Introduction

In light of the ongoing migration issues, the UK’s government set out to reform the immigration system to make it fairer and more efficient, while aiming to tackle people smuggling and prevent unsafe routes to asylum. The Nationality and Borders Bill 2021, currently awaiting a second reading in the House of Lords, was introduced in July 2021 as a potential solution. 

The broad aims pursued by the government, on their face, could be seen as a welcome response to the growing issue of vulnerable individuals embarking on a dangerous and life-threatening journey to seek refuge in the UK. Unfortunately, the content of the Bill seems detached from its proclaimed aims. While maintaining that the reform will improve the safeguards offered to refugees, the government is surreptitiously placing barriers upon their protection.

This raises a critical question of whether such changes remain compatible with the UK’s existing obligations under international law. In particular, the 1951 Refugee Convention, which stands as a key authority on the legal obligations amongst the international community towards refugees. 70 years ago, the UK played a significant role in drafting the Treaty, which adds gravity to the question over whether the Nationality and Borders Bill amounts to a defiance of its key provisions.

All the proposals made require more extensive coverage, which will not be possible in this blog post. Instead, the focus will be on the central premise introduced in the Bill of two categories of refugees and whether the differential treatment of Group 2 refugees remains in conformity with the standards set out in the 1951 Convention, as well as the UK’s obligations under the European Convention on Human Rights (ECHR). It will be shown that, in its current form, the Bill not only fails to achieve its proclaimed aim of improving the immigration system, but it also falls short of meeting the international law standards.

Two Tiers of Refugees: Distinction Between Group 1 and Group 2

One of the most significant proposals within the Bill, and the source of the subsequent issues, is the introduction of two tiers of refugee status classed as Group 1 and Group 2. For individuals to fall within ‘Group 1 refugees’ they have to “come to the United Kingdom directly from a country or territory where their life or freedom was threatened” (Clause 11 (2) (a)), interpreted strictly to create the concept that the individual must seek refuge in the ‘first safe country’. They must also present themselves without delay to authorities and, where the individual entered the UK irregularly, there is an additional requirement to show good cause for their unlawful entry (Clause 11 (3)). Group 1 refugees are entitled to all guarantees of the 1951 Convention. Any failings of the above requirements place a refugee within Group 2, the less fortunate tier. The Bill permits discriminatory and less favourable treatment against Group 2 refugees including whether the individual will be given the leave to enter or remain; restriction on the rights to family reunification; temporary protection status; and the reduced potential to be able to have recourse to public funds (Clause 11 (5) (a) – (d)).

The 1951 Convention defines a refugee under Article 1A (2) as someone who, “owing to a well-founded fear of being persecuted” for reasons listed in the Article, finds himself “outside the country of his nationality and is unable” to avail himself of the protection of that country. The definition does not require the asylum-seekers to enter the country in a specific way and there is no requirement that the individual settles in the first safe country. The compatibility of ‘the first safe country’ concept will be discussed later, but at this point, it must be noted that the very attempt to create a distinct category of refugees is inconsistent with international refugee law. A refugee who falls within the definition of Article 1A (2) of the 1951 Convention, and is not excluded under the exceptions of Articles 1 (D) – 1(F), is guaranteed the rights outlined within Articles 3 – 34 of the Refugee Convention relating to juridical status, welfare provisions and administrative assistance. These rights are guaranteed to all Convention refugees, whether or not they comply with additional requirements outlined in Clauses 11 (2) and (3) of the new Bill.

It should be noted that the vast majority of refugees seeking asylum in the UK would fall within Group 2 and therefore the distinction outlined in the Bill is significant. The introduction of this sub-category was undoubtedly intended to give effect to the Secretary of State for the Home Department’s aim to deter individuals from viewing “the UK as a destination of choice”. Yet this is at the expense of direct contradiction with the UK’s obligation under international law. The Explanatory Notes at para 146 suggest that under the Bill “all individuals recognised as refugees by the UK will continue to be afforded the rights and protections required under international law, specifically those afforded by the 1951 Refugee Convention.” The less favourable treatment of Group 2 refugees through the grant of only ‘temporary protection status’ or differential entitlement to family reunification, both of which will be examined in more detail, is not consistent with this.

