Nationality and Borders Bill: Legislative Scrutiny
26 July 2021
The Joint Committee on Human Rights has launched a call for evidence and a survey for its legislative scrutiny of the Naionality and Borders Bill.
Send us your views
The call for written evidence is intended for people and organisations wishing to respond to the questions set out in the terms of reference. The Committee has also set up an online web forum to hear a wider range of views on human rights implications of the Bill.
Call for Evidence
The Committee is interested to hear the responses to the following questions:
- Do these reforms adequately address any remaining areas of unjustified discrimination in British nationality law?
- Do proposed changes to the application and appeals process for asylum applicants provide adequate human rights protection, including provisions providing for credibility and the weight given to evidence to be affected by the timeliness of applications and supportive evidence?
- Does introducing a two-tier system of rights for refugees meet the UK’s obligations under refugee law and human rights law?
- Do proposed new powers for UK Border Force to direct vessels out of UK territorial waters, and for the Home Office to return people to “safe countries” risk undermining refugees’ human rights as well as the principle that refugees should not be expelled or returned to the frontiers of territories in any manner whatsoever where they risk persecution (the principle of non-refoulement)?
- What are the implications of extending the offence of helping an asylum seeker facilitate irregular entry to the UK so that it also covers those that may help asylum seekers for no benefit to themselves?
- Do the changes proposed by the Bill adequately protect the right to life for those at sea?
- Do the proposed powers to remove asylum seekers to “safe countries” while their asylum claims are pending, with a view to supporting the processing of asylum claims outside the UK in future, comply with the UK’s obligations under refugee law and human rights law?
- Will the proposed instructions to decision-makers on how to interpret the Refugee Convention secure or restrict the protections that Convention guarantees?
- Do the changes that the Bill would make to the law regarding modern slavery ensure appropriate protections for victims? What will be the consequences of the presumptions that compliance with procedural requirements should affect a person’s credibility as a victim?
- Is Home Office decision-making in immigration matters that raise human rights concerns sufficiently independent and rigorous to ensure that human rights are properly respected?
- Is the Bill otherwise compliant with the European Convention on Human Rights (ECHR), the UN Convention on the Rights of the Child, the European Convention Against Trafficking in Human Beings, and international refugee conventions that the UK has ratified?
The Committee is to undertake legislative scrutiny of the Nationality and Borders Bill, which was introduced to the House of Commons on Tuesday 6 July 2021.
Human rights relevant to the Bill
As identified in the Home Office’s Human Rights Memorandum, the Bill engages several human rights, including:
- The right to life (Article 2 European Convention on Human Rights);
- Freedom from torture and inhuman or degrading treatment or punishment (Article 3 ECHR);
- Prohibition of slavery (Article 4 ECHR and the protections in the Council of Europe Convention on Action against Trafficking in Human Beings);
- The right to liberty and security (Article 5 ECHR);
- The right to a fair trial (Article 6 ECHR), as well as other issues relating to access to justice;
- Right to family and private life (Article 8 ECHR);
- Freedom from discrimination in the enjoyment of human rights (Article 14 ECHR);
- Obligations to protect refugees and the prohibition on refoulement (the 1951 Refugee Convention);
- Obligations on reducing statelessness (the UN Convention on Statelessness);
- The principle of the best interests of the child and the right of a child to acquire a nationality (UN Convention on the Rights of the Child).
Proposals in the Bill
The Government says the Nationality and Borders Bill “tackles the challenge of illegal immigration”. The Bill would make it a criminal offence to knowingly arrive in the UK without permission. Other key measures include:
- introducing lesser protection for refugees who did not come directly from the country where they were being persecuted and/or entered the UK outside official legal routes without good reason: these refugees can be given a shorter period of leave to enter or remain; more onerous requirements to obtain indefinite leave to remain; limited access to benefits and limited family reunion rights;
- confirming that asylum claims made by persons who have already passed through a ‘safe third State’ before arriving in the UK, or have some other ‘connection’ to that state, can be declared inadmissible;
- powers for UK border force to direct vessels out of UK territorial waters and to return those on board to another country;
- making it easier to remove someone to a safe third State while their asylum claim is processed;
- increasing the punishment for people who facilitate illegal entry to the UK, who will face up to life imprisonment – and also extending that offence to people helping migrants in boats (not for gain) and not only people smugglers;
- giving the Home Secretary power to control visa availability for countries refusing to take back their own citizens;
- changes to the immigration application and appeals system, which would reduce appeal rights and penalise asylum seekers that make asylum and human rights claims outside specified time limits;
- changing how someone’s age is assessed to help determine which migrants are children and therefore should be accorded appropriate protections, and which are adult and so should be processed under the adult asylum system;
- instructing decision-makers, including immigration officers, the Secretary of State, courts and tribunals on how to interpret the Refugee Convention
Some of the measures within the Bill (such as the changes to the age assessment process) currently appear as ‘placeholder’ provisions, which indicate the intention of the measure without any detail. The Government has indicated that the detail will be inserted via amendment at Committee stage.
The JCHR recently undertook an inquiry in relation to immigration detention which identified concerns with a lack of independent decision-making in the Home Office in relation to immigration detention decisions. A lack of independent decision-making creates a risk that human rights may not be adequately secured in individual cases, in the absence of adequate procedural safeguards.