MPs debate controversial immigration bill that had its second reading in Parliament yesterday
The Nationality and Borders Bill yesterday had its second reading in Parliament. The transcript of the lengthy debate is available to read on Hansard here.
Ahead of the second reading, the House of Commons Library last week was admirably prompt in producing a comprehensive research briefing about the Bill, which you can read below or download from here.
Home Secretary Priti Patel told the Commons yesterday that the new Bill "will finally address the issues that over a long period of time, cumulatively, have resulted in the broken [asylum] system that we have now."
Patel added: "It is a system that is being abused, allowing criminals to put the lives of the vulnerable at risk, and it is right that we do everything possible and find measures to fix this and ensure that a fair asylum system provides a safe haven to those fleeing persecution, oppression and tyranny."
The Home Secretary said the British people have had enough of "open borders and uncontrolled immigration" and "there is now finally … a Government who are listening to them."
Former Prime Minister Theresa May noted that Patel appeared to be "giving the impression that no Conservative Government since 2010 have tried to address these issues."
May said: "Can I assure her, on the basis of six years in the Home Office, that they have been addressed? I will refer in my speech to the fact that Governments constantly have to look at these issues relating to immigration, rather than thinking that one piece of legislation will deal with the problem forever."
There were numerous critical reactions to the Bill from opposition MPs, with the SNP's Stuart McDonald amongst them. McDonald said: "I am afraid that I regard this as a dreadful Bill, and the Refugee Council was absolutely right to characterise it as the 'anti-refugee' Bill. There are eight welcome clauses on nationality, but thereafter what we see risks trampling international convention after international convention, and vulnerable children, stateless children and victims of trafficking will all pay a penalty. Nowhere is the retreat from international law, international co-operation and basic human decency more apparent than in the absolute trashing of the refugee convention as it approaches its 70th birthday."
Labour's Yvette Cooper said she was troubled by the Government's approach to the issue, and called for a debate that "avoids stoking division or promoting hostility against those who are most vulnerable."
Cooper added that she believes the Bill is likely to be counterproductive, noting: "It is likely to attract more people into the UK asylum system and drive more people into the arms of criminal gangs. The caseload, the backlog, is not a reflection of an increase in applications. In fact, those have stayed at about 30,000 a year—with a drop recently, during the pandemic—but the number of initial decisions made dropped 27% between 2015 and before the pandemic. The Bill will make that worse, because there is no serious return agreement to replace the Dublin agreement for people who have travelled through a third country."
The House of Commons Library's briefing follows below and provides a useful overview of the Bill's objectives and its contents.
________________________________________
Nationality and Borders Bill
By Melanie Gower
15 July 2021
Summary
1 Background to the Bill and previous consultation
2 The Bill: an overview
3 Part 1: Nationality
4 Part 2: Asylum
5 Part 3: Immigration offences and enforcement
6 Part 4: Modern Slavery
7 Part 5: Miscellaneous
commonslibrary.parliament.uk
Number 9275
Contributing Authors
Georgina Sturge, Statistics
Image Credits
Border Force Alert by Acabashi. Licensed under CC BY-SA 4.0 / image cropped.
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Contents
Summary
1 Background to the Bill and previous consultation
1.1 Recent statistics
1.2 The New Plan for Immigration
2 The Bill: an overview
2.1 Territorial extent
2.2 Summary of the Bill
3 Part 1: Nationality
3.1 Background
3.2 The Bill
4 Part 2: Asylum
4.1 Background
4.2 The Bill
5 Part 3: Immigration offences and enforcement
5.1 Background
5.2 The Bill
6 Part 4: Modern Slavery
6.1 Background
6.2 The Bill
7 Part 5: Miscellaneous
The Nationality and Borders Bill, Bill 14 of 2021-22, was published on 6 July 2021. Second reading will be on 19 and 20 July.
The Bill would implement many of the measures outlined in the Government's New Plan for Immigration policy statement (published March 2021). The New Plan was open to public consultation for six weeks.
At the time of writing, the Government had not formally responded to the consultation or published an analysis of responses. It has cited the continued pressures of irregular migration across the Channel as a reason why it is keen to proceed with the Bill at pace.
Immigration and asylum are reserved matters. This means most of the Bill's provisions apply across the UK.
What does the Bill do?
The three main objectives of the Bill, and the underlying policy statement, are:
• To increase the fairness of the system to better protect and support those in need of asylum.
• To deter illegal entry into the United Kingdom, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger.
• To remove those with no right to be in the UK more easily.
Nationality
Various historical anomalies and areas of unfairness in British nationality law would be removed. An additional requirement for citizenship applications made on behalf of stateless children born in the UK would be introduced.
Asylum, irregular migration and enforcement
Irregular journeys to the UK and late claims for asylum would be deterred and penalised in various ways. Irregular entrants would have restricted access to the UK asylum system and could be granted inferior immigration rights if allowed to stay. The Bill also allows for off-shore processing of asylum claims and codifies the UK's interpretation of key concepts in the 1951 Refugee Convention.
The Bill introduces new ways to deter claims without merit and late claims. These include a new "priority removal" process, which would include some new eligibility for publicly funded legal advice, and a new fast-track appeal process for detained cases.
The Bill would broaden criminal sanctions for offences related to illegal entry and facilitation of unlawful immigration and increase the associated maximum penalties. It would also give border and immigration staff additional powers to stop and redirect vessels out of UK territorial seas, subject to the UK's international legal responsibilities.
Trafficking and modern slavery
Some measures are intended to support the early identification of potential victims of trafficking or modern slavery and protect the system from misuse by people who make unfounded claims.
These include the introduction of slavery or trafficking notices, changes to the reasonable grounds threshold, and a new "public order" threshold for denying protection to potential trafficking and slavery victims who have committed a crime or acted in "bad faith."
The Bill also creates a statutory obligation to grant limited leave to remain to recognised victims of trafficking or modern slavery in certain circumstances.
Background: Asylum statistics
There were around 29,500 asylum applications in 2020, which was fewer than in 2019 but roughly the same number as in 2018. The number of people awaiting an initial decision and the number subject to removal were at their highest level in 2020 since the records series began in 2011.
Looking at the final outcome of asylum applications made between 2010 and 2019, around 48% were ultimately successful.
The comparable rate for applications decided between 2004 and 2009 was lower, at around 34%.
Reactions to the Bill
At the time of writing, very few stakeholders had published detailed responses to the Bill.
This briefing mostly draws on a selection of stakeholders' responses to the New Plan for Immigration, where this is relevant to clauses in the Bill.
Most of the stakeholder commentary on the New Plan focuses on the proposals affecting irregular migrants, asylum seekers and potential victims of trafficking and modern slavery.
Some of the overarching themes in published responses are:
• That the Government's proposals will establish a 'two-tier' protection system, which unfairly distinguishes between refugees depending on their mode of arrival to the UK.
• Doubts about whether proposals are novel, workable, and/or likely to achieve their stated objectives.
• Concerns that proposals are contrary to established caselaw and international refugee law, and/or may be vulnerable to legal challenges.
• Critiques that the measures outlined in the Plan (and Bill) overlook other aspects of the asylum system in need of reform and more effective ways to improve the efficiency of the asylum system.
1 Background to the Bill and previous consultation
The Library's briefing on asylum statistics contains information and analysis of asylum applications made in the UK and the EU from 1989 to the present. [1] Some of the relevant statistics are summarised here.
Applications and decisions
There were around 29,500 asylum applications in 2020, which was fewer than in 2019 but roughly the same number as in 2018. [2]
As the chart below shows, the number of applications per year was at its highest between 1998 and 2003. This was primarily due to a spike in arrivals from the Balkans, Somalia, Afghanistan and Iraq. [3] The largest nationality groups applying in recent years have been Iranians, Iraqis, Pakistanis, Albanians, and Eritreans. [4]
[…]
Over half a million people have been granted asylum or another form of protection in the UK since 1989. As the chart below illustrates, most of these grants were made as an initial decision on an asylum application, with the remaining grants made on appeal (around one in five grants) or through resettlement (around one in fourteen grants).
[…]
Looking at the final outcome of asylum applications made between 2010 and 2019 around 48% of applications, or one-in-two, was successful. [5] Between 2004 and 2009, this rate was lower, at around 34% or one-in-three. [6]
Fewer decisions were made on asylum applications than usual in 2020, because of the pandemic. At around 14,400 decisions this was the lowest annual total since 1991.
The total asylum caseload
In the New Plan for Immigration, published March 2021, the Government described the UK's in-country asylum caseload as being at an "unsustainable" level.
The New Plan stated that, as of March 2021,
There are currently over 109,000 asylum cases in the system. 52,000 cases were awaiting an initial decision at the end of 2020, around 5,200 have an asylum appeal outstanding and approximately 41,600 cases are subject to removal action.
The chart below shows the 'work in progress' caseload at the end of June in each year from 2011 to 2020. It excludes some components, which is why the total in 2020 appears lower than the 109,000 mentioned above.
There are three primary components of the caseload: people waiting for an initial decision, people who have appealed an initial refusal and are awaiting a decision on this, and people who have been refused asylum and are subject to removal.
The number of people waiting for an initial decision and the number of post- decision and subject to removal were at their highest level in 2020 since the record series began (in 2011).
[…]
The growth of the caseload has not been due to an increase in asylum applications. The number of asylum applications decreased in each year from 2015 to 2017, and again between 2019 and 2020, while the 'work in progress' caseload grew.
A factor contributing to growth of the asylum caseload is that the number of applications has been higher than the number of initial decisions in 14 of the last 15 years. [7]
The difference between the number of applications has been particularly pronounced since 2015, when the annual number of decisions made started to decline. During this time, applications first when down before rising again, as shown in the chart below.
[…]
Casework staff increase
The number of decisions made per year has been falling while the number of asylum casework staff has been rising. [8] There has been a 46% increase in the number of asylum casework staff at the Home Office since 2014-15, from 409 to 597 in 2019-20.
The Home Office compares the number of principal stages of applications completed with the number of staff, to produce a measure of 'productivity'. Principal stages include the substantive interview with the applicant and the making of an initial decision.
Productivity has gone down in recent years, from a peak of around 18 principal stages completed per staff member per month in 2015-16 to an equivalent figure of 7 in 2019-20. [9]
1.2 The New Plan for Immigration
The Home Secretary announced the Government's New Plan for Immigration in an oral statement to the House on 24 March 2021 and a policy statement document was published on the same day. [10] A six-week online public consultation closed on 6 May.
Most of the issues that the New Plan seeks to address relate to asylum, irregular migration and safe and legal routes of entry to the UK for people in need of protection. It also sets out changes to British nationality law, and to processes for identifying and protecting victims of trafficking and modern slavery.
The Government's concerns
The Government's concerns about the current asylum system, as outlined to Parliament and in the policy document, are that it is open to abuse, and unfair to genuine refugees, UK residents and taxpayers.
The Home Secretary told the House on 24 March:
(...) Access to the UK's asylum system should be based on need, not the ability to pay people smugglers. If someone enters the UK illegally from a safe country such as France, where they should and could have claimed asylum, they are not seeking refuge from persecution, as is the intended purpose of the asylum system; instead, they are choosing the UK as their preferred destination and they are doing so at the expense of those with nowhere else to go.
The Home Secretary said the UK's asylum system was "collapsing under the pressures of parallel illegal routes to asylum, facilitated by criminal smugglers" which benefitted economic migrants:
This is manifestly unfair to those desperately waiting to be resettled in the UK. It is not fair to the British people either, whose taxes pay for vital public services and for an asylum system that has skyrocketed in cost—it is costing over £1 billion this year. [11]
A related problem highlighted by the Home Secretary is that "the persistent failure to enforce our immigration laws", as reflected by removals statistics, "is eroding public trust and disadvantaging vulnerable people who need our help." [12]
Priti Patel said the Government is also motivated by concerns over the dangers and risks to life that people seeking to travel to and enter the UK illegally currently face, arguing that "while people are dying we have a responsibility to act." [13]
As highlighted throughout this briefing, there is a considerable overlap between provisions in the Bill and the New Plan.
