Written evidence from Joint Committee on Human Rights’ Legal Team (NBB0070)
CHAIR’S BRIEFING NOTE
PART 2 OF THE NATIONALITY AND BORDERS BILL: ASYLUM
- The Nationality and Borders Bill would introduce substantial changes to immigration law, including the law governing nationality, asylum, immigration enforcement, age assessment and modern slavery. This note focuses on the changes to the law on asylum contained in Part 2 of the Bill.
- The provisions of Part 2 of the Bill can be briefly summarised as follows:
- Introduction of differential treatment of recognised refugees, depending on how they entered into the UK and made their claim (clause 10);
- Changes to the choice of accommodation that can be provided to asylum seekers (clause 11);
- Clarification of the locations where asylum claims may be made (clause 12);
- Confirmation of the ability to declare asylum claims made by EU nationals inadmissible (clause 13);
- Setting out in statute the ability to declare an asylum claim inadmissible on the basis of the asylum seeker’s connection to a safe third country (clause 14);
- Clarification of the basis for support where an asylum claim has been declared inadmissible (clause 15);
- Introduction of evidence notices requiring all evidence in support of a claim to be provided by a certain deadline (clause 16);
- Setting out new matters that damage a claimant’s credibility (clause 17);
- Introduction of priority removal notices whereby a person liable to removal or deportation can be required to set out any reasons and grounds why they should be permitted to remain in the UK (clauses 18-19);
- Setting out the impact of a failure to comply with a priority removal notice on credibility (clause 20) and on appeals (clause 21);
- Setting out the additional legal services available to those in receipt of a priority removal notice (clause 22);
- Confirmation of impact of late evidence on the weight it is given (clause 23);
- Introduction of an accelerated appeal process for detained asylum seekers (clause 24);
- Removal of appeal rights for human rights and protection claims certified as clearly unfounded (clause 25);
- Amending existing legislation to allow for asylum seekers to be removed from the UK, including while their claims are still pending (clause 26 and schedule 3);
- Instructing decision makers on interpreting the definition of refugee within the Refugee Convention (clauses 27 to 35).
- This note covers the clauses which raise the most substantial human rights concerns.
Human Rights Context
The Refugee Convention
- The UN Convention Relating to the Status of Refugees (hereinafter ‘the Refugee Convention’) is an international agreement, ratified by the UK and almost 150 other nations, that formalises the granting of asylum. As summarised by the House of Lords (as predecessor to the Supreme Court), “the general purpose of the convention is to enable the person who no longer has the benefit of protection against persecution for a convention reason in his own country to turn for protection to the international community”.
- The Refugee Convention is a human rights instrument. It was drawn up in the aftermath of the Second World War and has its origins in the Universal Declaration of Human Rights 1948, which at Article 14 recognizes the right of persons to seek asylum from persecution in other countries. The concept of persecution is itself essentially underpinned by human rights – the Nationality and Borders Bill, in provisions designed to provide statutory clarification of the Convention’s meaning, states that to fall within the Refugee Convention persecution must be “sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right…” or “an accumulation of various measures, including a violation of a human right…”.
- The Refugee Convention guarantees certain rights to those who fall within the definition of a refugee. Under the Convention, the definition of a refugee is someone who: ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country’. Such a refugee is given the opportunity of settling in a new territory where he or she can be protected – the Refugee Convention obliging contracting states to facilitate the assimilation and naturalisation of refugees. Once an asylum seeker has had their refugee status recognised in the UK they are granted leave to remain for 5 years, with the right to apply for indefinite leave to remain at the end of that period. Prior to 2005 a refugee was granted indefinite leave to remain in the UK – i.e. the right to remain permanently.
- Since recognition that an individual is a refugee is a declaratory act the rights of the refugee, and corresponding obligations on the receiving state, flow from the simple fact of being a refugee as defined in the Convention – not from recognition and documentation by that state. For this reason, a refugee is protected from ‘refoulement’ (being returned to face the risk of persecution) from the moment they enter the territory of a contracting state whilst the state considers whether they should be granted refugee status.
- The Refugee Convention is binding on the UK as a matter of international law. As a general principle, the UK is under a duty to implement all its international treaty obligations in good faith. This is reflected in Article 26 of the Vienna Convention on the Law of Treaties, itself an international agreement which the UK has ratified. There is no formal international mechanism for individuals to make complaints about violations of the Refugee Convention, however, and neither is there an international body with enforcement powers, although the UN High Commissioner for Refugees (UNHCR) does have a “supervisory function” in relation to the application of the Refugee Convention.
- The Convention has not been incorporated into domestic law (unlike the ECHR which has effectively been incorporated through the Human Rights Act 1998), but its binding nature means that all subsequent domestic legislation should be assumed to comply with the Convention and should therefore be construed, where there is any ambiguity, consistently with the obligations the Convention imposes on the State. Furthermore, many rights under the Convention are mirrored in domestic law, including the rights to ‘non-refoulement’ (i.e. not being sent back to the country they came from), to lawful stay in the UK, to work, to study, to claim benefits and to access free healthcare. Refugees also have a right to reunite with partners and children under the ‘family reunion’ process. It is noteworthy that the majority of the detail of the UK immigration and asylum system is set out in the Immigration Rules and section 2 of the Asylum and Immigration Appeals Act 1993 provides that “Nothing in the immigration rules…shall lay down any practice which would be contrary to the Convention.”
- Some of the most relevant provisions of the Refugee Convention for consideration of the Bill include:
- Article 33(1), which guarantees against ‘refoulement’: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Article 33(2) provides that the principle of ‘non-refoulement’ does not apply to a refugee where there are reasonable grounds for regarding them to be a danger to the security of the country; or where, as a result of them committing a particularly serious crime, they constitute a danger to the community of that country.
- Article 34 of the Refugee Convention, which obliges states parties to “as far as possible facilitate the assimilation and naturalization of refugees”.
- Article 31, which prohibits the penalisation of refugees who enter a State unlawfully (discussed in greater depth below).
- It is also relevant to note that, according to the UN High Commissioner on Refugees (UNHCR), “in order to give effect to their obligations under the 1951 Convention, States are required to grant individuals seeking asylum access to their territory and to fair and efficient asylum procedures.” The opinion of the UNHCR (considered frequently below) is of real significance, not least because the UK has committed, in Article 35 of the Refugee Convention, to “co-operate with the Office of the [UNHCR] in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.” The UNHCR’s overall position on the Bill is that it “is fundamentally at odds with the Government’s avowed commitment to upholding the United Kingdom’s international obligations under the Refugee Convention and with the country’s longstanding role as a global champion for the refugee cause.”
European Convention on Human Rights (ECHR)
- While it contains no rights that explicitly refer to immigration or asylum, the ECHR - brought into effect in domestic law through the Human Rights Act 1998 (HRA) - provides protections that run alongside those provided by the Refugee Convention. Most relevantly, it is a violation of Article 3 ECHR for a person to be removed from the UK to another country where there is a real risk they will suffer torture or inhuman or degrading treatment or punishment. Likewise, it will violate the right to life to remove a person to face a real risk of being subject to treatment that violates Article 2 ECHR (notably, the death penalty) and, in principle, Article 4 ECHR would be violated if a person is removed where there is a real risk of slavery or forced labour. In rare situations where an individual may face a “flagrant denial of justice” in a destination country, Articles 5 (right to liberty) or 6 (right to fair trial) of the ECHR may also prohibit their removal. Article 13, the right to an effective remedy, requires the State to give asylum seekers the opportunity to claim asylum and have their claims considered.
- The relative narrowness of the definition of refugee under the Refugee Convention means that some asylum seekers who fall outside that definition will receive protection, including a guarantee that they will not be returned, under the ECHR instead. Should this occur they will receive ‘humanitarian protection’ rather than ‘refugee status’. This also provides 5 years leave to remain, with the right to apply for indefinite leave to remain at the end of 5 years, and is for most purposes equivalent to refugee status.
- Other human rights issues will arise in the immigration and asylum context:
- The right to life under Article 2 (and the right not to be subjected to inhuman or degrading treatment under Article 3) may be engaged by decisions to remove individuals with serious medical conditions who will suffer severe consequences as a result of not being able to receive the treatment they require in their destination country;
- The qualified right to respect for private and family life under Article 8 ECHR can be engaged by decisions to remove a person with personal relationships and family ties in the UK, and to decisions relating to family reunion (granting leave to family members of refugees);
- Article 14 prohibits discrimination in the enjoyment of other Convention rights, and may be engaged by any policies that apply different standards or outcomes to different categories of asylum seekers;
- Article 5 ECHR, the right to liberty, is engaged by immigration detention.
