In the most recent statistics, year ending June 2020, the UK received 34,423 asylum applications. Of these applications 11,116 were accepted at the initial stages and a further 2,932 after appeal. This number may seem like a lot but in comparison to comparable nations within the EU27 it is not that impressive. For instance, in France 128,000 applications were lodged and in Germany there was even more at 165,000 applications.
There has been a continual increase in the number of applications lodged in the UK, although the increase has been very gradual. In spite of this, the UK Home Secretary has proceeded to introduce a new bill, The Nationality and Borders Bill. This bill will be the most radical change in UK asylum law for a decade. In the first section of this article there will be a consideration as to what is the current legal framework of asylum within the UK, there will predominantly be a focus on the general themes rather than specific legal bases. The subsequent section will consider the expectations of the present international legal obligations of states with respect to refugees and asylum seekers. The following portion will then look into the changes proposed by the Nationality and Borders Bill with regard to the rights of refugees and asylum process in the UK. In the next two parts there will be consideration paid to the possible violations of international law and the ramifications it may have with respect to international relations in Europe. Finally, there will be a conclusion and recommendations.What is the current asylum legislation and process?
The UK’s asylum law system is governed by a nexus of different pieces of legislation. This section will briefly list the relevant sources of law but will primarily focus on the effects of this legislation and the practicalities of the asylum process in the UK. While this new bill will produce some very radical changes, acquiring refugee status in the UK has never been easy. Applications while increasing within the last few years are at a record low, this is because the system since the early 2000s has been designed and modified to produce an overly bureaucratic almost Kafkaesque system. Not only that but other countries may appear more appealing and, at least for the Syrian refugee crisis are closer. There are a few reasons why an asylum seeker may choose to travel through France and other safe countries to arrive at the UK, these include, English being the lingua Franca, familial ties and claims of police brutality in other countries. With this being said, the hostile bureaucracy created in the UK, with more or less no avenue for legitimate entry has forced asylum seekers to brave the channel sometimes with fatal consequences. These images of people turning up on the shores of Kent have stoked an even more hostile environment.
The main pieces of legislation that govern the asylum system is the Immigration Act 1971, the Immigration and Asylum Act 1999, the Nationality Immigration and Asylum Act 2002, the Immigration Act 2014 and 2016. There are also other pieces of implementing legislation.
The process for asylum starts the moment an asylum seekers enters the UK; it is not possible to apply for refugee status before entering the UK. After entry into the UK either at the border or very shortly after an asylum claim will need to be lodged, once this claim has been started that person will then have a legal right to remain until there has been a decision on their claim. There will then be a preliminary screening interview. Afterwards, there will be a more substantive asylum interview that will really review the merits of the case and after, usually several months, inform the claimant of the decision. During this time the asylum seeker has no right to work and no right to mainstream welfare support. Therefore, they are usually housed in large complexes and provided with a weekly stipend from which all of their basic needs must be met. If asylum is granted, they move to the formal status of a refugee and so would be afforded all the protection that comes with this status, generally speaking parity in most aspects of civic life alongside regular migrants. If their initial claim is refused then they are classified as ‘failed asylum seekers’ and they are expected to leave the UK, they may have reporting conditions to ensure they don’t continue to overstay or in extreme cases may be placed in a detention centre awaiting their removal. It is always possible to appeal a negative decision on a time limited basis, further appeals may also be limited. Throughout this process an asylum seeker will be advised to avail themselves of some form of legal aid, subject to the regular means and merit testing that are used when assessing every cases eligibility for legal aid.
It can be said then that already the UK has a relatively normal albeit restrictive process, it grants the bare minimum protection to those that do manage to make it to the UK although has opted to make the initial entry to the UK burdensome and offer very little in the way of facilitating claims or entry from abroad.What are the standards expected in International Law
International refugee is a fundamental cornerstone of the international legal system and has been ever since the conclusion of the Second World War and the devastation that lay in its wake. The foundational and primary source of law for refugee protection is the 1951 Refugee Convention (herein after the Convention). Alongside the Convention there is also customary international law, which for the most part is a mirror image of the Convention thus giving it a more or less universal application.
The convention is built around the idea of non-refoulement, the idea that a refugee should not be returned to a place where they may suffer abuse. The convention makes a clear definition about who is to be considered a refugee in the first few articles. The convention has some specific rights that are protected for different categories, in the interests of brevity there will be a list of only a few:
- Self-employment (article 18)
- Choice of residency (article 26)
- Elementary education, on the same footing as nationals (article 22)
- Secondary education and beyond, on same footing as migrants more broadly (article 22)
There are many more examples of rights, and ones that are of particular importance are article 31 and 33, namely the principle against expulsion for illegal entry and against refoulement, respectively. These are cornerstone principles and should be the ones considered when looking at the UKs latest bill.What are the proposed changes?