Proposals in the New Plan
The New Plan policy statement reflects the Government's preference for people in need of protection to come to the UK via organised 'safe and legal' routes, such as refugee resettlement, rather than by making irregular journeys and spontaneously claiming asylum after arrival.
The Plan includes:
• Several proposals to maintain refugee resettlement and consider other safe and legal routes of entry to the UK, which do not require primary legislation.
• A range of measures to deter and penalise people who seek to enter the UK by irregular means and claim asylum after arrival.
• Various measures to strengthen the response to irregular migration and the enforcement of immigration decisions, including changes to appeal rights and increased powers for border and enforcement officers.
• Niche changes to British nationality law, to remove historical anomalies and areas of unfairness, and
• Changes to processes for protecting victims of trafficking and modern slavery.
The Bill's Explanatory Notes confirm that the Government is proceeding with other proposals outlined in the New Plan for Immigration that do not require legislation. [14]
Criticisms of the consultation process
The six-week public consultation on the New Plan for Immigration ended on 6 May 2021.
Almost 200 civil society organisations signed a joint open letter branding the consultation process a "sham". [15] The consultation process was criticised for failing to adhere with several government consultation principles. In addition to the relatively short length of time allowed (which coincided with Easter, Ramadan, several bank holidays, and local and Devolved Assembly elections), stakeholders' criticisms also included:
• that there is an absence of reliable or publicly available supporting data to evidence the assertions in the policy statement;
• that a lack of clarity and detail about many of the proposals compromised respondents' ability to meaningfully engage and respond;
• that additional information was subsequently provided to certain stakeholders at invitation-based consultation events and has not been made publicly available; and
• that the online model for consultation was unsuitable for gathering the views of people seeking asylum. [16]
Five asylum seekers are seeking to challenge the lawfulness of the consultation process though judicial review.
The Home Office maintains that the consultation was in line with established principles and statutory duties and that it consulted widely, with "thousands of stakeholders, sectors and members of the public" sharing their views." [17] The Government has pointed to the ongoing and increasing scale of irregular crossings of the English Channel as a reason why it is keen for the Bill to proceed at pace.
The Bill's Explanatory Notes state that the Bill has been informed by the consultation responses and confirm that a Government response will be published "in due course". [18]
Stakeholder responses
Some stakeholders have already made their own responses to the New Plan for Immigration consultation publicly available.
Some of the issues and concerns identified in published responses are:
• That the Plan will establish a 'two-tier' protection system, which unfairly distinguishes between refugees depending on their mode of arrival to the UK.
• Doubts about whether proposals are novel, workable, and/or likely to achieve the Government's stated objectives.
• That proposals are contrary to established caselaw and international refugee law, and/or may be vulnerable to legal challenges.
• That the Plan overlooks other aspects of the asylum system in need of reform and alternative suggestions for ways to improve the efficiency and effectiveness of the asylum system.
The think tank Migration Watch welcomed the proposals. It called for the Government to go further in some areas, such as through more prosecutions for illegal entry and better resourcing of immigration enforcement. [19]
The Government maintains that its plans are in line with the UK's international obligations, and specifically the requirements of the 1951 Refugee Convention.
The UN Refugee Agency (UNHCR) disagrees, asserting that "many aspects of the Plan do not respect fundamental principles of refugee law". It has published some detailed legal observations. It is concerned that if the current Plan is implemented, it will "undermine the 1951 Convention and international protection system, not just in the UK, but globally." [20]
The Library prepared two reading lists collating reactions to the Plan:
• Reactions to the New Plan for Immigration: updated reading list, CBP 9242, 27 May 2021, has links to some of the publicly available consultation responses.
• Reactions to the New Plan for Immigration: a reading list, CBP 9201, 21 April 2021, has links to relevant background material (up to mid-April 2021).
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1 The 1951 Refugee Convention and UK's asylum system The UK's asylum system is based on the commitments it has as a signatory to the 1951 Convention relating to the Status of Refugees and 1967 Protocol (the 'Refugee Convention'), and the European Convention on Human Rights. The Refugee Convention provides the definition of a refugee, establishes the principle of non-refoulement (that refugees shouldn't be returned to a territory where they would be at risk of persecution) and the grounds for exclusion from protection. It also sets out host States' responsibilities to refugees in their territory and what rights refugees should be given. The Refugee Convention doesn't oblige States to facilitate asylum seekers' access to their territory or specify how States should approach determining whether a person qualifies for refugee status (although there is UNHCR guidance). Enforcement mechanisms Refugees cannot directly enforce their rights under the Refugee Convention in the UK – it hasn't been fully incorporated into domestic law. But the UK's asylum process is "closely assimilated" to the Refugee Convention and some of its provisions are reflected in the UK's immigration rules. [21] Section 2 of the Asylum and Immigration Appeals Act 1993 provides that "Nothing in the immigration rules ... shall lay down any practice which would be contrary to the Convention." The Global Compacts The UK has also endorsed the non-binding 2018 UN Global Compact on Refugees (GCR) and the 2018 UN Global Compact for Safe, Orderly and Regular Migration (GCM). At the time of endorsing the GCM and GCM, the UK Government's position was that they were compatible with the UK's priorities for global migration reform. A written statement by Alistair Burt, then FCDO Minister, said: In practice, that means a Refugee Compact that helps ensure refugees can claim asylum in the first safe country they reach. And a Migration Compact which makes a clear distinction between refugees and migrants, and which sets out a well-managed global migration system confirming the sovereign right of States to control their borders and the clear responsibility of States to accept the return of their nationals who no longer have the right to remain elsewhere. [22] The UK delivered an Explanation of Position during the vote to adopt the GCM. Amongst other things, it welcomed the fact that "The GCM respects the sovereignty of States and reaffirms their sovereign right to determine their own migration and immigration policies and laws", and confirmed that "The UK does not interpret the Compact as creating domestic policy." [23] |
The Nationality and Borders Bill, Bill 14 of 2021-22, was published on 6 July. Second reading will be on 19 and 20 July.
The long title of the Bill is
Make provision about nationality, asylum and immigration; to make provision about victims of slavery or human trafficking; to provide a power for Tribunals to charge participants where their behaviour has wasted the Tribunal's resources; and for connected purposes.
The Home Office has published a Delegated Powers Memorandum and a Human Rights Memorandum alongside the Bill and associated Explanatory Notes. Further publications, including an Impact Assessment, are likely to be published in due course. These (and additional relevant material) are available from the Bill's pages on the Parliament website.
See also the GOV.UK page on the Bill for additional Home Office briefings.
Clause 69 of the Bill covers territorial extent. It is discussed in paragraphs 70 – 78 and Annex B to the Explanatory Notes.
Immigration and asylum are reserved matters. Consequently, most of the Bill's provisions extend and apply across the UK. [24]
Five clauses only extend and apply to England and Wales:
• Clauses 22, 54, 54 (making provision for civil legal services, by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012)
• Clause 48 (making provisions for the identification of potential victims of slavery or human trafficking, by amending the Modern Slavery Act 2015)
• Clause 52 (on support and assistance for potential victims of modern slavery in England and Wales)
The Bill is largely concerned with implementing aspects of the Home Office's New Plan for Immigration policy statement. The three main objectives of the Bill, and the underlying policy statement, are:
• To increase the fairness of the system to better protect and support those in need of asylum;
• To deter illegal entry into the United Kingdom, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger; and
• To remove more easily those with no right to be in the UK. The Bill as introduced is split into six parts and has five Schedules:
• Part 1: Nationality (Clauses 1 – 9 and Schedule 1): Various historical anomalies and areas of unfairness in British nationality law would be removed. An additional requirement for citizenship applications made on behalf of stateless children born in the UK and aged between 5 and 17 years would be introduced.
Part 2: Asylum (Clauses 10 – 36 and Schedules 2 and 3): Irregular journeys to the UK and late claims for protection would be deterred and penalised in various ways. Irregular entrants would have restricted access to the UK asylum system, and conditions attached to refugee leave could reflect the nature of the person's arrival into the UK. The UK's approach to interpreting key concepts in the 1951 Refugee Convention would be codified in primary legislation and various further measures to deter late and unmeritorious claims and expedite appeals would be introduced. These include a new "priority removal" process, which would include some new eligibility for publicly-funded legal advice, and a new fast-track appeal process for detained cases.
• Part 3: Immigration offences and enforcement (Clauses 37 – 45 and Schedules 4 and 5): The Bill would broaden criminal sanctions for offences related to illegal entry and facilitation of unlawful immigration and increase the associated maximum penalties. It would also give border control staff additional powers to stop and redirect vessels out of UK territorial seas, subject to the UK's international legal responsibilities.
Part 4: Modern slavery (Clauses 46 – 57): Measures to support the early identification of potential victims and protect the system from misuse by people with unmeritorious cases would be introduced. These include the introduction of slavery or trafficking notices, clarification of the reasonable grounds and conclusive grounds threshold, and a clarified "public order" definition for withholding the protections of the national referral mechanism from people who pose a threat to public order. The Bill also outlines the circumstances in which confirmed victims of modern slavery will be granted limited leave to remain.
• Part 5: Miscellaneous (Clauses 58 – 65): This section includes new processes for conducting age assessments; gives the immigration tribunals new powers to charge for wasted or unnecessary costs; gives the Home Secretary powers to apply visa penalties to nationals of countries that do not cooperate with removals; and provides a Henry VIII power in relation to a possible future consolidation of immigration law.
• Part 6: General (Clauses 66 – 71): This Part contains standard clauses on financial provisions, territorial extent and commencement. As detailed in clause 70, various provisions in Parts 2,3 and 5 would come into effect two months after enactment. Other provisions would come into effect on dates specified in regulations.
Before the Bill reaches Commons Committee stage, the Government intends to table substantive amendments to the following 'placeholder' clauses:
• Clause 42 (powers to require authorisation to work in UK territorial seas)
• Clause 44 (amending the Early Removal Scheme)
• Clause 58 (new processes for age assessments)
• Clause 59 (new powers to impose visa penalties on countries that do not co-operate with removals)
• Clause 60 (introducing an electronic travel authorisation requirement)
• Clause 61 (extending 'certification' powers for the Special Immigration Appeals Tribunal)
Current British nationality law is set out in the British Nationality Act 1981. The Act came into effect in 1983.
Various pieces of legislation have amended the 1981 Act to remove historical anomalies. The New Plan for Immigration identified several remaining areas of unfairness which Part 1 of the Bill addresses.
The measures in the Bill would:
• Create new routes for adult children of British Overseas Territories Citizen ('BOTC') parents to be registered as BOTCs and, in turn, as British citizens. These would benefit people born to BOTC mothers and BOTC unmarried fathers who couldn't pass on their BOTC status to their child due to nationality laws at the time of the child's birth (clause 1 - 3).
• Amend the requirements for registering as a BOTC a child born outside a British overseas territory. The requirement that an application is made within 12 months of a child's birth would be replaced with a requirement that the application be made whilst the child is still a minor (clause 4).
• Amend eligibility requirements for registration under section 4C and 4I of the British Nationality Act 1981, to disapply the requirements for a birth to have been registered at a British consulate within 12 months of birth (clause 5).
• Provide an entitlement to British citizenship for people who were previously unable to acquire it because their mother was married to someone other than their biological father at the time of birth (clause 6)
• Introduce a new route giving the Home Secretary discretion to grant an adult British citizenship if they would have become a British citizen but for historical legislative unfairness, an act or omission by a public body or, in the exceptional circumstances of their case. A similar provision will be introduced for BOTCs. (clause 7).
• Give the Home Secretary a new power to waive the requirement to have been present in the UK at the start of the relevant qualifying residence period, as applies to certain categories of application to naturalise or register as a British citizen. A similar provision will be introduced for BOTCs. (clause 8 and Schedule 1).
• Amend the requirements for registering a stateless child as a British citizen, so that in respect of children aged 5 to 17, a child is entitled to be registered as a British citizen where the Secretary of State is satisfied that the child is unable to acquire another nationality. This would be determined by reference to whether it is reasonable to expect the child (or someone acting on their behalf) to take the steps necessary to acquire that nationality (clause 9).
Previous consultation and commentary
Most of the reforms were foreshadowed in the New Plan for Immigration policy statement and are broadly uncontroversial.