- Article 6 ECHR protects the right to ‘a fair and public hearing’ and applies to both criminal proceedings and to civil proceedings that ‘determine a civil right or obligation’. However, the European Court of Human Rights (ECtHR) has found that asylum, deportation and related proceedings do not ‘determine a civil right or obligation’ and therefore do not attract the protection of Article 6. Nevertheless, other Articles of the Convention may be engaged by limits on procedural rights, not least because failures in the asylum system may result in individuals being removed from the UK in breach of their Convention rights. Article 5 provides specific procedural guarantees for those in immigration detention, including the right to bring proceedings for review by a court of the lawfulness of the deprivation of liberty.
UN Convention on the Rights of the Child (UNCRC)
- Under Article 3(1) of the UNCRC, the best interests of the child must always be a primary consideration. This obligation has been given some effect in domestic law in the immigration context in section 55 of the Borders, Citizenship and Immigration Act 2009, which requires the Secretary of State to ensure that any functions relating to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children in the UK. As made clear by the Supreme Court in the case of ZH (Tanzania) v Secretary of State for the Home Department, this also impacts on the content of Article 8 ECHR, because section 55 means that “any [immigration] decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be “in accordance with the law” for the purpose of article 8.2 [ECHR]”.
International Covenant on Civil and Political Rights (ICCPR)
- The UK has also ratified the ICCPR, which, in addition to the rights also protected by the ECHR and mentioned above, provides specific rights relevant to immigrants including:
- A right to liberty of movement within a state and freedom to choose one’s residence (Article 12(1) ICCPR); and
- A right for aliens lawfully within a state not to be expelled except by a lawful decision which they can review with representation before the competent authority (Article 13 ICCPR).
The Bill and the current asylum caseload
- The background to the Nationality and Borders Bill (hereinafter the Bill) is set out in the Government’s consultation paper, ‘New Plan for Immigration’, which was published in March 2021. The Government response to the consultation was published in July 2021, after the second reading of the Bill. Under the ‘New Plan’ the Government identified three aims:
- “Firstly, to increase the fairness and efficacy of our system so that we can better protect and support those in genuine need of asylum.
- Secondly, to deter illegal entry into the UK, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger.
- Thirdly, to remove more easily from the UK those with no right to be here.”
- While the UK Government recognises the Refugee Convention obligation to consider any asylum application made in the UK, there is no visa category available for a person wishing to come to the UK to claim asylum and neither does the UK accept asylum claims made abroad. Thus, to avail him or herself of the right to claim asylum in the UK, an asylum seeker must get into the country first either under a visa issued for a different purpose, via a specific refugee resettlement scheme, or by clandestine or irregular means.
- A resettlement scheme is a scheme by which the UK, working together with the UNHCR, identifies refugees in refugee camps, informal settlements and host communities outside the UK and brings them to the UK for resettlement. Refugees are then matched to a local authority that can provide suitable accommodation and support. The refugees are given leave to come to the UK and on their arrival they are granted indefinite leave to remain and refugee status. There are currently three resettlement schemes in operation: The UK Resettlement Scheme (UKRS), Community Sponsorship Scheme, and Mandate Resettlement Scheme. Between the start of 2014 and the end of June 2021, 26,969 people were brought to the UK under a resettlement scheme (less than 4,000 per year), representing approximately one fifth of all the individuals granted asylum over that period. Plainly resettlement schemes are not available to most people genuinely fleeing persecution and seeking sanctuary for themselves and their families.
- Justifying the aim of dissuading persons from travelling to the UK to claim asylum, the ‘New Plan’ states that the UK’s in-country asylum caseload is at an “unsustainable” level. Notably, while the number of asylum seekers waiting for an initial decision and the number post-decision and subject to removal were in 2020 at their highest recorded level since recording started in 2011, this was not due to an increase in asylum applications. The number of asylum applications received has remained relatively stable for the past 6 years at around 30,000 p.a. (contrasting with the peak of around 70-80,000 between 1999 and 2002) and in fact decreased in each year from 2015 to 2017, and again between 2019 and 2020, while the ‘work in progress’ caseload has steadily grown. This suggests that the growing problem is that of the asylum system failing to keep up with applications or indeed slowing down, rather than the number of asylum seekers increasing.
- The number of asylum seekers reaching the UK by crossing the channel in small boats has, however, markedly increased in recent years (this partly, but not fully, offsets the decline in asylum applicants arriving by planes, trains, and ferries). In total in 2020, roughly 8,400 people crossed the Channel in small boats. This was substantially more than in 2019 (1,800) and in 2018 (300). The numbers have increased again in 2021, with over 12,000 people crossing in small boats up to the end of August. While full statistics are not available, it appears that the vast majority of those crossing the channel in small boats do make an asylum claim on arrival. Travelling on small boats across the busy shipping lanes of the channel is extremely dangerous, with consequent risks to life, so there is also a human rights justification for taking steps to reduce such dangerous crossings – or at least the danger to life posed by such crossings.
relevant provisions OF PART II
- Part II of the Nationality and Borders Bill proposes a number of substantial changes to the asylum system, designed to meet the objectives identified in the ‘New Plan’. Changes in other parts of the Bill are closely linked (particularly Part III, which includes changes to criminal offences and enforcement powers that would affect those seeking to enter the UK to claim asylum) but are not considered in this note. The following covers the provisions in Part II that raise the most obvious human rights concerns.
Differential treatment of refugees (clause 10)
- Perhaps the most controversial provision in Part II of the Bill is clause 10, which would permit the Secretary of State or an Immigration Officer to treat persons who have been recognised as refugees (and their family members) differently depending on whether or not they have: (a) “come to the United Kingdom directly from a country or territory where their life or freedom was threatened”; (b) “presented themselves without delay to the authorities”; and, if they have come to the UK ‘unlawfully’ (i.e. without leave to enter or remain); (c) “that they can show good cause for their unlawful entry or presence.”
- While the power to treat differently those refugees who satisfy these requirements (Group 1 refugees) and those who do not (Group 2 refugees) is not limited in any way by the Bill, the legislation does provide examples of ways in which the two groups might be treated differently, covering: the period of leave to enter or remain they are granted; the requirements they must meet in order to get indefinite leave to remain; whether they should be required to have no recourse to public funds; and whether family members are entitled to join them.
- Clause 10 is one of a trio of provisions within the Bill that target asylum seekers that travel to the UK “other than via safe legal routes”, together with clause 14 on inadmissibility (see below) and clause 37 that makes it a criminal offence to enter the UK without leave or entry clearance. Clause 37 is in Part III of the Bill (Immigration Offences and Enforcement) so is not addressed in this note.
- Clause 10 would for the first time see the UK treat some persons who are accepted as refugees less generously based on the manner of their journey to the UK and the timeliness of their asylum claim. The intention behind the provision is set out in the Explanatory Notes:
The purpose of this is to discourage asylum seekers from travelling to the UK other than via safe and legal routes. It aims to influence the choices that migrants may make when leaving their countries of origin - encouraging individuals to seek asylum in the first safe country they reach after fleeing persecution, avoiding dangerous journeys across Europe.
- The Home Office’s ECHR memorandum provides the following justification for the differentiation policy:
- “the UK has a legitimate interest in discouraging ‘forum shopping’ and encouraging asylum seekers to claim asylum in the first safe country they arrive in. As a result, there is justification for treating less favourably asylum seekers who have not come directly from a country where their life or freedom was threatened;
- the UK also has a legitimate interest in encouraging asylum seekers to present themselves to the authorities and make claims at the first available opportunity. As a result, there is justification for treating less favourably asylum seekers who have not presented themselves without delay to the Secretary of State;
- the UK also has a legitimate interest in promoting lawful methods of entry. As a result, there is justification for treating less favourably asylum seekers who have no good excuse for not using lawful means for entering the UK.”
Claiming at earliest opportunity
- Clause 10, and indeed the whole of the Government’s approach to asylum in the Bill, is premised on the assumption that “asylum seekers should claim at the earliest opportunity in the first safe country they reach”, which the Government has described as “a long standing principle”. In stark contrast, the UNHCR has described the Government’s stance as based on a “misunderstanding”. Their response to the Government’s ‘New Plan’ consultation paper stated that:
“Whilst international law does not provide an unrestricted right to choose where to apply for asylum, there is no requirement under international law for asylum seekers to seek protection in the first safe country they reach.”
- This position was reiterated in the UNHCR’s more recent observations on the Bill itself, in which the UNHCR added:
“Requiring refugees to claim asylum in the first safe country they reach would undermine the global, humanitarian, and cooperative principles on which the refugee system is founded. The United Kingdom played a key role in developing these principles 70 years ago when it helped draft the Refugee Convention, and, together with the other members of the United Nations General Assembly, it recently reaffirmed them in the Global Compact on Refugees.”
- Thus, there is a clear difference of opinion between the UK Government and the UNHCR on the requirement for asylum seekers to claim asylum in the first country they reach.
