New report details increasingly antagonistic attitude by UK government towards human rights
The Council of Europe's Commissioner for Human Rights, Dunja Mijatović, has today released an important and wide-ranging new report on the situation of human rights in the UK following a visit carried out in June and July.
You can read the full report here (and we've excerpted the section on refugees, asylum seekers and migrants below).
On the overall human rights landscape, the report states: "The Commissioner observes a high level of anxiety among stakeholders about human rights protection in the UK, in view of the significant impact of recent and proposed legislation, an increasingly antagonistic attitude by the UK government towards human rights, and verbal attacks on lawyers and organisations defending human rights. The Commissioner finds that the Bill of Rights Bill, which would repeal and replace the Human Rights Act 1998 (HRA), would weaken human rights protections by encouraging a divergence in interpretations by UK courts and the European Court of Human Rights of rights set out in the European Convention on Human Rights (ECHR), and by limiting the bringing of human rights cases to UK courts. She calls on the UK government to ensure that any further reform of the domestic human rights system leads to a strengthening, rather than a weakening, of protections."
More specifically on asylum and immigration related issues, the report highlights a significant regression in the observance of the UK's international obligations to uphold the human rights of refugees, asylum seekers and migrants.
The report notes in the summary: "The Commissioner highlights numerous issues of concern relating to the UK's existing policies towards refugees, asylum seekers and migrants, including the newly introduced inadmissibility rules for asylum claims, the possibility of removing persons to Rwanda, the criminalisation of asylum seekers arriving irregularly, and the differential treatment of refugees based on the manner of their arrival. She also warns against the use of practices that would result in pushbacks of people crossing the Channel. The Commissioner observes that the lack of an effective mechanism to allow persons staying in France to make a claim with the UK authorities for protection or entry on other grounds is an important factor in the current resort to dangerous, irregular crossings of the Channel. The Commissioner makes a range of recommendations to address these and other issues to ensure the UK's overall approach to asylum and migration fully complies with its international obligations."
The section relating to asylum and immigration is worth reading in full and we've excerpted it and reproduced it below:
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COUNCIL OF EUROPE
COMMISSIONER FOR HUMAN RIGHTS
Country Report
COMMISSIONER FOR HUMAN RIGHTS OF THE COUNCIL OF EUROPE
DUNJA MIJATOVIĆ
REPORT FOLLOWING HER VISIT TO THE UNITED KINGDOM FROM 27 JUNE TO 1 JULY 2022
[…]
1.4. THE RIGHTS OF REFUGEES, ASYLUM SEEKERS AND MIGRANTS
1.4.1. OVERVIEW
The treatment of refugees, asylum seekers and migrants in the UK is a long-standing concern, as also reflected in the work of previous Commissioners. [34] Over the years, the implementation of a 'hostile environment' policy has put the human rights of refugees, asylum seekers and migrants at risk, and its impact on those affected continues to date. The UK government has recently introduced further changes in response, among other things, to the increasing arrival of asylum seekers and migrants on small boats from France to the UK across the Channel. The groundwork for some of the more recent changes was laid by the 2021 New Plan for Immigration. Various elements of the plan have been implemented by the provisions on asylum and irregular migration in the Nationality and Borders Act, adopted in April 2022, and by the government's pursuit of a Migration and Economic Development Partnership (MEDP) with Rwanda. In combination, these developments have resulted in a significant regression in the protection of the human rights of refugees, asylum seekers and migrants. The Commissioner further expresses her concern that these developments have often been surrounded with, and fuelled by, a public rhetoric that stigmatises and dehumanises those attempting to cross the Channel to the UK and stirs up fear, to which members of the UK government have unfortunately significantly contributed. She notes that the UN High Commissioner for Human Rights has also warned against the use of dehumanising language. [35]
1.4.2. SPECIFIC ISSUES OF CONCERN
Inadmissibility rules and removal to Rwanda. The Commissioner is concerned about the expansion of admissibility rules to make persons who have "a connection" to a safe third state ineligible to claim asylum in the UK. [36] In view of the UK's geographical location, and the lack of safe and legal routes for the purpose of claiming asylum (see below), this means that the applications of the vast majority of persons seeking protection in the UK would likely be declared inadmissible. A person whose asylum claim is declared inadmissible can furthermore be removed to any other safe country, including a state where they have never been. In this respect, the Commissioner reiterates her objection to the removal of asylum seekers to Rwanda under the MEDP. As also noted by UNHCR and the JCHR, such a course of action jeopardises key legal protections, and would be inconsistent with the UK's obligations under international instruments, in particular the Refugee Convention. [37] She observes that the Rwanda scheme is an attempt to move people who have specifically turned to the UK for protection outside of its jurisdiction, before a substantive assessment of their protection needs is carried out. While the UK has agreed conditions for the treatment of those who are removed to Rwanda, and a monitoring mechanism has been set up, the MEDP remains a political instrument and compliance with the agreed conditions will be unenforceable under international law. In the Commissioner's view, this attempt by the UK to shift responsibility for the assessment of asylum claims and the reception of asylum seekers to a third country furthermore sets a troubling precedent, and it has the potential to fundamentally undermine the global system for international protection. She notes that, at the time of writing, legal challenges to the Rwanda scheme are still under consideration by domestic courts in the UK.