Clause 9 would introduce an additional requirement for registering as British citizens stateless children aged 5 – 17 who were born in the UK. Those aged 18-22 would not be affected. The change would bring the registration requirements closer in line with the eligibility requirements for limited leave to remain as a stateless person. [25]
It is intended to prevent abuse of the process by parents who choose not to obtain their nationality for their child. [26] The potential for abuse was highlighted in a 2017 High Court case. [27] It concerned a child born in the UK to Indian national parents who had overstayed their visas. The child had not acquired Indian nationality because the parents had not registered their child's birth with the Indian authorities. The Home Office had refused the child's application for registration as a stateless child, but the Court found that the child was stateless and consequently entitled to registration as a British citizen.
The European Network on Statelessness (a pan-European civil society network) submitted a detailed response to the proposal as set out in the New Plan. It cautioned that it was "premature" to make changes in the absence of more detailed data and evidence of the potential scale of misuse of the route. [28] It called on the Government to first arrange for a detailed independent study and a comprehensive impact assessment of any potential impact on children in the UK. Its response also commented on the UK's international, regional and domestic legal obligations to consider the best interests of the child and take steps to reduce and prevent statelessness, and the various ways in which people can encounter barriers to registering a child with authorities of a parent's country of nationality. It has been suggested that the new requirement should be underpinned by flexible evidential requirements, to reflect the fact that in some cases obtaining certain types of document might be impossible. [29]
To be granted permission to enter or remain in the UK, a person must show that they qualify for one of the visa categories provided for in the UK's Immigration Rules (e.g. as a visitor, student, worker, etc.). [30]
But there is no visa category for people who want to come to the UK to claim asylum. Neither is it possible to lodge an asylum application with a British embassy overseas. The Home Office's longstanding asylum policy instruction on Applications from abroad (September 2011) explains:
As a signatory to the 1951 Refugee Convention, the UK fully considers all asylum applications lodged in the UK. However, the UK's international obligations under the Convention do not extend to the consideration of asylum applications lodged abroad and there is no provision in our Immigration Rules for someone abroad to be given permission to travel to the UK to seek asylum.
To satisfy the criteria for refugee status as set out in the 1951 Refugee Convention, a person fleeing persecution must already be outside their country of origin.
People wishing to travel to the UK to access the asylum procedure encounter additional legal and practical obstacles. These include their states' willingness to issue them a passport; UK and transit countries' visa requirements; transport operators' statutory obligations to check passengers' travel documents and prevent clandestine entries to the UK; the costs of the journey; and physical border security measures.
Several of the asylum-related provisions in the Bill would overlap with or build upon pre-existing measures. Legislation passed in the late 1990s and early 2000s introduced measures intended to deter practices considered to amount to 'abuse' of the system by people not in need of asylum. Efforts to reduce obstacles to the resolution of cases included restricting the range of decisions that give a right of appeal and restricting the scope for raising new matters at appeal stage. There are also various measures directed at behaviours considered to be motivated by a desire to delay or frustrate the removal process.
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2 Non-legislative changes: support for 'safe and legal' routes The Government encourages people in need of protection to come to the UK via organised 'safe and legal' routes, such as refugee resettlement schemes, rather than making irregular journeys to the UK and then claiming asylum. The New Plan for Immigration outlined several measures intended to support people fleeing persecution which do not require primary legislation. These include: • a commitment to provide an unspecified number of refugee resettlement places and to review support for eligible refugees to come to the UK through the points-based system; • an intention to grant resettled refugees immediate indefinite leave to remain upon arrival in the UK and enhancing integration support; • an intention to review refugee family reunion rules; and a commitment to consider a new process to enable people in urgent need of protection to travel directly to the UK from their country of origin.Commons Briefing Paper Asylum claims in the UK: common questions (November 2020) provides an overview of provisions that underpin the UK's current approach to deciding asylum applications. [31] |
Differential treatment
Clause 10 would give the Home Secretary a broad power to treat refugees (i.e. people who qualify for refugee status on the basis of the eligibility criteria in the 1951 Refugee Convention) differently, depending on the nature of their arrival in the UK and timeliness of their asylum claim.
Clause 10(2) provides that refugees would be categorised as a 'Group 1 refugee' if they are considered to come within the scope of Article 31 of the Refugee Convention. [32] That means, to have come to the UK directly from a country where their life or freedom was threatened and have claimed asylum without delay. A person who entered or is present in the UK unlawfully would also be required to show good reason for their unlawful entry/presence.
A person who cannot satisfy the above criteria would be classed as a 'Group 2' refugee.
The Explanatory Notes state that all refugees would be given the entitlements and protections afforded by the 1951 Refugee Convention. But a Group 2 refugee could be granted less favourable entitlements and eligibilities than a Group 1 refugee in other ways. As per clause 10(5), differential treatment could include, but is not limited to:
• How much limited (i.e. temporary) permission to remain in the UK is granted in the event of a successful application
• The eligibility criteria the refugee would need to satisfy to qualify for indefinite (i.e. permanent) permission to remain in the UK
• Applying a 'no recourse to public funds' condition to permission to remain.
• What refugee family reunion rights might be given.
The Bill allows for the types of differential treatment to be outlined in the Immigration Rules. Statements of changes to the Immigration Rules are laid before the House and subject to a process similar to the negative procedure.
Current statistics on method of arrival
There are no routinely published statistics on the method by which asylum seekers enter the UK. Most – more than 8 in 10 – asylum applications take place 'in country', as opposed to 'at port'. [33] Ports refers to air, sea, and rail ports, while 'in country' includes any other location.
There are no statistics available on the length of time 'in country' applicants have typically been in the UK prior to making their application.
Asylum seekers arriving on small boats or as stowaways on lorries are likely to be recorded as 'in country' applicants, since they are generally detected or present themselves at locations other than official border ports.
There are no routinely published statistics on people arriving via these irregular routes, although the Home Office has released some ad hoc figures. In the New Plan for Immigration it was stated that,
In the year ending September 2019, 62% of UK asylum claims were made by those entering illegally - for example by small boats, lorries or without visas.
Recently, a large share of asylum seekers who arrive through irregular routes have done so by crossing the English Channel in small boats. Previously, stowing away on lorries appears to have been the main method for entering the country without permission.
In total in 2020, roughly 8,400 people crossed the Channel in small boats. This was substantially more than in 2019 (1,800) and in 2018 (300). Around 5,700 people crossed in this way in the first 6 months of 2021.
Ninety-eight per cent of those who crossed in the first half of 2020 applied for asylum, but no information has been released about those who crossed during the latter half of the year. [34]
Previous consultation/commentary
Giving successful asylum seekers different immigration statuses/subject to different conditions is one of the most controversial proposals for stakeholders in the asylum rights sector. Critics argue that it will create a 'two-tier' system of protection in the UK and that it is illogical, unfair and contrary to the Refugee Convention to penalise refugees based on the nature of their arrival in the UK. [35]
The Bill's ECHR memorandum sets out the Home Office's view on how the clause is compatible with various articles in the 1951 Refugee Convention (Article 3: obligation to apply the Convention without discrimination as to race, religion or country of origin and Articles 23-24: obligation to treat refugees the same as nationals in terms of entitlements to welfare benefits and social security). [36] The memorandum also sets out the Department's view on the relevance of the European Convention Human Rights (ECHR) to differential treatment.
The Government's intention is for differential treatment to "discourage asylum seekers from travelling to the UK other than via safe and legal routes." It says that the clause
.. aims to influence the choices that migrants may make when leaving their countries of origin - encouraging individuals to seek asylum in the first safe country they reach after fleeing persecution, avoiding dangerous journeys across Europe. [37]
The extent to which policies in host countries influence prospective asylum seekers, and the relative influence this has compared to other push/pull factors, has been an area of debate in the UK and internationally for decades.
There is a lack of consensus about the effectiveness of policies of deterrence. The Home Office makes a connection between the significant decline in numbers of people seeking asylum in the UK in the early 2000s and the impact of various policy and legislative measures introduced at the time, but this interpretation is contested.
A number of pieces of research have looked into the factors influencing an asylum seeker's destination country. These commonly identify a low level of awareness of specific countries' asylum policies and point to various other factors which are generally considered to have a greater influence. [38] These factors are generally beyond the control of destination states. For example, they include 'push' factors for migrating, the influence of agents/people smugglers, the effect of visa restrictions, the costs of making the journey, policy responses in transit countries, cultural and family ties, and a country's reputation for human rights.
The suggestion that people should claim asylum in the first safe country they reach is also strongly disputed by asylum rights campaigners. They say it misrepresents Article 31 of the Refugee Convention. UNHCR's response to the New Plan for Immigration emphasised that Article 31 does not support the notion that asylum must be claimed in the first safe country reached. [39] See the Commons Briefing Paper on Article 31 of the Refugee Convention for further discussion.
Accommodation for asylum-seekers
Clause 11 specifies the type of accommodation provided to asylum seekers and refused asylum seekers who would otherwise be destitute. It includes considerations about what stage their asylum application has reached; their previous record of compliance with asylum support conditions, and bail compliance. The intention of the clause is to "increase efficiencies within the system and increase compliance". [40] It also makes consequential amendments to various pieces of legislation including provisions not yet commenced in existing legislation. The clause would allow the Secretary of State to extend the period of time an individual can be accommodated in an accommodation centre beyond 6 months.
It is already the case that different types of asylum accommodation are used depending on the type of asylum claim and profile of claimant, and what stage the asylum claim has reached in the asylum process. [41]
As outlined in the New Plan for Immigration, some cohorts of asylum seekers (including those subject to the inadmissible procedure) will be housed in accommodation centres. [42] The centres will provide "basic" accommodation and allow for the on-site processing of cases. [43] This is a new development.
At the time of writing, the Home Office hadn't published an official estimate for the number of people potentially affected by the accommodation centre proposal. The Refugee Council estimates that between 5,900 people and 14,200 would potentially be accommodated in accommodation centres. [44]
Previous consultation/commentary Accommodation centres
In the early 2000s, the then Labour Government proposed the establishment of a network of accommodation centres to support the fast and efficient processing of claims. [45] It legislated for them in Part 2 of the Nationality, Immigration and Asylum Act 2002 but they never came to fruition. Plans for a pilot site in Bicester were announced in May 2002 but encountered significant opposition from the local authority, local residents and asylum rights campaigners. The project was cancelled in June 2005 because it was no longer considered economically viable – there had been a significant decline in the number of asylum applications received in the UK since the project was first announced. [46]
It is likely that moves to establish accommodation centres will encounter similar opposition. Over the past year, Home Office proposals to establish prefab-style "contingency" accommodation on government-owned sites next to Yarl's Wood IRC and on MoD-owned land at Barton Stacey in Hampshire both attracted opposition from locals and campaigners. The Home Office is no longer proceeding with its plans for either location on the basis that they are no longer needed. [47]
The Library briefing 8990 Asylum accommodation: the use of hotels and military barracks considers some of the issues that have arisen in the context of the use of former military barracks as 'accommodation centre' style housing over the past year. The Refugee Council has described the proposal to extend the use of large-scale accommodation for asylum seekers as "ill- thought out and dangerous". It considers that housing asylum seekers in the community, as is current practice under the dispersal policy, "is much better suited for supporting future integration and ensuring that people seeking asylum are able to access services they need". [48]
Changes to asylum support arrangements
Changes to asylum support arrangements for refused asylum seekers (i.e. people who have received a final decision on their claim) and other migrants without immigration status were provided for by the Immigration Act 2016 but are not yet in force. They will be brought into force via regulations, not the Bill. They include:
• Revoking section 4 support and introducing new provisions with amended eligibility criteria for section 95 support and a new category of support ('section 95A'). [49]
• Ending refused families' ongoing eligibility for section 95 support.
• Introducing a new statutory basis for local authorities to provide support to destitute families without immigration status ('paragraph 10A support' in England). [50]
The New Plan for Immigration said that the Home Office intends to consult with local authorities and stakeholders on implementing the provisions of the Immigration Act 2016 to remove support from refused asylum seekers.