- It should be noted that the aim of dissuading illegal entry is not merely to reduce the burden on the asylum system. Much of the justification has focused on stopping the ‘people smugglers’ who are making money from facilitating access to the UK for asylum seekers, and, particularly in respect of small boat crossings, are risking lives while doing so.
- The Refugee Convention does not specify the status that should be granted to recognised refugees. However, granting a favourable status to those who have come through a resettlement scheme, and a lesser status to those who have not, runs counter to the understanding underpinning the Refugee Convention. The UNHCR’s position is that it would be “inconsistent with the Refugee Convention and has no basis in international law.”
- In brief, the UK Government’s position that an asylum seeker should claim asylum in the first safe country they reach is very hard to reconcile with the “global humanitarian and cooperative principles on which refugee protection is founded.” Most obviously, if an asylum seeker is expected to claim asylum in the first safe country they reach, a huge and disproportionate burden will fall on those countries that share land borders with unsafe countries.
- The following tables give an indication of the number of refugees in the world and how much more of the burden of hosting them already falls on countries closer to unsafe states:
Refugee statistics from UNHCR
Highest number of refugees’ by country of origin (as of end-2020)
Syrian Arab Republic
Highest numbers of refugees hosted by host country (as of end-2020)
- Considering the cooperative nature of the Refugee Convention scheme, even looking beyond the nations that border particularly unsafe states and take a disproportionately large number of refugees in, the UK takes a relatively small share of the burden. Compared with all the countries within the EU, for example, the UK ranks 7th in the total numbers of asylum applications granted and 19th when adjusted for population size. While the UK does take vulnerable individuals directly from unsafe countries through resettlement schemes, the numbers taken are substantial but again comparatively low. For example, the UK has taken in around 25,000 refugees through legal routes over the past 5 years. The UNHCR, which works with the UK on these resettlement schemes has said:
“Resettlement programmes, while welcome, are, by themselves, an inadequate means for fairly distributing global responsibilities towards refugees and sharing the burden currently shouldered by major host countries.”
- The UNHCR has made clear in its observations on the Bill its view that increasing inequality between nations that border unsafe states and those that don’t in the numbers of refugees taken on is not merely unfair but also counter-productive:
“The expectation that refugees should claim asylum in the first safe country they reach is also unworkable in practice. There are 34.4 million refugees and asylum-seekers worldwide, and the vast majority of them - 73% - are already hosted in countries neighbouring their countries of origin. Eighty-six percent are hosted in developing countries. To insist that refugees claim asylum in the “first safe country they reach” would impose an even more disproportionate responsibility on “first” safe countries both in Europe and further afield, and threaten the capacity and willingness of those countries to provide protection and long-term solutions. In turn, this would overwhelm these countries’ hosting capacity, and encourage onward movement.”
- It is noteworthy that the Convention was drafted in specific recognition of the fact that ‘illegal’ entry was often necessary for genuine refugees deserving of protection, as can be seen from the Travaux Preparatoires for Article 31:
“A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge. It would be in keeping with the notion of asylum to exempt from penalties a refugee, escaping from persecution, who after crossing the frontier clandestinely, presents himself as soon as possible to the authorities of the country of asylum and is recognized as a bona fide refugee.”
- Consideration of whether granting lesser status to those who arrive irregularly is consistent with the aims of the Refugee Convention must take account of the fact that the UK does not offer a lawful way of entering the UK in order to claim asylum, outside resettlement schemes (which are available only to a chosen few), and indeed imposes a penalty on those who assist irregular entry even inadvertently.
- While there is a legitimate desire to prevent ‘people smugglers’ risking lives through illegal immigration, this desire does not create an exception to the UK’s international law obligations under the Convention. Actions which seek to reduce smuggling by targeting the victims of the smugglers, i.e. those seeking asylum, rather than the smugglers themselves will inevitably be harder to justify.
Article 31 Refugee Convention
- Article 31 of the Refugee Convention specifically prohibits penalising persons who enter irregularly:
Article 31 - refugees unlawfully in the country of refuge
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
- While clause 10 would not expressly impose a ‘penalty’, this term has been interpreted as covering administrative disadvantages. The Supreme Court of Canada, for example, has found that “obstructed or delayed access to the refugee process” amounts to a penalty under Article 31. The Bill would allow the Secretary of State to grant lesser status to a refugee who entered irregularly and envisages granting inferior leave, denying access to public funds and making family reunion more difficult. This could be interpreted to amount to a ‘penalty’ under Article 31.
- No doubt for this reason, and an intention to remain compliant with Article 31, the factors that would be used to distinguish between ‘Group 1’ and ‘Group 2’ refugees in the Bill are very clearly drawn from Article 31: whether or not the asylum-seeker (a) has “come to the United Kingdom directly”; (b) has “presented themselves without delay” and (c) can “show good cause for their unlawful entry or presence.”
- In light of these factors, the Home Office’s ECHR memo states that clause 10 is consistent with Article 31. However, to prevent the application of clause 10 being incompatible with Article 31 these provisions must be interpreted consistently with international refugee law.
- Key to the application of clause 10 is the meaning attributed to the phrase “coming directly from” taken from Article 31. This is the phrase the Government relies upon to justify its interpretation that asylum seekers should claim asylum in the first safe country they reach.
- Clause 10 includes an express reference to clause 34 of the Bill, in which the Government sets out a new binding statutory interpretation of Article 31 of the Refugee Convention. This means that the use of “coming directly from” in clause 10 has the meaning given to it in clause 34:
“A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.” (emphasis added)
- While this interpretation of Article 31 would not penalise asylum seekers who pass through unsafe states, it is hard to reconcile with the “global humanitarian and cooperative principles on which refugee protection is founded” because it would in practice exclude almost any asylum seeker who travels to the UK by any means other than a direct flight from the persecuting state. The UK’s neighbours are all states that respect the rule of law and operate asylum systems that purport to comply with the Refugee Convention. It will therefore be very difficult for any asylum seeker who reaches the UK having passed through, for example, France, Ireland, Belgium, the Netherlands, Germany or any Scandinavian country to show that they could not ‘reasonably be expected to have sought protection’ there. Such a position is also inconsistent with the interpretation of Article 31 preferred by experts assembled by the UNHCR in 2001, who concluded, following analysis of the travaux preparatoires, that “the drafters [of the Refugee Convention] only intended that immunity from penalty should not apply to refugees who found asylum, or were settled, temporarily or permanently, in another country.”
- Furthermore, the new test departs from the interpretation of Article 31 made by the Administrative Court in R (Adimi and others) v CPS and Secretary of State for the Home Department:
“[I]t is the [Secretary of State’s] contention that Article 31 allows the refugee no element of choice as to where he should claim asylum. He must claim it where first he may: only considerations of continuing safety would justify impunity for further travel. For my part I would reject this argument. Rather, I am persuaded by the applicants' contrary submission, drawing as it does on the travaux préparatoires, various conclusions adopted by UNHCR's executive committee (ExCom), and the writings of well respected academics and commentators (most notably Professor Guy Goodwin-Gill, Atle Grahl-Madsen, Professor James Hathaway and Dr Paul Weis), that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the article…” (emphasis added)
- This interpretation was not questioned when it was discussed by the House of Lords in the subsequent case of R v Asfaw. Asfaw, and Court of Appeal authority since, has confirmed that “a short stopover” in another country on the way to claiming asylum in the UK does not preclude reliance on Article 31 of the Refugee Convention:
“the fact a refugee stopped in a third country in transit is not necessarily fatal and may be explicable: the refugee has some choice as to where he might properly claim asylum. The main touchstones by which exclusion from protection should be judged are the length of the stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found protection de jure or de facto from the persecution from which he or she was seeking to escape…” (emphasis added)
- It should be noted that Asfaw found that Article 31 also prohibited penalties imposed on asylum seekers leaving the country, i.e. those who were travelling through the UK to reach another destination (in that case, Canada). The Bill would reverse this ruling, as clause 34(4) confirms that “a penalty is not to be taken as having been imposed on account of a refugee’s illegal entry or presence in the United Kingdom where the penalty relates to anything done by the refugee in the course of an attempt to leave the United Kingdom.”
- Domestic law includes a defence designed to reflect Article 31 in section 31 of the Immigration and Asylum Act 1999. This section currently provides a defence in respect of some immigration offences to a Defendant who has travelled through another country if he “shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country”. Thus the application of the defence depends on the expectation of the asylum seeker as to the grant of protection in the country passed through on the way to the UK. This has not been found to be in breach of the Refugee Convention, but it contrasts with the proposed new interpretation in clause 34 of the Bill which concerns the reasonableness of the asylum seeker seeking protection in the country through which they have passed. The new test in clause 34 (which would also amend the existing criminal defence – see clause 34(5)) is therefore a subtly stricter one.
