Border Security, Asylum and Immigration Bill

Written evidence submitted by the Refugee Law Initiative, University of London (BSAIB14)

1. Established in 2010, the Refugee Law Initiative is a specialised independent academic centre, based at the School of Advanced Study, University of London. It serves as a leading centre in the UK for bringing together leading refugee law researchers and practitioners from across the world. Our evidence shares with the Committee our viewpoint, as academic specialists in refugee law, on matters that directly concern the law and protection of refugees.

2. Clauses 37 to 39 of the Bill (at Second Reading) propose repealing the entirety of the Safety of Rwanda Act 2024 and the majority of the Illegal Migration Act 2023, as well as providing for consequential amendments. According to the Bill’s Explanatory Notes, reasons for repeal include: causing ‘complexity for the immigration system’; and creating a risk of the government acting inconsistently with the law. The proposed changes are welcome.

3. At the same time, Parliament’s deliberation of the Bill offers a unique opportunity to deal with similarly unworkable and pernicious provisions introduced in pursuance of the same ‘New Plan for Immigration’ by the Nationality and Borders Act 2022 (‘the 2022 Act’). Several Sections of the 2022 Act fulfil no obvious purpose other than complicating and further undermining the functioning of our country’s system for determining refugee status.

4. Repealing or amending those Sections of the 2022 Act would reinstate the established British approach to refugee law developed over decades by our judiciary and civil servants. It would bring us back into line with international understandings of the scope of refugee law. It would bring administrative benefits by resolving the challenge faced by judicial and government decision-makers in applying a series of confusing, clumsy and ill-conceived provisions.

5. In particular, the Committee should consider adding a new clause to the Bill to repeal Section 12 of the 2022 Act on differential treatment of refugees; and to repeal or amend Sections 30-39 of the 2022 Act on interpretation of the refugee definition in the 1951 Refugee Convention. Our reasons are detailed in brief in the pages that follow; and we would be pleased to provide further evidence to the Committee on any question arising.

SECTION 12 - DIFFERENTIAL TREATMENT OF REFUGEES

6. Section 12 of the 2022 Act allows the UK to treat some refugees (Group 2) less favourably than others (Group 1). In essence, this provision purports to create a two-tier system of refugee status in which Group 2 refugees are disadvantaged in material ways as a sanction for the manner in which they sought asylum in the UK.

7. Section 12 was brought into force with Royal Assent on 28 June 2022. But, within 12 months (on 8 June 2023), it was announced that the policy was being paused as from 17 July 2023. [1] Furthermore, it was announced that individuals who had previously received a classification as a Group 2 refugee would have their conditions aligned with those assigned as Group 1 refugees, effectively removing any residual impact of the provision. There has been no indication that any further steps have been taken to enforce Section 12 in the intervening period.

8. These facts suggest a recognition within the UK government that Section 12 is unfair, unworkable or both. The stated reason for the pause [2] – i.e. the introduction of the Illegal Migration Act 2023 – is almost certainly not the whole story, since that fact does not explain why refugees classified as Group 2 were reassigned as Group 1. Equally, Section 12 could have continued to be applied to any (occasional) persons who successfully resisted removal to Rwanda, e.g. on the grounds acknowledged by the Illegal Migration Act 2023.

9. The unfairness of Section 12 of the 2022 Act resides principally in the fact that no ‘safe and legal routes’ exist by which asylum-seekers can travel to the UK, since the UK does not allow applications for asylum to be lodged from outside the UK. [3] Thus, Section 12 merely unjustly penalises asylum-seekers for a decision by the UK not to create such routes. This injustice is particularly acute for sur place refugees, [4] who can never fulfil the Group 1 criteria.