‘Temporary Protection Status’

Clause 11 (5) (a) of the Bill states that Group 2 refugees may be given “limited leave to enter or remain”, labelled as ‘temporary protection status’ within the Explanatory Notes. This temporary status would mean that for the first 10 years of residence in the UK, the refugees would be prevented from applying for long residency and would be expected to leave the UK “as soon as they are able to or as soon as they can be returned or removed, once no longer in need of protection” (Explanatory Notes para 19).

Article 34 of the 1951 Refugee Convention proclaims the agreement of the Contracting States to, as far as possible, “facilitate the assimilation and naturalization of refugees.” This recognises the trauma that most refugees have suffered; individuals who had to flee their home country, separate from their families, abandon their homes, property and professions in order to seek safety in a foreign state. These vulnerable individuals may face many barriers to integration and resumption of ‘normal’ life. Consequently, the obligations under Article 34 are perceived to facilitate their integration in the refuge state. This is particularly important due to the uncertainty over how long the individual will be under threat of persecution in their country of origin and for that reason, there is a need to rebuild their new life in the receiving country without the risk of being suddenly uprooted. 

In stark contrast, the Nationality and Borders Bill places Group 2 refugees in limbo, as well as undermining their fundamental rights to liberty and security of persons. For the first 10 years of residence in the UK, the refugee cannot build permanent life in the UK, while at the same time, the undefined situation in the refugee’s country of origin means that they cannot plan to return home either. Possibility for settlement will only be made available after 10 years, and only if necessary conditions are met. This contradicts the commitment made under Article 34 of the 1951 Convention, and places refugees in an extended state of uncertainty. Article 32 of the Convention only permits the expulsion of refugees on grounds of national security or public order, which the Bill is attempting to broaden. 

Furthermore, the proposal claims to be aligned with Article 31 (1) of the 1951 Convention. The Bill adopts similar language to the Article, such as: “coming directly from a territory where their life or freedom was threatened”, “present themselves without delay to authorities” and “show good cause for their illegal entry”. Notwithstanding the similar language, the premise of the Article is misconstrued. Article 31 (1) prohibits penalties to be placed on refugees’ illegal entry, acknowledging that, in circumstances where the life or freedom of the individual is threatened, many will not be able to secure the necessary paperwork. Refugees already lawfully settled in another safe country are not awarded the same exemption from potential penalties. Nonetheless, the Article does not stipulate that the qualification for refugee status is dependent upon these factors. Neither does Article 31 (1) permit the States an exception from offering the protection required by Articles 3 – 34 of the 1951 Convention. The Bill would penalise refugees not only for failure to provide the required paperwork but also for the failure to seek asylum elsewhere. In R v. Uxbridge Magistrates Court and Another, Ex parte Adimi, the UK High Court has previously elaborated that “coming directly” should be interpreted as purposely heading for the country of the intended sanctuary, even if the refugee has crossed through and stopped in other countries during their journey. The intended meaning of the Bill that the refugee must not cross through any other country where they could apply for asylum is therefore inconsistent with existing UK case law as well as the 1951 Convention and is based on the misunderstood premise of Article 31(1).

Family Reunification Rights

The rights to family reunification are key to the well-being of both refugees and their family, it being long accepted that prolonged separation from family will have a negative impact on mental well-being and integration. The proposed Bill permits a less favourable treatment of Group 2 refugees in this respect. Neither the Bill nor the Explanatory Notes, make it clear what will specifically be actioned but it does suggest that this may relate to granting family members permission to enter the UK. This has the potential of violating the right to family and private life protected under Article 8 of the ECHR. Due to the precarious situation that refugees find themselves in, whereby they do not enjoy the same liberty to return home to be reunited with their families, refugees should be entitled to more favourable family reunification rights than other immigrants. Refusing to grant such protection may result in more families trying to make the dangerous journey to the UK together. In M.A. v. Denmark, a recent Grand Chamber decision, the European Court of Human Rights confirmed that a differential entitlement to family reunification rights for different status refugees, where one group could only be granted such rights after 3 years, violated Article 8. Intervening in this case, the Council of Europe Commissioner for Human Rights argued that a waiting period of more than 1 year should be considered inappropriate. The ambiguity of the Bill and the Explanatory Notes makes it difficult to assess whether the less favourable access to family reunification would be contrary to this. It is clear, however, that if the UK places too many restrictions on the right to family reunification for Group 2 refugees, it will inevitably risk coming under the spotlight for violating Article 8 ECHR. 