- The additional requirement placed on any asylum seeker who has entered without authorisation to “show good cause for their unlawful entry or presence” has also been interpreted generously by the courts. It has essentially been accepted that a well-founded fear of persecution is itself “good cause” to enter somewhere unlawfully – so it is not a challenging hurdle for any recognised refugee. The Bill does not seek to alter this interpretation.
Article 34 Refugee Convention
- The Bill specifies that the Secretary of State would be able to treat ‘Group 2’ refugees differently and provides examples of giving them a different period of leave to remain, different requirements to obtain indefinite leave to remain, different conditions on their leave to remain (including having no recourse to public funds) and different family reunion rights. Each of these differences would introduce greater instability for a recognised refugee, which would impact on their ability to adapt and adjust to living in the UK and become part of UK society.
- These provisions must be considered against the obligation on the UK to “as far as possible facilitate the assimilation and naturalization of refugees” under Article 34 of the Refugee Convention. The UNHCR response to the ‘New Plan’ explained that “[a] system that is designed to maintain a refugee in a precarious state intentionally frustrates, rather than facilitates, their integration and naturalisation.”
Other Refugee Convention and ECHR rights
- One of the examples of differential treatment given in clause 10 is that Group 2 refugees may be denied any recourse to public funds. Article 23 of the Refugee Convention expressly provides that: “Contracting States shall accord refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals” and Article 24 provides similarly in respect of “social security”. Given that Group 2 refugees will have been recognised as refugees they would be ‘lawfully staying’ in the UK so the Refugee Convention requires that they are no less eligible for public relief and assistance or social security than a British national.
- Another example of differential treatment given in clause 10 is that Group 2 refugees would have lesser rights to family reunion. The Parliamentary Assembly of the Council of Europe’s Resolution 2243 (2018) on Family reunification of refugees and migrants in the Council of Europe member States concluded: “Hindrances to the protection of family life are not admissible under Article 8 of the European Convention on Human Rights to deter migrants or refugees and their family members.” A restriction on refugee family reunion based simply on the fact that an asylum seeker has entered irregularly could be interpreted as designed to “deter migrants or refugees” and therefore as falling within this inadmissible category.
- As the power to treat Group 1 and Group 2 refugees differently is open-ended, there is the potential for clause 10 to be used to impose other lower standards or stricter requirements in respect of Group 2 refugees – including those that would fall foul of protections required by the Refugee Convention. For example, differences in respect of property rights could violate Article 13 and/or Article 21 of the Refugee Convention; and differences in respect of freedom to choose where to live could be in breach of Article 26.
Discrimination – Article 14 ECHR
- The intention of clause 10 is to treat Group 1 and Group 2 refugees differently. A difference of treatment will amount to unlawful discrimination under Article 14 ECHR if (a) the facts fall within the ambit of another Article of the ECHR; (b) the individual concerned has been treated differently to someone in an analogous situation; (c) the reason for the difference in treatment is listed in Article 14, which includes “other status”; and (d) the impact of the measure in question is neither proportionate nor objectively justified.
- Within the ambit: The Home Office’s ECHR memo accepts that “Clause 10 engages Article 8 ECHR as regards the granting leave to family members of refugees (so-called family reunion), and restrictions on recourse to public funds.”
- Analogous situation: The ECtHR has confirmed that “the requirement to demonstrate an “analogous situation” does not require that the comparator groups be identical. Rather, the applicants must demonstrate that, having regard to the particular nature of their complaints, they had been in a relevantly similar situation to others treated differently.”
- Reason for difference: The reason for the difference in treatment between Group 1 and Group 2 refugees is not one of the factors expressly listed in Article 14, but it could fall within the undefined “other status”. In a relatively similar context, in the case of Hode and Abdi, the ECtHR recalled that “other status” under Article 14 has “generally been given a wide meaning” and concluded that “a refugee who married after leaving his country of permanent residence and the spouse of such a refugee, enjoyed “other status” for the purpose of Article 14 of the Convention” and could argue discrimination in respect of the treatment given to “refugees and their spouses who married before leaving their country of permanent residence” (emphasis added).
- Justification: The justification given by the government is threefold: preventing “forum-shopping”; encouraging applications as soon as possible; and “promoting lawful methods of entry”. To comply with Article 14 these must both be accepted as legitimate aims, and the differentiation policy embodied in clause 10 must be accepted as a proportionate method for achieving them.
- The idea that the difference in treatment between Group 1 and Group 2 will dissuade asylum seekers from entering the UK ‘unlawfully’, including by small boats across the channel, depends on those seeking asylum (a) being able to decide and deciding on their ultimate destination and (b) being aware of the pros and cons of the asylum system in the UK before their arrival. The Committee has already heard evidence that some refugees who enter the UK without leave do so because they have been brought here by people smugglers and not because they have chosen the UK. There is also a dearth of evidence indicating that asylum seekers are aware of the system they will encounter in the UK before they arrive, which renders it more difficulty to establish that changing asylum policy will affect the decision making of refugees.
- In the absence of any visa for seeking asylum, ‘promoting lawful methods of entry’ will also have the effect of penalising those asylum seekers who have not been able to access safety through resettlement schemes. The Refugee Convention is not based on asylum being limited to those who are identified through resettlement schemes. While there is a human rights justification for seeking to prevent dangerous small boat channel crossings it is, doing so by effectively penalising the victims of people smugglers will inevitably be harder to justify than actions which focus on identifying the smugglers or saving lives at sea.
- Assessing proportionality will also need to take into account the seriousness of the negative consequences of Group 2 status and weigh them against the benefits that this differentiation will actually achieve.
Inadmissibility (clauses 13-15)
- Clauses 13, 14 and 15 concern asylum claims that are declared inadmissible and therefore not considered substantively.
- Clause 13 replaces arrangements in place with other EU nations (the Dublin III Regulations) that no longer apply due to Brexit and allows for asylum claims by EU nationals to be declared inadmissible. Given that this replicates law that has been in place for several years it will not be discussed further in this note. Clause 15 concerns the legal basis for providing support to ‘inadmissible’ asylum claimants and is also not discussed further in this note because it does not give rise to separate human rights concerns.
- Clause 14 would amend the Nationality, Immigration and Asylum Act 2002 to bring into statute changes already made to the immigration rules, which largely came into force on 1 January 2021. These recent changes permit the Home Secretary to declare an asylum claim as ‘inadmissible’ if made by a person who has a ‘connection’ to a ‘safe third State’.
- A safe third state is defined as one where the asylum seeker’s ‘life and liberty’ is not threatened and from where they will not be sent to another state in breach of the Refugee Convention or Article 3 ECHR. A ‘connection’ includes inter alia:
- where the asylum seeker has already made an asylum claim in that safe third state;
- where they have already been present in that state and it would have been ‘reasonable to expect’ them to have made an asylum claim; and also
- where it would have been ‘reasonable to expect’ the person to have made an asylum claim in a safe third country (even without them having been there).
- The consequence of the asylum seeker’s application being declared inadmissible is that they will be treated like a failed asylum-seeker and can be removed from the UK – either to the third state with which they have a connection or to any other third state. There is no right of appeal against this decision.
- However, a prima facie inadmissible application may still be admitted for consideration if the Secretary of State determines: (a) that removal to a safe third country within “a reasonable period of time” is “unlikely”; or (b) that there are exceptional circumstances meaning the claim should be considered. The current policy on the determination of what is a “reasonable period of time” provides that 6 months is a ‘long-stop’ for securing agreement from another country to accepting a person’s return.
- While clause 10 would permit the Secretary of State to treat differently a refugee that has not come directly to the UK from the state where they face persecution, clause 14 would allow the Secretary of State not to accept their asylum claim at all.
- As discussed above, to exclude from the UK’s responsibility any asylum seeker who has passed through a safe third country is hard to reconcile with the Refugee Convention – most obviously because if this was strictly applied by every nation those bordering unsafe countries would bear a massively disproportionate burden. The most extreme basis proposed for refusing to consider an asylum seeker’s application is because “it would be reasonable to expect them to have made a claim in a safe third country, instead of making a claim in the UK.” The example given in the Explanatory Notes is “where the person has close family members in a safe third country and there was nothing preventing them making a claim there.” This goes beyond rejecting asylum seekers who have travelled through other potential safe havens and extends to the receiving State dictating where an asylum seeker should have made their claim. There is no basis in the Refugee Convention to refuse a claim because the receiving State considers that the claimant should have claimed elsewhere.
- The UNHCR does accept, however, that inadmissibility and transfer procedures can be arranged between countries without violating the Refugee Convention - but only if certain standards are met. These include a requirement that the arrangements in place allow for the country where the asylum application is made to properly identify the circumstances in which (a) return to a safe third country would not be appropriate for a particular individual and (b) it may be more appropriate to assess the individual’s claim in the country where the application is made. The UNHCR has raised particular concerns about the fact that the Bill would allow an asylum seeker to be removed to a country other than the one to which they have the relevant “connection”. This is described as being “a significant and highly problematic departure from international practice and UK caselaw.”