10. The implicit attempt by Section 12 to push refugees to claim asylum only in frontline States also runs contrary to the refugee law principle of cooperation. [5] The UK and other UN States have agreed objectives of ‘easing the pressure’ on frontline host States and ‘expanding access to third country solutions’ (para. 7). [6] Section 12 casts doubt on the UK’s good faith in shouldering its fair share of refugees. In turn, it undermines the already fragile basis for cooperation by other countries in a global refugee regime in which many of them shelter a greater proportion of the world’s refugees than does the UK. [7]

11. The unworkability of Section 12 resides in the fact that, as was pointed out in Parliament, a two-tier refugee system makes only for ‘a more complex, slower process’. [8] This is particularly so in the UK asylum system, which has long been beset by inefficiency, delays and backlogs in decision-making. [9] Against this backdrop. Section 12 offers no appreciable benefits to the UK or to refugees and appears to have no deterrence effect (judging by claims numbers). Instead, it represents only a drain on public resources and a burden on the public pursue.

12. For these reasons, as part of the overhaul of ineffective and unfair asylum provisions on the statute books that is contemplated by the present Bill, Section 12 should be repealed in its entirety. As per the plain-speaking words of former child refugee, Lord Dubs: ‘It is complete nonsense. It is not workable and it diminishes this country in the eyes of the world’. [10]

SECTIONS 30-39 - REFUGEE DEFINITION AND RELATED PROVISIONS

13. Sections 30-39 of the 2022 Act interpret key provisions of the Refugee Convention. The UK played a major part in drafting the Convention, including the refugee definition at Article 1A(2). [11] Since then, courts in the UK have had a notably distinguished role in developing interpretations of the Convention refugee definition that carry substantial weight internationally. [12] However, whilst the courts have been careful not to go beyond legitimate interpretation of the Convention, [13] some of the legal approaches established in Sections 30-39 are not easily reconciled with correct interpretation of the Convention or are problematic in terms of their practical workability within the UK asylum system.

14. As a whole, Sections 30-39 of the 2022 Act bring no obvious substantive or procedural advantages to the administration of the UK asylum system. Selected examples of particular problems within Sections 30-39 appear below. In view of these considerations, Sections 30-39 should be repealed in their entirety. They serve no useful function by remaining on the statute books and some have the potential for real disadvantage.

Section 31

15. Section 31(2) largely reproduces Article 9(1) of the EU Qualification Directive. However, it also reproduces an error in the EU provision by incorrectly specifying in sub-paragraph (a) that a ‘basic human right’ is to be equated with ‘a right from which derogation cannot be made under Article 15 of the [ECHR]’. But the Court of Justice of the EU has made clear that, in Article 9(1) of the Qualification Directive, basic rights are not confined to non-derogable rights under Article 15 ECHR. [14]

Section 32

16 . Across the 3 5 years prior to the 202 2 Act , the UK courts and government decision-makers had developed and applied a clear and workable one -stage assessment for the ‘well-founded fear’ element of the refugee definition . [15] This was conducted to a ‘reasonable likelihood’ standard and consider ed holistically all of the factual evidence relating to past, present, and future circumstances . For reasons that have never been entirely clear, Section 32 purports to replace this established UK approach by requiring decision-makers instead to apply a three-stage test combining two different standards of proof , i.e. a balance of probabilities test to past facts at the first two stages and a ‘reasonable likelihood’ test to future risk at the third stage .

1 7 . The new test established by Section 32 suffers from several serious flaws that undermine its workability and risk contravening the Refugee Convention . Firstly, separat ing out the determination of whether a person has a characteristic that could cause them to fear persons for Convention reasons (the first test) from whether they face an actual risk of persecution as a result (the third test) will often be artificial (consider the common example of a person fearing persecution on grounds of imputed political opinions). This unworkability w as recognised by the UK courts over 25 years ago when articulating the need for a holistic assessment . [16]

18 . Secondly, partly as a result, applying a higher standard of proof to past facts is not appropriate . T he UK courts have long been clear that , in asylum claims, it is not correct to apply the civil standard of proof to past facts (as the first and second tests in Section 32 require ) . T h is is because the particular challenges facing refugees in proving their case make evaluating the evidence more complex than in civil litigation, where the civil standard of proof prevails . Moreover, a s sessing past facts to the civil standard obviates t he positive role for uncertainty created by the settled ‘reasonable likelihood’ standard for ‘well-founded fear’ . [17]

19 . Thirdly, the second test in Section 32 requires a refugee to demonstrate that (s)he ‘does in fact’ fear persecution. The meaning of this provision is ambiguous. It could be interpreted to give it identical meaning to the third test ( future risk ) – but this would then mean that the same question is determined twice and to different standard. Instead, the UK courts have had to endorse the only other plausible alternative – that it refers to ‘subjective fear’ on the part of the refugee. [18] This notion had consistently been rejected by the UK courts and authorities, given its unworkable and unfair nature, e.g. a subjectively brave refugee , a mentally disabled person or a child might not be recognised despite the real risk of persecution .

