Nationality and Borders Bill

Written evidence submitted by the Jesuit Refugee Service (JRS) UK (NBB07)

The Nationality and Borders Bill: JRS UK evidence to the Bill Committee

Executive Summary

The overhaul of the asylum system within the Nationality and Borders Bill (The Bill) focuses on making it as hard as possible to access international protection in the UK, extending as little protection to refugees as possible, and penalising refugees for how they travel. This is cruel and in many cases would fruitlessly prolong the asylum process. Numerous measures across the Bill would empower traffickers and make it harder to identify and support trafficking victims.

Our most prominent areas of concern are:

· Differential treatment of refugees (clause 10), primarily depending on how they got to the UK ignores the reality of forced migration as most refugees have no choice in how they travel; and abandons the very principle of international protection. The penalties the legislation provides for being imposed on refugees placed in the lesser ‘Group 2’ would also obstruct integration and be bad for society as a whole. The differential treatment of refugees should be abandoned.

· Criminalisation of irregular entry (clause 37) and narrowing immunity to prosecution for asylum claimants (clause 34) similarly ignore the reality of forced migration. These measures will also make it harder for victims of trafficking and other forms of modern slavery to approach police or other authorities, thus empowering traffickers.

· Out of town asylum accommodation centres (clause 11): The Bill includes provisions for expanding the use of asylum accommodation centres. Napier barracks, which acts a pilot for these centres, is prison-like and isolated, and a poor context for engaging with asylum claims. The use of ghettoised asylum accommodation centres is cruel and militates against integration.

· An unrealistic standard of proof in asylum determination (clause 29): By raising the standard of proof for determining if someone has a "well-founded fear of persecution", the Bill would mean an unrealistic burden of proof was placed on asylum claimants with reference to something inherently difficult to prove. This is against the backdrop of a well-established culture of disbelief, and a large number of refusals overturned on appeal.

· Measures to make it harder to bring evidence after making an initial asylum claim, and penalise delayed disclosure (clauses 18-23) overlook numerous good reasons for bringing further evidence and raising further issues after making an initial application.

· Detained Fast-track appeals (clause 24) would resurrect a process found to be profoundly unjust and unlawful.

· Provision for offshore processing of asylum claims (clause 26, schedule 3): offshore processing is highly impractical and unlikely to be workable. There is good evidence that it does not deter spontaneous maritime journeys, break the business model of people smugglers, or save lives at sea. It is likely to involve systemic cruelty.

· Increased barriers to recognition as a victim of modern slavery are found in numerous clauses across Part 4 of the Bill. These will hamper victim identification, and therefore both obstruct prosecution of traffickers and cut many vulnerable people off from badly needed support.

About JRS UK

The Jesuit Refugee Service (JRS) is an international Catholic organisation, at work in 50 countries around the world with a mission to accompany, serve and advocate on behalf of refugees and other forcibly displaced persons. JRS in the UK has a special ministry to those who find themselves destitute as a consequence of government policies and those detained for the administration of immigration procedures. JRS UK runs a day centre, activities, hosting scheme (At Home), and legal advice project for destitute asylum seekers, most of whom are pursuing fresh claims, and destitute newly recognised refugees; and detention outreach services to Heathrow IRC. We have also been providing practical and pastoral support to people accommodated at Napier barracks, and working partly within the barracks, since Autumn 2020.

Our evidence draws on our direct organisational experience of working with people in the asylum system, including in Napier barracks, and in immigration detention; on research conducted with people in the asylum system; and on testimonies from refugees and people seeking asylum.

Key concerns

Asylum

GROUP 1 AND GROUP 2 REFUGEES (CLAUSE 10)

Clause 10 would penalise people recognised as refugees on the basis of how they got to the United Kingdom and the point at which they presented themselves to authorities. Refugees who travelled via a third country, do not have documents, or did not claim asylum immediately would routinely be designated "Group 2" refugees. The Bill highlights length of limited leave, access to indefinite leave, family reunion, and access to public funds as likely areas for discriminating against "Group 2" refugees.

Differential treatment of refugees is irrational, unjust, and detrimental to society:

Penalising refugees for how they travel ignores the realities of forced migration. Most refugees have no choice of how they travel.

