Written evidence from Safe Passage (NBB0065)

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At Safe Passage International, we help refugees access safe routes to asylum. We champion refugees’ right to safe passage through strategic legal work, advocacy and campaigning.

For further information, please contact Emily Graham, Press & Public Affairs Manager at emily@safepassage.org.uk

Summary

The Government’s Nationality and Borders Bill will do nothing to break the business model of smugglers nor prevent dangerous Channel crossings, and it will violate refugee and human rights law and make the lives of many who have fled war and persecution a misery. This Bill will criminalise and punish refugees, and seeks to offload Britain’s international responsibilities to those seeking our protection.

If the Government was serious about preventing refugees from having to risk dangerous journeys to reach sanctuary, they would instead open safe routes to the UK for refugees. Safe routes save lives, reunite families and support refugees to rebuild their lives welcomed by our communities.

We recommend that the Government:

• opens safe routes to the UK for refugees, including expanding refugee family reunion
• scraps their plans to introduce a two-tier system for refugees, which would punish refugees depending on how they were forced to journey to the UK[1]
• drops their proposal to extend maritime enforcement powers so that vessels may be diverted out of UK territorial waters[2]
• does not extend the offence of assisting “unlawful immigration” or asylum seekers to now include those helping asylum seekers without benefit to themselves[3]

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

At Safe Passage, we’re deeply concerned that this Bill would establish an inhumane and unlawful two-tier system that differentiates and discriminates against refugees, depending on how they had to make their journey to find sanctuary. Under Clause 10, refugees would be categorised as ‘Group 1’ if they travelled directly from the country or territory where their life or freedom is threatened and made an asylum claim without delay, and everyone else would be in ‘Group 2’. Most refugees would be classed as ‘Group 2’ and denied vital rights, including to family reunion.[4] The proposed two-tier system would apply to those recognised as refugees, meaning that it will penalise those who have been found to be in genuine need of refugee protection purely based on their journey to the UK.

We strongly urge Government to drop the inhumane plans for an asylum system that punishes refugees based on how they are forced to travel to and arrive in the UK. Whilst safe routes protect refugees, everyone has the right to claim asylum and all refugees should enjoy full protection and rights, regardless of their journey to the UK.

The Government claims that these plans are justified as they are intended to prevent refugees from entering the UK irregularly, including through Channel crossings. Evidence, however, shows that policies aiming to deter refugees from taking dangerous journeys are ineffective.[5] Such policies do not address why people come here - for family, community, security, and to rebuild their lives. Most refugees on the move are unaware of policies aiming to deter their attempts to travel to safety, rendering them ineffective.[6] Even the Government’s own equality impact assessment acknowledges the evidence suggesting that deterrence and security-based policies are effective is ‘limited’.[7] This equality impact assessment actually acknowledges that increasing deterrence could force people into taking more risky and dangerous journeys.[8]

These plans are also a chilling assault on family reunion rights, despite the Government heralding family reunion as a vital safe route to the UK. The UK’s route to family reunion desperately needs to be expanded after the revocation with Brexit of the EU’s Dublin Regulation, which allowed for family reunion. In this context, it is deeply troubling that the Government is set to introduce more restrictions. We know from our work at Safe Passage assisting refugee families to reunite safely that when people have no safe route to reach families, they are more likely to risk their lives on dangerous journeys to reach loved ones. Children are particularly likely to resort to people smuggling when access to family reunion is delayed or at risk.[9]

We believe that the two-tier system would violate the UK’s obligations under refugee and human rights law, including child rights.

Obligations under refugee law

We consider that the two-tier system as proposed under Clause 10 is likely to be unlawful as contrary to Articles 21-23, 31(1) and 34 of the Refugee Convention. The attempt to “differentiate” between two types of refugees – or create two classes of refugees – is inconsistent with the Refugee Convention, which clearly sets out one single definition of refugee.

Under the Refugee Convention, refugees must not face penalties for illegally entering or being present in a country (Article 31(1)).[10] Yet under Clause 10 and the two-tier system, refugees arriving irregularly to the UK would be penalised as they would be granted only temporary protection, denied family reunion rights, and refused public funds. UNHCR takes the view that any punitive measure which limits the rights of refugees purely on the grounds of illegal entry or presence, could arguably constitute a ‘penalty’ within the meaning of Article 31(1).[11] It is our view also that these measures introduced by Clause 10 would constitute a penalty as prohibited by the Refugee Convention because they are intended to prevent ‘Group 2’ refugees from obtaining full rights in domestic law to which they would otherwise be entitled as refugees.

