Written evidence from Amnesty International UK (NBB0037)

Introduction

1. This submission addresses various asylum and immigration provisions in the Bill in response to specific questions identified in the Committee’s call for evidence. We do not answer all of these questions.

2. In relation to these provisions, we generally consider the Bill to constitute a fundamental repudiation of the UK’s obligations under the 1951 UN Convention relating to the Status of Refugees. Several of its provisions are inconsistent with that Convention; and their implementation would be defeating of the wider purpose of that Convention, which is to enjoin States in a shared responsibility for providing asylum to people at risk of persecution.

3. We have made a separate submission jointly with the Project for the Registration of Children as British Citizens (PRCBC) in relation to the Bill’s nationality provisions. We leave to others to address provisions relating to modern slavery.

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?

4. No.

5. Generally, we consider the provisions on the application and appeals process to be harmful to human rights. There are broadly three aspects to this:

1. There are provisions to delay admissibility into the asylum process.

2. There are provisions to affect the quality of that process for people passing through it – including to accelerate the process, to detain a person during the process and to expel a person to another country for some or all of that process.

3. There are provisions to constrain what evidence may be considered during that process and what conclusions may be drawn from that process by any decision-maker.

6. The inadmissibility provisions – which are entirely disconnected from any agreement with any third country for giving effect to them – are, like other provisions, plainly directed to casting off responsibilities that belong to the UK onto others. That is a repudiation of the principle underpinning the Convention of sharing responsibility. The extent of that repudiation is made clear by the anomalous use of the term ‘connection’ in these provisions. Insofar as there is any meaning to that term, it is apparent that the intention is to recognise connection as always one way – i.e. to somewhere else and never to the UK. As regards the impact on a person, whose admission into the process is delayed by the inadmissibility provisions, that person is liable to be caused significant distress by the delay and the uncertainty that goes with it – e.g. over when and where their claim will ever be considered; whether the person may be returned to a place where they have experienced violence, abuse or deprivation; and, if they have family or other close connections in the UK, whether despite all they may have been through they are to be deprived of these? If detained, all of this will be exacerbated. This can be expected to have a detrimental impact on that person’s capacity to engage effectively with the process if and when their admission to it is permitted. A refugee subjected to this will be at increased risk of being wrongly refused asylum and, even if that risk is avoided, will suffer the detriment of having suffered the delay in securing asylum.

7. Below, we briefly address the proposal to expel a person to another country pending consideration of their claim. In general, accelerated, detained or out of country processes all increase the risk that a refugee is wrongly refused asylum. Acceleration is by implication acceleration from some more measured and, thereby, safer process. Detained or out of country processes not only inhibit effective engagement with that process. They also conflict with the Convention’s protection for the right to free movement of refugees (Article 26).

8. Provisions to direct or constrain decision-makers as to the evidence they may consider or the conclusions they may reach are improper and unsafe. It ought to be expected that a decision-maker is, in principle, capable of assessing the probative value of any evidence presented by a claimant according to all the relevant circumstances before the decision-maker. If that is not the expectation, even in principle, that profoundly questions the competence of the decision-maker. On the other hand, if the decision-maker’s competence is not in question, it is more clearly improper to seek to constrain the decision-maker from reaching a decision on the basis of all the circumstances before her, him or them. Presumptively seeking to constrain the decision-maker, as is provided for by clauses 17, 20 and 23, can only increase the likelihood that decisions are reached that are wrong and unsafe. There is no justification for exacerbating that risk and, in turn, increasing the prospect that people are wrongly refused asylum, wrongly detained, wrongly deprived of accommodation and support and wrongly returned to places where their very lives may be at risk.

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

9. No.

10. As a matter of general principle, arbitrary discrimination between people as to the means by which their human rights are enforceable and respected is impermissible.

11. The 1951 UN Convention relating to the Status of Refugees does not distinguish between refugees either by categorising these people in the manner of Clause 10 nor by any of the differentiations either that it would permit or that are permitted or required by other provisions in this Bill – whether to attempt to refuse consideration of a refugee’s claim, delay that claim or interfere with the process, evidence or legal standards by which the claim is to be determined.