Global provision for refugees could not function if all refugees claimed asylum in the first safe country they came to. The Refugee Convention does not state that refugees must claim asylum in the first safe country they come to, and it permits refugees to cross borders irregularly in order to claim asylum. Most refugees are hosted in developing countries, and the UK receives fewer asylum applications than most other European countries. [1]

Discriminating against refugees obliged to arrive spontaneously will not prevent desperate people from making dangerous journeys. There is strong evidence that a policy focused on closing borders forces migrants and refugees to take more dangerous journeys and leaves them more vulnerable to traffickers. [2] This approach therefore does nothing to save lives at sea, and, far from breaking the business model of traffickers, will support it. It is therefore destructive to some of the government’s core aims.

There are good reasons that refugees may take time to disclose their need for asylum including trauma, and lack of understanding of the system (further details are given below in the section focusing on penalties for delayed disclosure). It is neither just nor rational to discriminate against a refugee because they did not claim at what appears to have been the earliest opportunity.

The limitations likely to be placed on Group 2 refugees (as outlined in clause 10, section 5), are not only needlessly cruel, but also will be seriously detrimental to society as a whole:

· Barriers to settlement in the UK [3]

These would require refugees to live with the threat of expulsion hanging over them. This would deny refugees a chance to rebuild their lives, which is needlessly cruel and would make it harder for them to integrate; and tear apart British communities, by forcibly removing refugees who have been living in the UK for some time and begun, despite obstacles, to put down roots.

The task of determining whether a ‘Group 2’ refugee is to be removed, and arranging for any removal, creates fruitless work for Home Office officials. Where Group 2 refugees cannot ultimately be removed, or are found to be entitled to stay, after their initial period of leave, both a shorter period of leave and a higher bar for acquiring indefinite leave are likely to entail a cycle of complex and potentially expensive applications to the Home Office. This would be of no benefit to any party involved, and is likely to discriminate against Group 2 refugees on lower incomes who could struggle to afford the legal advice and Home Office fees required for subsequent applications.

· Subjecting ‘Group 2’ refugees to No Recourse to Public Funds conditions [4] would:

o Make it harder for refugees to integrate and contribute to society, for example by preventing them from studying.

o Potentially deny them access to NHS care included in the NHS charging regime, thus risking public health.

o Consign refugees to poverty, and thus leave them vulnerable to exploitation and modern slavery. This enforced poverty could ultimately render state assistance necessary in cases where it would not otherwise have been so, by which point the difficulties experienced may be more extreme.

Reduced family reunion rights [5]

Reducing family reunion rights for those refugees placed in Group 2 constitutes a reduction of safe and managed routes for refugees, and is therefore likely to lead to an increase in dangerous journeys, including Channel crossings by small boat. It is also cruel and militates against integration.

Testimony

Aaron [6] is a refugee who travelled via other countries. Aaron was a young teenager when he had to leave Eritrea without his family. Aaron’s father had been conscripted into the country’s brutal military service. He came home to see his family. When he left again, he told his family that he was going back to his base but he never showed up there. The family didn't know anything about his whereabouts. The military came to Aaron’s house looking for his father and told Aaron’s mother that they would take her children, including Aaron if they couldn’t find his father. Aaron had no choice but to leave. "People really suffer", he says. "They don’t want to leave their country but their country forces them because military service in Eritrea is the worst thing. You have to serve the military forever. There is no life, there is nothing." He left Eritrea and spent two years looking for safety before he arrived in the UK. He travelled via Sudan and Libya, both of which were very dangerous. He then went to Italy, where he felt unsafe sleeping outside under bridges, and to France, where he ended up in the Calais jungle. "They didn’t treat us like human beings" he explained. He came to the UK in the back of a lorry. "I wasn’t expecting anything," he remembers. "I just escaped to keep my life, to be safe. That’s the most important thing." Aaron was in the UK asylum system for 7 years before finally being recognised as a refugee, and as having been one all along. He was initially refused asylum and had to submit a fresh claim. Now, he plans to study IT.