2 0 . The Section 32 approach has no obvious benefits . It merely heightens the risk of improperly assessing the element of ‘well-founded fear’ . This could lead to refugees unfairly denied status and returned to a country where they face a well-founded fear of persecution , which would also place the UK government in breach of its obligations under the Refugee Convention. It could also continue to contribute to confusion, error and delays in the UK asylum system a s decision-makers struggle to implement this poorly-designed interpretative approach .

Section 33

22. Section 33 largely transcribes Article 10(1) of the EU Qualification Directive. Section 33(2) thus requires that both conditions in clause 33(3) and 33(4) must be met before a group comprises a ‘particular social group’ under the Refugee Convention. Yet the UK House of Lords held that this aspect of Article 10(1) goes beyond what is justified by interpretation of the Convention. [19] The UK Upper Tribunal had likewise held that the separate requirements are disjunctive, not conjunctive. [20] This is in accordance with UNHCR guidance. [21] In Australia, an attempt in 2014 to introduce a conjunctive approach into legislation was abandoned and replaced by a disjunctive approach. [22]

Section 35

23. Section 35(2)(b) stipulates that, in considering internal relocation, the decision-maker ‘must disregard any technical obstacles relating to return to that part of that country’. This formulation replicates Article 8 of the EU Qualification Directive (and 339O of the Immigration Rules). However, both have been treated as out of line with international standards. This is reflected in the 2014 recast of the Qualification Directive. In the past, courts in the UK have also not accepted that ‘technical obstacles’ can be interpreted in such a way as to cause a claimant who cannot access an internal relocation alternative due to such obstacles to fail in their claim for protection. [23]

Section 37

24. Section 37(1)-(3) imposes a narrower interpretation of Article 31(1) of the Refugee Convention than appears permissible on an ordinary reading of that important provision. But it is well-recognised, including by courts in the UK, that a proper reading of Article 31 requires States to ‘put in place procedures to ensure that those entitled to its protection are not prosecuted, at any rate to conviction, for offences committed in their quest for refugee status’. [24] Section 37 arguably goes contrary to these international commitments.

Section 38

25. Section 38 addresses Article 33(2) of the Refugee Convention, i.e. the exception to protection against refoulement for refugees ‘whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country’. In respect of this article, Section 38 purports to reduce the threshold at which a refugee is considered to have committed a ‘particularly serious crime’ from a period of imprisonment of at least two years to one of at least 12 months. [25]

26. In this context, it is noted that past legislative prescription that ‘particularly serious crime’ should include all crimes enumerated in a relevant instrument by the Secretary of State and/or exceeding two years’ imprisonment was found by the Court of Appeal to be unlawful in part. [26] The Court accepted the creation of rebuttable presumptions in relation to both the seriousness of the crime and danger to the community, but held that the power to specify offences conferred by Section 72(4)(a) Nationality Immigration and Asylum Act 2002 was restricted to offences which the Secretary of State could reasonably consider as giving rise to the statutory presumptions. A statutory instrument listing a number of criminal offences which would be presumed, irrespective of the sentence imposed, to be consistent with the definition of ‘particularly serious crime’ at Article 33(2) of the Convention, was ultra vires and unlawful.

27. To this point, the Upper Tribunal found that the "use of the wording ‘particularly serious crime’ is indicative that the loss of protective responsibility, or even refoulement, is only warranted when account has been taken of all mitigating and other circumstances surrounding the commission of the offence" [27] . Such account can only be taken where the presumption of the serious nature of the crime is rebuttable by the asylum seeker upon presentation of evidence of the individual circumstances. Section 38 thus appears incompatible with the established legal meaning of Article 33(2) of the Refugee Convention.

27 February 2025