The Refugee Convention and the UK Nationality and Borders Bill
For a number of years now, various UK governments have enacted legislation which, among other objectives, have been designed to signal to the international community their disapproval of the rights and responsibilities contained in the Convention Relating to the Status of Refugees (Refugee Convention).
The Nationality and Borders Bill, which is fast approaching the committee stage of the House of Lords, is the latest demonstration by the UK government of how easily the ambiguities, anomalies and silences of the Refugee Convention can be interpreted to the detriment of those in search of humanitarian protection.
Two equally chilling exercises appear to be driving the provisions on asylum which are contained in Part 2 of the Bill (pp. 13-39). The first is to test the extent to which the government is able to augment the existing, already draconian, asylum regime - while remaining technically within the law. The second is to set out the consequences for those in search of humanitarian protection of the UK’s recent departure from the European Union (EU). Whilst a comprehensive assessment of the asylum provisions of the Bill is beyond the scope of this commentary, a scrutiny of sections 11, 18, 34, 36 and 37 will provide ample justification for this assessment of the first of the primary objectives of the Bill, and section 15 will be explored with a view to revealing the second objective.
Between pages 33-39, the Bill sets out how the main elements of the Refugee Convention are to be interpreted for the purposes of the proposed new legislation. Sections 30-32 (pp. 34-36) interpret the Article 1.A (2) refugee definition in ways that are unlikely to excite much critical comment - being broadly consistent with international state practice and opinio juris. However, severe inroads into refugee protection are likely to be made through the combined effects of sections 34, 36 and 37 (pp. 36-38).
Put mildly, section 34 falls somewhat short of a robust application of the non-refoulement obligation, which is contained in Article 33 of the Refugee Convention. Article 33 prohibits the return of refugees from a state in which asylum is sought to another where their life or freedom may be threatened on the grounds specified in Article 1. A (2). Section 34 waters down the non-refoulement principle by enshrining in legislation a controversial Home Office practice known as the internal flight alternative (IFA). In essence, an IFA decision would deny the protection of Article 33 to refugees who face a threat of persecution in only one part of their country of origin or habitual residence - the decision being justified on the basis that they can be returned to a ‘safe’ area. Especially worrying is the fact that section 34 provides that 'technical obstacles relating to travel' to the area deemed to be safe should not be weighed in the balance by the determining authority when considering an IFA option.
Section 36 of the Bill is directed toward Article 31 of the Refugee Convention, which prohibits states from penalising refugees who are forced to enter a country illegally or through irregular means - provided that the refugee in question has come ‘directly’ to the country of asylum and presents themselves ‘without delay’ to the authorities there. According to section 36 (1) of the Bill, refugees are deemed not to have come directly to the UK if they ‘stopped’ in another country en route. Further, under section 36 (2), refugees will be deemed to have presented themselves to the UK authorities ‘without delay’ if they do so ‘as soon as reasonably practicable’. Ostensibly, section 36 is intended to amend corresponding provisions contained in section 31 of the Immigration and Asylum Act 1999. However, a cursory comparison between the two reveals that refugees seeking asylum in the UK, at least since the turn of the century, have been subject to a stringent application of Article 31 of the Refugee Convention. The real function of section 36 is to pave the way toward enactment of the highly controversial provisions of section 11 (pp. 13-14) of the Bill, which inaugurates a distinction between two ‘groups’ of refugees. In essence, ‘Group 1’ refugees are constructed from a literal application of Article 31 of the Refugee Convention, and can be expected to be treated more favourably than all the others (‘Group 2' refugees) who, ironically, more closely give expression to the mischief which Article 31 of the Refugee Convention was intended to address. Sections 11 (5) (a)-(d) and 11 (6) (a)-(d) offer examples of the kinds of injurious actions which Group 2 refugees and their family members are liable to be subjected to by the British state. That the lists are not exhaustive is additional evidence - if such is needed - of the calculated assault that the UK government has launched against the Refugee Convention.
The meaning and scope of Article 31 of the Refugee Convention is still heavily contested - not least because of the historical specificity of some of its key terms - such as ‘directly’ - which, when drafted, could not have anticipated the complex travel routes which today's refugees are forced to navigate. This feature notwithstanding, the Bill draws upon the most restrictive meaning of Article 31 in an attempt to justify ‘differential treatment of refugees’.