In the absence of further details in the New Plan (or Bill), some stakeholders have questioned how the Government anticipates overcoming previously identified obstacles to using the 2016 Act measures. [51] For example, the No Recourse to Public Funds Network (a network with membership spanning central and local government, the voluntary sector, the police and NHS) observed that changing the legal framework for when local authorities can/can't provide support to a family without immigration status does not override their statutory duties to safeguard and promote the welfare of children. It notes that local authorities, rather than the Home Office, would be the target of resulting legal challenges. [52]
Inadmissibility
Clause 13 reflects existing practice. Asylum claims made by EU nationals must be declared as inadmissible, unless the Home Secretary considers that there are exceptional circumstances (as described in clause 13(5)). Inadmissible claims do not have a right of appeal.
Clause 14 reflects arrangements which are currently provided for in the Immigration Rules (discussed below). They allow for asylum claims made by people with connections to safe third states to be declared inadmissible. [53]
Clause 15 provides that people with 'inadmissible' asylum claims are to be treated, for asylum support purposes, in line with refused (appeal rights exhausted) asylum seekers.
Background to the new inadmissibility rules
A set of changes to the Immigration Rules made in December 2020 provide greater scope to treat as "inadmissible" asylum claims from non-EU nationals who have passed through, or have a connection with, a safe third country. [54]
The rules can be applied to asylum seekers who have a connection to or have travelled through any safe third country (such as EU member states). Where a claim is declared inadmissible, the Home Office will be able to pursue the person's removal "not only to the particular third countries through which the applicant has travelled, but to any safe third country that may agree to receive them." [55]
As an exception to the above, inadmissible applications are admitted for consideration in the UK's asylum process if either of the following circumstances apply:
• removal to a safe third country within a reasonable period of time is unlikely; or
• the Home Office considers that removal is inappropriate, based on a consideration of the particular circumstances of the case. [56]
The Home Office's caseworker policy guidance on Inadmissibility: safe third country cases provides more details of how the process operates. [57] The assessment of 'reasonable period of time' is underpinned by a 6-month 'long- stop' to securing agreement from another country to accept a person's return.
The Home Office requires cooperation from other countries (whether on a case by case basis or through an overarching return agreement) to be able to remove people with inadmissible claims. The Home Office has said that it is working closely with the Foreign, Commonwealth and Development Office to secure agreements. [58] The New Plan for Immigration says that the Government will pursue such agreements in the context of discussions on future "migration partnerships" with international partners. [59]
The UK proposed a bilateral readmission agreement with the EU as part of the 2020 Brexit negotiations. The issue was generally considered to be beyond the EU negotiating team's mandate and did not appear to be the subject of detailed discussion.
The Government's fall-back position was to seek bilateral agreements with individual Member States, but it couldn't start these discussions until after the end of negotiations with the EU. It has been suggested that neighbouring EU countries are reluctant to agree bilateral returns agreements with the UK, in part because the issue is seen as falling within the EU's exclusive competence. [60]
Critics have suggested that the new rules are "pointless" and unworkable in the absence of return agreements with other countries, and merely serve to increase delays to decision-making, costs and inefficiencies in the asylum determination process. [61]
There have also been suggestions that the new rules breach the UK's obligations under the 1951 Refugee Convention and international human rights law, for example, by taking an overly-literal approach to assessing whether a person is "coming directly" from a territory where their life or freedom is threatened (as referenced in Article 31 of the Refugee Convention), and potentially denying people access to an asylum procedure. See the separate Commons briefing paper on Article 31 for further details. [62]
How the rules are being applied: statistics
The Home Office began to implement the new inadmissible process at the start of 2021. Some asylum seekers have received notification ("notice of intent") that they are being considered for removal to another country in accordance with the procedure. [63]
In the first quarter of 2021 (January to March), 1,503 asylum applicants were issued notices of intent under the inadmissibility rules. [64] None were returned.
Prior to the inadmissibility rule, applications could still be refused on the basis of an applicant's connection to a third country. Since 2001, 33,464 asylum applicants have had their application refused on this basis, 18,000 of them since 2010. [65]
The new figures on notices of intent to remove on inadmissibility grounds have been added into the chart from Q1 2021. There were no safe third country refusals listed in that quarter, down from 985 in the quarter before.
Inadmissibility notices formed 25% of asylum decisions – one in four – in Q1 2021.
[…]
Supporting evidence
Clause 16 would allow for a new "evidence notice" to be served on a person bringing a protection or human rights claim. This would require the claimant to provide any evidence in support of their claim before a specified date.
Where evidence is provided after the specified date, the person must provide a statement giving their reasons for not providing it sooner.
The Home Office envisages using the notices in the same circumstances as "one-stop" notices issued under s120 of the Nationality, Immigration and Asylum Act 2002. Briefly, once a person has been issued with a notice under s120, they are under an ongoing duty to provide a statement setting out any further grounds for remaining in the UK or not being removed. A subsequent late claim can be certified without a right of appeal.
Clause 17 states that providing late evidence without good reason, and other relevant behaviour that is not deemed to be in "good faith", will become additional factors for decision-makers to take account of as damaging to a person's credibility (as per section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). [66]
Additionally, clause 23 requires that a decision-maker (e.g. Home Office caseworkers and Immigration Judges) must "have regard" to the principle that minimal weight should begiven to late evidence unless there are good reasons for it being provided late.
As the response from the Immigration law Practitioner's Association to the New Plan for Immigration illustrated, there are already a range of legislative provisions intended to deter and penalise late and unmeritorious claims:
Applicants are required to raise all the reasons why they wish to remain in the United Kingdom if the Home Office serves a 'section 120' notice on them (s.120 Nationality, Immigration and Asylum Act 2002). If they fail to mention something which they then raise after their appeal has been determined, the Home Office can prevent them from accessing the appeals process again (s.96 Nationality, Immigration, and Asylum Act 'NIAA' 2002). Meanwhile, in any asylum appeal, the government has to consent before the First Tier Tribunal considers any matter which it has not yet decided, so that it is never ambushed by new issues being raised late in an appeal (s.85 NIAA 2002). Applicants for asylum are also required to claim asylum as soon as possible after they enter the United Kingdom. If they fail to do so, judges are instructed to treat this as potentially damaging to the credibility of their claim (s.8 of the Asylum and Immigration (Treatment of Claimants) Act 2004). The Home Office also has the power to certify a claim which has no prospect of succeeding as 'clearly unfounded', under s94(1) NIAA 2002. The consequence will be that any appeal to the First Tier Tribunal must be brought from outside of the UK per s.92 NIAA 2002. A challenge to a certification decision can only be made by judicial review. [67]
Priority removal notices
Clauses 18 – 22 introduce the concept of a "priority removal notice (PRN)" and related arrangements. PRNs are intended to reduce further the scope to frustrate removal through successive or unmeritorious claims, appeals or legal action.
PRNs could be served on any person who is liable to removal or deportation. The factors that may lead to a person to be served with a PRN are to be set out in policy guidance. [68]
A PRN would require the recipient to provide, within a specified cut-off date, a statement setting out their reasons for seeking to remain in the UK (including any information relating to being a victim of human trafficking or slavery), and related information and evidence.
People in receipt of PRNs would be eligible for up to 7 hours' civil legal aid (clause 22). Eligibility would not be subject to means or merits assessments. Advice given under this provision would cover the PRN; the person's immigration status; the lawfulness of their removal from the UK; referral into the National Referral Mechanism, and immigration detention.
If information is provided after the cut-off date, a statement setting out the reasons for not doing so sooner must also be provided. Home Office decision- makers (and competent authorities in the case of slavery/trafficking cases) must consider late information as damaging to the person's credibility unless there are good reasons for it being late (clause 20). Further consequences of responding after a PRN cut-off date are provided for in clause 23.
Clause 21 and Schedule 2 would introduce an expedited appeal process for certain PRN cases and make consequential amendments to existing legislation on appeals.
Appeals
Clause 24 would require the Tribunal Procedure Rules Committee to make rules for a new 'accelerated detained appeal' process. The process would be used for appeals made from detention which the Home Secretary considers are suitable for a quick decision. The detailed criteria for determining which cases are subject to the accelerated process would be specified in regulations. The Rules must also provide for the tribunals to order a case be taken out of the accelerated process if it is in the interests of justice to do so.
Clause 24(3) sets out the timescales that would apply for these appeals.
Fast-track procedures for processing asylum claims made by people in immigration detention have been used before. In June 2015 the High Court found the procedural rules for detained fast-track appeals to be ultra vires. The Court of Appeal then dismissed the Government's appeal. The Court of Appeal said that the purpose of the fast-track policy was "entirely laudable" but described its procedural rules as "unfair and unjust." [69]
Clause 25 removes appeal rights for asylum and human rights claims certified as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. Under the current arrangements there is an out of country appeal right. The Explanatory Notes state that claimants rarely exercise this right and that judicial review challenges to the decision to certify the application are far more common.
Removal to a safe third country
Clause 26 introduces Schedule 3, some of which is likely to be highly contentious. Changes made would support removals to safe countries, such as EEA countries.
The measure would also support the Home Office's intended future policy objective of enabling asylum claims to be processed outside of the UK. It makes it possible to remove someone to a safe third country whilst their asylum claim is pending without having to certify the claim in every case. These changes would support the ability to process asylum claims overseas if viable options with partner countries could be established. This controversial practice is often referred to as 'off-shore processing.'
The Bill's Explanatory Notes describe how the process would reflect the UK's international obligations:
296 … Any such removal is only permitted to states where the individual will not be at risk of persecution for reasons of race, religion, nationality, membership to a particular social group or political opinion, in line with the Article 1A(2) of the Refugee Convention, and from where they will not be returned to the country from which they are seeking protection, in keeping with the principle of "non-refoulement". Additionally, individuals may only be removed to states where their Article 3 rights will not be breached and to states which will not remove them to countries where their Article 3 rights may be breached. It is acknowledged that not all countries are signatories to the Refugee Convention, therefore the references to the Refugee Convention in this section refer to the principles of the Refugee Convention whether or not they are upheld by the relevant country
The concept of safe third countries is already provided for, in Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
Schedule 3 of the Bill also makes changes to those provisions. It would create a rebuttable presumption that certain specified countries are safe (Paragraph 5). "Safe" means that an individual's rights under Article 3 ECHR (no torture or inhuman or degrading treatment) would be respected and that the country would not send the person to another country where their ECHR rights would not be respected. To overturn a presumption, the individual would need to provide evidence that there is a real risk that their Article 3 rights would be breached. The Explanatory Notes do not elaborate further.
Currently, an individual cannot bring an immigration appeal from inside the UK in reliance on an asylum claim which asserts that to remove them to a safe third country would breach the UKs obligations under the Refugee Convention. An individual also cannot bring an immigration appeal from outside the UK on any ground that is inconsistent with treating a safe third country as a place where: (a) a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion (b) from which a person will not be sent to another State in contravention of his Convention rights, and (c)from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention. The Bill further prevents human rights claims against removal to the safe country which are declared clearly unfounded from having a right of appeal in line with the amendments being made to section 94 of the Nationality, Immigration and Asylum Act 2002.
Changes to the safe country list are made by statutory instrument. Additions to the list are subject to the affirmative resolution process. Decisions made by the Home Secretary to remove countries from the list (as provided for by Schedule 3, paragraph 9) would be subject to the negative procedure.
Previous consultation/debate
Following several months of media speculation, the New Plan for Immigration confirmed the Government's interest in off-shore processing. [70] The Government considers that off-shore processing would help "to manage the UK's asylum intake and deter irregular migration and clandestine entry to the UK." [71]
The idea has been proposed in the UK in the past. At different points during the early 2000s, when asylum numbers had reached peak levels, the Labour Government and Conservative Opposition (as then were) each briefly favoured similar policies. [72]
Denmark has recently passed legislation to support their intention to process claims overseas. [73] Home Office Ministers and officials have reportedly had discussions with their Danish counterparts about the potential to share an overseas asylum processing centre. [74] The Home Office has advised that it is not working with Denmark on establishing a processing centre.
