Written evidence from Refugee Council (NBB0021)

About the Refugee Council

The Refugee Council is the leading charity devoted to supporting refugees and people seeking asylum in the UK. It was founded 70 years ago in the wake of the 1951 Refugee Convention. We provide a range of services to adults and children across England, seeking to ensure that they are supported throughout the process of claiming asylum, and are given the best integration support once they are recognised as refugees.

Our work includes running a national service that supports every unaccompanied child in the asylum system, working with a number of local authorities on their refugee resettlement efforts, providing an adult integration service for new refugees in London, and providing a range of mental health support services through our Therapeutic Services team. We are also currently supporting newly-arrived Afghans in the UK through the Afghan Relocations and Assistance Policy (ARAP).

We use this experience and the evidence we gather from our work to inform policy and advocacy work that seeks to work with refugees to transform their experience of seeking protection in the UK.

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?

All asylum applicants are already required to provide all relevant information at the earliest opportunity, including in the Point of Claim leaflet given to asylum applicants and through the issuing of a one stop notice under section 120 of the Nationality, Immigration and Asylum Act 2002. Therefore the introduction of an ‘evidence notice’ in clause 16 appears to be superfluous, and no evidence has been provided as to how it will improve the asylum process or decisions on asylum claims.

It should also be noted that the further submissions process serves an important purpose; situations in countries of origin and an applicant’s personal circumstances may change over time, including when an application has been refused. Case law ruling that government policy to refuse certain types of applications was erroneous and misinterpreted the law (e.g. the country guidance case of MST Eritrea) need to be rectified so that the UK is not at risk of contravening its obligations to protect people who would face persecution on return.

Further submissions and fresh claims provide a necessary safeguard. Whilst the government does not produce regular statistical information on the success of further submissions and fresh claims, its response to a recent Freedom of Information Act request shows that the numbers are not insignificant.

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

One of the key measures in the Nationality and Borders Bill is to give powers to Government to treat refugees differently, dependent on their mode of arrival in the UK.

People who have not travelled directly from a country or territory where their life or freedom is threatened, and/or have not made an asylum claim without delay, will be recognised as refugees under international law, but classified as a ‘Group 2 refugee’. This will affect a large number of people who currently claim asylum, for example those who enter the UK without a valid visa, as is an accepted norm for people seeking protection across the world.[1]

UNHCR has called these proposals ‘discriminatory’, stating that:

‘…it remains clear that resettlement and other legal pathways cannot substitute for or absolve a State of its obligations towards persons seeking asylum at its borders, in its territory, or otherwise under its jurisdiction, including those who have arrived irregularly and spontaneously. This includes those arriving by boat. For the right to seek and enjoy asylum does not depend on the regularity of arrival of an asylum-seeker to a country. In reality, asylum-seekers are often forced to arrive at or enter a territory without prior authorisation.’[2]

The bill includes a non-exhaustive list of ways that the treatment of Group 2 refugees can differ, including: by having reduced leave to remain, more limited refugee family reunion rights, and limited access to welfare benefits.

The introduction of reduced rights and entitlements for those found to be refugees but whom, in the opinion of the UK should have sought asylum in another country, runs contrary to the 1951 Convention, specifically the obligation on signatory states not to penalise refugees for unauthorised entry to the territory.

Currently there is no detail on how refugee family reunion rights will be restricted, but we understand that the Government believes that Article 8 obligations for Group 2 refugees can be fulfilled through the current immigration system, outside of refugee-specific immigration rules.

Current refugee family reunion rules do not allow for unaccompanied children who are recognised as refugees in the UK to be reunited with any family members, unless they can show an exceptional reason why they should have this right (an impassable bar for most in practice).

In 2020, Refugee Council, Amnesty, and Save the Children established in the Without my Family[3] report that this policy is a breach of national and international law including the Convention on the Rights of the Child as well as being based on an absence of any evidence of being necessary or proportionate.

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 laws of the sea have received much commentary including by academics examining to what extent ‘pushbacks’ are compatible with the principle of non-refoulement.

Whilst directing vessels in the Channel back towards France may not risk breaking international law in this respect, the fact that many of the vessels are not designed for the dangerous waters in which they are travelling means that rescue must prevail over any plans to avoid allowing refugees and others to disembark on UK territory, particularly when the journey away from the UK coast increases the risk to life.

Clause 12 of the bill explicitly outlaws asylum claims being made in territorial waters, which should place a duty on the UK authorities to allow access to the territory. This measure can then only be interpreted as the UK government being content to further endanger the lives of people at sea in order to excuse itself from responsibility for their asylum claims.

Used alongside the extension of immigration enforcement powers to territorial waters beyond the UK through clause 41, this measure is likely to result in the horrific sight of people’s lives being endangered whilst states argue about which country is willing to allow them to disembark.

Clause 14 of the Bill, relating to inadmissibility on the basis of ‘safe third country’ protects against transfer to a state which would breach the individual’s rights under Article 3 of the ECHR.

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?

The implications are grave; in removing ‘for gain’ from the current offence the government is showing that it is content to criminalise people who simply respond to the distress of someone in trouble at sea.

The notion that in such a situation a person may have to consider the criminal implications of their actions in choosing whether or not to save someone’s life is a preposterous one. After this proposal was suggested in the New Plan for Immigration, the public response was overwhelmingly against it.

