Written evidence from Justice Studio (NBB0034)

1. Executive summary

1.1.            Justice Studio’s response sets out our opinion and evidence. We begin by setting out who we are, and then address the following key areas:

• The principle of non-refoulement and the UN Refugee Convention [1951].
• Further criminalising the facilitation of irregular entry to the UK.
• The two-tier system of rights for refugees and the potential violations of International Human Rights Law.

2. About Justice Studio

2.1.            Justice Studio was founded in 2011 as a consultancy dedicated to advancing social justice and the voices of those less heard. We have worked in over 30 countries internationally, and extensively in the UK. A large proportion of our work is focused on the human rights of those with protected characteristics. Our clients include the Equality and Human Rights Commission, Foreign, Commonwealth & Development Office, London Councils, UNICEF, charities, and local government.

3. Legislative Analysis: the principle of non-refoulement

Question 1: 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)?

3.1.            The right to claim asylum is a universal right enshrined in the 1951 UN Refugee Convention and its 1967 Protocol, to which the UK is a signatory. Regardless of how a person arrives in a country, they still have the right to claim asylum and to access a fair legal process (Article 6 European Convention on Human Rights). Returning vessels crossing the channel that are carrying refugees, regardless of whether or not their claims will be processed in third countries, is to potentially deny the refugees of their universal human right to claim asylum; and further risks undermining the principle of non-refoulement.

3.2.            Schedule 5 of the Bill concerns itself with maritime border enforcement. It expands the current powers of the UK Border Force to intercept vessels as they attempt to enter national waters without authorisation, and further permits border patrols to return unauthorised vessels. These push-back policies have become common practice in other European countries, including: Italy, Malta, Croatia and Greece.[1] Such policies have been condemned by UNHRC, as they disregard the practices put in place by the 1951 Refugee Convention (Article 33(1)) and the EHRC (Article 4), both of which protect the right of people seeking asylum from being returned or expelled, even if they enter irregularly. Whilst countries have the legitimate right to manage their borders in accordance with international law, they must simultaneously respect human rights. The immediate push-back of vessels prohibits those on board from seeking asylum in the UK, and risks violating the 1951 Convention and the 1948 UNDHR) ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’. The 1951 Refugee Convention prohibits the removal of asylum seekers to any territory ‘where [their] life or freedom would be threatened’ (Article 33(1)). To date, the UK government has not provided details disclosing which countries are deemed ‘safe countries’ and willing to participate in the Bill’s offshoring practice, and as such, it remains unclear whether the bill will be in immediate breach of the Refugee Convention.

3.3.            Asylum seekers are also protected from refoulement under International Human Rights Law if they fear torture or serious human rights abuses (Articles 6&7 of the 1966 International Covenant on Civil and Political Rights, and the 1969 Organization of African Unity (OUA)). Moreover, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibits the return of asylum seekers where there are ‘substantial grounds’ for believing that that person would be in danger of torture. By returning vessels, potential asylum seekers not only risk being denied the right to make and process their claim, but may also face human rights abuses, including torture and slavery, upon their return to other third countries, which could, if not managed correctly, also lead to repatriation to their country of origin. The UK must therefore consider the role that they would play when returning vessels and/or offshoring asylum claims, as they run the risk of becoming complicit in the human rights abuses that may take place in these safe countries.

3.4.            Clause 26, read with schedule 3, makes amendments to the Nationality, Immigration and Asylum Act 2002 and to the Asylum and Immigration Act 2004 by permitting the removal of asylum seekers to ‘safe countries’ whilst their application for asylum remains pending. As such, the Bill envisages placing asylum seekers in offshore accommodation centres, in a state of legal limbo, and assumes that these ‘safe countries’ are compliant with international regulations. The Italian Friendship Treaty of 2008, which implemented push-back polices as part of a bilateral agreement with Libya, a country who is not a state party to the 1951 convention, saw returned asylum seekers intercepted on the high seas returned to Libya where some were subjected to violence and torture.[2] Yet, the Hirsi Jamaa and Others v. Italy case (in which 200 asylum seekers were intercepted at sea by Italian authorities and returned to their point of departure, with 24 being placed in Libyan prisons), saw Italy held accountable by the European Court of Human Rights for violating international obligations not to return individuals to countries where they could be at risk of human rights abuses.[3] It must also be recognised that returning entire vessels and/or groups of refugees via maritime push-back operations further risks breaching Article 4 of Protocol No.4 (ECHR) – The prohibition of the collective expulsion of aliens.