- The UNHCR’s position derives from the fact that a state cannot divest itself of all its obligations under the Refugee Convention simply by declaring an application inadmissible. Firstly, the prohibition on refoulement in Article 33 of the Refugee Convention applies whether or not your status as a refugee has been formally recognised. Therefore, it also applies to individuals who are as a matter of fact refugees even if their claim is not admitted by the authorities. Furthermore, the prohibition on refoulement includes not sending someone to a state not only where there is a real risk of persecution but also where there is a real risk of them being sent on to another state face persecution. The House of Lords has recognised that breaches of the Refugee Convention and/or the ECHR will arise where, in practice, removal to a third country entails ‘a real risk’ of onward expulsion in breach of Article 33 or of Article 3 ECHR.
- Additionally, as noted above, the UK is under a duty to implement all its international treaty obligations in good faith. One aspect of this good faith obligation, which has been specifically recognised by the Court of Appeal in the context of the Refugee Convention, is that “signatories to the Convention must implement it in a manner which is reasonably efficacious.”
- What all of this means in practice is that it will be a breach of the Refugee Convention and/or the ECHR to declare an application inadmissible and remove the applicant:
- Without assessing that individual’s particular circumstances;
- To a country where they would face persecution in breach of the Refuge Convention or a real risk of a serious human rights violation;
- To a country where there was a real risk they would be sent on to face persecution or a serious human rights violation – this includes a country where their claim for asylum is not properly considered.
- The first of these possibilities can be avoided as long as inadmissibility is not applied without an individualised assessment. The current process involves an asylum seeker being provided with a “notice of intent” informing them that enquiries will be made to determine whether their claim is inadmissible. Effective enquiries that take into account the asylum seeker’s particular vulnerabilities as well as their ‘connection’ to a safe third state, and which would result in their removal from the inadmissible category where appropriate, may be sufficient to comply with the UNHCR concerns.
- The Bill seeks to avoid the possibilities of an asylum seeker being sent to a country where they would face a breach of their rights or an unacceptable risk of being sent on to face such a breach through its definition of a “safe third State”. However:
- The Bill does not specify what standard will be applied or what evidence will be required by the UK authorities when determining that the asylum seeker will not face a threat to their “life and liberty” in the receiving State, that the receiving State will not send them on to face danger in another State and that the receiving State will accept an application to be recognised as a refugee. The Home Office has previously provided for a ‘rebuttable presumption’ that certain listed countries are safe, a process which risks generalisations replacing careful assessment.
- In respect of the ECHR, the Bill only refers to Article 3. A real risk of a breach of Article 2 or Article 4, or a flagrant denial of justice in breach of Article 6 or Article 5, would also engage the UK’s obligation not to remove an individual.
- The Bill requires only that the asylum seeker “may apply to be a recognised as a refugee in the receiving State and (if so recognised) receive protection in accordance with the Refugee Convention, in that State.”
- The Bill does not specify any requirements as to the quality of the asylum process. The Grand Chamber of the ECtHR has specified that “it is the duty of the removing State to examine thoroughly the question of whether or not there is a real risk of the asylum seeker being denied access, in the receiving third country, to an adequate asylum procedure”. In respect of the Refugee Convention, the UNHCR has similarly made it clear that the application of the “safe third country” principle requires an individual assessment of whether the country will “grant the person access to a fair and efficient procedure for determination of refugee status and other international protection needs.” If a person who in fact meets the definition of refugee is unable to show this because of an inadequate system, that would undermine any theoretical protection against non-refoulement.
- Neither does the Bill require that asylum seekers be guaranteed protections under the Refugee Convention before they are recognised as refugees, despite the fact that certain aspects of the Convention guarantee rights to asylum seekers (e.g. the right to “the same treatment as is accorded to nationals with respect to elementary education” (Article 22(1); and the right to treatment “at least as favourable as that accorded to […] nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children” (Article 4)).
- The Home Office requires cooperation from other ‘safe’ countries (whether on a case-by-case basis or through an overarching return agreement) to be able to remove people with inadmissible claims. According to Home Office statistics, in the first quarter of 2021 (January to March), 1,503 asylum applicants were issued notices of intent under the new inadmissibility rules. None were returned. This is, at least in part, because at the moment there are arrangements in place for returns only to Switzerland, Bulgaria, Romania and Ireland. Otherwise the UK is not currently able to facilitate the return of individuals deemed to be inadmissible to third countries. In respect of our closest neighbours, it is currently unclear whether EU countries will enter into such arrangements independently, as a block or indeed at all. Until such arrangements are established, it is not possible to confirm whether or not they have the legal and practical safeguards necessary to comply with the requirements under the ECHR and the Refugee Convention, as set out by the ECtHR and the UNHCR respectively.
- This state of affairs means that very few asylum seekers whose applications are found to be inadmissible will actually be removed from the UK. Given the recognition that prima facie inadmissible claims will still be considered where removal is not possible within a reasonable time (currently 6 months), the Bill does not place these applicants in indefinite limbo (although this minimal protection could be reinforced by including a statutory time limit rather than leaving the determination of what amounts to a reasonable time to a policy decision). Nevertheless, the current absence of arrangements with other States for the return of applicants with a connection to that third States, and apparent rigid adherence to the 6 month period does mean that asylum claims deemed to be ‘inadmissible’ will be put on hold for this 6 month period before they can be considered (despite there clearly being very little prospect of removal to a third country taking place at all).
- As the UNHCR has commented, this:
“risks placing individuals in extended limbo, after which they may ultimately be admitted to the UK asylum system. This is likely to have adverse consequences for their mental and physical health and their long-term prospects for integration. It will prolong the period for which those ultimately found to be in need of protection are prohibited from working and potentially required to reside in reception centres, increasing both their vulnerabilities and the costs to the public purse. Negotiating readmission agreements can at times be a lengthy, complex undertaking. Keeping applicants six months before even entering the queue to determine their status does not serve the interest of the State, hosting communities or applicants.”
- As previously discussed, when the Refugee Convention was drafted it was recognised that refugees fleeing persecution would often be unable to observe the administrative and legal formalities required for movement between States. Thus Article 31 prohibits imposing penalties on refugees who enter or are present in a country without authorisation. Article 31 has been interpreted broadly and generously, recognising that “a short stopover” in another country on the way to claiming asylum in the UK does not take an asylum seeker outside its protections.
- Refusing to consider an asylum application and declaring it inadmissible, resulting in significant delays or removal to a ‘safe third State’, could amount to a ‘penalty’ for the purposes of Article 31. Thus an overly strict interpretation of ‘connection’ to a safe third State, to apply it to any person who has travelled through a safe third State, may be inconsistent with Article 31 of the Refugee Convention. Article 31 would also appear to cover the situation where an asylum seeker’s claim is declared inadmissible because “it would be reasonable to expect them to have made a claim in a safe third country, instead of making a claim in the UK” when they have unarguably “come directly” to the UK from the state where they were facing persecution.
Removal of asylum seekers whilst claim is pending – clause 26 and sch 3
- Clause 26 and schedule 3 of the Bill concern the removal of asylum seekers to safe countries. Most significantly, schedule 3 amends the current prohibition on removing an asylum seeker from the UK while their claim is pending. Under the proposed change to the law, an asylum seeker could be removed from the UK to another State as long as they would not face persecution or a breach of their Article 3 ECHR rights, or removal elsewhere in breach of the Refugee Convention or their Convention rights. There will be a rebuttable presumption that certain states, such as EU states, are safe for these purposes.
- The Explanatory Notes to the Bill make clear that these changes support “the future object of enabling asylum claims to be processed outside the UK and in another country. The purpose of such a model is to manage the UK’s asylum intake and deter irregular migration and clandestine entry to the UK.” However, no concrete plans for offshore processing have yet been made public.
- This provision is closely linked to the clauses on inadmissibility – both involve removing persons seeking asylum to safe third States without first determining their claims. However, clause 26 concerns cases where the UK has accepted responsibility for an asylum claim and is focused on allowing the removal of any asylum claimants – not just those who have passed through safe third countries, nor have any other specific connection with them.
- The Bill lays the groundwork for offshore processing, essentially seeking Parliamentary approval for future schemes that the Government may implement to remove refugees and asylum seekers from the UK. At this stage it is worth considering the human rights implications of this possibility, given this clause could be said to provide ‘in principle’ Parliamentary approval for the use of such a future scheme.
- Removing asylum seekers to genuinely safe third countries to have their claims processed would not violate the ‘non-refoulement’ provisions of the Refugee Convention, nor would it violate Article 3 ECHR. The UNHCR has confirmed that inter-State transfers of asylum seekers may be lawful if “governed by a formal, legally binding and public agreement which sets out the responsibilities of each State involved, along with the rights and duties of the asylum-seekers affected.” The duty to ensure that the rights of asylum seekers are respected will fall on the transferring State – in this case the UK.