That the Government has subsequently imported it into the Nationality and Borders Bill suggests this is not an unintended consequence of a proposal aimed at professional smugglers. Rather, it appears simply to be a further deterrent measure, but one that could tragically cost lives.

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?

The Nationality and Borders Bill gives Government the power to enact ‘offshore processing’ of asylum claims, without providing any detail. We know from the Australian example – where offshore processing has been in place for the longest period of time – that it creates a situation where human rights are more likely to be violated.

However, it is difficult to ascertain to what extent affected people’s rights would be breached as it is not yet clear what arrangements and safeguards would be put into place, should the law be changed so that people (including those who will be found to be refugees) are forcibly removed from the UK territory and have to live in another country whilst the UK determines their claim.

It would be highly dangerous for Parliament to allow the Government to exercise this power without knowing how any such scheme would work in legal terms.

Currently many other elements are unknown such as the conditions under which people would be held (presumably all held in extra-territorial detention centres and not subject to the law in that country), the likely length of time people would be sent there and the treatment of those found to be refugees. There is also no clarity about the treatment of those not found to be refugees, including those who cannot be returned to their country of origin but with no legal rights to live in the third country.   

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

It is not clear on what legal basis the UK government believes that it is entitled to introduce a different standard of proof to that defined in the 1951 Convention. Furthermore, no explanation has been given as to how, if enacted, this proposal would improve the ability of the Home Office to distinguish those who are refugees from those who are not. 

It is difficult to understand what the purpose of such changes would be unless it was to restrict the protections guaranteed by the Convention. The clause, explanatory notes and ECHR memorandum are not forthcoming on the reason for the introduction of the ‘two limb test’ to establish a well-founded fear of persecution. In this test, the first limb, relating to the characteristics of an individual and judgment of whether or not they fall within the scope of the Refugee Convention, should be subject to a different threshold i.e the. balance of probabilities.

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?

In recent years, the Government has invested a high level of attention and resource in aiming to improve the protection of people who have experienced modern slavery and/or have been trafficked into the UK.

It is therefore extremely concerning that the reforms proposed in the bill will undo some developments introduced by Government and others over the last decade. This includes the progress made in assisting and supporting victims, by improving the understanding of those who come into contact with people who have been exploited.

Many of the measures in the bill interrelate in this regard. Differential treatment depending on method of entry to the UK will apply to people who may later be understood to be victims of modern slavery. Moreover, the involvement in criminal activities which often feature in a person’s exploitation will now more likely be punished rather than understood in the context of that exploitation.

The presumption that late disclosure should affect credibility is a particularly problematic one. It is widely understood, including in the Government’s own guidance,[4] that trauma can result in delayed disclosure, and this principle must me retained in any policy about recognising victims of modern slavery.

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 part of the bill relating to age assessments (clause 58) is currently a placeholder clause, with detail to be added at committee stage. However, we know about Government’s broad intentions from the New Plan for Immigration and through stakeholder discussions.

The proposals relating to age assessment reform appear to be founded on the flawed assumption that the need for age assessments is primarily because adults are misidentified as children. This is not in fact what happens in practice. Rather, the bigger concern should be ensuring that processes exist to ensure that children are not wrongly identified as adults.

Case law has determined that where there is doubt, an age-disputed applicant should be treated as a child pending resolution of the dispute, as a necessary safeguard. It is widely understood that age determination is an inexact science, that visual assessments are unreliable, and that the benefit of the doubt must be afforded to ensure that children are not mistakenly treated as adults.

Those who are later determined to be adult do not generally pose a danger to children because of the circumstances in which they are placed, with supervision from other adults. The safeguarding risks are much greater when children are erroneously housed with adults in unsupervised accommodation and in circumstances where authorities are treating them as adults, rather than young people whose age is not yet determined. 

The Refugee Council has worked with many hundreds of children over the last ten years who, having been erroneously identified as adults following judgements made by Immigration Officers, have been left without the care and support they need, leaving them unsafe and denied access to adult supervision and all the rights that come with being a child.

The proposal therefore to remove the safeguards judged by courts to be necessary in the process of initial decisions on age, are alarming. There are good reasons why safeguards apply to decisions based on appearance and initial presentation, such as at a port, have been put into place. To seek, as these proposals do, to undermine case law in this way is irresponsible and dangerous.

We would also like to draw the attention of the Committee to the concluding observations of the Committee on the Rights of The Child in its most recent examination of the UK’s performance in realising the rights of children relevant to this Bill.

The current Bill includes no measures to engage with these concluding observations, and proposes nothing to respond to the recommendations of the CRC in 2016. Indeed some of the measures are likely to increase the concerns of the Committee, specifically in relation to the Committee’s recommendation that the state parties:

‘Conduct age assessments only in cases of serious doubt through multidisciplinary and transparent procedures, taking into account all aspects, including the psychological and environmental aspects of the person under assessment’.[5]

02/09/2021

British Refugee Council (commonly called the Refugee Council) is a company limited by guarantee registered in England and Wales, [No 2727514] and a registered charity, [No 1014576]. Registered office: 134-138 The Grove, Stratford, E15 1NS, United Kingdom. VAT reg no: 936 519 988

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