On 6 July 2021, the British government unveiled its highly anticipated Nationality and Borders Bill (the Bill). A piece of proposed legislation that seeks to codify the UK Home Secretary’s New Plan for Immigration. If this Bill passes into the statute books it will set a dangerous precedent for not only legislating in Britain, but across the globe, as it sends a message to the world that if a great power state like the UK can relegate its international commitments to asylum seekers, so can other countries.
In a world where migration policy is extremely politically divisive, to see the UK government attempting to codify these sentiments in law is exceptionally concerning. To explain why this Bill is concerning it is necessary to firstly establish what it seeks to do, whether its provisions are legally stable, and finally what broader implications the Bill will have.
NATIONALITY AND BORDERS BILL
The Bill seeks to introduce a plethora of new measures which purportedly seek to “fix the broken asylum system”. Priti Patel, the UK Home Secretary, views this as an opportunity to prevent unlawful entry into the UK and clamp down on human trafficking.
Central to the Bill is the creation of a two-class system for asylum seekers. Individuals arriving through traditional legal pathways will receive preferential treatment over those who arrive through irregular means, for example crossing the English Channel in a dinghy. Part of the difference in treatment will manifest in the creation of “Temporary Protection Status”. This sub-class of refugees will not be afforded the full range of rights granted under the 1951 Convention and Protocol Relating to the Status of Refugees (1951 Convention) and will be subject to potential removals every thirty months. Refugees will have no sense of security which will in turn prevent integration into communities and push them into exploitative situations.
The most disturbing provision of the Bill is the criminalisation of asylum seekers. A new offence for people who require leave to enter the UK and knowingly enter the UK without such leave will be created. This is the case for most asylum seekers who arrive without formal documentation authorising their entry. The problem with this new regulation lies in the fact that a common issue in these situations is that, in the rush to escape their home country, individuals forget and leave behind their passports and other identification documents. Subsequently, this means that they cannot obtain documents authorising entry into the UK and will be left stranded.
Further, there will be an amendment to an existing offence for the assistance of unlawful immigration which will no longer mean that an offence is only committed when helping an asylum seeker enter the UK “for gain”. This offence has historically been used to prosecute human traffickers who are benefiting economically from helping irregular migrants, but the new offence will be much broader in scope and may criminalise those who help individuals reach the shore even if they do so because they see that refugee lives are in danger.
The Bill also creates possible legal routes for the establishment of offshore centres for the processing of asylum seekers. This would allow the government to move individuals seeking asylum in the UK abroad until their claims have either been accepted or denied. Such proposals have already been discussed and should be avoided.
LEGAL CONCERNS
The legal concerns that come attached to this Bill are numerous. It should be noted that the basic right to seek asylum is codified in article 14(1) of the Universal Declaration of Human Rights. Formation of a two-class system and the criminalisation of individuals who enter the UK through irregular routes is on the face of it contrary to article 31 of the 1951 Convention. Article 31 provides the non-penalisation principle, which states that asylum seekers should not be penalised for their means of entry into a country. As mentioned above, people fleeing persecution in their country of origin will likely not have the required documentation to enter the UK through traditional means. Additionally, as asylum cannot be claimed outside of the UK, this leaves the only viable option to enter the UK via irregular means, which allows the Home Office to criminalise vulnerable and desperate refugees seeking a new beginning.
Again, further problems arise when looking at the omission of the terms “for gain” for facilitation cases. This is particularly unsettling when considering that there will be situations where private boats, the Royal National Lifeboat Institution (RNLI), or the Coastguard spot vessels in danger. Is there a possibility that those who save lives at sea will be prosecuted for bringing asylum seekers back to British shores? The Home Office has confirmed, via Twitter, that such prosecutions would never happen. However, as George Peterz QC, barrister at Monckton Chambers, points out, there is no actual legal basis excluding people saving those in distress at sea. While it would be difficult to prosecute these cases in practice because it is not in the public interest to criminalise the RNLI, if the law were to criminalise rescue operations it would likely be in contravention with international laws relating to the duty to rescue.
BROADER IMPLICATIONS
In a broader sense this Bill is not just legally incoherent, it is also politically divisive, economically costly, and will have a devastating human impact. For example, it is difficult to understand why a government so anguished by the thought of spending huge sums of money on asylum seekers would consider the possibility of offshore processing centres. The cost of building and maintaining such operations would be immense and cannot be a viable option.
It is also proven that such centres lead to human suffering and Australia’s attempt at offshoring asylum seekers is clear proof that it should never be tried again. Ultimately, this Bill does little to meet the objectives the Home Office has set. It does not serve to create a fair asylum system, but instead criminalises vulnerable individuals fleeing danger and puts their lives at risk. Such legislation needs to be human rights centric and focused on the protection of people, which this Bill fails to do.
Mahin is a LLB graduate from the University of Exeter. He is an aspiring human rights lawyer who is interested in bringing attention to human rights abuses. He is looking to practice in public law, international human rights and civil liberties.