INADMISSIBILITY PROCESS (CLAUSES 13-15)

The Bill puts into law new immigration rules under which those arriving via another country or irregularly, or ‘could have been expected’ to make a claim elsewhere, face additional barriers to getting their claims heard. [7] Under the new approach, the Home Office deems their claims ‘inadmissible’ and seeks to remove them to another country. Transfer of asylum claimants out of the UK is unworkable, because it requires the agreement of third countries, and this is not forthcoming.

· The main impact of the inadmissibility process is to prolong the asylum process. It undermines the government’s stated aim of streamlining the asylum process and addressing the backlog of cases. This process has been in place since January 2021. We understand that so far not one person has been removed under it. JRS UK is currently working with asylum claimants at Napier barracks who have been issued with ‘notices of intent’ explaining that their claims may be inadmissible. As a consequence, they have not had an asylum interview, but are held in limbo in poor conditions. This is bad for them, bad for the Home Office, and bad for society.

· Where removal to a third country does prove possible, this process risks life changing decisions being made in an ad hoc way with virtually no scrutiny. Criteria for inadmissibility is vague and has the potential to be both broadly and unevenly applied.

CRIMINALISATION OF PEOPLE SEEKING ASYLUM (CLAUSE 37) AND NARROWER IMMUNITY FROM PROSECUTION (CLAUSE 34)

Undermining the right to seek asylum: The Refugee Convention allows people to cross borders without documents to claim asylum. The Bill includes criminal offences of entry and arrival without leave [8] , and to remove defences in law open to refugees – defences which seek to reflect the Refugee Convention. [9]

Empowering Traffickers: Criminalisation of clandestine entry makes it all but impossible for victims of trafficking to approach authorities and/or to disclose trauma to them. [10] Trafficking victims routinely explain to us that they have been told by their traffickers that if they seek help from authorities, they will be arrested, detained, and removed. One man, whom JRS UK met in immigration detention, told us he had assumed his traffickers had been lying to him when they said the authorities would detain him, but he now realised that his traffickers had been telling the truth all along. Criminalisation of immigration infractions, and increase of and a focus on pursuing these, thus plays into traffickers’ hands.

ACCOMMODATION CENTRES

The Bill contains a number of provisions in relation to asylum accommodation centres, with powers to expand their use. [11] One such centre is currently in use at the former Napier barracks, with the Home Office having confirmed that it is an opportunity to pilot accommodation centres. [12] JRS UK supports asylum claimants at Napier.

Napier is prison-like and isolated. It is a poor context from which to engage with an asylum claim on many levels: lack of community and detention-like setting are detrimental to mental health; isolation and lack of support networks make it harder to gather evidence and access adequate legal advice; and nearly everyone at Napier suffers from chronic sleep deprivation. [13]

Testimony

A man formerly accommodated at Napier described his experience to JRS UK: "I was suffering in the camp, there was security, there were police constantly coming and going, there was no freedom. The way we were treated, it denied us all freedom. I came to the UK full of hope that I would have a chance to be safe and have a good life, and then I found myself in this camp, with no freedom, it was just like a prison. In all the four months while I was in the camp, I must have left barely ten times. It is in a remote place and you have to walk quite far to end up somewhere equally remote. The camp is like being in a psychiatric hospital, or like being in prison, there are people rapidly becoming more and more mentally unwell around you, one has just tried to kill himself, another is in pain, another is very stressed and cannot cope. It just seemed safer to stay in my room and to avoid seeing all of this as I could not cope with it all the time. I did not feel like a person when I was there. I felt I had lost who I was, like my personality had gone."

AN UNREALISTIC BURDEN OF PROOF IN ASYLUM DETERMINATION

Clause 29 would raise the standard of proof used in asylum determination, thus placing an unrealistic burden of proof on asylum applicants.

It would specifically apply a higher standard of proof when deciding whether someone has a "well-founded fear of persecution". Currently, all relevant facts within an asylum claim must, in theory, be proved to a ‘reasonable degree of likelihood’. This standard, though often not adhered to, is reflective of 1) the inherent difficulty of proving one’s need for asylum and 2) the horrendous consequences of erroneously refusing someone – human lives are at stake. Under the Bill, "well-founded fear of persecution" would need to be proved on the "balance of probabilities". This would entail demanding an unrealistic level of proof for something inherently difficult to evidence, and thus result in denial of protection to many who need it. It obliges decision-makers to start from a place of suspicion and places decision-makers in a poor position to understand asylum claimants’ experience and history.