UNHCR distinguishes between agreements for the transfer of asylum seekers between States (for example, the Dublin system used by EU Member States to determine responsibility for asylum claims received in the EU) and policies that seek to "externalise" a State's responsibilities. UNHCR's assistant high commissioner for protection, Gillian Triggs, has reportedly characterised recent developments in the UK and Denmark as demonstrating "an almost neo-colonial approach" whereby "western, developed and wealthy countries are now not sharing responsibilities but shifting burdens to these poor countries". [75]
UNHCR has urged the UK against introducing offshoring asylum processing and an "overly broad and blanket use of safe country concepts". [76] Its response to the New Plan for Immigration set out its concerns in more detail:
16. As UNHCR has seen in several contexts, offshoring of asylum processing often results in the forced transfer of refugees to other countries with inadequate State asylum systems, treatment standards and resources. It can lead to situations in which asylum seekers are indefinitely held in isolated places where they are 'out of sight and out of mind', exposing them to serious harm."
Australia re-introduced off-shore ('regional') processing in 2012. People who try to make an unauthorised arrival in Australia may be sent to a regional processing facility in the Republic of Nauru or Papua New Guinea. In practice the use of regional processing has declined since boat turnback measures were introduced, under the broader 'Operation Sovereign Borders' policy. No new people have been sent to either location since 2014.
The centres still hold some people who were intercepted or rescued at sea between July 2013 and 2014. The majority of people in regional processing centres have been transferred back to Australia due to concerns about their physical/mental health or other reasons. [77]
Critics of the regional processing policy have highlighted a host of legal, moral and practical issues, including:
• The impact on asylum seekers' physical and mental well-being.
• Disputes and uncertainties about the respective responsibilities of the sending country and host State.
• Transparency of arrangements with host third countries.
• Effectiveness of systems of oversight and independent monitoring.
• Effectiveness of systems to identify people unsuitable for off-shore processing.
• Whether such an approach is effective in deterring asylum seekers.
• What resettlement and integration opportunities are available to people in the event of a positive outcome to their asylum application.
• The associated financial costs of operating processing centres overseas.
• The broader impact on the international protection regime, and other states' willingness to host asylum seekers and refugees.
Many of these issues were covered in a Home Affairs Committee evidence session late last year. [78]
Interpretation of Refugee Convention
Clauses 27 – 36 specify how decision-makers, including Home Office officials and courts and tribunals, should interpret and apply various provisions in the 1951 Refugee Convention. Consolidating the legislation underpinning the UK asylum system is intended to make it "easier to navigate for all who use it." [79]
As an EU Member State, the UK had opted-in to the Qualification Directive and other elements of the EU's Common European Asylum System which had a similar purpose. Clause 27 would revoke the regulations transposing the Qualification Directive into domestic law.
Clauses 28 – 32 specify how the concepts that underpin the definition of a refugee provided for in Article 1(A)(2) of the Refugee Convention should be interpreted.
The Government had previously detailed its intention to "strengthen" the well- founded fear of persecution test, as covered by clause 29, in the New Plan for Immigration. [80] Responses from immigration law practitioners, and UNHCR, were highly critical of the proposed approach. Stakeholders including UNHCR and immigration law practitioners are concerned that the proposals do not accord with the 1951 Refugee Convention. [81] The Immigration law practitioner's Association warned that the proposals are also unworkable, contrary to existing caselaw and do not match the Plan's stated objectives. [82]
Clause 33 sets out the circumstances in which a person who has committed a serious crime outside the UK (or in the UK prior to receiving confirmation of their Refugee status) can be excluded from protection under the Refugee Convention (as provided for by Article 1(F) of the Refugee Convention).
Clause 35 would amend existing legislation interpreting Article 33(2) of the Refugee Convention. [83] Article 33(2) allows States to make an exception to the principle of non-refoulement in respect of refugees who are considered to constitute a danger to the security of the host country or who, having committed a "particularly serious crime", constitute a danger to the community of the host country. Clause 35 would reduce the threshold for a "particularly serious crime" to be one which attracts a custodial sentence of at least 12 months (rather than at least two years, as is currently the case). The clause also confines the scope for rebutting a presumption that Article 33(2) should apply. This would be limited to challenging a presumption that a person represents a danger to the community.
Clause 34 would specify how to interpret Article 31 of the Refugee Convention, which sets out the circumstances in which a refugee is immune from penalties for illegal entry or presence. In recent years this issue has been heavily contested by asylum rights advocates, the Government and groups concerned about asylum 'abuse'. See the separate Library briefing on Article 31 of the Refugee Convention for further discussion of Article 31 and the Bill.
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3 International comparison: Australia's Operation Sovereign Borders policy Several of the Government's asylum reforms are similar to elements of Australia's 'Operation Sovereign Borders' policy, which has been in place since 2013. In evidence to the Home Affairs Committee, the Australian Government described the policy as "a multilayered construct supporting the legislative and policy setting that no one who arrives illegally by boat will settle in Australia." Elements of the policy particularly relevant to the Bill and New Plan for Immigration include: Boat interceptions: Irregular arrivals of people by boat are prevented where safe to do so, either by 'turnbacks' (returning vessels to just outside the territorial seas of the country of departure) or 'takebacks' (working with the country of departure to return people by air or transfers at sea.). Regional ('offshore') processing of claims: People who try to make an unauthorised arrival in Australia are liable to having their asylum claims assessed in a regional processing facility in the Republic of Nauru or Papua New Guinea. But in practice, no new people have been sent to either location since 2014. Temporary protection for people who claim asylum without a valid visa: People who arrive in Australia without a valid visa and seek asylum are generally only eligible for a three-year 'temporary protection visa' (TPV), or a five-year 'safe haven enterprise visa' (SHEV). By contrast, people who arrive with a valid visa and subsequently claim asylum may be eligible for a protection visa. TPV visa holders have permission to work and access to some welfare assistance but cannot sponsor visa applications for family members and have restricted travel and re-entry rights. TPV and SHEV visas can be renewed, subject to the person's ongoing need for protection. There is also some scope to switch into other visa routes. What effect has the policy had? The Australian Government provided evidence to the Home Affairs Committee on the significant impact that the policy has had on numbers of irregular boat arrivals in Australia: Between 2008 and 2013, more than 50,000 people travelled illegally to Australia on more than 820 individual maritime people smuggling ventures. During this period, more than 1200 people drowned in the attempt to reach Australia on small and often unseaworthy vessels that were unsuited to long voyages across the open ocean. Following the establishment of Operation Sovereign Borders on 18 September 2013, it has been more than six years since the last successful maritime people smuggling venture to Australia, and more than six and a half years since the last known death at sea from maritime people smuggling ventures en-route to Australia. Operation Sovereign Borders is highly controversial. Many experts have disputed its compatibility with Australia's obligations under international law. Australia is a signatory to many of the same international human rights instruments as the UK but subject to very limited enforcement mechanisms. A key difference for the UK is that its obligations under the European Convention in Human Rights can be enforced by domestic and international courts. Further background: • Australian Government, Operation Sovereign Borders • UNSW Kaldor Centre for International Refugee Law, Factsheets (various) • Australian Refugee Council, Recent changes in Australian refugee policy, 1 March 2021 • Home Affairs Committee, Written evidence submitted by the Australian Government (CHA0060), December 2020 Home Affairs Committee, Oral evidence: Channel crossings, migration and asylum-seeking routes through the EU, HC 705, 11 November 2020 |
5 Part 3: Immigration offences and enforcement
There are no routinely published statistics on illegal entries to the UK. The New Plan for Immigration included some new data on irregular arrivals, in the form of the chart below.
[…]
In 2019, 16,000 people were detected entering the UK through irregular routes and the total appears to have been slightly higher in 2020 and lower in 2018.
Of the 16,000 irregular arrivals detected in 2019, 51% or around 8,160 individuals had come by lorry. There were fewer irregular arrivals by lorry in 2020 due to reduced cross-Channel traffic as a result of the pandemic.
There is some limited information available about arrivals by lorry for previous years, although they do not appear to be comparable with the figures above:
• Between April and September 2015 there were at least 6,429 people were detected after entering the country by stowing away in a lorry (ICIBI, 2016, A short notice inspection of the Home Office response to 'lorry drops', p.8),
• 2,366 in 2016/17, and
• 1,832 in 2017/18 (ICIBI, 2018, An inspection of Border Force operations at south coast seaports, para 7.3 (p.26).
In April 2020, there was a sharp rise in the number of people entering the UK illegally by crossing the English Channel in small boats. This coincided with the start of 'lockdown' in France and a reduction in freight traffic across the Channel. In evidence given to the Select Committee on the European Union in September 2020, the Parliamentary Under-Secretary to the Home Office noted that,
The numbers have escalated dramatically, and there are a couple of reasons for that. One is that the weather in April, May and particularly June was unusually benign. The sea was very calm. Combined with that, the other two routes that are often used for clandestine or illegal entry into the country became much more difficult due to coronavirus. The first route was people arriving by aeroplane without proper documentation, so inadequately documented passengers […]
The second route that had been used was coming in on the back of a lorry. Although freight traffic continued to come across, to supply food and so on, the passenger traffic that would ordinarily cross the channel reduced to almost zero in April and May and continues to be very low. The opportunities to use that as a cover for jumping on the back of a lorry diminished considerably, so we saw this switch to small boats. [84]
[…]
The chart shows that the number of boat arrivals grew in each month over the summer of 2020, before reducing over the Autumn and Winter, likely due to rough seas. From March 2021 onwards, the number of arrivals has been higher in each month than at the same time in the previous year.
These figures are estimates based on a combination of data released by the Home Office and data supplied to the House of Commons Library by the BBC. See the Library's briefing on Asylum statistics for further analysis of this data.
Current prosecution figures
The New Plan for Immigration had outlined several measures intended to deter and penalise people who commit illegal entry and facilitation offences, and to strengthen Border Force's powers to respond to irregular maritime crossings and hidden entries to the UK.
There are many offences within domestic immigration law which relate to the use of false documents, illegal entry, visa overstaying and failure to co- operate with removal from the UK.
Section 24(1)(a) of the Immigration Act 1971 makes it a criminal offence for a person who is not British to knowingly enter the UK in breach of a deportation order or without leave. The maximum penalty upon conviction is 6 months' imprisonment and/or a fine.
People found to be ineligible for asylum or other permission to stay in the UK have traditionally tended to be pursued for removal/deportation from the UK, rather than prosecuted for illegal entry or similar offences. An answer to a recent PQ gives figures for the number of prosecutions under section 24 of the 1971 Act: [85]
|
Arrests, charges, and convictions under Section 24 of the Immigration Act 1971 |
||||||
|
2016-17 |
2017-18 |
2018-19 |
2019-20 |
2020-21 |
Total |
|
|
Arrests |
209 |
57 |
42 |
16 |
129 |
453 |
|
Charges |
154 |
48 |
24 |
13 |
116 |
355 |
|
Convictions |
117 |
48 |
23 |
11 |
48 |
247 |
The Government considers that "people seeking to enter the country illegally, including those who have crossed the Channel by small boat, are not appropriately penalised for breaking the law".
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4 Prosecuting 'small boat' cases: recent approaches Reinvigorated efforts over the past couple of years to address irregular migration across the English Channel have included a greater number of prosecutions of migrants caught piloting small boats using existing facilitation offences (so-called 'hand on tiller' cases). [86] Critics, and in some cases, the courts, have said that it is inappropriate to label people who were not acting for financial gain and who may have been coerced into piloting boats as 'smugglers'. [87] Ministers have defended the practice and the New Plan for Immigration made clear the Government's view that facilitation offences should apply to people in such circumstances. [88] However, a recent case involving a person who had helped to steer small boats across the English Channel has prompted a change of approach. [89] The Court of Appeal overturned the person's conviction for assisting unlawful immigration. It found that if the people on board the boat intended to be intercepted and rescued, so that they could claim asylum, there would not be an attempted or facilitated breach of immigration law. The legal distinction between "arrival" and "entry" to the UK was a relevant factor. The outcome of the case has informed updated CPS guidance, published on 8 July, on the approach to take in 'organised facilitation'. [90] The new approach is for the existing offences, which the Bill will change. It is summarised in a CPS press release. In short, prosecutions will be pursued in respect of "individuals who have played a significant role in people-smuggling - including those who organise and pilot dangerous boat crossings across the English Channel." But people who are merely passengers of boats and other vehicles should not be prosecuted "unless they are repeat offenders or have previously been deported." This is in recognition of the fact that "migrants and asylum seekers often have no choice in how they travel and face exploitation by organised crime groups." The new guidelines suggest that such cases should usually be dealt with by administrative removal processes instead. |
Immigration offences and enforcement
Strengthening penalties for illegal entry and facilitation offences
Clause 37 would overhaul the illegal entry and similar offences as provided for by section 24 of the Immigration Act 1971 (as amended). The Government considers that the wording of the existing offence of entering without leave (section 24(1)(a) of the 1971 Act) needs updating to reflect the ways in which people are seeking to enter the UK by irregular routes.