Clause 10 would specifically limit refugee family reunion rights, with refugees who arrive irregularly stripped of their right to sponsor their family to join them in the UK. It would also permit differential treatment of family members joining their relatives in the UK in terms of whether they are given leave to remain, the length of any period of limited leave, the requirements that a person must meet for indefinite leave to remain, and any ‘no recourse to public funds’ condition. This is not in line with the 1951 Convention, which recommends that States ensure that the unity of the refugee’s family is maintained.

Obligations under human rights law

Clause 10 would risk the right to respect for private and family life, as protected by Article 8 of the ECHR. The differential treatment outlined in Clause 10, which delays and prevents refugees’ access to settlement, public funds and/or family reunion, impacts on refugees’ right to private and family life.

In particular, stripping away refugee family reunion rights specifically under Clause 10 would engage the right to family life, as protected by Article 8 of the ECHR. The principle of refugee family reunion has also been recognised by the European Court of Human Rights: “there exists a consensus at international and European level on the need for refugees to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens”.[12] We understand that the Government could still permit extremely limited family reunion under the right to family life (Article 8). Whilst we do not have further details, we presume that the Government intends to allow only applications “outside of the rules” in the case of ‘Group 2’ refugees. Currently if family reunion wouldn’t be permitted under the strict and tightly drawn UK’s Immigration Rules, it is possible for the Home Office to grant leave “outside of the rules” in very exceptional cases. Such cases depend on the Home Office’s discretion, which is infrequently exercised, and the few cases granted are mainly done so only on appeal.[13] For the many families who would be kept apart by the new restrictions to family reunion, the promise that reunification would possibly still be granted “outside the rules” is no reassurance at all.

To restrict family reunion rights for Group 2 refugees would be an unacceptable assault on the rights refugees have had in the UK. This rowing back on rights and protections would also be contrary to the Government’s stated aim of reducing irregular and dangerous journeys with these reforms, which have been used to justify the plans. We know that when people are denied family reunion rights they are more likely to risk dangerous journeys or resort to smugglers in order to reach their loved ones.

Alongside interfering with Article 8 rights, we believe that Clause 10 is contrary to the right to non-discrimination (Article 14 of the ECHR) as it specifically targets those seeking asylum based on how they journeyed to and arrived in the UK, which we believe is discriminatory. The differential treatment under Clause 10, which is intended to control or deter illegal migration, is a disproportionate measure.

Child rights obligations

As it stands, Clause 10 and the differential treatment provisions would apply to unaccompanied children seeking asylum. Falling under the wider definition of “refugees” and therefore within the scope of Clause 10, there is nothing on the face of the Bill stating that children are to be excluded from the two-tier system and the associated penalties. The Refugee Convention (and the ECHR) applies to child refugees, and UNCHR emphasises that child refugees, particularly unaccompanied children, are particularly vulnerable and require special care and assistance. In addition to the obligations under refugee law and the ECHR covered above, the Secretary of State has a duty under s55 of the Borders, Citizenship and Immigration Act 2009 to have regard to “the need to safeguard and promote the welfare of children who are in the United Kingdom”. The associated statutory guidance expressly references the UN Convention on the Rights of the Child (UNCRC), which mandates that in all actions concerning children “the best interests of the child shall be a primary consideration”.[14] As differential treatment under Clause 10 would be likely to impede children’s wellbeing and development, we believe it would be contrary to the s55 duty and the UNCRC duty on the best interests of the child, which underpins it. Whilst the Government’s Equality Impact Assessment of the Bill states that the “no recourse to public funds” condition would not apply to former unaccompanied asylum-seeking children care leavers who are considered “Group 2 refugees” and subject to a temporary protection status, this is far from the assurance needed to ensure that the rights of children are respected and protected.

These reforms will have a significant impact on children and the rights of the child, and this has not been fully assessed. Whilst the Government has now published their equality impact assessment (16 September), a full assessment on the specific impact on child rights has not been made available. The objective of protecting children and childhood must run through any reforms but as it stands, we are concerned that the proposals will be deeply detrimental to child rights. We recommend that the Government publishes a comprehensive child rights impact assessment alongside their equality impact assessment.