Criminalisation of asylum seekers arriving irregularly. The Nationality and Borders Act expands criminal penalties for asylum seekers, including by providing that anyone requiring entry clearance and knowingly arriving without that clearance commits an offence, even if the person seeks asylum immediately upon arrival. As UNHCR has observed, such an approach clashes with the non-penalisation requirement contained in Article 31 of the Refugee Convention. It has further noted that provisions in the Act could lead, in certain circumstances, to the criminalisation of those providing assistance to refugees, including refugees helping each other, even if they do not do this for financial or other material benefit. [38]
Risk of pushbacks. In recent years, there have been multiple suggestions from UK government officials that persons attempting to reach the UK by sea would be intercepted and immediately returned. As the Commissioner noted in her Recommendation Pushed beyond the limits: Four areas for urgent action to end human rights violations at Europe's borders, pushbacks involve multiple violations of human rights, including through denial of access to asylum and the circumventing of safeguards relating to expulsion procedures. [39] The Commissioner also notes that there have been reports in the media of plans to implement pushbacks, including by using tactics that would clearly put the safety and lives of persons at sea at risk. [40] The Nationality and Borders Act furthermore expands the possibilities of maritime enforcement, increasing the risk that the implementation of these powers will lead to pushbacks. While the Commissioner acknowledges the challenges associated with irregular Channel crossings, she reiterates that any attempt to address these challenges must fully ensure the rights and safety of those involved, including under international human rights, refugee and maritime law. While the Commissioner is not aware of pushback tactics currently being used, she remains deeply concerned about repeated suggestions that pushbacks should be a feature of the UK's approach to Channel crossings.
Safe and legal routes. The Commissioner has noted earlier that the UK's approach to irregular arrivals via the Channel ignores one particularly important element, which is the role that safe and legal routes play in the prevention of the making of irregular and dangerous sea crossings. The UK government has, both in writing and during the visit, highlighted its various programmes for, for example, persons from Hong Kong and Afghanistan, as well as its wider resettlement efforts, and its reception of Ukrainians. While welcome, the Commissioner notes that none of these programmes address the specific situation at the Channel. She also notes that some earlier schemes for cross-Channel safe and legal routes have been discontinued, and that there currently appears to be no framework designed and implemented in co-operation between the authorities in the UK and in France to ensure that persons on the territory of France, who may have a legitimate claim to protection or to a stay on other grounds (such as family links) in the UK, can effectively put such a claim forward.
Differential treatment of refugees. New rules on the status of those granted protection in the UK will introduce unjustifiable differential treatment between refugees. Under the Nationality and Borders Act, persons eligible for protection in the UK will now be classified according to whether they arrived in the UK directly from a country or territory where their life or freedom was threatened, presented themselves to the authorities without delay, and did not enter or were present in the UK unlawfully. Only those meeting those requirements are categorised as 'Group 1' refugees, while those who are not are classified as 'Group 2' refugees. [41] The two groups would be subject to differential treatment, with Group 2 refugees (who are likely to be the vast majority of those ultimately granted protection), being accorded less favourable treatment in regard of the period of limited leave to remain or enter, access to indefinite leave to remain, the attachment to their status of a 'No Recourse to Public Funds' (NRPF) condition, [42] and their eligibility for family reunification. As noted by UNHCR, such differentiation is inconsistent with the Refugee Convention. [43]
Other asylum- and migration-related issues. In discussions with refugee- and migrant-supporting organisations, many other issues requiring attention were identified, which cannot be covered in detail in this report. The Commissioner seeks to specifically highlight the backlog in asylum processing, which appears to have significantly impacted on the UK's ability to effectively react to increasing arrivals in a human rights compliant way. She observes that, despite calls to introduce this, the UK still has no time limit for immigration detention, and she is concerned about reported plans to expand the UK's detention estate. Reports about the inadequate standards in accommodation allocated to refugees and asylum seekers, including unaccompanied children, also remain frequent. The Nationality and Borders Act also introduces changes to age assessment rules for asylum seekers who claim to be unaccompanied minors. [44] Concerns were also raised with the Commissioner that wider changes to asylum law and policy risk undermining efforts in devolved jurisdictions to protect refugee rights. [45] Finally, the Commissioner observes that legal protections of victims of trafficking in human beings have increasingly been presented in the media and by government representatives and elected officials as a 'loophole' to residence in the UK. She is concerned that recent announcements of legislative changes to the framework related to victims of trafficking in human beings may be a prelude to the lowering of important and potentially life-saving protections for these victims.
1.4.3. CONCLUSIONS AND RECOMMENDATIONS
The Commissioner calls on the UK government to ensure that its overall approach to asylum and migration fully complies with its obligations under international refugee and human rights law, and to refrain from introducing and implementing measures that would put the rights of refugees, asylum seekers and migrants at risk.
