This is a House of Lords and House of Commons Committee joint report, with recommendations to government. The Government has two months to respond.
Date Published: 19 January 2022
The UK has been a long-standing champion for the refugee cause. We are party to the 1951 UN Convention Relating to the Status of Refugees (the Refugee Convention). Those seeking asylum in the UK are also given protection by the European Convention on Human Rights (ECHR) (effectively incorporated into UK law by the Human Rights Act 1998) which, for example, prevents a person being removed from the UK to another country where there is a real risk they will suffer torture or inhuman or degrading treatment or punishment. As signatories of the United Nations Convention on the Rights of the Child we are committed to treating the best interests of a child as a primary consideration in any action that affects them. Parts 2 and 4 of the Government’s Nationality and Borders Bill make a number of changes to the UK’s asylum system which are inconsistent with these rights and international commitments, and as such, they concern us greatly. The new clauses on deprivation of British citizenship likewise fail to meet human rights standards. The Bill should be amended in order to give sufficient protection to human rights.
The Bill will create two separate categories of refugee, based on how a person has come to the UK and presented themselves to the authorities, and allow for each category to be treated differently. This proposal, which would be given effect by Clause 11, is aimed at encouraging asylum seekers to use what the Government has deemed to be “safe and legal routes” and is supposed to be aimed at dissuading people smugglers more than refugees. Being placed in Group 2 would, nevertheless, be likely to amount to a penalty that is prohibited under the Refugee Convention. The Government says that refugees should claim asylum in the first “safe country” they reach. However, we heard evidence that there are simply not sufficient safe and legal routes available to those who seek refuge in this country. We also heard that asylum seekers often have little or no choice over their means of arrival in this country. Furthermore, the principle of differential treatment is fundamentally at odds with the Refugee Convention. The concept that refugees should claim asylum in the first country they reach undermines the very foundations of the international co-operation on which the Refugee Convention, and the rights conferred under it, stands. As such, Clause 11 should be deleted from the Bill.
Clause 15 of the Bill would make an asylum claim inadmissible if, in the view of a decision-maker, there was another safe country with which the individual had a “connection”. The threshold for establishing a connection with a safe third state has been set too low and standards against which the safety of a third state is judged are insufficient. The Bill should be amended to ensure that claims would not be inadmissible if the third party state does not meet sufficient human rights standards including those required by the Refugee Convention. Those whose asylum claims have been declared inadmissible cannot be removed unless a return arrangement has been put in place with their destination. Asylum seekers’ claims should not needlessly be put on hold when it is inevitable that they will need to be considered in the UK.
Schedule 3 of the Bill would allow for offshore processing of asylum claims. The proposal to ‘offshore’ asylum claims is inconsistent with the humanitarian and cooperative principles on which refugee protection is founded. The Bill should be amended to remove the power to remove an asylum seeker from the UK while their claim is pending, unless compliance with human rights standards, including the Refugee Convention, in any future arrangements can be unequivocally guaranteed.
The Government says the Bill aims to ensure that all claims for asylum and humanitarian protection are made promptly and not at the last minute or in numerous separate claims, in a manner that frustrates an efficient processing and removal of the individual concerned. Clause 17 would have the effect of penalising those who provide late evidence to support their claim. However, the Bill fails to guarantee recognition of legitimate reasons for the production of late evidence including missing documentation, a lack of understanding of the asylum system, or an inability of victims of torture or sexual violence to be able to speak about their traumatic experiences so soon after they take place. The Bill should be amended to remove these provisions, or at the least to ensure that penalties do not impact on consideration of the substantive asylum claim. The provisions in clause 19 relating to accelerated appeals processes for those in immigration detention should also be amended to include clear safeguards to restrict their use to appeals that are clearly unfounded and without merit. Without such safeguards, the process poses too great a risk of unfair decisions resulting in exposure to human rights violations.
The Bill should also be amended to remove unnecessary and restrictive interpretations of the Refugee Convention, which risk its protections being denied without justification.
The Bill has been introduced in the context of a large and growing backlog of asylum cases awaiting decision. As of June 2021, there were 125,000 cases in the system. Data from September 2021 shows that of the 67,547 individuals waiting an initial decision on their asylum application, 44,018, or approximately 65%, had been waiting for an initial decision longer than 6 months.1 Delays can have a significant adverse impact on the wellbeing and mental health of asylum applicants (which is protected by Article 8 ECHR), and whilst awaiting decisions they are generally not permitted to work or begin the family reunification process and cannot access the entitlements guaranteed in the Refugee Convention. There are elements in this Bill, such as the increase in complexity caused by the requirement in Clause 11 to consider if an asylum-seeker “came directly” to the UK, which are likely to cause more delays to the processing of applications. This is whilst the underlying causes of the backlog which include the resources and staff attrition rate, and the high proportion of successful appeals, are left without meaningful action.
Determining the age of individuals seeking asylum or making an immigration application is crucial to how they are treated: whether they are within the ambit of the Children Act 1989 (and other UK legislation) which may require local authorities to provide support until the individual’s 25th birthday; whether they are provided with access to education or not; whether they are provided with asylum support from the Home Office and dispersed to another part of the UK; where they are accommodated/detained; and how their asylum or immigration application is determined. At present, if the appearance and demeanour of the individual does not “very strongly suggest” that the individual is 25 years or older, s/he will be given the benefit of the doubt and provisionally treated as a child.
Part 4 of the Bill sets out provisions relating to the conducting of age assessments of age-disputed persons. The Bill will allow regulations to be made for the Secretary of State to permit the use of scientific methods for assessing a person’s age. Methods such as x-ray analysis and dental records are widely thought to lack the degree of accuracy required, and to be unethical due to the nature of procedures or the use of ionising radiation. Moreover, although not included in the Bill at present, the Government has indicated that they wish to reduce the threshold for the use of the benefit of the doubt. Taken together these proposals would greatly increase the risk of a child being wrongly assessed to be an adult. This would be at odds with our human rights obligations under the UNCRC and could engage Article 3 of the ECHR if that person is detained as an adult when they are, in fact, a child and experience particularly traumatic consequences.
The Bill also sets out the requirements of the Secretary of State to give notice of a deprivation of citizenship order. At present, the Secretary of State must give notice of a deprivation of citizenship order without exception. The Bill would amend the law to exempt the Secretary of State from giving notice in five circumstances, including on the grounds of national security, foreign relations, and public interest. The Bill also provides for retrospective effect in order to validate deprivation of citizenship orders which are currently unlawful because the notice provisions were not complied with. Whilst we acknowledge that giving notice of deprivation of citizenship orders will be challenging in some cases, we are concerned that administrative decisions with such severe consequences for individuals will not be communicated to the affected individual. In our view, Clause 9 should be deleted from the Bill. If it is retained, at a minimum, the Secretary of State should be required to take reasonable steps to give notice of deprivation of citizenship orders; that time limits for the right of appeal should only start running from the date of knowledge of the decision; and that the clause should not retrospectively validate any orders which are currently unlawful.