12. Moreover, the primary grounds for this discrimination are said, as explained in the Government’s Memorandum to the Bill, to derive from Article 31 of that Convention.[1] The international body responsible for the Convention has roundly repudiated that assertion.[2] Moreover, the assertion is contradicted by settled domestic jurisprudence in the UK.[3] Given the centrality of this discrimination to much of the underlying purpose of the Bill (at least insofar as it relates to asylum), we briefly set out responses to the three ‘legitimate interests’, which it is said are consistent with or follow from Article 31:[4]

1. The UK cannot have a legitimate interest in pursuing something that is contrary to its international obligations. Since the Convention does not require a person to claim asylum in any particular country and leaves open the prospect that a refugee may seek asylum in one country rather than another, the first asserted ‘legitimate interest’ is illegitimate. The reality of the matter is that Ministers are seeking statutory authority to undermine basic principles of the Convention, including that responsibility is to be shared. That is responsibility in respect of both the right to seek asylum and the right to enjoy it.[5] Correspondingly, therefore, the obligation to share responsibility is both to receive asylum claims and to provide asylum where those claims are well-founded. There is no authority provided for seeking to cast off this responsibility by unilateral declarations on behalf of one country that other countries, whether said to be ‘first’ or ‘safe’ (or labelled with some other designation), are where the refugee should make or should have made their claim.

2. Ministers may claim a legitimate interest in encouraging claims to be made as soon as is practicable. That cannot, however, found any legitimacy for pursuing that interest by means that are not permitted by the Convention and which are antithetical to its purposes. In any event, Ministers are not encouraging claims to be made as soon as is practicable by this Bill. For example, threatening that a person may be pushed back to another country (Clause 41, Clause 14), detained (Clause 24), held in detention-like conditions (Clause 11), banished to a third country from where it is said the person’s claim may be considered (Clause 26), prosecuted and imprisoned (Clause 37) are all ways of deterring not encouraging claims to be made.

3. Ministers may also claim a legitimate interest in promoting lawful methods of entry. That too cannot, however, found any legitimacy for pursuing that interest by means that are not permitted by or which undermine the Convention. Moreover, not only are Ministers not promoting any lawful methods of entry for a person seeking asylum. They provide none. It has long been Home Office policy that no asylum claim can be made to the UK unless a person is physically present here. It has also long been Home Office policy that no visa is permitted to anyone to come to the UK for that purpose. The immigration rules reflect this and make clear that any visa sought or obtained for another purpose is to be refused or cancelled if it is considered that the person’s true purpose is to make an asylum claim.[6]

13. Not only are these three aims either illegitimate or, insofar as the second and third may be legitimate, not properly connected to the proposed discrimination. The differentiations to be permitted by Clause 10 are profoundly harmful to the people affected, all of whom will be refugees entitled to asylum in the UK. Delaying or denying family reunion, imposing profound uncertainty as to the future security of the refugee, denying or delaying any prospect that the refugee may ever become settled and withholding public funds to a destitute refugee are each profoundly harmful. We do not consider – even were all three aims to be both legitimate and truly furthered by such measures as are permitted by Clause 10 – that these consequences can be proportionate. Nor, for example, do they appear on their face compatible with obligations to ensure rights to housing that are “as favourable as possible” or to work (which will in many instances depend on the degree to which an employer can be confident about an employees’ or prospective employees’ future) according to “the most favourable treatment accorded to nationals of a foreign country” as is required by the Convention (e.g. Articles 21 and 17 respectively).

14. For the avoidance of any doubt, we make clear that, whereas we have long called for the Government to establish safe routes by which a person could travel to the UK with permission to seek asylum here, this would not justify any refusal by this country to abide by its obligations to refugees who arrive by other means. There are various reasons for this including that, even were a visa or other permission to travel made available, it is highly unlikely this would be accessible to everyone eligible for it. The following are but examples of that particular concern:

1. The recent emergency evacuations from Afghanistan have vividly highlighted how even a person who is eligible for a visa or other permission to travel may not be able to obtain it or make use of it because of immediate risks to their life. It is clear that several people were not evacuated even though eligible to seek evacuation and/or even having been cleared for it. A refugee (or person who will be a refugee if able to escape their home country) may not be able to travel safely to the place where a visa may be obtained or from where that visa may be used. It may be unsafe for a refugee to carry the documentation necessary to obtain that visa or be admitted to the place or transportation from which the refugee could be permitted to make an escape. Equally it may be unsafe for the refugee to wait in the hope that things become safe. Any person fleeing persecution may be faced with an immediate risk assessment that only they can make as to what is the safest thing to do, which may include having to be smuggled out of the country without relevant documentation to embark on a journey without permission to the place where the refugee may wish – such as because having family or other connection – to seek asylum.

