Written evidence from Mr Michael Shaw (NBB0016)

I am a volunteer with CAY (Central Asylum Yorkshire) and have worked with asylum-seekers in Huddersfield for almost 6 years.

Firstly, I wish to draw the Committee's attention to some concerns over the “New Plan for Immigration” and the consultation on that document which informed the Nationality and Borders Bill. Five of the references cited in the “New Plan for Immigration” are to unpublished Home Office documents with the consequence that it was impossible to judge the accuracy, or otherwise, of the relevant statement.

Secondly, that document, and ministerial statements at the time of the publication of the Bill, placed emphasis on creating a firm but fair system of asylum. The consultation questionnaires sought opinion as to whether the proposals were “effective”. I contend that whilst “effective” may be synonymous with “firm”, it is not synonymous with “fair”: a measure which is effective has to be firmly administered but an effective measure may be anything but fair. Hence, I would argue that the consultation process was inherently flawed in such a way as it could not provide the government with the necessary information for the ensuing Bill. Given that fairness has an element of subjectivity, I suggest that in failing to ask specifically opinion on the fairness of the proposals, the process lacked inclusivity, in that minority groups may well have had opinions on the fairness of the proposals, which were not sought.

1)     Do these reforms adequately address any remaining areas of unjustified discrimination in British nationality law?

The proposed changes fail to address the issue that a high proportion of initial asylum decisions are incorrect and overturned upon appeal. Whilst this does not discriminate against any group as defined by the Equalities Act, it encourages little faith in equal treatment of applicants.

2)     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?

Whilst any proposal which seeks to quicken the process is ostensibly welcome, the proposals fail to recognise that in a considerable number of cases the relevant evidence is not immediately to hand. The process of securing that evidence, particularly from a country from which the applicant has fled persecution, can be delicate and complicated. It is essential that no applicant is deprived of the opportunity to obtain relevant, and possibly decisive, evidence because of time limits. When deportation to a country in which the appellant may face persecution and even death is an outcome, the appeals process should not jeopardise lives and so include a mechanism to ensure that no appeal is heard before all evidence is available.

I fail to understand how the timing of the submission of evidence can affect credibility. The evidence should be assessed on its merits, which remain the same no matter when presented. In many cases, those making asylum applications are unaware that a piece of evidence is, in fact, highly relevant to their case. Such evidence may only come to light by chance as their legal representative cannot be aware of a piece of evidence unless informed of its existence by their client. Not infrequently such evidence is made known to the lawyer through “casual” conversation.

The proposal to deal with certain appeals in the Upper Tribunal, before consideration by the First Tier Tribunal, removes a layer of justice for the appellant. It is a principle of British justice that the unsuccessful party should have a right of appeal. Someone unsuccessful in the Upper Tier may appeal seek access to the Court of Appeal but the bar for making that step is higher than that of applying for leave to the Upper Tier after an unsuccessful application in the First Tier. Hence, an element of justice is being removed by the proposal.

3)     Does introducing a two-tier system of rights for refugees meet the UK’s obligations under refugee law and human rights law?

Firstly, the criterion on which the “two tier” system is based is not, in my opinion, consistent with the UK’s commitments as a signatory to the Refugee Convention. Whilst article 31 of the Convention refers to refugees coming “directly” from the country in which they experienced persecution, this surely refers to time and not distance. That interpretation is based on the subsequent clause in the same article which states that refugees should claim asylum “without delay”.

The same article requires those seeking asylum to give reason for their illegal entry. That clearly indicates that being present in a country without permission is not a bar to claiming asylum. However, the “two-tier” system is based on the method of entry. The Convention demands that states do not impose penalties on refuges because of their illegal entry. Under the proposals, those who did enter the country “illegally” would not have recourse to public funds (unless facing destitution) and so would be unable to enter higher education as they could not access student finance. I would contend that such a ban represents a penalty on refugees who entered the UK “illegally”. Further, it contravenes clause 2 of article 22 which requires states to allow refugees access to higher education on terms no less favourable than those afforded to other aliens in the same circumstances: refugees who entered the country “legally” are in the same circumstances i.e. refugees, but would be able to take out a student loan.

Article 23 is also potentially contravened as refugees who entered the UK “illegally” would not have the same access to welfare as British nationals.

I ask the Committee to consider the cases of two Nigerian women of whom I have knowledge. Both are single parents with children; both based their claim for asylum on physical and mental violence administered by SARS (the now-disbanded Special Anti-Robbery Squad of the Nigerian police). Both needed hospital treatment for wounds resulting from the ill-treatment. However, one, by good fortune, had a current UK tourist visa at the time of her beating: the other did not. For the second, the only way to reach the UK was through the agency of people smugglers, entering on a lorry from Calais. Had the two-tier proposals been in force at the time, the former would have been granted five years leave-to-remain followed by indefinite leave with the option of applying for British citizenship: the latter would be constantly having to renew her two and a half years leave to remain. The former can rebuild her life whereas the latter would find this very difficult if not impossible. There are clearly human rights implications in this different treatment.

Any restriction on family reunion placed on those granted temporary leave to remain but deemed to have entered the UK “irregularly” would be in contravention of the right to family life.

4)     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)?

The Convention on the Law of the Sea allows innocent passage providing that the peace, good order or security of the state is not adversely affected. Clearly, the presence in UK waters of a vessel carrying people seeking asylum does not threaten the country’s peace, good order or security and so cannot be expelled from British waters.