Recommendation: The Government must scrap their plans to introduce a two-tier system for refugees, which would punish refugees depending on how they were forced to journey to the UK. Instead, we recommend that the Government meets its obligations under the Refugee Convention and the ECHR, and opens safe routes to save lives.

Do proposed new powers for UK Border Force to direct vessels out of UK territorial waters 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)?

We are deeply concerned by the Government’s proposal to extend maritime enforcement powers so that vessels may be diverted out of UK territorial waters.[15] The introduction of pushbacks in the Nationality and Borders Bill is cruel and unacceptable. Pushing back boats will not stop people from making dangerous journeys, but will punish and threaten the lives of refugees. As above, policies that rely on deterrence to prevent refugees from taking dangerous journeys do not work, like these put forward by the Government. Instead of inhumane proposals such as pushbacks, we urge the Government to introduce safe routes instead, for example by expanding family reunion.

Not only do we believe this policy will be ineffective, but also that these powers are likely to operate in a way that is inconsistent with the principle of ‘non-refoulement’, as enshrined in Article 33 of the Refugee Convention.

Article 33 of the Refugee Convention sets out that refugees should not be expelled or returned to where they risk persecution. It applies to both refugees and asylum seekers that arrive on boats. As this Bill would place no obligation on UK authorities to investigate the circumstances of persons on board a vessel before exercising these extended powers and diverting boats out of UK territorial waters, we consider that it will not be consistent with Article 33 of the Refugee Convention. In practice, it would also be almost impossible for UK authorities to make an assessment of the circumstances of a person on board a vessel whilst conducting a pushback operation.

Without an adequate consideration of individual circumstances, which is almost impossible in a live pushback operation, we also suggest that diverting boats in this way would not be consistent with our obligations under the ECHR, namely:

• The UK’s duty to ensure that appropriate legal and administrative systems are available to protect those who are vulnerable to torture, inhuman or degrading treatment or punishment, and to ensure that appropriate steps are taken if it becomes aware that a person is at a real and immediate risk of suffering such treatment (Article 3). Whilst France and other neighbouring EU States are themselves bound by Article 3, the lack of procedure to investigate and the practical impossibilities of conducting an investigation mean that the Government is in effect assuming Article 3 will be observed by another State. Making this assumption disregards the UK’s obligations under Article 3. Without proper investigation, it is likely that cases where there is a real risk to someone’s right to freedom from torture, inhuman or degrading treatment and this is not identified.
• Contrary to the right to respect for private and family life (Article 8) as a pushback would deny those on board with family connections to the UK the opportunity to make a family reunion claim. Whilst this right and UK case law require that individual circumstances are balanced with the interests of the State and the wider community, we believe this to be a disproportionate interference with the right to family life.
• The extended maritime powers in the Bill would operate in a way that was discriminatory on the basis of immigration status, which would likely be in violation of freedom from discrimination (Article 14).

Recommendation: The Government must scrap their proposal to extend maritime enforcement powers so that vessels may be diverted out of UK territorial waters, and instead open safe routes to the UK for refugees.

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

We are very concerned that the Government intends to extend the offence of assisting “unlawful immigration” to cover those helping asylum seekers without benefit to themselves.[16] Clause 38 of the Nationality and Borders Bill would penalise those assisting irregular migrants or asylum seekers. It would increase the maximum sentence for this offence from 14 years to life imprisonment,[17] and change the law so that the offence would apply whether or not someone was acting “for gain”.[18] Whereas in the past this offence was focused on people smugglers who had facilitated entry into the UK for their own benefit, this Bill would extend the offence so that anyone assisting an asylum seeker could now be prosecuted. Extending the offence in this way would have far-reaching consequences, including for those in distress or at risk of losing their life at sea.

Removing the requirement for the assistance to be provided “for gain” means that the Government would criminalise friends, family members and fellow refugees for helping someone seeking sanctuary. In the UK, we have had a proud history of assisting and welcoming refugees – and yet this Bill would mean Sir Nicholas Winton risked a criminal offence if he rescued refugee children today, as he did in 1938. To criminalise the act of helping an asylum seeker is not only a disservice of our record of providing safety to those fleeing war and persecution, but undermines our commitment and obligations to those who today seek safety in the UK.