The bill that has been proposed is not specifically targeted at asylum seekers but rather is being advertised as a comprehensive wholesale reform of the UK’s border regulations. For the purposes of this article however the scope will be limited only to the changes with respect to the UK’s asylum process. There are three main changes that have been envisaged by this piece of legislation. They are:
- To deter or penalise the illegal/irregular entry of migrants into the UK,
- To punish those individuals involved in the trafficking of these people,
- To make the removal of those that shouldn’t be in the UK easier.
Clause 37 of the bill requires a person to have acquired valid clearance prior to their entry into the UK. The exact state that this would take is hard to ascertain, as to date there have not been any accompanying implementation documents. So exactly how and to what level visas will be offered to asylum seekers will remain a mystery. This could be a way of simply completely blocking new asylum claimants, by denying them the correct entry visa and then deporting them, as without such documentation they would no longer be eligible for refugee status. There is another issue with this particular method and that is that a person, in order to validly claim asylum in the UK should be in the UK prior to their claim being lodged, but now can’t actually be in the UK as they would not have the visa, since they are not provided for the purposes of claiming asylum.
Another clause that is worth singling out is clause 38. This clause seeks to criminalise the aiding of asylum seekers crossing the channel. In this new clause it would remove the existing word ‘for gain’ from the original legislation meaning that it would no longer just be people smugglers and traffickers that would be punished but indeed anyone, even if not for gain, that aided the admittance of people to the UK for the purposes of asylum. Without proper guidance, which is currently still missing, this leaves institutions like the RNLI (Royal National Lifeboat Institute) in a state of limbo. Could this lifeboat organisation that sees a drowning refugee we punished with 14 years to life in prison for simply aiding in saving someone’s life? It is currently unknown.
Clause 43 makes the removal process of failed asylum seekers a little harder. Instead of there being a system where asylum seekers simply have a removal window and can then receive a surprise visit to their door in the early hours, the new proposal will actually but some legislative safeguards in place for failed asylum seekers.
Finally, there is an issue around offshoring, a practice popularised by Australia with respect to Nauru and Manus Islands. In clause 26 of the bill, it proposes that asylum seekers be removed to a safe third country for the purposes of processing their asylum claim. This is without doubt the most controversial and dangerous part of the bill. It allows for the UK to establish centres outside its typical jurisdiction tasked with ensuring the safety and wellbeing of highly vulnerable individuals. It shrouds these centres in mystery and makes them beyond public scrutiny. The abuses that have been experienced in these types of offshore detention centres around the world are extreme and well documented.
In summary, the changes that are being made are in some ways an extension or hardening of existing rules, taking them outside the internationally acceptable standards as proscribed by the refugee convention. Furthermore, there are some rules namely the offshoring which is wholly new and potentially a gross violation of international law. It remains to be seen exactly which form this bill will finally be adopted in and what clauses will make the cut but in its current form, it has been argued to be completely inadequate for the protection of asylum seekers.Consequences of this change.
With regard to International Law and the rights of asylum seeker.
It is evident that the UK’s asylum system at present is already pretty inefficient and prohibitively burdensome towards refugees, for example prohibiting them from an easy access to the UK in order to streamline the process and also looking unfavourably on claims that demonstrate a person passed through a safe country. However, the implementation of this bill, should it go ahead, has large reaching implications not only for asylum seekers but more broadly the international legal order.
Firstly, the most obvious one is that it makes asylum seekers admission to the UK even more laborious than it is. For example, a person that now gains entry on a rubber boat across the channel has now committed an offence in UK law despite it being okay in international law. This would then make them eligible to deportation and other criminal sanctions. This makes the UK, despite being one the most affluent countries with a large ability to accommodate new residents, an unachievable and possibly illegal end point for many would be asylum seekers. In addition, these incredibly turbulent journeys that are made in ill equipped, often unseaworthy vessels will now be less likely to receive help from lifeboat organisations for fear of large prison time. Not to mention the potential offshoring aimed at removing these people from the sight and minds of the British public and potentially subjecting them to a myriad of other human rights abuses. It can be seen as fairly evident that the formalistic closing off of access for asylum seekers to the UK and the removal to an offshore detention centre can at best be seen as skirting the intention and purpose of article 31 and 33 of the Convention and at best a flagrant disregard for the rules.
What then of the pressure this puts of international law? It can roughly be seen as a twofold issue. Firstly, it demonstrates the toothlessness of the international legal order. It shows that a country, who was responsible and present at the formation of a law, that acknowledges its treaty and customary status, can flout the rules knowing that there is little in any repercussions. This is disastrous for other humanitarian and human rights treaties, as it demonstrates a callous disregard for the very principles that the UK helped to form.
Secondly, it sets a dangerous precedent for other states to also start violating the Convention. For example, it has been mooted that other EU countries like demark may start to do something similar with respect to offshoring, this then raises the question, where does it stop? Will other EU countries follow suit?
It should come as no surprise then that the UK’s unilateral action with respect to the Nationality and Borders Bill will have disastrous consequences for the international legal order and also the refugees that should normally be the beneficiaries of that regime.
