Looking at The Nationality and Borders Bill 2021 – inhumane or fair but firm?
On the 6 July 2021, home secretary, Priti Patel, introduced The Nationality and Borders Bill 2021 in parliament. In this article the immigration experts at London based OTS Solicitors review the provisions in the Bill on asylum and how it may impact on those seeking to settle in the UK if made into UK law.
UK Online and London Based Immigration Solicitors
Asylum law proposed changes
The government says that the asylum system is broken. The Refugee Council statistics reveal that last year over 33,000 people waited more than twelve months for an asylum decision even though the government acknowledges that the number of claimants has reduced over the last twelve months. What is certain is that no one, from MPs to charities helping asylum seekers to immigration solicitors, thinks that the current asylum system is working well. What is far more controversial is whether The Nationality and Borders Bill 2021 will improve systems and procedures.
The key changes to current asylum law proposed in the Bill are:
- Asylum claims could be declared inadmissible if the asylum claimant has a connection to a safe third country. (The government is still trying to agree the return of asylum seekers to safe third countries but no one is playing ball. A declaration of an inadmissible claim without the government being able to return the asylum seeker to a safe third country would result in the inadmissible asylum claimant having less rights than other asylum seekers in terms of support and accommodation).
- Asylum seekers who are considered to have entered the UK illegally will not have the same asylum entitlements and benefits as those asylum seekers who enter the UK via authorised asylum legal routes. (This is not just restricted to those who cross the channel in boats that aren’t fit for purpose. This measure, together with the other asylum measures will create two classes of asylum seekers but asylum and refugee charities say that it won't affect the level of desperation felt by asylum seekers who will therefore still try any means to seek asylum given the prospects of doing so legally).
- If a successful asylum seeker enters the UK illegally, they will only secure temporary refugee status. The asylum seeker could face the prospect of being indefinitely liable for removal. (The alternative for an asylum seeker is to wait and hope to enter the UK through legal routes and claim asylum but that opportunity may not present itself which is why so many asylum seekers risk their lives, and those of their family, to enter the UK by illegal means).
- There will be a comprehensive legal process so that any asylum, human rights claims or other protection matters are considered together before appeal hearings. (The government intention is to speed up the legal process. This should not come as a surprise to immigration solicitors who have received a lot of criticism for using the law to its full advantage to help asylum seekers. Thus, the government response is to try to change the law).
- When considering release from immigration detention additional considerations will apply, namely, the decision-maker will have to assess whether the person has failed without reasonable excuse to cooperate with the Home Office.
- The government will have the power to delay or suspend visa processing for applicants from countries the UK government deem uncooperative with removals. (This is presumably intended to focus the minds of third-party countries but may not work if third party countries are content to ignore ‘tit for tat’ policies and live with delayed visa processing times for their own citizens entering the UK rather than agree to accept UK removals).
- A new one-stop legal process is proposed so that asylum, human rights claims and any other protection matters are made and considered together before appeal hearings.
- There is to be a two-stage standard of proof in asylum cases. Historical matters (such as whether an asylum seeker was tortured in their home country) will be determined on the balance of probabilities standard and future risk (such as risk of persecution if returned) on the reasonable degree of likelihood test. (This could be very confusing and immigrationsolicitors are already anticipating the court litigation over the meaning of a two-stage test).
- The Home Office will be able to remove asylum seekers from the UK while their asylum claims or their asylum appeal is still pending. (Every day it seems that the media mentions a new continent or country as a potential ‘holding area’ for UK asylum seekers but many immigration solicitors see numerous complexities with offshore asylum processing, not least human rights issues).
- The asylum claim process will be more rigorous and the example is given of adult asylum seekers claiming to be children being faced with more focussed age assessment.
- The asylum appeals process will be speeded up to improve removal times. There will be the introduction of priority removal notices imposed on those liable to removal or deportation. This notice results in an appeal being heard by the Upper Tribunal rather than going to the First-Tier Tribunal for the appeal hearing.
- Criminal penalties will increase. The maximum penalty for people smugglers will be a life sentence. For those attempting to enter the UK illegally the penalty for illegal entry will be raised from six months to up to four years imprisonment.
Are the asylum changes inhumane or fair but firm?
The government says that The Nationality and Borders Bill is the key to fix the broken asylum system and to transform a system that isn’t fit for purpose to a firm but fair asylum process. Most immigration commenters say the government proposals work on the presupposition that a person seeking asylum in the UK has a genuine choice between waiting to make an asylum claim or attempting illegal entry into the UK and then claiming asylum. That’s because whilst the former is technically possible it is not the reality for many languishing in overseas camps. What is certain is that whether the asylum changes are inhumane or just firm, UK immigration solicitors will continue to advocate for the most vulnerable in UK society and , in light of the proposed asylum changes it seems apparent that asylum seekers will remain one of the most vulnerable sectors in UK society.
UK Online and London Based Immigration Solicitors