In view of the human rights implications, as well as of the wider impact on the global system of international protection, the Commissioner urges the UK government to abandon attempts to circumvent and externalise its responsibility for dealing with asylum claims and abandon its pursuit of removals to Rwanda for this purpose.
Regarding the challenges faced in relation to small boat crossings via the Channel, the Commissioner calls on the UK once more to adopt an approach that ensures the right to seek asylum and that prohibits pushback practices. The expansion of safe and legal routes should be an integral part of the UK's approach. The Commissioner specifically calls on the government to establish a framework for ensuring that persons on the territory of France, who may have a legitimate claim to protection or to a stay on other grounds (such as family links) in the UK, can effectively put this claim forward to the UK authorities, without having to resort to dangerous, irregular sea crossings.
The Commissioner calls for provisions in the Nationality and Borders Act related to inadmissibility on the basis of safe third country concepts, the criminalisation of asylum seekers, and the discriminatory treatment of refugees based on their route or manner of arrival, to be removed.
The Commissioner calls on the UK government to take steps to strengthen the overall asylum system, including by improving capacity to deliver quality decision-making on asylum decisions in a timely manner, by addressing shortcomings in the accommodation of refugees and asylum seekers, and by establishing a clear time limit for immigration detention and by making alternatives to such detention readily available and as widely applicable as possible. [46]
The Commissioner urges all relevant authorities to make use of international guidance, including that of the Council of Europe, to ensure human rights compliant approaches to age assessment [47] and family reunification. [48]
The Commissioner calls on the UK government to refrain from any legislative changes that would undermine the UK's obligations to protect victims of trafficking in human beings, and to ensure such protection is fully in line with the ECHR and the Convention on Action against Trafficking in Human Beings, guidance by the Group of Experts on Trafficking in Human Beings (GRETA), and recommendations by the Committee of the Parties.
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[34] See, for example, the Memorandum by Commissioner Hammarberg, CommDH(2008)23, 18 September 2008, and the Memorandum by Commissioner Muižnieks, CommDH(2016)17, 22 March 2016.
[35] This includes suggestions that the arrival of asylum seekers and migrants constitutes an "invasion."
[36] According to the Nationality and Borders Act 2022, such a connection arises in a range of situations, including if they have protection in that other state or made a claim that was rejected, but also if they were in another state and they could have reasonably been expected to apply for asylum there and they failed to do so.
[37] Removals to Rwanda have been condemned by many actors, including, to name only a few, the Public and Commercial Services Union (who have launched legal action together with Care4Calais and Detention Action), the British Red Cross, many NGOs, the Law Society, local authorities, and the Archbishop of Canterbury, who condemned the "sub-contracting out of our responsibilities".
[38] UNHCR, Updated Observations on the Nationality and Borders Bill, as amended, January 2022, paragraph 29, points (iv)-(vi).
[39] In relation to procedural safeguards in relation to expulsion, the Commissioner notes that the UK is one of the few Council of Europe member states that has not ratified Protocol No 4 to the ECHR, Article 4 of which prohibits collective expulsions. However, such an obligation is also recognised as following from wider international obligations and as a key element for human rights compliant border control practices.
[40] See also the Commissioner's Recommendation Pushed beyond the limits: Four areas for urgent action to end human rights violations at Europe's borders, April 2022, p. 21.
[41] Nationality and Borders Act 2022, Section 12. A person could also fall into Group 1 if their entry or presence is unlawful, but they can show good cause for this, see Section 12, subsection 3.
[42] On NRPF conditions, see section 2.2.2.
[43] UNHCR Updated Observations on the Nationality and Borders Bill, as amended, January 2022, paragraph 12.
[44] Ibid., paragraphs 63-64, noting that changes include lowering the threshold for when age assessments are conducted, the introduction of a new standard of proof and provisions for using 'scientific methods' to assess age (such as x-rays).
[45] For example, some interlocutors suggested that UK-wide asylum policy inhibited the implementation of the Welsh government's Nation of Sanctuary plan, January 2019.
[46] In this respect, the Commissioner specifically highlights the guidance published by the Council of Europe Steering Committee for Human Rights (CDDH), including its analysis of the legal and practical aspects of effective alternatives to detention in the context of migration, December 2017, and its practical guide Alternatives to Immigration Detention : Fostering Effective Results, November 2019.
[47] Council of Europe, Age assessment for children in migration: A human rights-based approach: A guide for policy makers, December 2019; PACE, Resolution 2195(2017), Child-friendly age assessment for unaccompanied children, 24 November 2017.
[48] Commissioner's Issue Paper Realising the Rights to Family Reunification of Refugees in Europe, June 2017; PACE, Resolution 2243(2018), Family reunification of refugees and migrants in the Council of Europe, 11 October 2018; Report of the Council of Europe's Special Representative of the Secretary General on Refugees and Migration, Family reunification for refugee and migrant children: Standards and promising practices, April 2020.