2. The Government’s resettlement announcement, which we have welcomed but remains to be worked up and implemented, will not be accessible to the great majority of refugees. Many will not be eligible. Many of those who may be eligible may not find the scheme accessible. Many others may simply not be selected. Some of the reasons such a scheme will not be accessible to some people also come down to safety. To wait for and engage with such a scheme takes time, possibly months or even longer. But that requires at least some degree of stability and security pending the opening of, application to and determination under the scheme. Some refugees will not have that stability and security. It is, for example, possible that the Government’s Afghan Citizens’ Resettlement Scheme will include eligibility for LGBTQI+ Afghans on account of the heightened risk of persecution to them in Afghanistan. But they may be at that same risk in other countries; and as a displaced person in another country that risk may even be greater. While circumstances will be different for different people, it is plainly possible that an LGBTIQ+ refugee may not be able to live a sufficiently stable life in any neighbouring country to engage with and maintain engagement with a resettlement scheme. That could be even more so if engaging with that scheme risks stigmatising the person by reason of the eligibility categories that will have to be publicly known. Similar considerations apply to people at risk of persecution on other grounds.

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)?

15. Yes.

16. There are three aspects to this:

1. The UK shares responsibility with others to receive asylum claims and provide asylum. These powers are expressly to renege on that duty.

2. The circumstances of many people seeking asylum, who seek to reach the UK from France, is not conducive to their human rights; and returning people to such circumstances is to risk further human rights violations and harms.

3. The wider implication of the exercise of such powers is liable to harm refugees elsewhere. If the UK will not meet its international obligations to respect a refugee’s right to cross borders to seek and enjoy asylum on its territory, this provides incentive or excuse for others not do so either.

17. Article 14 of the 1948 UN Declaration of Human Rights provides for the right to seek and enjoy asylum “in other countries”. It does not limit in which country asylum may be sought or enjoyed. The 1951 UN Convention relating to the Status of Refugees does not do so either. The construction of so-called principles of seeking asylum in a first or first safe country are not derivations from international law on asylum. Such constructions conflict directly with the underlying principle of that law that the international community must share asylum responsibility.

18. The circumstances of several people in northern France, who wish to seek asylum in the UK, are profoundly unsafe. Many of these people experience some or all of the following, amongst other things: living in prolonged squalor, violence at the hands of the French authorities, violence and exploitation by criminal gangs and others, dangerous journeys and attempted journeys to reach the UK, and separation from family and community in the UK.[7] Returning people to these circumstances undermines their human rights by placing them at risk of the very same deprivations and harms.

19. Generally, international commitment on asylum is in many instances fragile. When States take steps – whether legislative, by policy or in practice – to curtail or renege upon their own obligations, this increases that fragility. The risk of that is liable to be greatly increased if the UK – a relatively rich, stable country taking relatively little responsibility for providing asylum – adopts this Bill and thereby further reduces or undermines the limited responsibility it is currently taking.[8]

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?

20. There are two most immediate implications:

1. That a member of the public, who is in a position to help bring safely to shore a person or boat of people at risk off the English coast, will be either deterred or criminalised for doing so.

2. That a person seeking asylum by making a journey by boat, who does or appears to take charge of that boat – whether under duress, because the person believes they or others may be at risk or to make good their wish to exercise their right to seek asylum in the UK – is criminalised for doing so.

21. The implications of these measures are hardly conducive to human rights respect since they essentially set out to stigmatise and punish both the exercise of the right to seek asylum and the most basically humane response to a person in distress or whose life is at risk. Their wider implications are more generally detrimental to any notion of a human rights respecting culture.

Do the changes proposed by the Bill adequately protect the right to life of those at sea?

22. It has become even more clear since the introduction of this Bill that the intentions of Ministers towards people and boats at sea are not compatible with the right to life of people at sea. We are deeply disturbed at the suggestion that boats may simply be turned around or pushed back. The most immediate responsibility in the relevant circumstances is to ensure life. Boats are often overcrowded, unstable or otherwise inadequate. People on boats include people who are desperate, distressed, frightened, cannot swim, are pregnant, are especially vulnerable by reason of age, illness or disability and suffer from language barriers and past traumatic experiences. Several of these factors cannot readily or adequately be identified even before persons are safely brought to shore. People may be liable to panic, confusion or resistance. All of these reasons emphasise that the only safe response is to do all that is possible to both reassure people and ensure they are brought to shore and safety as quickly and calmly as possible.