The Bill creates a new offence of knowingly arriving in the UK without a valid entry clearance (i.e. visa) (where a person requires entry clearance).
Clause 37 would also increase the maximum penalties for entering the UK in breach of a deportation order or without immigration permission. Returning to the UK in breach of a deportation order would carry a maximum penalty of 5 years' imprisonment. Entering/arriving in the UK without immigration permission would carry a maximum penalty of 4 years. Currently, each of the comparable existing offences have maximum penalties of 6 months' imprisonment.
The offences in clause 37 target people who come to the UK without immigration permission. There is an indication of the potential effect of the new offences on people intending to seek asylum in the UK in the Explanatory Notes:
In the 12 months ending September 2019, around 62% of asylum applicants to the UK had entered the country irregularly (40% clandestinely, 22% without relevant documentation) with the remainder largely thought to have arrived regularly, (e.g. on a visa) before subsequently applying for asylum. [91]
Clause 37(4) would broaden the facilitation offence at section 25 of the Immigration Act 1971 to include arrival in the UK. Again, the intention is to increase the scope to prosecute people intercepted at sea piloting small migrant boats. [92]
Clause 38 would increase the maximum penalty for existing facilitation offences, from 14 years to life imprisonment. This has been justified on the basis that "Each attempt at illegal entry risks life and the penalties for those who facilitate illegal entry should reflect that". [93] The relevant offences (assisting unlawful immigration and helping asylum seekers to enter the UK) are provided for in section 25 and 25A of the Immigration Act 1971 (as amended) respectively.
Clause 38(2) would broaden the offence of facilitating an asylum seeker's arrival/entry to the UK (s25A of the 1971 Act), by removing the requirement that a person is acting "for gain" when facilitating an asylum seeker's arrival/entry to the UK.
Previous consultation/debate
Migration Watch has welcomed the proposals for tougher penalties for illegal entry and facilitation offences. However it observes that "although the statute book is full to bursting with criminal offences relating to immigration control ... most are rarely prosecuted". [94] It recommends that "In addition to tougher sentencing, a more determined enforcement regime – with the necessary political backing and resources – is essential."
The Government hasn't yet published an Impact Assessment for the Bill and it unclear how widely the new offences will be prosecuted. Colin Yeo, an immigration barrister and high profile commentator, has observed that making greater use of the offences could have a significant impact on the size of the prison population. He also describes clause 37 as being "clearly in violation of the non-penalisation clause at Article 31 of the Refugee Convention." [95] A separate Library briefing paper considers this issue in more detail. [96]
The intended purpose and effect of removing the requirement to be acting "for gain" in the facilitation offence in s25A of the 1971 Act has generated some commentary. The Act already provides that the offence does not apply to people who are acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services (s25A(3)). The Bill's Explanatory Notes confirm that this would remain the case. [97]
The Home Office has also indicated, via Twitter, that clause 38 would not apply to "organisations such as the RNLI or HM Coastguard helping those in distress at sea". However, there remains some uncertainty over the effect of the clause as currently drafted. Some people have questioned whether it would affect people who act as "good samaritans" rather than as part of organised immigration crime. Some have also questioned how the amended offence would fit in with other mechanisms, such as shipmasters' obligations within international maritime law. Guidance jointly published by UNHCR and the International Maritime Organization provides an overview of the relevance of international maritime law to shipmasters and signatory States. It comments:
The Master has an obligation to render assistance to those in distress at sea without regard to their nationality, status or the circumstances in which they are found. This is a longstanding maritime tradition as well as an obligation enshrined in international law. Compliance with this obligation is essential to preserve the integrity of maritime search-and-rescue services. [98]
The guidance highlights the following instruments as particularly relevant to shipmasters:
• 1982 UN Convention on the Law of the Sea (UNCLOS) – in particular, article 98(1) provides that "Every State shall require that the master of a ship flying its flag...(a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress..."
• 1974 International Convention for the Safety of Life at Sea (SOLAS Convention) – Chapter V, regulation 33 obliges the "master of a ship at sea which is in a position to be able to provide assistance, on receiving information...that persons are in distress at sea...to proceed with all speed" to their assistance"
Extending the clandestine entrant civil penalty regime
The longstanding Clandestine Entrant Civil Penalty regime is part of the UK's efforts to deter and prevent people from entering the UK by hiding in tourist and freight transport. [99] Under these arrangements, owners, hirers and drivers can be issued with a penalty if they fail to secure their vehicle and it is used by a 'clandestine entrant' to evade UK border control.
The New Plan for Immigration set out some plans to overhaul the scheme to increase compliance. [100] One of the ideas was to introduce a new penalty for hauliers who have an unsecured vehicle and have failed to take the required actions to prevent unauthorised access, regardless of whether clandestine entrants are found on board or not. That is reflected in clause 39 and Schedule 4 of the Bill.
Extending Border Force enforcement powers
Clause 40 would give immigration staff new powers to search containers unloaded from ships and aircraft. It is intended to fill gaps in existing powers so that immigration staff can search containers which raise suspicion after they have been offloaded.
Clause 41 and Schedule 5 would give additional and expanded maritime enforcement powers. The Government intends that giving greater powers will help "to reduce the number of migrants attempting to cross the English Channel in small boats, to preserve life, secure the UK's borders and dismantle the serious organised crime gangs who are abusing this route". [101]
These include giving immigration or enforcement officers new powers ('Part A1 powers') in respect of UK and foreign ships and ships without nationality. The powers can be exercised in UK or foreign waters, or international waters.
Notable provisions within new Part A1 of Schedule 4A of the Immigration Act 1971 include:
• Powers to stop, board, divert and detain a ship or require it to leave UK territorial waters (paragraph B1). The power to require a ship be taken to a place outside the UK (a controversial practice often described as 'pushback') is new. In some circumstances, exercise of the power would require authorisation by the Home Secretary. Her authorisation would be contingent on the State or relevant territory being willing to receive the ship.
The Explanatory Notes state that "Any tactics employed to divert a ship will only be used where it was safe to do so, in line with international law, including UNCLOS, and a vessel would only be required to leave UK waters if there were no concerns about the vessel's ability to reach land or the welfare of those on board." [102]
• Powers to search and obtain information (paragraph C1).
• Powers of arrest and seizure (paragraph D1).
• Permitted use of reasonable force (paragraph H1).
• Protection of relevant officers (paragraph J1). This protects immigration/enforcement staff from liability in civil or criminal proceedings when purporting to exercise Part A1 powers, if acting in good faith and there were reasonable grounds for doing so.
• New offences (paragraphs K1, L1, M1). Various new offences are created (with varying maximum penalties under the laws of England and Wales, Scotland, and Northern Ireland). They cover intentionally obstructing a relevant officer; a failure to comply with an officer's requirement; and provision of false information or a failure to disclose information. The maximum penalties vary according to the jurisdiction, the maximum is up to 12 months' imprisonment and/or a level 5 fine.
Previous consultation/commentary
The New Plan for Immigration referenced plans to extend powers available to Border Force staff at sea and for searching freight containers at UK ports. It also highlighted plans for new powers to stop and redirect vessels out of UK territorial seas, and to return intercepted vessels and the people on board to the country of embarkation. The Plan noted that the use of these powers would be subject to securing agreement from the other country. [103]
UNHCR's view is that the Refugee Convention does not rule out return and transfer agreements between safe third countries "where required safeguards are met in law and practice". It has welcomed commitments to seeking agreement from the country of return. [104] But it has expressed doubts about whether Border Force would have a legal basis to simply prevent the passage of small boats in the English Channel (emphasis as original):
37. Once a boat enters the United Kingdom's territorial waters, it engages the country's jurisdiction and thus its primary responsibility for search and rescue. Under the law of the sea, States are obliged to proceed with all possible speed to the rescue of any person in distress at sea if it is safe to do so and disembark them at a port of safety. In light of the precarious type of vessels and numbers of persons on board them that have arrived in the UK across the English Channel in the past year – it is foreseen that there would be very few scenarios, if any, where the UK would have a legal basis to simply intercept and redirect small boats away from UK shores.
As summarised in the guidance jointly published by UNHCR and the International Maritime Organization, various international legal instruments make provisions relating to interceptions and rescues at sea. International human rights and refugee law, particularly the principle of non-refoulement, is also relevant to decisions on where to disembark people rescued at sea. [105]
Removals
Minimum notice periods for removal
Clause 43 would amend current policy on notice periods for people liable to removal from the UK. Chiefly, it would:
• Provide a statutory minimum notice period of 5 working days in all cases (subject to limited exceptions for people refused entry upon recent arrival). Under existing Home Office policy, some cases are subject to a 72-hour notice period and for others it is 5 working days.
• Amend current policy concerning the provision of further notice of removal in failed removal cases, by providing that further notice is not required where a further removal attempt is scheduled for within 21 days of a previous date for removal (rather than 10 working days as at present).
Broadening the Early Removal Scheme for foreign national offenders
Clause 44 is a "placeholder" for a more substantive clause intended to increase the scope to deport Foreign National Offenders (FNOs) from the UK under the Early Removal Scheme (ERS).
The Government wishes to change current arrangements in three ways:
• Bring forward the point at which a FNO who has served half of the requisite custodial period could be deported from the UK. The 'early removal window' would change from 9 months to 12 months before the earliest point the FNO can be released from custody.
• Allow removal to take place at any point in the sentence on or after the person becomes eligible for the ERS. The effect would be that FNOs who are not removed from the UK before initial automatic release on licence and who are subsequently recalled to custody would be within scope for the ERS.
• Introduce a 'stop the clock' provision, which would mean that a FNO expelled under the ERS (upon/after commencement of this Act) who subsequently returned to the UK would become liable to serve the balance of the outstanding custodial period of their sentence.
The clause as currently drafted provides for the details of the arrangements to be set out in regulations which would be subject to the affirmative procedure. However, the Explanatory Notes indicate that the substantive clause might replace these with a different approach.
Immigration bail
Clause 45 adds a new ground to the list of considerations for granting bail, namely a failure to cooperate with immigration processes (without reasonable excuse). This measure had previously been proposed in the New Plan for Immigration. [106]
Bail for Immigration Detainees, a charity that provides free legal advice and representation to people in immigration detention, contends that "the Home Office [is] seeking to change the law because it has consistently been losing bail hearings". It expects that the change "will make it harder for people to get bail and will leave them stuck in detention for longer." [107]
The New Plan for Immigration reiterated the Government's commitment to supporting victims of modern slavery. But the Government also considers that the system is open to misuse from people seeking to avoid immigration detention and frustrate removal. [108] It points to an increase in referrals to the National Referral Mechanism (NRM) as a cause for concern:
NRM referrals more than doubled between 2017 and 2019 from 5,141 to 10,627. In 2019, of those referred into the NRM after being detained within the UK (totalling 1,949), 89% received a positive RG decision and 98% were released. More recently, child rapists, people who pose a threat to national security and illegal migrants who have travelled to the UK from safe countries have sought modern slavery referrals, which have prevented and delayed their removal or deportation. [109]
A separate Home Office research publication examining issues raised by people in immigration detention provides some further background data. [110] It found that, between 2017 and 2019, the proportion of people detained following offences who were referred as a potential victim of modern slavery increased from 3% to 16%.
