Asylum reforms would undermine UK’s human rights obligations
19 January 2022
The Government reforms of the asylum system, as proposed in the Nationality and Borders Bill, would fail to meet the UK’s human rights obligations and risk exacerbating the already unacceptable backlog of claims, a report by the Joint Committee on Human Rights has found.
The report warns that legislating to create different categories of refugee based on how they came to the UK would be inconsistent with the Refugee Convention and potentially a discriminatory breach of human rights. Instead of combatting people smugglers, the legislation would penalise asylum claimants for not utilising ‘safe and legal routes’ that lack sufficient capacity to support them. This and other proposed reforms, including permitting more asylum claims to be rejected without consideration and introducing the possibility of offshore processing of asylum claims, risk undermining the humanitarian and cooperative principles on which refugee protection is founded.
The Committee also warns that the Government’s intention to lower the threshold for giving the benefit of the doubt to age-disputed individuals may lead to more children being wrongly identified as adults, with severe consequences which would amount to a denial of children’s rights. The Committee is also concerned about the powers which would be given to the Secretary of State to allow for the use of scientific methods to assess age and finds there is no justification for their use given their inaccuracy.
The Bill also removes the obligation on the Secretary of State to give notice of deprivation of citizenship orders in certain circumstances, including in the interests of national security, foreign relations, and the public interest. The Committee finds that avoiding the duty to give notice to an individual who is being stripped of their rights undermines the principle of fairness and that this should be removed from the Bill.
Deputy Chair of the Joint Committee on Human Rights, Joanna Cherry QC MP said:
“The UK has a proud history of championing the human rights of refugees. We should continue in this tradition and do all we can to be a place of welcome and support for people who have been persecuted. The bill is at odds with the refugee convention and with our human rights obligations and should be amended.
“Rather than coming up with new punitive measures and lambasting the difficulties in rejecting asylum applications, the Government should focus on dealing with the lengthy backlog of cases. This needs to be achieved by better processing and adequate resourcing. Instead we have measures that would harm decision making, through needlessly penalising the late submission of evidence, and even cause further delays due to the new consideration of whether asylum seekers should have applied to another country first.
"Fundamentally this bill increases the likelihood that the UK turns its back on people it should be helping. This would be wrong and the Government needs to rethink these proposals."
Measures in the bill intended to promote the use of ‘safe and legal routes’ for refugees coming to the UK would create two separate categories of refugee and should be scrapped. Such an approach would not only be prohibited under the Refugee Convention, and potentially amount to discrimination in breach of Article 14 of the European Convention on Human Rights, but also fail in practical terms given the paucity of options for refugees to enter the UK through ‘legal’ routes. Refugees claiming asylum in the first “safe country” they reach is not what the Refugee Convention requires. If every country took the same approach refugees would only be hosted by countries that border unsafe states.
In a drive to speed up how claims are handled, the bill further seeks to penalise applicants for failing to submit evidence in support of their case on time, despite recognition that there may be legitimate reasons for such delays, including difficulties accessing documentation or relating traumatic experiences. The Committee calls on the Government to amend these clauses so that genuine claims are not damaged, and genuine refugees denied asylum, due to procedural delays.
Introducing a new categorisation of recognised refugees, focussing on how they came to the UK, and increasing the complexity of the initial asylum decision risks placing greater strain on an asylum system that is already struggling. At present around 65% of applicants have been waiting longer than 6 months for an initial decision, which can have a significant impact on their mental wellbeing. The Committee finds that these reforms will do nothing to solve the ongoing claims backlog or improve the quality of decision-making. The Committee recommends the Home Office should consider simplifying case processing procedures and concludes that the focus should be on ensuring high quality decision-making which has the human rights of applicants at its heart.
Plans to offshore the processing of asylum claims would see the UK fail to live up to its shared responsibility under the Refugee Convention. New powers in the bill that could remove claimants from the UK while their case is pending should be scrapped.
The Government intends to retain the benefit of the doubt for certain age-disputed persons, but that it intends to lower the threshold for giving the benefit of the doubt (which is currently extended to those who are assessed as being under 25 years old). The Committee warns that it must be borne in mind that there are severe consequences of mistakenly treating a child as an adult, which would amount to a denial of that child’s rights to education, support, and accommodation. Any lowering of the threshold increases the risk of wrongly identifying a child as an adult and unlawfully detaining a child in immigration detention.
In addition, the power for the Secretary of State to make regulations setting out specified scientific methods for assessing age is concerning. The accuracy of potential methods, such as x-ray or dental analysis, has been questioned by various medical bodies and the use of such procedures can be considered unethical. The Committee is particularly concerned that refusal to consent to scientific procedures would be taken into account when determining the credibility of an age-disputed person who may be a child, and recommends removing this from the Bill.
The Committee is concerned that the Bill would greatly increase the risk that a child is wrongly assessed to be an adult. This would mean they would not have access to support from children’s services, access to education and could be housed in conditions that are completely inappropriate. This would see the UK fail to meet its obligations under the UN Convention on Rights of the Child and risk breaching article 3 of the European Convention on Human Rights depending on the severity of the child’s experience.
Deprivation of citizenship
The bill would remove the obligation upon the Secretary of State to give notice of deprivation of citizenship under certain circumstances. It would also retrospectively validate deprivation of citizenship orders that are currently unlawful due to failure to give proper notice. The Committee finds that the Bill allows for far too much discretion by the Secretary of State to avoid giving notice of deprivation of citizenship orders; it renders the right of appeal meaningless, and it retrospectively validates unlawful deprivation of citizenship orders which may interfere with pending legal proceedings. Given the severe infringement of rights resulting from deprivation of citizenship orders, it is imperative that robust safeguards are in place when this extreme executive power is used.
It calls for clause 9 of the bill to be deleted. If the Government does proceed it should at least amend the Bill so the Home Secretary is required to take reasonable steps to give notice of deprivation of citizenship orders. In addition the time limits of rights of appeal should only begin from the date that individuals become aware of decisions made against them. Any new clauses should only apply to new cases and should not be applied retrospectively.