- Once again, however, the proposal to ‘offshore’ asylum claims – sending asylum seekers to other nations while their claims are being processed – might be thought to be inconsistent with the “global humanitarian and cooperative principles on which refugee protection is founded.” The UK would be essentially ‘outsourcing’ its Refugee Convention obligations.
- Apart from these broader concerns of good faith compliance with the Refugee Convention, putting offshore processing into practice would raise additional human rights issues. The UNHCR has noted how “offshoring of asylum processing often results in the forced transfer of refugees to other countries with inadequate State asylum systems, treatment standards and resources. It can lead to indefinite ‘ware-housing’ of asylum-seekers in isolated places where they are ‘out of sight and out of mind’, exposing them to serious harm. It may also de-humanise asylum-seekers.” The most obvious example of such offshore processing is that put in place in Australia from 2001 onwards, where asylum seekers arriving by sea without visas were sent to Papua New Guinea and Nauru to be processed. Australia is not bound by the ECHR and therefore no ruling on the conditions for asylum seekers subject to offshore processing was made by a court like the ECtHR. Nevertheless, the conditions in the centres where asylum seekers were held were heavily criticised by the UN Committee Against Torture in 2014, in 2016 UNHCR medical consultants found that cumulative rates of depression, anxiety and post-traumatic stress disorder amongst asylum seekers in both countries exceeded 80 per cent; and in 2018 Médecins Sans Frontières issued a report stating that “the mental health suffering on Nauru is among the worst MSF has ever seen, including in projects providing care for victims of torture”.
- The conditions in any offshore processing facilities used by the UK could be far better than those in PNG and Nauru. Nevertheless, these examples show plainly the risk involved in relying on other nations to carry out asylum processing on the reception nation’s behalf. Putting these concerns into legal terms:
- The HRA would prohibit removing an asylum-seeker for offshore processing if doing so would result in a real risk of breach of his/her rights under the ECHR (including Articles 2, 3 or 4). This means that any arrangements for offshore processing could only possibly be compliant with the ECHR if the UK ensured that the processing occurred in circumstances that complied with human rights standards (and did not give rise to a real risk of breach). As noted, the offshore processing conducted by Australia on Nauru and Manus Island, Papua New Guinea was heavily criticised for failing to meet these standards.
- Offshore processing could involve automatic or mandatory detention. Article 5 ECHR prohibits unjustified or arbitrary detention. While the application of the ECHR and HRA outside the physical jurisdiction of the UK is not straightforward, they would apply if the UK was found to exercise effective control over an area outside its jurisdiction or if agents of the UK state exercised control or authority over the individual asylum seekers. This would put the UK in breach of the HRA/ECHR for human rights violations taking place in the offshore facility.
- The Refugee Convention and ECHR require, prior to removal, a thorough and proactive assessment of whether the system of processing in the destination country provides practical and effective protection against refoulement (including return to face a violation of the ECHR). This would include ensuring that procedures for determining refugee status were conducted fairly, efficiently, and with appropriate safeguards. It is notable that on its face the Bill would apparently allow for asylum seekers with pending applications to be removed to states that are not even party to the Refugee Convention.
- Article 13 ECHR requires asylum seekers to be given an effective opportunity to make their claim for asylum, which may require legal assistance. Offshore processing is likely to make providing legal advice to asylum seekers even harder than it currently is to advise those asylum seekers detained in the UK. Legal expertise in domestic immigration law will almost inevitably remain in the UK, meaning that most clients and lawyers will be unable to meet, potentially depriving asylum seekers of effective legal representation.
Evidence and priority removal notices – clauses 16 & 18, 21 & 23
- These provisions affect the way in which asylum seekers’ applications are treated. They represent an attempt by the government to ensure that all claims for asylum and humanitarian protection are made promptly and not at the last minute or in numerous separate claims, in a manner that “frustrates an efficient processing and removal of the individual concerned.” It is the latest in a series of measures focused on this goal.
- Clause 16 provides for asylum seekers being given an ‘evidence notice’ (EN) which requires the recipient to provide all the evidence in support of their claim (both for asylum and any claim that removal would violate their Convention rights) before a specified date. According to the Explanatory Notes, it is intended that an EN will be served on an asylum seeker “under the same circumstances as a notice is served under sections 120(1)(a) and 120(2) of the Nationality, Immigration and Asylum Act 2002 ... [which] creates a duty on that person to provide a statement setting out the reasons and grounds in support of that claim.” Thus, the EN would extend the existing duty to also cover providing all evidence in support of a claim.
- Clause 18 introduces ‘priority removal notices’ (PRN), which can be given to someone who is liable to removal or deportation and requires them to provide the reasons and grounds for their claim that they should be permitted to stay/not removed, plus any evidence they have to support that claim, before a specified date. According to the Explanatory Notes, PRNs are to intended to “reduce the extent to which people can frustrate removals through sequential or unmeritorious claims, appeals or legal action.”
- A failure to comply with either notice without ‘good reason’ for the delay will result in the decision maker being obliged to “take account, as damaging [to] credibility” the fact that the relevant material was provided late.
- The second consequence of a failure to comply with an EN or a PRN, without good reason for the delay, is that the decision maker “must, in considering [any evidence provided late], have regard to the principle that minimum weight should be given to the evidence.”
- A third consequence, applicable only to individuals who have received a PRN and failed to comply with the deadline imposed, had their claim rejected and have a right to appeal, is that their appeal will be expedited and heard by the Upper Tribunal rather than the First Tier Tribunal (from which there is no onward appeal to the Court of Appeal). This removes a level of appeal which would normally be available.
- For those that receive a PRN, the Bill provides for up to 7 hrs of additional publicly funded legal assistance. This can cover assistance regarding the lawfulness of the PRN; the individual’s immigration status; the lawfulness of the individual’s removal from the UK; and their immigration detention.
- Imposing tight deadlines on asylum claims is not expressly prohibited in any domestic or international law. However, it inevitably risks preventing those claims being prepared as carefully, and supported with enough effective evidence, as possible. Given what is at stake in a claim for asylum (persecution in breach of the Refugee Convention or death or inhuman or degrading treatment in breach of Article 2/3 ECHR may well face an asylum seeker who is incorrectly returned home) the system must be carefully designed to ensure that claims can be properly prepared and presented before any decision is made. Excessively short time-limits on filing applications, and/or for appealing against a subsequent removal decision, may jeopardise the effectiveness of the procedure in practice, and thus be inconsistent with the requirements of Article 13 ECHR. Given also that many asylum seekers with justified fears of persecution will arrive in the UK having left their homes or their own country at short notice, in secret and without access to official documentation or to witnesses, and that they will have been subjected to horrific and traumatic ordeals (both in their own country and during their journey to claim asylum), it can often be very difficult to put together their claim, with sufficient supporting evidence, even with effective legal representation.
- The Bill’s guarantee that those who receive a PRN (who will be liable for removal) also receive up to 7hrs of additional civil legal services – i.e. legal advice and assistance - is obviously an important safeguard to ensure that asylum seekers’ claims are not processed without legal assistance, but it may not be enough to guarantee that an adequate claim can be put forward on an expedited basis in every case. Simply providing for funding for legal advice does not guarantee that an asylum seeker will know how to, and be able to, access quality legal advice, particularly within a compact time frame. In the 2017 Parliament, the Joint Committee on Human Rights expressed its concerns about the impact of legal aid reform on the availability of legal aid lawyers generally, and in particular in relation to ‘legal aid deserts’ in certain areas – a concern which applies equally to asylum lawyers.
- Notably, failing to meet the deadline imposed under an EN or a PRN will not invalidate the claim. In addition, if the applicant can provide a good reason for the lateness, there will be no consequence. What amounts to a ‘good reason’ is not set out in the Bill, which gives rise to a risk of this being interpreted too strictly to provide effective protection against inappropriate penalisation. Nevertheless, in practice not penalising delay where there is ‘good reason’ for it could, and indeed should, avoid some of the pressure on asylum seekers to meet the deadline imposed where to do so would damage the integrity of the application. This does not, however, guarantee that every outcome will be fair.
Consequences of lateness
- ENs and PRNs would convert procedural errors, i.e. missing a deadline to make a claim or provide evidence, into damage to the substantive asylum claim. As noted, it is unclear what will or will not amount to a ‘good reason’ for any delay and there is clear scope for the term to be interpreted strictly. Examples might include an asylum seeker submitting evidence after the deadline set in the EN because of unreasonable delay by their lawyer; or an asylum seeker may have delayed because they found the asylum process difficult to follow, or because the trauma they have suffered made them unable to face the process, but are unable to express these problems effectively to the decision maker. It could be decided that there is no ‘good reason’ for this delay, and therefore the decision maker must both take into account the lateness as damaging to the applicant’s credibility (i.e. to the question of whether they are telling the truth about requiring asylum because they have been persecuted in their own country) and have regard to the principle that minimal weight should be given to the evidence. This is despite the delay caused by their lawyer having nothing to do with the truthfulness of their account or the accuracy of the evidence submitted.