Global Cooperation and The Concept of First Safe Country

The Bill creates an assumption that refugees should apply for asylum in the ‘first safe country’, a concept that is in fact unworkable. Due to geographic realities, the UK is unlikely to be the first border the asylum-seekers cross. Individuals fleeing persecution may not be able to satisfy immigration requirements that would permit them to board a plane directly to the UK, whether due to lack of a visa or a passport. Without such paperwork, the asylum seeker would be denied access through customs. This would also place a significant economic burden upon the most vulnerable and potentially would not be feasible in practice. If international law required individuals to settle in the first safe country, the majority of asylum seekers would be forced to settle in neighbouring countries. It is already estimated that out of 34.4 million refugees 73%, the vast majority, are hosted in the countries neighbouring their country of origin. The model proposed by the Bill would place an even more disproportionate burden upon geographically closer countries.

This is despite the 1951 Refugee Convention specifically recognising the need for cooperation and a global response to the migrant issue. In the Preamble, it states that “the grant of asylum may place unduly heavy burdens on certain countries” and therefore a satisfactory response cannot be achieved “without international co-operation”. The migrant issue is a global problem and the responsibility of offering protection to the most vulnerable must be shared between the international community. Even amongst the European countries, the UK is by no means a country with the highest number of refugees per population. The current proposal and the concept of ‘first safe country’ would bring this number down to virtually nothing, evading the UK’s responsibility to assist in this global issue. International relations over the migrant crisis are becoming increasingly volatile. The goal set out in the Preamble of the 1951 Convention of international co-operation was intended to avoid this; such a goal can only be realised if States do not attempt to shift the burden upon others. 

Lastly, it must be pointed out that treating the most vulnerable with respect and dignity is the hallmark of liberal democracies. The proposed Bill is detached from this concept to the extent that it intentionally aims to place barriers upon the significant number of refugees seeking protection from the dangerous situation that has caused them to flee from the country of origin. The consequence of the measures proposed in the Bill will add to the refugees’ suffering and deny them appropriate protection guaranteed under the 1951 Convention. Although the aim of the proposed Bill is to deter illegal entry into the UK, analysis of the Bill suggests that there is nothing in its content that would introduce a practical mechanism to combat people smuggling. Instead, the added barriers may eventually contribute to the increase in the number of people bypassing the UK immigration system, rather than seeking to establish refugee status lawfully. The UNHCR has scrutinised the proposal of offshore processing of asylum-seekers, which “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”. It appears that the Bill does not achieve the aim of tackling unsafe routes to asylum but merely aims to elevate the ‘burden’ on the state, at the expense of further endangering the vulnerable.

The fact that the Bill, evidently incompatible with international law, passed through a third reading in the House of Commons should be a cause for concern. This is not the first instance of the current government expressing a willingness to defy international law, yet to enact this law would be a catastrophic moment for the UK and its reputation. It is a moment this author hopes not to witness.

Karolina Szopa, Lecturer in Law at University of Winchester, PhD candidate, University of Reading and University of Bristol. Karolina’s PhD is funded by the South, West and Wales Doctoral Training Partnership.

(Suggested citation: K. Szopa, ‘Condemning the Persecuted: Nationality and Borders Bill (2021) and Its Compatibility with International Law’, U.K. Const. L. Blog (6th January 2022) (available at https://ukconstitutionallaw.org/))