PENALTIES FOR DELAYED DISCLOSURE IN ASYLUM AND HUMAN RIGHTS CLAIMS

Clauses 16-23 contain provisions that would make it harder to bring evidence, and have it given significant weight, after making an initial application relating to asylum or human rights, or to bring fresh evidence after becoming appeals rights exhausted. However, there are many good reasons for delayed disclosure (these are also relevant to modern slavery cases, addressed below):

· Asylum interviews are daunting and difficult. The claimant does not know what to expect but is asked to recount events likely to be deeply traumatic. Many people struggle to understand the asylum process when first claiming, and so do not know what is relevant or how to navigate the system. In JRS UK’s research with refugees and asylum seekers, people often described feeling subject to an opaque system that made no sense. One person explained: "It’s like talking to a machine. No one is ever responsible... It’s so impersonal. People are just numbers." [14]

· It is difficult to access high quality, timely legal advice, without which it is virtually impossible to navigate the process. Since 2005, there has been a huge reduction in free asylum legal advice: across the UK, between 2005 and 2018, 56% of legal aid providers in asylum and immigration were lost and not- for-profit providers fell by 64%. [15] In the experience of JRS UK’s legal team, this frequently necessitates not only appeals but also fresh asylum claims.

· There are myriad, interacting, psychological and cultural barriers to disclosure, especially of trauma. [16] It is frequently difficult to talk about traumatic events, such as torture, sexual violence, or exploitation. These are, obviously, likely to be key to an asylum case. Social stigma, also pose a big barrier to disclosure, for instance in LGBTI cases. [17]

· It is difficult to collect documentary evidence where relevant events occurred on another continent, sometimes a long time ago, and the claimant had to flee in haste. Evidence that supports a claim and contains important information therefore often becomes available after the claim has first been made.

For these all of these reasons, it is specifically problematic to prevent people from being able to bring further evidence for 12 months after they have been issued with a "Priority Removal Notice" (as in clause 19).

NARROW AND OBSTRUCTIVE FOCUS ON AN ASYLUM CLAIMANT’S CREDIBILITY

Penalties for delayed disclosure, a higher threshold for determining well-founded fear of persecution, and the requirement for asylum decision-makers to interrogate claimants’ "Good Faith" (Clause 17 and Clause 64) start from a place of suspicion that is not conducive to understanding. Furthermore, the framework for judging credibility relies on an unrealistic picture of most asylum claimants’ situations, as noted in the comments above on penalties for delayed disclosure.

In fact, a long-standing culture of disbelief and refusal in asylum determination is well-documented. [18] There is much evidence that Home Office caseworkers often apply an excessive standard of proof to asylum claims, and either simply prejudge claimants’ credibility – starting from the position that people are lying – or conclude that they are lying without sufficient consideration. [19] New measures further embed and formalise suspicion within the asylum system. Approximately 40% of refusals are overturned on appeal to the courts, indicating a serious systemic flaw in initial decision-making. Rather than seeking to improve decision-making, the Nationality and Borders Bill takes the most problematic aspects of current practice and makes them law.

Testimony

Cecile, a refugee who fled political violence and imprisonment in Central Africa, explained: "During my asylum interview, I thought everything went well. I explained everything and I thought I answered the questions very well. There were two women and they were really kind, but I think there were some traps – traps behind the questions that I didn’t realise. I was really afraid. I explained everything to them. I told them about all ordeals that I had been through…My refusal was really death. I could see death. The letter came two weeks later. I had to get someone to translate it. The letter said that they didn't believe my story. I told myself they’d deport me back to my country. I was so afraid. My blood pressure went up. I couldn't even eat…It really just came down to the fact that the dates I gave were not exact, and the Home Office held that against me. I had been so confused myself that I couldn't give the correct date."

DETAINED FAST-TRACK APPEALS

The Borders Bill re-introduces a fast track appeals process for people detained under immigration powers: People detained under the ‘accelerated appeals’ procedure will have 5 days within which to lodge an appeal, and the First-tier Tribunal will have 25 days from the point of an appeal being lodged to decide an appeal. This is disturbing on a number of levels.