The extension of this criminal offence also has implications for the right to life for those at sea. Those who help asylum seekers in distress at sea, for example rescue from drowning and offer assistance to shore, could also face criminal prosecution. Although organisations which aim to assist asylum seekers and do not charge for their services are excluded from this offence,[19] there is no such exclusion for “good Samaritans” and those acting with humanitarian motives, merchant ships' officers or other mariners who undertake rescue efforts and seek to preserve life when in or partly in the UK’s territorial waters. We are deeply concerned that those who would otherwise offer assistance to asylum seekers or migrants in distress at sea will refuse to help or face serious consequences for doing so.

The UN Convention on Life at Sea sets out a duty to render assistance to those at sea in danger or distress.[20] International maritime law also states that the ship master has an obligation to render assistance to those in distress at sea without regard to their nationality, status or the circumstances in which they are found.[21] Clause 38 of this Bill could mean, however, that ship masters are criminalised for providing such assistance, and it would be no defence to a ship master that they were following international maritime law. We therefore believe therefore that Clause 38 is incompatible with international law, namely Article 98 of the UN Convention on Life at Sea.

It is also notable that EU law does not allow for ship masters to face criminal penalties when they rescue people in distress at sea and take them to a place of safety[22] - whereas Clause 38 creates an offence for that very same act.

This proposal is deeply inhumane. It punishes both people in extremely vulnerable situations who are seeking the protection of the UK, and those who would attempt to rescue anyone in distress. This is a frightening prospect which could result in more people seeking asylum in the UK dying in the Channel. Hundreds of people have already died trying to cross the English Channel in recent decades[23] – the Channel is an extremely dangerous stretch of water and is the world’s busiest shipping lane.

Instead of pursuing dangerous and cruel policies that risk the lives of those crossing the Channel in order to reach sanctuary here, the Government must urgently expand and improve safe routes to the UK for refugees. People risk their lives taking dangerous journeys to reach protection and loved ones when safe routes aren’t available.

Recommendation: We recommend that the Government does not extend the offence of assisting “unlawful immigration” or asylum seeker to cover those helping asylum seekers without benefit to themselves by deleting Clause 38(2), and instead opens safe routes to sanctuary here in the UK to try to prevent dangerous journeys, including across the Channel.

Other human rights issues raised by the Nationality & Borders Bill

The Government has set out devastating restrictions to refugee family reunion rights in their Nationality and Borders Bill which would see most refugees arriving in the UK denied the right to reunite with their family,[24] but what is needed most now is an expansion of refugee family reunion. The current situation in Afghanistan has shown just how vital refugee family reunification is – to reunite loved ones and as a safe route to protection.

Unaccompanied children and separated families are now entirely reliant on the UK’s broken Immigration Rules in order to reunite safely and legally. Before Brexit, these children and families could also reunite under the EU’s Dublin III Regulation. Since this expired with the UK’s exit from the EU and the Government has so far refused to replace it, many families are without a safe route to family and protection in the UK. Of those we successfully supported to access the EU Regulation, Dublin III, we estimate 95% of our family reunion cases would be very unlikely to qualify under the UK’s current Immigration Rules.

In our work, we are already seeing the impact that the closure of family reunion under Dublin III is having on our clients. With less children now eligible for family reunion and the process being more arduous and less likely to succeed, children are losing faith in the process and have resorted to dangerous journeys in order to join their family in the UK.

The Government claims that the Nationality and Borders Bill will tackle smuggling and put a stop to Channel crossings but without safe routes and fit-for-purpose refugee family reunion, these plans won’t succeed. That’s why we’re urging the Government to instead make urgent improvements to refugee family reunion. This is a crucial opportunity to enhance human rights protections for refugees in the UK.

Urgent changes are needed so children can reunite with close family members in the UK, like siblings, aunts, uncles and grandparents – whether those family members have refugee status, indefinite leave to remain or become British citizens. The Government must also reform the application process so that it’s clear, safe and accessible, in order to prevent dangerous journeys to visa application centres.

Recommendation: We recommend that the Government opens safe routes to the UK for refugees, including expanding refugee family reunion.

01/10/2021

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