3.5.            Building from the aforementioned Italian example, it should be noted that not only will the UK risk infringing upon the universal right to claim asylum and violating the principle of non-refoulement, but it also risks becoming a complicit party in the human rights abuses and violations that may occur in the ‘safe country’ in which the asylum seeker will be processed.

3.6.            Potential violations of the ECHR: The UK’s novel concept of offshoring the processing of asylum claims risks breaching international law on the prohibition of refoulement, and has the potential to violate:

• Article 2 (The Absolute Right to Life)
• Article 3 (Freedom from Torture and Inhuman or Degrading Treatment or Punishment)
• Article 4 (Prohibition of Slavery)
• Article 5 (The Right to Liberty and Security)
• Article 6 (The Right to a Fair Trial)
• Article 14 (Freedom from Discrimination in the Enjoyment of Human Rights)

This above assessment is based on the concept that the procedure of removing refugees to third countries includes the forced transfer of asylum seekers to countries that may have inadequate asylum systems, and where asylum seekers may be exposed to abuse, violence, and torture.

Potential violations of International human rights treaties, declarations and regional treaties:

• The International Covenant on Civil and Political Rights (ICCPR) (1976), Article 7: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
• The Universal Declaration of Human Rights (UDHR) (1948), Article 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT and hereafter the Convention) (1987).
• The European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (ECPTIDTP) (1989).
  

3.7.            In sum, in order to return asylum seekers to third countries, the UK will first need to establish bilateral agreements with third countries and then ensure that the country adheres to international law and the Refugee Convention. To date, little details have been provided by the government outlining which ‘safe countries’ will be hosting the asylum seekers, the selection criteria for offshore processing, who would own the contracts of processing and what costs would apply, and what would happen to those who are denied asylum seeker status whilst being held in a ‘safe country’. As such, the current Bill does not permit for an informed assessment of the UK’s compliance with international obligations, and for this reason, an informed evaluation regarding the risk of undermining asylum seekers human rights cannot be thoroughly completed.

3.8.            Recommendation: Risk assessments and safeguarding policies must be put in place for assessment centres which will be located in ‘safe’ countries.

3.9.            Recommendation: More details must be provided on the selection criteria for offshore processing. The Home Office should consider whether they are taking a too literal approach to interpreting ‘coming directly’, consequently risking denying people access to a fair asylum procedure.

4. Legislative Analysis: Criminalising facilitation of irregular entry to the UK and International Law

Question 2: 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?

4.1.            Article 38 of the Bill proposes two amendments to the Immigration Act 1971. The first involved increasing the penalty for aiding asylum seekers from 14 years of imprisonment to life imprisonment. The second proposes amending the character of the individual providing assistance: the Immigration Act stipulates ‘a person commits an offence if – he knowingly and for gain’ facilitates the arrival into the UK of an asylum seeker. The Bill proposes removing the terminology ‘for gain’.

The implications of extending the offence of helping an asylum seeker facilitate irregular entry into the UK to cover those that do so for no benefit to themselves are complex. Similar laws and policies have been put in place in Europe (Greece, Malta and Italy) in which NGO’s have been prosecuted for saving lives at sea. The UK Bill departs from their European counterparts here by noting the exception of NGO’s: “this offence does not apply to persons acting on behalf of an organisation which aims to assist asylum seekers and does not charge for its services”. At present, the definition of exempt organisations is too broad, and clarification is needed as to whether the primary and sole intent of the organisation must be to aid asylum seekers. The role of the Royal National Lifeguard Institute in terms of saving the lives of asylum seekers at sea remains unaccounted for.

4.2.            Implications on International Law: The criminalisation of sea rescues moves away from international treaty law and customary international law, in which the UK, and it’s flagged vessels are duty-bound to rescue distressed persons at sea. This thus applies to state agents as well as civil society actors. Under Article 98 of the United Nations Convention of the Law of the Sea, (1982) (UNCLOS), the master of UK flagged vessels is committed to ‘in so far as he can do so without serious danger to the ship, the crew or the passengers: […] render assistance to any person found at sea in danger of being lost”.

4.3.            The 1974 Safety of Life at Sea Convention (SOLAS), of which the UK is also a State Party, likewise stipulates a similar regulation (V-33) in which the master of a ship at sea which is in a position to provide assistance, must do so upon receiving a signal that persons are in distress. Similarly, the Salvage Convention, which was also ratified by the UK, outlines a duty to render assistance to those in danger or lost at sea (Article 10(1)).