The independent Anti-Slavery Commissioner has recognised that "There are undoubtedly areas of overlap between modern slavery and immigration", but is concerned that "measures taken to address a potentially small number of people seeking to abuse the immigration system will have a considerable impact on victims of modern slavery". She has warned of a "grave danger of viewing victims of modern slavery through an immigration lens and ignoring the trauma and exploitation they have suffered as victims." [111]
|
5 What's not in the Bill: additional plans for reform The Explanatory Notes provide an overview of additional measures that the Government intends to take to improve protections for trafficking or modern slavery victims (paragraphs 63-67). These include: • A commitment to provide victim support packages more tailored to individual need. • An intention to improve the support given to child victims of modern slavery, including those involved in county lines exploitation. • Further funding to increase prosecutions and build policing capability. • Plans to review the 2014 Modern Slavery Strategy and for further legislation to support the wider National Referral Mechanism Transformation. |
Several measures in Part 4 are partly in response to the perceived risk of people misusing the National Referral Mechanism system to delay immigration action.
Clause 57 would define various terms used in Part 4. It allows for the terms "victim of slavery" and "victim of human trafficking" to be defined in regulations subject to the affirmative procedure.
Clause 46 would introduce slavery or trafficking information notices, which could be served on people bringing asylum/human rights-based claims. They would work in a similar way to the evidence notices in clause 16, by requiring that any information potentially relevant to a decision that a person may be a victim of trafficking or slavery be provided by a specified date. Like clause 17, clause 47 provides that providing information after the deadline without good reason will damage a person's credibility.
The Government's intention is that the notices will support the early identification of potential victims of slavery or trafficking. Enabling decision- makers to consider trafficking or slavery grounds alongside a person's grounds for claiming asylum is intended to make decision-making more efficient as well as giving access to support as early as possible. [112]
The measures are also intended to reduce the potential for people to delay removal by raising trafficking or modern slavery issues at a late stage in the process. [113]
Clause 48 would amend the reasonable grounds threshold in the Modern Slavery Act 2015 (and related statutory guidance). It clarifies the threshold for giving assistance and support to potential victims of slavery or trafficking in England and Wales. Support would be provided where there are reasonable grounds to believe that a person "is" a victim (rather than the current test, "may be").
The proposed new wording reflects the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and comparable legislation in Scotland and Northern Ireland. The current approach in England and Wales reflects the wording of the Trafficking Directive, Directive 2011/36/EU. Clause 56 provides for the Directive to be disapplied to the extent that it is incompatible with the Bill's provisions.
Clause 48 also specifies that the standard of proof for conclusive grounds decisions is the "balance of probabilities." It does not specify a standard of proof for reasonable grounds decisions.
Clause 49, complemented by clause 52, would put into primary legislation some of the key principles of the UK's approach to implementing ECAT. Currently, they are set out in guidance. In particular, the clause provides that a person recognised as a potential victim of trafficking or slavery must be given a recovery and reflection period of at least 30 days and until they are given a conclusive grounds decision. The recipient cannot be removed from the UK during that period. The current approach in England and Wales is to provide for at least 45 days recovery and reflection period.
Limitations and exceptions to the provisions in clauses 49 and 52 are set out in clauses 50 and 51. Clause 50 provides that a person should only receive one recovery period where a subsequent referral has been received for exploitation which pre-dates the initial recovery period received, unless the particular circumstances of the case require otherwise.
Clause 51 provides that a person in receipt of a positive reasonable grounds decision can be disqualified from the protections given to trafficking or slavery victims if they are a threat to public order or have raised their referral "in bad faith". In such circumstances there is no requirement to make a conclusive grounds decision, and the person is not protected from removal from the UK during the recovery period.
Some circumstances in which a person would be deemed to be a threat to public order are detailed in clause 51(3). They apply, for example, to a person who comes within the scope of the automatic deportation regime for foreign criminals or who otherwise poses a threat to national security. [114]
Victims of modern slavery have a statutory defence for certain offences. The independent Anti-Slavery Commissioner has raised concerns that awareness of the statutory defence across the criminal justice system remains low.
Leave to remain for victims of slavery or trafficking
Clause 53 details the circumstances in which a confirmed victim of slavery or trafficking must be given limited (i.e. time-restricted) permission to remain in the UK. Further details would be specified in the Immigration Rules. [115]
A person may not be granted limited leave (or may have it revoked) if they are deemed to be a threat to public order, or to have raised matters relating to being a victim of slavery or trafficking in bad faith, or in other prescribed circumstances (clause 53(5-7)).
The current position is that recognised victims do not automatically qualify for leave to remain in the UK. But there are circumstances in which they can qualify for temporary permission to stay.
In particular, where there are compelling reasons to do so, Discretionary Leave "outside the Immigration Rules" may be given. A victim might have other immigration options, such as claiming asylum. If a person does not qualify for Discretionary Leave or any other leave, they are expected to leave the UK.
Providing legal aid for advice on National Referral Mechanism referrals
Clauses 54 and 55 would allow for people in receipt of civil legal aid for certain immigration or asylum matters to be given "add-on" advice about referral to the National Referral Mechanism. This would also apply to people granted legal aid based on an exceptional case determination. This advice provision is intended to help to identify and support people who may be potential victims of trafficking. [116]
Previous consultation/debate
Many of the provisions in Part4 of the Bill reflect measures previously discussed in the New Plan for Immigration. For an overview of some key stakeholders' responses see, for example, the detailed submissions from The Salvation Army, the Independent Anti-Slavery Commissioner, the Centre for Social Justice and Justice and Care, the Anti-Trafficking and LabourExploitation Unit and Focus on Labour Exploitation. ECPAT UK (an NGO which works to protect children from trafficking and exploitation) has issued a statement in response to the Bill in addition to its previous consultation response.
Proposals commonly identified as areas of concern, and common themes in responses, include:
• That increasing the test for a reasonable grounds decisions is unnecessary and risks creating further delays which can increase victims' trauma and anxiety, and that improving current practices and training for First Responders would be a more appropriate response.
• That structural problems in the legal aid system will undermine the impact of proposed changes to legal aid eligibility.
• That penalties for 'late' disclosure conflict with the Modern Slavery Statutory Guidance (which recognises it is a common occurrence), and risk discouraging victims from coming forward.
• That exclusions on the basis of public order grounds should be rare and subject to a much higher threshold than a 12-month prison sentence, and risk affecting victims who were forced to carry out criminal offences due to criminal exploitation.
• That the proposals do not distinguish between adults and children, and that some measures (e.g. slavery or trafficking information notices, legal aid on NRM referrals) will discriminate between victims who have immigration issues and those that do not.
Age assessments
Clause 58 is a placeholder for substantive provisions to be tabled before Committee stage. These are likely to generate significant interest and controversy amongst stakeholders.
Background and previous consultation/debate
The New Plan for Immigration set out the Government's case for reforming age assessment methods and processes. Briefly, the Government is concerned that the current legal process for determining the age of asylum seekers is "highly subjective and often subject to prolonged and expensive legal disputes." It also highlights the significant costs associated with supporting unaccompanied asylum-seeking children, and the safeguarding issues caused by adults being wrongly treated as children and vice versa. [117]
The Explanatory Notes and New Plan for Immigration give some further context to the Government's ideas for reform. These include: [118]
• Replacing the current threshold for initial age assessments (physical appearance and demeanour which very strongly suggests that the person is 25 years or older) with a "more appropriate" threshold.
• Establishing a new National Age Assessment Board (NAAB), which will have responsibility for conducting age assessments upon request of local authorities and specifying the criteria, process and requirements for conducting age assessments.
• Allowing for the future use of scientific age assessment methods.
• Creating a statutory appeal right against age assessment decisions made by NAAB, "to avoid excessive judicial review litigation." [119]
The ambition as expressed in the New Plan for Immigration is to create a more consistent and robust age assessment process which produces "decisive" assessments and uses a quicker appeal process to resolve any challenges swiftly and conclusively.
A counterview commonly held by experts in the field is that "age assessment has always been controversial because it is an inexact science and there is a significant margin of error." [120]
Some stakeholders' responses to related proposals in the New Plan criticised the Home Office for providing partial and misleading data in support of its assertions and proposals which, if implemented, would be a significant change from existing Home Office guidance. [121]
Moves to introduced scientific age assessment methods are likely to generate particular interest. They are not a routine part of the current Home Office policy guidance on Assessing age. [122]
Previous Home Office interest in the potential use of dental and wrist x-rays was strongly opposed by children's rights campaigners and professional medical bodies. [123]
For example, in the view of the Royal College of Paediatrics and Child Health,
there is no single reliable method for making precise age estimates. The most appropriate approach is to use a holistic evaluation, incorporating narrative accounts, physical assessment of teeth, puberty and growth, and cognitive behaviour and emotional assessment.
The use of radiological assessment is extremely imprecise and can only give an estimate of within two years in either direction, and the use of ionising radiation for this purpose is inappropriate. The British Society for Paediatric Endocrinology and Diabetes are clear that it is not possible to accurately assess a child's age based on physical examination or bone age assessment.
For more detailed responses to the proposals on age assessments, see, for example, ILPA's Response to the New Plan for Immigration, responses from the Children's Commissioners for Northern Ireland, Scotland and Wales, and UNHCR's detailed observations.
The Association of Directors of Children's Services has been more supportive of the proposals. It is in favour of establishing the NAAB, which it says "must be driven by a child-centred approach ...rather than an immigration focus". It has also endorsed the introduction of codified assessment criteria including the future use of scientific methods, "subject to agreement and thorough research evidence as to their efficacy." [124]
Visa penalties for un-cooperative States
Clause 59 is another placeholder clause. It would enable the Home Secretary to impose visa penalties on any country that does not co-operate with the removal of its nationals.
Penalties could include slowing down or temporarily suspending the processing of visa applications and imposing additional financial requirements for visa applications.
Similar provisions have existed in US immigration law since 1952. Until the Trump administration, they had only been very rarely used since the end of the Cold War. [125]
A briefing by the Congressional Research Service (July 2020) provides some background information about how the US system works. [126]
The US experience highlights that, in practice, decisions on whether to apply visa sanctions to un-cooperative countries, or whether to use other tools of persuasion, are informed by a range of broader considerations. For example, the potential effect on trade, law enforcement or other forms of co-operation, and broader foreign policy interests.
Electronic travel authorisation
Clause 60, another placeholder clause, legislates for the introduction of electronic travel authorisations (ETAs).
ETAs are part of the Home Office's plans to have a universal 'permission to travel' scheme in place by 2025. [127]
People visiting the UK (or transiting through the UK ) who do not currently need a visa for short stays or who do not have an immigration status prior to travelling will be required to apply for an ETA before travel. This is intended to enable earlier security checks and better-informed decisions about whether to grant permission to travel to the UK. The ETA requirement is like the EU's planned ETIAS scheme, and arrangements already in place in Australia, New Zealand, Canada, the USA and elsewhere.
Powers of the Special Immigration Appeals Tribunal
Clause 61 would extend the Special Immigration Appeals Commission's remit, to include immigration decisions that can only be challenged through judicial review (where the case is certified on security/public interest grounds).
Tribunal charging powers in respect of wasted costs
Clause 62 provides the First-tier and Upper Tribunals (Immigration and Asylum Chamber) with a new power to charge a participant in proceedings for wasted or unnecessary tribunal costs incurred due to a party's unreasonable actions. Currently, powers to make costs orders are limited to the parties' legal costs. Money raised would be paid into general government funds.
Clause 63 imposes a duty on the independent Tribunal Procedure Committee to introduce procedural rules that will ensure that Immigration Judges will consider making a charge or cost order in response to certain conduct by participants to an appeal.
Consolidating immigration legislation
Clause 65 is a Henry VIII power. It gives the Home Secretary the power by regulations, to make amendments (including repeals, revocations and modifications) to immigration legislation as in her opinion, facilitate, or are otherwise desirable in connection with the consolidation of that legislation ('the consolidation Act').
The regulation-making power in this clause is wide, but is limited in scope by the fact that any pre-consolidation amendments must facilitate the consolidating Act and that does not extend to allowing the regulations to change the effect of the substantive law.
The Home Office has advised that the consolidating Act would follow the consolidated Bill procedure, and that it is a standard measure to take a regulation making power to make pre-consolidation amendments to facilitate that process because the consolidation must operate on the current law.
Regulations made under clause 65 would only come into force if an Act to consolidate immigration legislation is passed, consolidating the whole or substantial part of the Acts related to immigration. The regulations would be subject to the affirmative procedure.