23. Relevant international laws are consistent with that same emphasis.[9]

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?

24. No.

25. Amnesty has previously provided analysis of the myriad risks and human rights harms attendant on such proposals.[10] We do not repeat that analysis here.

26. However, we emphasis the additional concern that such proposals are emphatically contrary to the underlying principle that asylum responsibility is to be shared. It is not only wrong for the UK to seek to shift its responsibilities onto others. It sends to others a dangerous message, that jeopardises the very principle of asylum, that the UK is willing to do so whether or not it will ultimately be able to do so.

27. We again emphasise that asylum responsibility concerns both the seeking and enjoying of asylum on its territory.

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

28. They will restrict these guarantees. They are not, for example, underpinned as were interpretive measures in Council Directive 2004/83/EC (the Qualification Directive), to which the UK was formerly bound, by commitment to securing minimum standards consistent with the Convention.[11]

29. We draw further attention to two particular matters (without implying any acceptance of the propriety of other measures):

1. Clause 29 seeks to replace the existing basis for determining an asylum claim by holistic assessment against a single standard of proof (real risk or reasonable likelihood) with a complex assessment of various matters against differing standards of proof. Ultimately, this raises the standard of proof that is to apply and increases the prospect that asylum is wrongly denied to a refugee. We draw especial attention to clause 29(2)(b) and clause 29(4), which each relate to the risk of persecution but apply different standards of proof. In principle, a person may establish to the standard of proof applicable to the latter, that she, he or they will be persecuted if returned; but be unable to establish to the higher standard applicable to the former that she, he or they are afraid of this. This is unsafe. Nor does it serve any useful purpose given the person has established to the relevant standard that persecution awaits in her, his or their country of nationality or former habitual residence.

2. Clause 35 seeks to enlarge the scope of an existing statutory provision – section 72 of the Nationality, Immigration and Asylum Act 2002. Section 72 purports to give effect to Article 33(2) of the Convention, whch is an exclusion of protection against refoulement to refugees who are a danger to security or, if having been convicted of a particularly serious crime, a danger to the community. The existing provision is itself incompatible with the Convention. Enlarging its scope to widen the offences which are presumed to justified exclusion from the Convention’s protection exacerbates that incompatibility. Comparison with Clause 37 of the Bill is instructive. A refugee who enters the UK to claim asylum faces an increased prison sentence of 4 years. Clauses 35 reduces to 12 months the threshold for regarding an offence as particularly serious. This is manifestly draconian and outwith the Convention.

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?

30. Our primary concern, which is confirmed and enlarged by this Bill, is that Home Office decision-making is too often directed as a matter of policy and practice to disrespect human rights. This applies across the range of Home Office nationality, asylum and immigration functions and decision-making.[12]

31. Human rights respect requires a willingness to identify what are the human rights of the people affected by these functions and decisions, to evaluate any impact upon these rights of the exercise of any function, power or discretion in any particular way and to assess whether that exercise is legitimate and proportionate (assuming that the impact is not itself a violation of a right that is absolute).

32. We generally consider that there is insufficient either will or capacity at the department to do this; and, moreover, it is our assessment that the department has not generally been encouraged by Ministers to do so whether under the present or previous adminstrations. Rather than attempting a detailed analysis of the many reasons for this assessment, we simply refer the Committee to the Human Rights Memorandum on this Bill and highlight, by way of example:

1. Paragraph 13 asserts that what is put forward “is a proportionate way of achieving the legitimate aims set out above” and “is considered a proportionate way to achieve those aims”. This is to say the same thing twice while providing no assessment of what is the impact of what is intended, still less any evaluation of that impact against what are said to be legitimate aims. Proportionately is, therefore, asserted. It is not explained, evidenced or evaluated, still less demonstrated.

2. Paragraphs 82 to 84 relate to a statutory duty under section 55 to ensure the best interests of the child are a primary consideration in all actions concerning children. This is expressly recognised in these paragraphs. It is asserted that “the Department has carefully considered the best interests of the child throughout the formulation of all policy given effect to in this Bill.” However, there is no assessment of what are children’s best interests, still less how they will be affected by the measures in the Bill. Again, nothing is explained, evidenced, evaluated, let alone demonstrated.

33. Leaving aside any inferences that might reasonably be drawn from the silence on these matters of explanation, evidence, evaluation or demonstration, the clearest indication is being given to Home Office staff that, in all that they do, there is no real need to undertake any of this in relation to human rights standards which they too are obligated to meet.

17/09/2021