in stone, and to trust that politics is bound by legal safeguards – this is only true insofar as politicians are held accountable. Publicly expressing support for refugees and for asylum are the only real safeguards that keep our system of international protection safe.

[1] The word “illegal” appears in the New Plan for Immigration 74 times, frequently in relation to routes to asylum. [2] https://www.gov.uk/government/consultations/new-plan-for-immigration [3] Section 10, Nationality and Borders Bill [4] Ss2-4, Nationality and Borders Bill [5] Ss 4-5, Nationality and Borders Bill [6] S10(5)d. [7] https://www.gov.uk/government/statistical-data-sets/asylum-and-resettlement-datasets#asylum-appeals [8] S27-35