By focusing on what refugees are supposed to have done or have omitted to do in the course of their asylum journeys, sections 34 and 36 of the Bill attempt to detract attention away from the dangerous and unsettled conditions existing in many refugee producing states and the ungenerous ways in which many states in the Global North have approached their obligations under the Refugee Convention and other human rights instruments. This part of the commentary concludes with reference to two further sections of the Bill that can be seen to continue this cynical trend.
First, section 18 (pp. 21-23) of the Bill adds further layers to the atmosphere of distrust of asylum seekers - brought about by provisions governing their credibility, which are contained in section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act. It does so by orchestrating a barely veiled assault on the judiciary, who, it is implied, are not taking sufficient punitive measures against those asylum claimants suspected of concealing information or presenting misleading information or otherwise being obstructive. Section 18 mandates that the First-tier Tribunal and the Special Immigration Appeals Tribunal specifically address whether an asylum claimant has, in the course of proceedings, concealed information etc. If a finding to that effect is made, the Tribunal must specify what impact the finding had on its decision.
Second, section 37 of the Bill speaks to (or, more accurately, speaks across!) Article 33 (2) of the Refugee Convention, which permits a state to refuse to extend protection to refugees who comply with Article 1. A (2) but, nonetheless, are excluded from the ambit of its protection because they have been convicted of a particularly serious crime. In essence, the Bill amends section 72 of the Nationality, Immigration and Asylum Act 2002 so as to reduce the minimum sentence term that would trigger the operation of the exclusion provisions from two years to one year.
Asylum After Brexit
Section 15 (pp. 18-20) of the Bill has been tagged onto provisions in the Nationality, Immigration and Asylum Act 2002 concerning the removal of persons, including asylum-seekers. Section 80 of the 2002 Act - which, in turn, amends section 11 of the Immigration and Asylum Act 1999 - covers the removal of asylum seekers to EU member states on the basis of arrangements between those states for determining which of them is responsible for considering asylum applications - so-called ‘standing arrangements’. Whilst the EU is not explicitly mentioned in section 15 of the Bill, its positioning leaves little room for doubt that the ‘safe third countries’ to which it refers are primarily EU member states. The inclusion of section 15 allows the UK government to signal a new approach to applications for asylum made by individuals who enter the UK via the territories of an EU member state, or who are judged to have some other, less tangible, connection with an EU member state. In respect to these, the Bill introduces the concept of the ‘inadmissible claim’ that falls entirely outside the scope of the immigration rules and, therefore, would not normally place an obligation on the part of the UK immigration authorities to consider its merits.
As a side note, section 14 (pp. 17-18) of the Bill renders applications made in the UK by nationals of member states of the EU similarly inadmissible, but leaves open the possibility of a claim being considered on its merits in circumstances where the member state in question is subject to suspension action under Article 7 of the Treaty on European Union for alleged persistent breaches of the EU’s fundamental values. That digression aside, section 16 of the Bill (pp. 20-21) establishes that a declaration of admissibility constitutes a final determination of an application for several purposes, including the provision of social assistance. Always a somewhat recalcitrant member as far as asylum matters were concerned, the UK, now free of the constraints of EU membership, has made clear through section 15 (6) of the Bill that it will take no charge of refugees who have arrived at the UK via the EU other than to return them to the EU member state from whence they came.
It will come as no surprise to readers to learn that the UK has retained the widest possible discretion for determining when an asylum claim ought to be deemed inadmissible. The five ‘conditions’ of inadmissibility', set out in section 80c of the Bill, cover both extremes of the protection spectrum - encompassing refugees who have already been granted refugee status at the time of the application for asylum in the UK as well as those who may not even have been physically present on the territories of another state, but whose 'particular circumstances’ dictate that a claim should have been made anywhere ‘safe’ other than in the UK.
Considerations of space preclude discussion in this commentary of the Bill’s provisions governing appeals, removals and civil legal aid - all of which bear testimony to the desire on the part of the UK government to (re)interpret the Refugee Convention out of existence. Individuals in search of humanitarian protection are justified in using to their advantage the inevitable loopholes in the law. This is especially so at times when, as now, safe and secure asylum corridors are scarce. However, there can be no justification open to a government that chooses to expend so much careful energy on circumventing rules governing refugee protection that have long been accepted by the international community.
This commentary is based on the version of the Nationality and Borders Bill that was debated by the House of Lords on 5 January 2022. References are to the page numbers of the PDF version of the document.