4.4.            Finally, the 1979 International Convention on Maritime Search and Rescue (SAR) obliges State Parties to ‘ensure assistance [is] provided to any person in distress at sea […] regardless of the nationality or status of such a person or the circumstances in which that person is found.’ (Chapter 2.1.10) The decision to criminalise private vessels that provide aid to those in danger or distress at sea thus proves problematic, resulting in UK-flagged private vessels torn between risking criminal liability under the new proposed Bill, or breaching the duties of international maritime law.

4.5.            Recommendation: More information on the criteria of intent and benchmarks for prosecution must be provided by the UK Government.

4.6.            Recommendation: An impact assessment of life imprisonment for aiding asylum seekers should be undertaken. Thought should be given to the cost of court proceedings and long-term/life prison sentences, especially in instances when private vessels have decided to aid those in need/distress at sea.

5. Legislative analysis: The two-tier asylum and International Human Rights Law.

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

5.1.            Clause 10 of the Bill proposes to give the Home Secretary the broad power for differential treatment of refugees (i.e., people who qualify for refugee status on the basis of the eligibility criteria in the 1951 Refugee Convention). This clause introduces the concept of two separate groups, ‘Group 1’ refugees and ‘Group 2’ refugees, based on the nature of their arrival in the UK and the timeliness of their asylum claim.

5.2.            The ‘Group 1 refugee’ categorisation is set out in Clause 10(2), regarded as those who are considered to come within the remit of Article 31 of the Refugee Convention (1951). This means, to have entered the UK directly from a country where their life or freedom was threatened and to have claimed asylum immediately. Those who have arrived or are present in the UK unlawfully would be obligated to provide sufficient reason for their unlawful presence. 

5.3.            Under the proposed changes, those who cannot fulfil the criteria outlined above would be categorised as a ‘Group 2’ refugee. Estimates from the Refugee Council suggest up to 9,200 people would be subject to the differential treatment proposed for ‘Group 2’ refugees.[4]

5.4.            Implications on International human rights law: The Bill’s Explanatory Notes outline that the protections and entitlements granted by the Refugee Convention (1951) would be given to all refugees. However, people classified into ‘Group 2’ could be afforded less favourable entitlements. Following clause 10(5) and (6), differential treatment for ‘Group 2’ refugees results in limited leave to remain with no automatic path to settlement, restrictions on family reunification and restricted access to financial support through no recourse to public funds. Clause 10 is inconsistent with the UK’s duty under Article 34 of the Refugee Convention (1951) by actively constraining the naturalisation and integration of refugees. The differential treatment of the ‘Group 2’ refugee community denies them their right to safety and stability, separated from their family members, distressed and traumatised by the uncertainty of being forced to return to what they fled and without access to the welfare safety net; all factors which actively inhibit assimilation.

5.5.            Article 23 of the Refugee Convention (1951) instructs Contracting States to “accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals”. The UK Government are not fulfilling this duty by attaching a no recourse to public funds condition to temporary protection status. The Refugee Council estimates that 3,100 people per year could be subject to no recourse to public funds restrictions upon being granted temporary protection, leaving these people to live in poverty and forced into exploitation.[5]

5.6.            Clause 10 must be read alongside Clause 34 of the bill, as the distinction between ‘Group 1’ and ‘Group 2’ refugees is based on distinction between those protected by Article 31 of the Refugee Convention (1951). Clause 34 provides the Government’s interpretation of Article 31(1) of the Refugee Convention, which sets out the conditions in which refugees who are present in or have entered a country illegally, are exempt from punishments.

5.7.            Clause 34 of the bill misrepresents and unduly restricts the scope of protections offered under Article 31 of the Refugee Convention. The current exception from penalty under Article 31 applies to those who can prove that they could not reasonably have been given protection in the country they stopped in. The Clause amends the current exception from penalisation to only apply to those who can prove “that they could not reasonably have been expected to have sought protection under the Refugee Convention in that country”. The UK Government’s interpretation of Article 31 goes against the spirit and intention of the Refugee Convention. The convention was intended to offer protection against penalisation for unlawful presence or entry, not to provide a basis for systematically restricting protection for some refugees.[6] The UNHRC Representative in the UK suggested that creating a discriminatory two-tier asylum system “undermines the 1951 Refugee Convention and long-standing global cooperation on refugee issues”.[7]

5.8.            Recommendation: To adhere to their duties under the Refugee Convention, the UK Government should scrap clause 10 of the Bill and the introduction of a two-tier rights system. At a minimum, family reunification should not be impacted by the methods in which people entered the UK.

5.9.            Recommendation: The UK Government should publish a target or estimate for the number of people it will provide resettlement to per year under the new system.

16/09/2021