Previous consultation/discussion
The Law Commission has previously advised on the simplification of the Immigration Rules and there is longstanding and widespread support for the consolidation of existing immigration legislation. The Windrush Lessons Learned Report recommended that the Law Commission also look at consolidating immigration legislation.
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[1] CBP 1403, Asylum statistics, 1 July 2021
[2] Home Office, Immigration statistics quarterly March 2021, table Asy_D01
[3] The Library's briefing on Asylum Statistics looks at the nationality of applicants in more detail.
[4] Home Office, Immigration statistics quarterly December 2020, table Asy_D01
[5] This includes applications resulting in a grant of asylum or any other form of leave to remain. It relates only to applications made through the UK's in-country asylum process.
[6] It should be noted that these statistics do not capture information on what happened to asylum seekers after receiving a final negative decision and some may have subsequently been granted leave to remain, outside of the asylum process.
[7] This is excluding withdrawn applications.
[8] Migration transparency data, Immigration & Protection data: Q1 2021, table ASY_04
[9] Ibid.
[10] A separate policy statement is concerned with legal migration and future border control measures: Home Office, The New Plan for Immigration: legal migration and border control, 24 May 2021
[11] HC Deb 24 March 2021 c921
[12] HC Deb 24 March 2021 c922
[13] HC Deb 24 March 2021 c921
[14] Bill 141-EN, Explanatory Notes, para 5
[15] Refugee Action, Joint open letter in response to new plan for immigration consultation (undated; accessed 14 May 2021)
[16] E.g. published responses by the Public Law Project, Bar Council, Law Society of England and Wales, Immigration Law Practitioners' Association, Public Law Project, Amnesty International.
[17] Home Office in the Media, Facts about the Borders Bill, 6 July 2021
[18] Bill 141-EN, Explanatory Notes, para 5
[19] Migration Watch, Our written evidence on the Government's proposed asylum reforms, 6 May 2021
[20] UNHCR, UNHCR Observations on the New Plan for Immigration policy statement, May 2021
[22] UIN HCWS1163, 10 December 2018
[23] Commons Library briefing CBP 8459 The United Nations Global Compact for Migration provides further background and discussion of the UK's position towards the GCM.
[24] Part 1 also applies to the Channel Islands and the Isle of Man and the British overseas territories (see clause 69(3)).
[25] Immigration Rules, Part 14 para 403
[26] Bill 141-EN, paras 137-8
[27] R(MK (A Child) v SSHD [2017] EWHC (Admin)
[28] European Network on Statelessness, Submission to the UK Government Home Office Consultation on it 'New Plan for Immigration', May 2021
[29] Free Movement, 'New Plan for Immigration: the proposed changes to nationality law', 29 April 2021
[30] Discretion to grant permission 'outside the Rules' is generally used sparingly.
[31] CBP 9000, Asylum claims in the UK: common questions, November 2020
[32] Article 31 is subject to interpretation as per clause 34 of the Bill (as discussed in a further section of this briefing).
[33] Home Office, Immigration statistics quarterly March 2021, table Asy_D01. On average each year between 2010 and 2020, 86% of applications were made at port.
[34] Home Affairs Select Committee, Oral evidence HC 705, Q29
[35] See, for example, Refugee Council, New Plan for Immigration – consultation response, May 2021; ILPA, ILPA's Response to the New Plan for Immigration, 5 May 2021; UNHCR, UNHCR Observations on the New Plan for Immigration policy statement of the Government of the United Kingdom, May 2021
[36] Nationality and Borders Bill, ECHR memorandum
[37] Bill 141-EN, para 145
[38] For discussion, see for example, European Asylum Support Office, The push and pull factors of asylum-related migration: A literature review, November 2016; Australian Parliamentary Library, Destination anywhere? Factors affecting asylum seekers' choice of destination country, 5 February 2013; Refugee Council, Chance or Choice? Understanding why asylum seekers come to the UK, January 2010; Home Office, Research Study 243, Understanding the decision-making of asylum seekers, July 2002
[39] R v Uxbridge Magistrates Court (ex parte Adimi) [1999] Imm AR 560
[40] Bill 141-EN, para 158
[41] See Library CBP 1909 Asylum support: accommodation and financial support for asylum seekers, 22 April 2021
[42] Called 'reception centres' in the New Plan for Immigration.
[43] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021
[44] Refugee Council, New Plan for Immigration – Impact Analysis, June 2021
[45] HM Government, Secure Borders, Safe Haven, Cm 5387, February 2002
[46] NAO, The cancellation of Bicester Accommodation Centre, HC19 of 2007/08, 8 November 2007
[47] BBC News, 'Barton Stacey asylum seeker accommodation plans scrapped', 1 May 2021; Duncan Lewis Solicitors, 'Home Office abandons unlawful plans to house asylum seekers at Yarl's Wood', 9 February 2021
[48] Refugee Council, Nationality and Borders Bill 2021-22 0 second Reading (14 July 2021)
[49] Schedule 11, Immigration Act 2016
[50] Schedule 12, Immigration Act 2016
[51] ILPA, ILPA's Response to the New Plan for Immigration, 5 May 2021, para 220
[52] NRPF Network, The New Plan for Immigration Consultation, 6 May 2021
[53] Immigration Rules, paras 345A-345D
[54] Statement of changes to the Immigration Rules HC1043 of 2019-21
[55] Explanatory Memorandum to HC 1043, para 7.4
[56] Immigration rules, para 345D
[57] Home Office, Inadmissibility: safe third country cases, v5.0, 31 December 2020
[58] PQ UIN142959, answered on 1 February 2021
[59] HM Government, New Plan for Immigration, p.19
[60] The Independent, 'EU countries rule out bilateral asylum deals in blow to Priti Patel's immigration plans', 25 April 2021; The Observer, 'EU countries snub Priti Patel's plans to return asylum seekers', 9 May 2021
[61] Free Movement Blog, 'New statement of changes to the Immigration Rules: HC 1043', 11 December 2020
[62] CBP 9281, Article 31 of the Refugee Convention, 15 July 2021
[63] Financial Times, 'Hundreds seeking asylum in UK warned of removal to third country', 3 May 2021
[64] Ibid.
[65] Home Office, Immigration statistics year ending March 2021, table Asy_D02
[66] Clause 64 makes further provisions on good faith; it requires that a person's failure to act in good faith when engaging with the UK authorities on immigration matters should be taken into account by Home Office decision-makers when considering whether to grant permission to enter or remain in the UK, cancel a person's permission to enter or remain in the UK or revoke a person's indefinite permission to enter or remain in the UK.
[67] ILPA, ILPA's response to the New Plan for Immigration, 5 May 2021, para 73
[68] Bill 141-EN, para 219
[69] The Lord Chancellor v Detention Action [2015] EWCA Civ 840, paragraph 49
[70] …
[71] Bill 141-EN, para 291
[72] BBC News, 'EU 'support' for asylum plan', 28 March 2003; 'Blair accuses Tories over asylum', 22 April 2005
[73] BBC News, 'Denmark asylum: Law passed to allow offshore asylum centres', 3 June 2021
[74] The Times, 'Priti Patel plans for migrants to be held in offshore hub', 28 June 2021
[75] The Independent, 'Priti Patel's asylum overhaul plans 'almost ne-colonial' warns UN', 9 July 2021
[76] UNHCR, UNHCR Observations on the New Plan for Immigration policy statement, May 2021, para 16- 17
[77] Home Affairs Committee, Oral evidence: Channel crossings, migration and asylum-seeking routes through the EU, HC 705, 11 November 2020
[78] Home Affairs Committee, Oral evidence: Channel crossings, migration and asylum-seeking routes through the EU, HC 705, 11 November 2020
[79] Bill 141-EN, paras 310 -315
[80] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.22
[81] UNHCR, Legal observations para 62-73; ILPA, ILPA's Response to the New Plan for Immigration, 5 May 2021, para 23-39
[82] ILPA, ILPA's Response to the New Plan for Immigration, 5 May 2021,
[83] Namely, s72 Nationality, Immigration and Asylum Act 2002.
[84] Select Committee on the European Union, Uncorrected oral evidence: Brexit: future UK-EU co- operation on asylum and international protection, Tuesday 29 September 2020, Q26
[85] UIN HL14496, answered on 7 April 2021
[86] The Independent, 'Asylum seekers jailed for steering dinghies across Channel despite 'not being part of criminal gangs', 15 November 2020; Free Movement, 'Prosecutions for assisting unlawful immigration in small boats cases: the key to acquittal', 17 May 2021
[87] The Independent, 'Channel crossings: Home Office 'twisted judge's remarks' to defend branding migrants as 'people smugglers'', 30 November 2020
[88] Home Affairs Committee, Oral evidence: Channel crossings, migration and asylum-seeking routes through the EU, HC 705, 2 December 2020, Q653-5; HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.37
[89] R v Kakei [2021] EWCA Crim 503. For discussion, see Free Movement, 'Prosecutions for assisting unlawful immigration in small boats cases: the key to acquittal', 17 May 2021
[90] CPS, Legal Guidance, Immigration: Organised facilitation: Vehicles and Boats, 8 July 2021
[91] Bill 141-EN, para 15
[92] Bill 141-EN, para 397
[93] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.37
[94] Migration Watch, Our written submission on the Government's proposed asylum reforms, 6 May 2021
[95] Free Movement, 'The Nationality and Borders Bill 2021: First impressions", 6 July 2021
[96] CBP 9281, Article 31 of the Refugee Convention, 15 July 2021
[97] Bill 141-EN, para 402
[98] UNHCR and IMO, Rescue at Sea (undated)
[99] Currently provided for in Part II, Immigration and Asylum Act 1999 (as amended)
[100] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.38
[101] Bill 141-EN, para 455
[102] Bill 141-EN, para 471
[103] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.38
[104] UNHCR, UNHCR Observations on the New Plan for Immigration policy statement, May 2021 para 38
[105] I.e. returning a person to a place where they would be at risk of persecution.
[106] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.41
[107] Bail for Immigration Detainees, BID's response to the Nationality and Borders Bill, 7 July 2021
[108] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.31
[109] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.31
[110] Home Office Research report 123, Issues raised by people facing return in immigration detention, 16 March 2021
[111] Independent Anti-Slavery Commissioner, The New Plan for Immigration consultation response, 6 May 2021
[112] Bill 141-EN, para 523
[113] Bill 141-EN, para 529
[114] i.e. who has been convicted of an offence and sentenced to at least 12 months' imprisonment, or who has been convicted of a specified offence and sentenced to a period of imprisonment (s32, UK Borders Act 2007)
[115] Bill 141-EN, para 565
[116] This paragraph was updated on 16 July 2021 in response to feedback from the Ministry of Justice.
[117] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.22-3
[118] Bill 141-EN, paras 596-620
[119] HM Government, New Plan for Immigration Policy Statement, CP 412, March 2021, p.23
[120] Refugee Law Initiative, 'Age Assessment in the New Plan: Something Old, Something new, Something Borrowed...Something Blue?', 21 May 2021
[121] E.g. Refugee Law Initiative, 'Age Assessment in the New Plan: Something Old, Something new, Something Borrowed...Something Blue?', 21 May 2021; ILPA, ILPA's Response to the New Plan for Immigration, 5 May 2021, para 62-70
[122] Home Office, Asylum policy guidance, Assessing age, v4.0, 31 December 2020
[123] HC Deb 23 May 2012 c673W; Home Office, Planning better Outcomes and Support for Unaccompanied Asylum Seeking Children, May 2007
[124] ACDS, ADCS response to the Government's new Plan for Immigration, 29 April 2021, paras 8 - 14
[125] US Immigration and Customs Enforcement, 'Visa Sanctions Against Multiple Countries Pursuant to Section 243(d) of the Immigration and Nationality Act', (accessed 8 July 2021)
[126] Congressional Research Service, 'Immigration: "Recalcitrant" countries and the Use of Visa Sanctions to Encourage Cooperation with Alien Removals', 10 July 2020
[127] HM Government, 2025 UK Border Strategy, CP 352, 17 December 2020; Home Office, The New Plan for Immigration: Legal Migration and Border Control: Strategy statement, CP 441, 24 May 2021