Nationality and Borders Bill

A global refugee crisis

The Bill is currently being examined and amended by Parliament as the situation in the Ukraine unfolds. At the time of writing, the UNHCR estimates that 4 million people have fled the Ukraine since 24 February and the number of people leaving continues to rise. Sadly, the situation in the Ukraine reflects a wider global issue of displaced people. The UNHCR has estimated that at the end of 2020, 82.4 million people worldwide have been forcibly displaced. Of those, 26.4 million are refugees, over half of whom are under the age of 18.

The UK’s asylum system

In the UK, it is generally recognised that our asylum system is not working well, however, within that, refugee and asylum issues are polarised (at one extreme a tough stance on illegal immigration and controlling borders and at the other that every deportation should be fought).

The Government has been seeking to address the issues within the asylum system and the Government’s stance is set out in the Government’s New Plan for Immigration first published in March 2021 (updated in December 2021).

The New Plan gives the Government’s view of the current system stating that the UK accepted more refugees through planned “resettlement schemes” than any other country in Europe during 2015-2019, although commentators have noted that this claim is not correct for overall refugee numbers.  The Government’s summary of the refugee picture in the UK is also different to that of the UN Refugee Agency’s summary.

The Government provides its summary in the New Plan as follows:

• Illegal entry into the UK has increased over the last few years with 16,000 illegal arrivals being detected in 2019. People illegally arrive by lorry or containers, in small boats or by air. Over the last couple of years the numbers of people crossing the Channel in small boats has increased rapidly. 
• The increase in asylum claims has outstripped the ability to make asylum decisions meaning caseloads are unsustainable.
• The Government believes that the system is too easily exploited by smugglers and does little to stop people from entering the UK illegally.
• The courts are also being overwhelmed by appeals and judicial reviews.
• In addition, the UK is finding it hard to return those who have their asylum claim refused. The Government estimates there are 42,000 failed asylum seekers living in the UK despite having their asylum claim refused.

The difficulties the UK asylum system faces are exacerbated by the international situation for refugees. Under the Refugee Convention 1951 every asylum seeker that arrives is that State’s responsibility. This can create a forever shifting on of people particularly in time of crisis. While it is recognised that neighbouring countries may be overwhelmed and sharing refuge provision is necessary, it can result in refugees being constantly passed on. The European Union has tried to address this issue with the Dublin III Regulation which provides for a mechanism to return asylum seekers to other EU countries which they had passed through. Since Brexit, the UK has not been able to use the Dublin III Regulation.  

The Bill

The Nationality and Borders Bill was announced in the Queen’s Speech in May 2021. The background briefing notes state that the purpose of the Bill is to:

• Support the delivery of the Government’s New Plan for Immigration to increase the fairness and efficacy of the asylum system to better protect and support those in genuine need of asylum.
• Deter illegal entry into the UK, breaking the business model of criminal trafficking networks and protecting the lives of those they endanger.
• Enable those with no right to be in the UK to be removed more easily.

The Bill also seeks to amend various historical anomalies and areas of unfairness in British nationality law.

Concerns

Serious concerns have been raised particularly by the Joint Committee on Human Rights and the UNHCR.

The UNCHR recognises that asylum reform is needed in the UK and welcomes providing fairer and efficient systems for processing applications and agrees that solutions are needed to reduce the number of irregular Channel crossings. However, that response must be in accordance with international law.  The UNHCR has been very clear that the Bill is at odds with the Refugee Convention 1951.

The UNHCR responded to the consultation on the New Plan, provided observations on the BiIl as it went through the House of Commons, provided a legal opinion in October 2021 and updated its legal observations in January 2022. The UNCHR has also suggested proposals to reform the UK’s asylum system to support the Government’s stated aims for the Bill. 

During the Bill’s passage through the House of Commons many amendments were made. The UNHCR reported that these did not respond to its concerns and new provisions have also been added which the UNHCR is concerned about.

The UNCHR has stated that “The measures in the Bill are extremely unlikely to achieve their stated objective. They will however inflict suffering and increase the ineffectiveness and costs of the asylum system in the UK. They will also undermine the international protection regime globally.”

Amendments

The House of Lords has made amendments over the last few weeks. The Bill is lengthy and complex but highlighted here are some of the headline changes that the UNHCR and other organisations have raised concern over.

Amendments relating to refugees

The Lords have added wording to the Bill that all policies and decisions arising from the new legislation must comply with the 1951 Refugee Convention. The Lords discussion on this in Hansard is interesting. The Lords highlight that the Home Secretary is absolutely firm that “nothing in the Bill undermines [the UK’s] convention obligations.” The Lords disagree and are seeking amendments to ensure that the Bill is compliant.

Some of those amendments include removing or amending clauses which limited or discouraged access to the asylum system. Those provisions ranged from clauses designed to stop people arriving in the UK, such as, increased powers for immigration officers and enforcement officers at sea, to the creation of new offences such as an offence to help an asylum seeker enter the UK and an offence for people entering the UK without valid entry clearance. The Lords have also removed clause 15 which allowed an asylum claim to be deemed inadmissible if it was made by a person with a connection to a safe third country. Of particular note, the Lords removed clause 11 which allowed for differential treatment of refugees according to the nature of their arrival in the UK.

Revoking British citizenship without notice

The Lords also removed clause 9 which created a power for a person to have their British citizenship revoked without notice. This clause was not in the original Bill and was added as the Bill went through the House of Commons. In January, there had been street protests against this clause.

What’s next?

The Commons has rejected the Lords amendments and the Bill has returned to the Lords for consideration.  Both Houses must agree and the Bill will travel back and forth between the two Houses until agreement is reached in a process known as “ping pong”. If the two Houses can’t agree the Bill falls. If certain conditions are met, the Commons can use the Parliament Act to pass the Bill without the consent of the Lords in the following session. The Bill can be tracked here.