Article 14 of the Universal Declaration of Human Rights states that everyone has the right to claim asylum. That article contains no restrictions on which country a person shall make the claim with a clear implication that the choice lies with the individual. Hence, a return to a “safe country” would breach that right.

Again, I draw to the attention of the Committee the experience of a Syrian woman and her four children. Having fled Syria, this family reached the “Jungle” in Calais. Whilst awaiting the opportunity to board a lorry, this woman was repeatedly raped in front of her children. She made reports to the French police who took no action. The paper New Plan for Immigration citesFrance of an example of a safe country. Should this woman be expected to return to France?

5)     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?

This proposal lacks definition. It is unclear as to what may constitute the offence and who may be prosecuted. Whilst the notes state that this would not apply to those engaged with organisations assisting asylum seekers, would an individual assisting an asylum-seeker on a beach, perhaps by providing clothing, be subject to prosecution? Similarly, would someone on a small boat rescuing an asylum-seeker found at sea be liable to prosecution? The maximum penalty of life imprisonment is disproportionate to any offence under this proposal, given that there is no material gain. The paper, New Plan for Immigration did not provide any information as to the numbers of people assisting illegal immigration for no benefit to themselves so the justification for the proposal cannot be assessed. The proposal cannot act as a deterrent to people smugglers as they would charge for their services. This proposal is inconsistent with the stated aim of the Bill i.e. to deter and penalise people smugglers.

6)     Do the changes proposed by the Bill adequately protect the right to life for those at sea?

The proposals may well increase risk to those whose lives are in jeopardy whilst at sea. The effect of criminalising assisting irregular entry to the UK for no gain may well deter captains from rescuing migrants in distress at sea.

7)     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?

It is difficult to see how the proposal is consistent with Article 16 of the refugee convention. If an asylum seeker is placed is a “safe country” whilst their claim is considered, then their access to courts would be at best restricted (if by video link, which courts acknowledge is a method lacking in some of the advantages of a hearing in person). Further, the ability of the asylum-seeker to retain, and access as frequently as required, a lawyer of their own choosing would be greatly restricted. Hence article 6 of the European Convention on Human Rights may be breached.

There is a question as to whether an asylum seeker housed in a “safe country” would have access to facilities, including medical and educational, of an equal level to those which would be received had they been housed in the UK.

The human rights of those housed in “safe countries” may not be as generous as they would have enjoyed had they been in the UK. For example, their freedom of movement may be restricted to a defined area or their freedom of expression be less than in the UK.

Those seeking asylum in the UK but housed in a “safe country” may be exposed to dangers they would not face had they been in the UK. One example would be LGBT asylum-seekers. It has been reported that some from Afghanistan seeking protection in the UK may be housed in Pakistan or Turkey. This implies that the UK Government would see those countries as being “safe”. However, an Afghan LGBT person would be at risk from persecution in either of those countries.

8)     Will the proposed instructions to decision-makers on how to interpret the Refugee Convention secure or restrict the protections that Convention guarantees?

This proposal is most worrying. It is for courts to determine the interpretation of the Convention, not for ministers. The Convention has been in existence for 70 years and its interpretation has been determined by court rulings, including the ECHR. Ultimately, any case could be taken to the ECHR. If the UK’s interpretation of the Convention has been incorrect to date, those errors would have been rectified at the ECHR.

9)     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?

Victims of modern slavery are invariably traumatised and in fear of their traffickers and “employers”. They cannot all be expected to be able to provide full details of their exploitation in line with any timescale as detail only emerges as the victim gains the confidence to make revelations. Hence, presumption of compliance with requirements will adversely affect the justified cases of a certain number of genuine victims.

10) 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?

Given the high rate of Home Office initial decisions being overturned on appeal, then there are grave concerns about the rigour of the procedures to ensure compliance with human rights. Further, decision-makers should follow the law, as encompassed in case law and not make decisions on the wishes of ministers, which may well not be compliant.

11) 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 proposal to house asylum-seekers in accommodation centres is likely to place residents at risk of mental and physical violence. It is known that far-right and anti-immigration groups have threatened asylum-seekers housed in army barracks and hotels. Such concentration of accommodation is highly likely to increase such instances. Even if security is provided, that, in itself can be threatening for people who have lived in fear of the police, military and semi-military groups in the country from which they fled. Such accommodation makes involvement in community life far more difficult. Freedom of movement may be restricted in such accommodation. The proposal is that those accommodated in centres would receive full board and lodging. If they are not provided with an adequate amount of money their freedom of expression may be restricted as they would be unable to purchase mobile phone credit, so limiting their ability to communicate with family and friends; the former also impinging on their right to family life.

Whilst it is appreciated that the role of the committee is to examine the content of the Bill in the light of meeting human rights obligations, it is most disappointing that the perceived intention of this legislation is to offer an absolute minimum necessary to comply with international obligations. The UK is one of the wealthiest countries in the world. The Home Office, when commenting on matters appertaining to asylum, frequently includes statements to the effect that the UK is proud of its record in respect of offering protection to those who faced persecution in other countries. Further, the UK has been integrally involved in actions which have led to the flight from some countries e.g. Iraq and Afghanistan and has been indirectly involved in the emergence of repressive, unstable or failing governments in other parts of the world e.g. Nigeria and Zimbabwe. It is hoped that the committee will report on the moral obligations on the UK to go beyond minimal responsibilities and make a provision which treats those needing asylum with dignity.

24/08/2021