Pressures that may manifest in international relations
Unfortunately, in the present timeframe refugees don’t just occupy a space as a victim of a bad circumstance outside their control but generally a more politicised space as countries around the world turn more nationalistic and more isolationist. As has already been seen in the EU, when the concept of more refugees from coming over from Syria became a political issue these refugees rights we shelfed and they we sent to Turkey, at the expense of the EU taxpayer, like a tradable commodity. As the UK now occupies a space that is more akin to Turkey in the sense of it being a 3rd country, it may be the case that the idea of the ‘tradeable refugee’ will find standing in the UK. Ultimately allowing the UK to take advantage of its economic power and sell the rights of these refugees to countries that may want more money. It has also been hinted by the Home Secretary that should safe countries on the route to the UK not take up their responsibilities by settling in their countries that certain visas and other permits granted to nationals of that country maybe stopped or slowed down. To exemplify this, imagine France continues to not grant asylum of create an environment whereby asylum seekers continuously cross the channel, and no attempts are made by France to mitigate this. What the Home Secretary is then advocating for would be a pause on issuance of new visas to French citizens, either looking to move to the UK or presently in the UK. This act of reprisals against French citizens by the UK government would then in turn see reprisals from the French Government against the UK, possibly with the rest of the EU states joining in. This would duly create a more febrile environment inside the EU.Conclusion
The UK is the first European country to adopt this outwardly hostile, potentially internationally illegal stance towards asylum seeks and their processing. However, it is by no means the first country in the world to have adopted such a position, Australia has been ‘offshoring’ for a very long time and shows no sign of reverse this track. Meanwhile, countries as allegedly progressive as Denmark have insinuated that they may wish to join the UK by also moving to a model of ‘offshoring’. In this article the UKs current stance has been evaluated alongside the expectations of international law and the proposed new bill. These particularly harsh potential new amendments to the asylum system, should be seen in a broader backdrop of the UK taking a rather anti-internationalist approach. Over the last 5 years the UK has left the EU in a rather painful and protracted process, opting to leave many of the EU institutions and other legal schemes. During this process it has openly admitted to the potential idea of breaking international law with respect to the withdrawal agreement. These actions amongst other can be evidence of a UK that has very little regard to the international legal order where it doesn’t suit them. Furthermore, this is not just a technical exercise in trade agreements or other such overly technical instrument but rather it is an approach that is flying in direct contravention of long-standing human rights norms that are there for the protection and maintenance of human dignity. Breaking international law with respect to a trade agreement leads to confusion about rules and protracted discussion and possible cheaper or more expensive products for consumers. However, specifically breaking international refugee law leads to, amongst other things, refoulement, orbiting refugees, homeless and other terrible abuses of people’s human rights.Recommendations
It must be remembered that at the moment this is still a bill, it is not yet in the law. However, it is making its way quickly through the legislative process couple this with the overwhelming majority that the current UK government has means that it could very easily make it through to the final stages. Nevertheless, it must also be remembered that these unilateral measures taken by states do enormous damage to the rights of citizens all around the world especially in conflict hotspots. It does tremendous harm towards the general system of refugee protections around the world and seeks to undermine the whole system of humanitarian protection in the interest of jingoistic sentiments. With this being said there are certain recommendations that will be enumerated here:
- The recommendation would be to reconsider the disastrous affects that the implementation of this bill would have on the lives of thousands of people worldwide at the present moment, but also people in the future. As the world heats up and certain countries become completely inhabitable it may materialise that there are whole new classes of ‘climate refugees’ that will be looking for refuge.
- Another recommendation could be for all governments around the EU to maintain, or at least attempt to maintain, an atmosphere of cooperation and avoid being drawn into a situation where visas and permits for other immigrants will be used as a point of leverage. The UK reneging on their international commitments should not create an environment were other people’s immigration status and lives are being brought into question. It could be an idea to establish a multi-lateral dialogue or forum between all European states, both within and outside the EU. This could create a more comprehensive system based on the needs of refugees and the ability for different states to accommodate these people.
- A final recommendation would be for the international community more broadly to consider a re-evaluation of the present international standards of refugee law. The convention was written for a by-gone era and the wording contained within it really shows this. The world is not the same as the 1950’s and has a plethora of new challenges. Furthermore, it would be of considerable utility to implement an enforcement mechanism, similar to that contained in ICCPR and ICESCR in order to bring non-complaint states into compliance.
Sources
- Briefing: the Nationality and Borders Bill, Part 3 (criminalising asylum seekers), Ian Halliday, 14th July, Freemovement.org
- The Nationality and Borders Bill 2021: first impressions, Colin Yeo, 6th July, Freemovement.org
- A guide to international refugee protection and building state asylum systems, UNHCR, Handbook 2017
- Asylum claims in the UK: common questions, Melanie Gower & Georgina Sturge, Briefing Paper, House of Commons Library
- Convention and Protocol Relating to the Status of Refugees, UNHCR, 1951 and 1967
- Borders bill ‘risks seriously infringing’ access to justice, Monidipa Fouzder, 6th July 2021, lawgazette.co.uk