- While the meaning of ‘good reason’ is important, the same blurring of procedural and substantive issues applies even if the delay was caused by the applicant’s sheer laziness or lack of regard for the rules. They might deserve some criticism for the way in which they have approached the deadline set – but this does not mean that their claim of persecution should not be believed or that the evidence they have provided should be given minimal weight. Crucially, it does not mean that they do not fall within the definition of ‘refugee’.
- The Bill is not the first time that an obligation has been placed on decision-makers to take account of certain actions as damaging to credibility. This approach was first introduced in section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, which already applies to a failure to make an asylum or human rights claim before being notified of an immigration decision or being arrested on immigration grounds. The Bill merely adds further matters that must be taken into account in respect of credibility.
- It is important to note that, in relation to credibility, the decision-maker is not expressly required to disbelieve the asylum seeker who fails to comply with a notice. The obligation on the decision-maker is only to “take account” – how much account is to be taken remains within the decision-maker’s judgment. However, the fact that it is a requirement to take account “as damaging to credibility” provides a clear indication to decision makers in asylum applications that the credibility of the applicant generally is damaged by their failure to provide material by the deadline set.
- The courts have considered the implication of section 8 of the 2004 Act on the independence of Tribunal decision-making and concluded that it does not “offend against constitutional principles” as long as it is interpreted as not removing the requirement for a “global assessment of credibility”. See the Court of Appeal in JT (Cameroon) v SSHD  EWCA Civ 878 which concluded that the phrase “as damaging the claimant’s credibility” should be read with the word “potentially” inserted or as “when assessing any damage to the claimant’s credibility”:
“21 Section 8 can thus be construed as not offending against constitutional principles. It is no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility. If there was a tendency for tribunals simply to ignore these matters when assessing credibility, they were in error. It is necessary to take account of them. However, at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in section 8 is held to carry no weight at all in the overall assessment of credibility on the particular facts. I do not consider the section prevents that finding in an appropriate case. Subject to that, I respectfully agree with Baroness Scotland's assessment, when introducing the Bill, of the effect of section 8. Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder.”
- This case concerned the impact of section 8 on decision-making by a Tribunal, but all immigration decision makers are now cautioned to be aware of this case law. There is a risk is that immigration officials may struggle more than independent tribunals in applying this interpretation.
Clause 23 - Weight
- Very similar issues arise in consideration of Clause 23 of the Bill, which does not extend a pre-existing provision but introduces a new development: the obligation ‘to have regard to the principle’ that evidence raised late should be given minimal weight. Again, the risk is that this clause would interfere with independent decision-making. Without the assistance of a court judgment to establish an interpretation of the law that accords with the need to properly assess the weight that should be given to evidence, there is a greater risk that immigration officials (and Tribunals) may fail to make their asylum decision fairly on the evidence before them. The risk is enhanced by the confusing way in which the obligation under clause 23 is expressed: “the deciding authority must, in considering it, have regard to the principle that minimal weight should be given to the evidence”. Precisely what is meant by this phrase is not entirely clear. The most straightforward way for a decision maker to deal with it would simply be to apply minimal weight to the evidence – which may be entirely wrong in the circumstances. As the UNHCR put it in their response to the ‘New Plan’:
“A rule prescribing that particular evidence should be given minimal weight would run counter to fundamental principles governing the assessment of evidence, including that “everything capable of having a bearing has to be given the weight, great or little, due to it”, and that evidence must be approached objectively, with an open mind, and assessed in the round, rather than in isolation. Moreover, the effect of delay on the weight of “late” evidence will necessarily vary depending on the nature of that evidence.”
- The overall intention behind these measures is to improve efficient processing of asylum claims. Particularly in light of the high numbers of successful appeals, improving initial decision-making could be seen as a more effective way of reducing the time taken processing asylum claims with a lesser risk of creating an unfair system or one that fails to identify genuine refugees.
Clause 21 - Expedited appeals
- Clause 21 would place an asylum seeker who has failed to reply to a PRN into a special expedited appeal process, whereby any appeal would be to the Upper Tribunal with no option of further appeal to the Court of Appeal. There is no guarantee under the Refugee Convention of any specific type of appeal right, so compliance with the Convention does not require an asylum seeker to be permitted an appeal to the First Tier Tribunal first (as long as the overall appeal process is fair and effective). Nevertheless, by limiting appeal rights, the prospect of an error is increased and in the asylum context such an error could result in the most appalling human rights violations: persecution, torture or death on return. As the Supreme Court expressed it in Cart:
“No system of decision-making is perfect or infallible. There is always the possibility that a judge at any level will get it wrong. Clearly there should always be the possibility that another judge can look at the case and check for error. That second judge should always be someone with more experience or expertise than the judge who first heard the case”.
- While there is no right of appeal against an Upper Tribunal decision on an expedited appeal, there is nothing in the Bill that explicitly excludes judicial review. Thus, following the reasoning of the Supreme Court in Cart a judicial review of the Upper Tribunal should be available. It should also be available on conventional judicial review grounds, rather than by applying the second-tier appeals criteria (which apply to judicial reviews of UT refusals of permission), because the Upper Tribunal would have been the first tier appeal.
- In respect of the expedited nature of the appeal process, the Bill does not set out a time frame but merely states that “Tribunal Procedure Rules must make provision with a view to securing that expedited appeals are determined more quickly than an appeal”. This raises significant practical questions (the Upper Tribunal is unlikely to have sufficient flexibility in its timetable to easily accommodate an increased number of first-tier appeals at the ‘front of the queue’) but does not in itself raise concerns as to appeals being fair and effective in human rights terms – as long as the timeframe is not so contracted as to deny an appellant a fair opportunity to set out their appeal. To avoid this possibility, the Bill permits the Upper Tribunal to remove any appeal from the expedited process if it is in the interests of justice to do so.
Accelerated appeals process
- Clause 24 of the Bill introduces an ‘accelerated detained appeals’ process, which the Secretary of State may impose when the asylum seeker is detained and she thinks the appeal “would likely be disposed of expeditiously”.
- This new process is designed to speed up decision making for detained asylum seekers, so that they can be removed from the UK, or released from detention, as soon as possible. The new system will give the asylum seeker just 5 working days from the decision on their asylum claim in which to lodge their appeal. The Tribunal must then make a decision on the appeal within 25 working days. Any application for permission to appeal to the Upper Tribunal must be determined within 20 working days of the tribunal’s decision.
- The proposed accelerated detained appeals process would significantly contract the timeframe for the asylum application and appeals procedure. This has implications for the ability of those genuinely fleeing persecution to be able to present their claims effectively. Obstacles to effective applications and appeals risk incorrect decision-making at first instance and appeal, exposing asylum seekers to persecution and human rights abuses when returned and denying them the sanctuary to which they are entitled in international law. The UN Executive Committee of the UNHCR Programme has recommended that asylum seekers “should be given a reasonable time to appeal for a formal reconsideration of the decision”. Furthermore, the ECtHR has held that applying unreasonably short time-limits to submit asylum claims and appeals, such as in the context of accelerated asylum procedures, can deprive an individual of the ability to present an asylum claim effectively and therefore render the state’s remedy practically ineffective, contrary to the requirements of Article 13 ECHR taken together with Article 3 ECHR. 
- Significantly, the new process has many similarities with the ‘detained fast track’ process (DFT) which was introduced in 2003 and suspended in 2015 after legal action. This process applied to asylum seekers who were held in immigration detention and whose claims it was thought, after the initial screening interview, could be decided quickly. The asylum interview would be conducted in detention, legal advice would be provided from a limited pool of lawyers with a contract to do DFT work and appeals would be conducted within a very tight time frame (approx. 7 working days) in a building adjoining the detention centre. In R (Detention Action) v First Tier Tribunal  EWCA Civ 840 the Court of Appeal upheld a High Court judgment, which had found that inherent systemic or structural unfairness in the DFT system rendered it unlawful. In particular, the Court of Appeal agreed inter alia that:
“in view of the complex and difficult issues raised, the difficulties in taking instructions from detained appellants and the considerable number of tasks for an advocate to perform before the hearing, it was inevitable that a significant number of appellants would be denied a fair opportunity to present their cases under the fast track scheme; that, since many refusals of asylum turned on adverse findings as to credibility, seven days between the decision and the appeal hearing was bound to be insufficient in many cases for evidence to be found to enable the appellant to corroborate his account of his case… and that, accordingly, since the safeguards provided by the Rules therefore did not overcome the inherent difficulties in the scheme and the time limits were so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases, the fast track system was structurally unfair and unjust and the Fast Track Rules were ultra vires section 22(4) of the 2007 Act”
- There is plainly a real risk that the new system of “accelerated detained appeals” could repeat these problems that contributed to the Court of Appeal finding the DFT system unlawful. While the proposed time frame under the new system would not be quite as contracted as that under the DFT, it would still be extremely short for the preparation of an effective appeal. The lawfulness of the new system, and its compliance with the HRA, will depend on the safeguards put in place (a) to ensure that there is adequate time available to obtain the evidence needed to overcome allegations about credibility; (b) to ensure effective legal representation is available and can operate within the time frame imposed by statute and (c) to ensure that cases in which an appeal cannot be effectively prepared within the time frame are removed from the accelerated procedure.
