Briefing for House of Lords outlines concerns over changes made by Clause 31 of Bill
A new briefing published on Monday by the Immigration Law Practitioners' Association (ILPA) and Women for Refugee Women says that Clause 31 of the Nationality and Borders Bill on 'well-founded fear' will reverse over 20 years of settled UK refugee case law.
Image credit: UK GovernmentThe 11-page briefing can be downloaded here. It was produced for the House of Lords as the Bill progresses through Committee Stage.
The briefing notes that Clause 31 will impose a higher hurdle on asylum applicants to demonstrate that they have a well-founded fear of persecution.
ILPA and Women for Refugee Women explain: "Clause 31 attempts to implement a heightened two-limb test for determining whether an individual has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and should therefore be recognised as a refugee in the UK. It requires the decision-maker to be satisfied, on the 'balance of probabilities' (i.e. that it is more likely than not) that a person has 1) a characteristic which could cause them to fear persecution because of one of the five reasons listed in the Convention, and 2) that they indeed fear such persecution in their country (a subjective fear). Only if these facts are established to this heightened standard can the decision-maker consider on the lower standard of proof ('reasonable likelihood'), whether the person will be persecuted, and will not be protected, if returned to their country of nationality or former habitual residence."
According to ILPA and Women for Refugee Women, this significant change will fundamentally affect the ability of a person to be granted refugee status, and it will disproportionately affect those who are vulnerable and who already struggle to evidence their asylum claims.
The briefing says Clause 31 incorrectly fails to provide asylum seekers with the benefit of the doubt and contravenes United Nations High Commissioner for Refugees (UNHCR) standards.
ILPA and Women for Refugee Women note that UNHCR standards highlight the importance of giving asylum applicants the benefit of the doubt due to the difficulties people have in proving their asylum claims, as well as the potentially life-threatening harm a person could face if the wrong decision is made.
UNHCR has itself said it opposes the clause and has expressed concern that the approach proposed by the Bill will lead to refugees being denied asylum in error.
ILPA and Women for Refugee Women's briefing says 20 years of settled UK case law stands to be reversed by Clause 31.
It explains: "For more than 20 years, UK courts have given effect to these international standards, applying the 'reasonable likelihood' standard of proof for all elements of the refugee definition. UK courts have explicitly rejected the 'balance of probabilities' threshold for any part of the assessment. In the case of Karanakaran, in 2003, Lord Justice Brooke explained why the lower standard ought to apply: 'It is clear that the majority was influenced by the notorious difficulty many asylum-seekers face in "proving" the facts on which their asylum plea is founded. In many of these cases, they said, the evidence will be the applicant's own story, supported in some instances by reports from organisations like Amnesty International. The stress generated by the nature of an asylum claim and the possible consequences of refusal, complemented by the highly formalistic atmosphere of interview or court, made the task of evaluating the evidence more complex'."
The Supreme Court confirmed in its 2010 judgement in HJ (Iran) and HT (Cameroon): "Where life or liberty may be threatened, the balance of probabilities is not an appropriate test."
While the Government has said Clause 31 will lead to clearer and more consistent decisions, IPLA and Women for Refugee Women disagreed and said: "In our opinion, the present well-founded fear test is adequately clear. In contrast, the new test will create confusion and lead to greater numbers of inconsistent and incorrect decisions, resulting in increased litigation as well as further trauma for desperate people seeking safety."
Women for Refugee Women is deeply troubled by the impact that the Nationality and Borders Bill will have on women seeking asylum, and the briefing warns that Clause 31 will make it harder for women who have survived gender-based violence to obtain a fair assessment of their asylum claim.
Zoe Bantleman, ILPA's Legal Director, told the New Statesman: "For example, a woman claiming asylum for fear of persecution by her husband upon return to her country, would, at first, have her past persecution judged on this higher standard. Rather than the benefit of any doubt being given to her, it may be asked if she can prove it was more likely than not that she had been beaten by her husband before fleeing her country of nationality. If she had no hard proof, no photographs, had feared turning to the police and thus had no police reports, had left all of her family and friends behind and no one to corroborate her account, or simply arrived here empty-handed, it would be more difficult to prove her past persecution under this new standard."
Last week, ILPA and Women for Refugee Women published a 9-page briefing with similar concerns over Clause 32 of the Nationality and Borders Bill.
You can read it here.
It states: "Clause 32 introduces a restricted definition of 'particular social group', reversing UK case law, contravening UNHCR standards, and reinstating incorrect EU law. This particularly and adversely affects certain vulnerable persons, including women. The Refugee Convention does not include 'gender' as one of the five reasons. Therefore, as quoted by Baroness Hale in the House of Lords case of Fornah, the San Remo Expert Roundtable in September 2001 concluded that '[t]he text, object, and purpose of the Refugee Convention require a gender-inclusive and gender-sensitive interpretation'. Women who have survived gender-based persecution often rely on membership of a 'particular social group' to claim asylum. We are, therefore, extremely concerned that the change to the definition of a 'particular social group' will prevent survivors of abuse from accessing protection in the UK."