· It does not offer enough time for the process to work justly; for example, it does not offer enough time to secure legal advice.

· Detention is an extremely poor context from which to navigate an asylum claim, and detention obstructs the asylum process. [20]

· Previous attempts to fast-track asylum determination in detention have been ruled illegal because the process they yielded was so unfair. Rather than seeking to learn the lessons of the past, this bill seeks to resurrect an unworkable and unjust system.

· This is likely lead to an increase in the detention of people seeking asylum. Detention is deeply traumatic experience. Torture survivors routinely describe it as torture. [21]

Testimony

Joel [22] fled a war-torn country in West Africa. He arrived on a visa and later went to claim asylum. He was immediately detained and placed on the detention-fast track scheme. Within two weeks, his case was refused. Because he was in detention, he wasn’t able to gather documents to corroborate his story, and he was disbelieved. He explains the process was rushed and he "the judge doesn’t even have enough time to make his judgements. But lives are at stake." He was eventually released from detention, and ultimately put in a fresh claim for asylum. This time, he was able to collect the relevant documents. Nearly six years after he first claimed asylum, he was recognised as a refugee. He is now starting to rebuild his life. The detained fast-track system yielded an unfair process that took 6 years of this young man’s life.

OFFSHORE PROCESSING

The Bill would allow for asylum seekers to be removed from the UK while their claims are being processed, opening the door to offshore processing of asylum claims. [23] This would be highly impractical and costly, and has given rise to serious human rights abuses in other contexts where it has occurred. [24] It undermines our commitment to processing claims fairly and offering sanctuary to refugees.

Modern Slavery

Measures across part 4 of the Bill would make it harder for victims of modern slavery to gain recognition and support.

PENALTIES FOR DELAYED DISCLOSURE

Clauses 46 and 47 make it harder to bring evidence of being a victim of modern slavery, and have it given significant weight, if one did not do so within a short and specified timeframe. This ignores the many barriers to disclosure faced by victims of modern slavery. Numerous of these – such as trauma, and not understanding the system, overlap heavily with reasons for apparently delayed disclosure in relation to an asylum or human rights claim, and are addressed above.

Victims of modern slavery are especially likely to struggle to trust authorities: as noted, trafficking victims routinely explain to JRS UK team members that they have been told by their traffickers that if they seek help from authorities, they will be arrested, detained, and removed. This is a serious barrier to disclosure and to full engagement with relevant authorities, such as police and the Home Office.

A HIGHER EVIDENTIAL BAR FOR RECOGNITION AND SUPPORT

Clause 48 raises the evidential bar for a potential victim of trafficking to be given a positive reasonable grounds decision, so that there must be reasonable grounds that the person is rather than may be a victim. Victims already face immense barriers to recognition. JRS UK frequently works with people with strong indicators of trafficking who have received negative decisions within the NRM. Last year, 81% of first stage, and 75% of second stage, trafficking rejections that were challenged were overturned. [25]

The lower threshold currently in place at least seeks to reflect the inherent difficulty of proving one is a victim and allow one to access support while the issue is further assessed.

EXCLUSION FROM PROTECTION AND SUPPORT ON GROUNDS OF CRIMINALITY IS LIKELY TO IMPACT VICTIMS WHO ARE CRIMINALISED AS A DIRECT RESULT OF BEING EXPLOITED

Clause 51, subsections f-I contain exclusions for victims of modern slavery from protection and support on grounds connected to criminality. This is troubling because many victims of modern slavery have criminal convictions directly resulting from their exploitation. The experience of JRS UK’s detention outreach team offers a clear example.

JRS UK frequently supports victims of trafficking who have been trafficked to the UK for exploitation on cannabis farms. Following police raids on these farms, they have been charged with offences related to cannabis production, advised to plead guilty by duty solicitors, convicted and imprisoned. They had typically served sentences of 12 months or more, and would thus be excluded under Clause 51, subsection f. JRS UK has encountered them whilst they are awaiting deportation in immigration detention. [26] Many of these individuals have gone on to be recognised as victims of trafficking. This legislation would exclude them from support.

Recommendations

· Refugees and people seeking asylum should never be penalised for how they travelled to, arrived at, or entered the UK. Clause 10 should be removed.

· Asylum claimants should be given safe and dignified accommodation within British communities. Plans for accommodation centres should be abandoned.

· Plans to raise the threshold of proof in asylum determination should be abandoned.

· Asylum and modern slavery legislation should reflect the difficulty asylum claimants and modern slavery survivors have in disclosing and bringing evidence, and the delay this can cause.

· Combat the culture and praxis of disbelief in asylum decision-making, and foster a culture and praxis of protection.

· Asylum claims and appeals should be processed in the community, and not in detention.

· Plans for offshore processing of asylum claims should be abandoned.

· Plans to raise the threshold of proof for a positive reasonable grounds decision in modern slavery cases should be abandoned.

Concluding Remarks

This legislation would make it very difficult for refugees to rebuild their lives in Britain. It creates barriers to protection wherever possible. As such, it is cruel and abandons our duty to refugees as members of the global community. By formalising and entrenching a hermeneutic of suspicion within the asylum system, it entrenches a culture and praxis which is obstructive to justice and urgently needs to be rooted out. The Bill is also self-defeating with regards to several of the government’s stated aims: combatting trafficking; creating a more efficient asylum process; and preventing people from making dangerous journeys. The Bill’s punitive approach to informal migration would empower traffickers, making it harder for victims to come forward. Numerous clauses within this legislation would entail processes that are unworkable.

September 2021


[1] In 2019 there were approximately, 128,940 asylum applications in France compared with 35,566 in the UK.

[2] See E.g. Foreign Affairs Select Committee, “ Responding to Irregular Migration : a diplomatic route” 2019; JRS Europe, “Forgotten at the gates of Europe: ongoing protection concerns at the EU’s external border” 2018, p.7.

[3] Clause 10, subsections 5a and 5b.

[4] Clause 10, subsection 5c.

[5] Clause 10, subsection 5d.

[6] Aaron is a pseudonym.

[7] Introduced under Rule 345A to D.

[8] Clause 37.

[9] Clause 34.

[10] For difficulties asylum claimants face in approaching police see JRS UK, “Out in the Cold”, p.18 and JRS UK “ Being Human in the Asylum System ”, p.20.

[11] Nationality and Borders Bill, Clause 11.

[12] In a letter from Kevin Foster, MP, to the APPG on detention, dated 27.8.2021, available here .

[13] JRS UK has accompanied and served approximately 140 asylum claimants at Napier since the site opened in September 2020. This observation is drawn from our work with them .

[14] JRS UK, For Our Welfare and not for Our Harm , authored by Dr Anna Rowlands.

[15] Refugee Action, “Tipping the Scales: access to justice in the asylum system”.

[16] See for example Paaras Abbas, Martha von Werthern, Cornelius Katona, Francesca Brady and Yeree Woo, “The Texture of Narrative Dilemmas: qualitative study in front-line professionals working with asylum seekers in the UK” , BJPsych Bulletin, Volume 45 , Issue 1 , February 2021 , pp. 8 – 14.

[17] This is widely documented. For example, see UKLGIG (now Rainbow Migration), “ Still Falling Short : The standard of Home Office decision-making in asylum claims based on sexual orientation and gender identity”, 2018.

[18] Freedom from Torture, Lessons not Learned : the failures of asylum decision-making in the UK (2019).

[19] See for example, Freedom from Torture, Beyond Belief : how the Home Office fails survivors of torture at the asylum interview (2020).

[20] JRS UK, “ Detained and Dehumanised : the impact of immigration detention”, p.24.

[21] See JRS UK, “ Detained and Dehumanised : the impact of immigration detention” (2020).

[22] This is a pseudonym .

[23] Nationality and Borders Bill, Schedule 3.

[24] For example, in 2018, the UNHCR was obliged to urge the Australian government to evacuate its offshore facility at Nauru due to spiralling health concerns: https://www.unhcr.org/uk/news/briefing/2018/10/5bc059d24/unhcr-urges-australia-evacuate-off-shore-facilities-health-situation-deteriorates.html .

[25] Home Office response to an Freedom of I nformation request submitted by the NGO After Exploitation .

[26] For further details, see JRS UK’s Topical Briefing “Survivors of Trafficking in Immigration Detention” (June 2019), available for download here .

 

Prepared 21st September 2021