Altering the standard of proof – Clause 29
- Clause 29 is one of the clauses setting out a statutory approach to interpreting the requirements of the Refugee Convention. It would dictate the method that must be adopted when “any person, court or tribunal” considers whether an asylum applicant has a “well-founded fear” of persecution. Most significantly, it makes changes to the applicable standard of proof.
- Currently the decision-maker simply considers whether there is a reasonable likelihood of persecution in accordance with the Refugee Convention (if there is, the claim is granted).
- Under clause 29 the decision-maker would first determine whether on the balance of probabilities (i.e. is it more likely than not) (a) the applicant “has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion”; and (b) the applicant does in fact fear persecution. Only if the decision-maker decides both positively will he or she then consider whether there is a reasonable likelihood that they would be persecuted if they returned.
- In summary, the change to the standard of proof proposed within clause 29 would make it somewhat harder for asylum seekers to prove their claims and gain refugee status. It would raise the standard of proof to that of “balance of probabilities” for the personal elements of a claim while maintaining the “reasonable likelihood” threshold regarding future risk.
- The process by which a State identifies refugees is not regulated under the Refugee Convention, so it does not impose any specific standard of proof in asylum claims. However, any process that poses an unacceptable risk of genuine refugees being denied asylum, or of individuals being returned to face a breach of their Article 2, 3, 4 ECHR rights or a flagrant denial of justice in breach of Article 5 or 6 ECHR, would not be lawful.
- More specifically, the UNHCR has emphasised that, in light of the potentially devastating consequences of an erroneous decision, “asylum claims must be determined through a process that… considers the enormous evidentiary challenges refugees face in proving their asylum claim and applies the 1951 Convention criteria in ‘a spirit of justice and understanding’”. The UNHCR has also confirmed that asylum seekers should be given the benefit of the doubt:
“In general, the applicant’s fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there.
It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof…Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” (emphasis added)
- The approach in the UK has sought to reflect these standards by applying a standard of ‘reasonable degree of likelihood’ to the question of whether the applicant falls within the definition of refugee – see HJ (Iran) in the Supreme Court where a test of ‘balance of probabilities’ was said to be inappropriate where “life or liberty may be threatened”. This is consistent with the approach taken to claims that removal would violate Article 3 ECHR – the claimant need establish only a ‘real risk’ of violation, not prove their claim on the balance of probabilities.
- Furthermore, the UK courts have rejected the approach, now proposed in the Bill, of breaking down the test for establishing persecution into constituent parts and applying discrete standards to each one. As Simon Brown LJ said in Ravichandran  Imm AR 97 , 109:
“In my judgment the issue whether a person or group of people have a “well-founded fear … of being persecuted for [Convention] reasons” … raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the Convention.”
- The proposed change to the standard of proof in the would also give rise to concerns in practice:
- Firstly, many genuine asylum seekers already face significant challenges proving their claims. By definition, they will be fleeing persecution, often from the state itself and, therefore, frequently in no position to secure material evidence of their experiences. These challenges are reflected in the traditionally ‘low’ standard of proof in asylum claims – only requiring an applicant to establish a ‘reasonable likelihood’. The fact that claims can already be hard to prove is evident from the high number of asylum claims that are rejected at first instance and then successful on appeal, when improved legal support and expert consideration is brought to bear. According to Home Office statistics, over the past 5 years around 40% of all asylum appeals have been successful. By making the process harder for asylum seekers, requiring them to prove part of their claim on the ‘balance of probabilities’, there is an increased risk that genuine asylum seekers will fail to establish their claims and face removal to the very persecution they have fled.
- Secondly, raising the standard of proof risks restoring or increasing the “culture of suspicion and skepticism” within the immigration arm of the Home Office that was identified as a serious issue by the Home Affairs Select Committee in their inquiry into the Windrush scandal. This could result in more genuine claims being wrongly refused.
- Thirdly, the introduction of different standards of proof for different elements of a single aspect of the asylum claim (i.e. whether there is a well-founded fear of persecution) could result in perverse outcomes. If an applicant is unable to prove on the balance of probabilities that they have a subjective fear of persecution the decision-maker would never consider whether the facts nevertheless disclose a reasonable likelihood that they would be persecuted on their return. A person would theoretically be returned to a likelihood of persecution simply because they were unable to show that it was more likely than not that they were in fear of it. While the applicant might still be protected from refoulement under the ECHR, this would depend on the decision-maker properly assessing the risk despite the prior subjective test having been failed (it would also result in lesser immigration status for the asylum seeker).
- Fourthly, the introduction of different standards of proof for different elements of a single aspect of the asylum claim would make the decision-making process more complicated. By introducing additional complexity into the process, the risk of error, including the risk of decision makers applying the higher standard of proof to all aspects of the claim, is increased. It is also likely to be a fruitful area for appeals, potentially resulting in a longer and more costly process rather than a shorter one.
Meaning of serious crime for Article 33(2): Clause 35
- Article 33(2) of the Refugee Convention provides that the non-refoulement obligation does not apply if inter alia the refugee is someone who “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” This means that such a refugee can be returned without this violating the Refugee Convention (although they would not lose the other protections of the Refugee Convention).
- Clause 35 of the Bill would amend existing domestic law which provides for when an asylum seeker or refugee will fulfil this exception in Article 33(2). Currently the law states that, where a person has been convicted in the UK of an offence and sentenced to a period of imprisonment of at least two years (or has been convicted outside the UK of an offence for which they would have received at least a 2 year sentence were they in the UK), they are considered to have committed a ‘particularly serious crime’. There is a rebuttable presumption that this means they pose a danger to the community of the UK, although the Explanatory Note suggests that there is currently some ambiguity over whether or not the crime being ‘particularly serious’ can also be rebutted.
- Clause 35 would both:
- Reduce the length of imprisonment that renders an offence a ‘particularly serious crime’ from 2 years to 12 months; and
- Clarify that such an offence is definitely a ‘particularly serious crime’ - there is no presumption that can be rebutted on this point.
- The prohibition on refoulement is the central protection provided to refugees under the Refugee Convention. Article 33(2) provides an exception to that protection that the UNHCR states “like all exceptions to protections under international human rights treaties…must be interpreted and applied restrictively.” A narrow interpretation and application of Article 33(2) is consistent with its purpose, explained by the UNCHR in its 2003 Background Note on the Application of the Exclusion Clauses:
“Article 33(2) applies to refugees who become an extremely serious threat to the country of asylum due to the severity of crimes perpetrated by them. It aims to protect the safety of the country of refuge and hinges on the assessment that the refugee in question poses a major actual or future threat. For this reason, Article 33(2) has always been considered as a measure of last resort, taking precedence over and above criminal law sanctions and justified by the exceptional threat posed by the individual – a threat such that it can only be countered by removing the person from the country of asylum.”
- A previous JCHR has considered the scope of Article 33(2) and noted that “[w]here a refugee who has already been recognised as such commits a serious non-political crime in the country of refuge, this should be dealt with through the ordinary criminal law process of that country; it is only in the case of "particularly grave crimes" that Article 33(2) applies” before concluding that:
“In view of the humanitarian purpose of that Convention, the exceptions to the principle of non-refoulement in Article 33(2) should be given a restrictive interpretation, not an interpretation which expands their scope and correspondingly weakens the principle itself.”
- In respect of the interpretation of Article 33(2) currently adopted in UK legislation, the UNHCR already considers that defining all sentences of 2 years or more as ‘particularly serious’ for the purposes of the Refugee Convention does not comply with an appropriately restrictive interpretation of Article 33. Unsurprisingly, therefore, the UNHCR has been clear in its view that 12 month threshold proposed in the Bill “would include a wide range of offences that seem incompatible with the definition of ‘particularly serious’.”
- Domestically, the Court of Appeal has held that the term ‘particularly serious crime’ needs no further “gloss” on its meaning – but in so doing made clear that it “restrict[s] drastically the offences to which [Article 33] applies.” A 12 month sentence is above the maximum that can be imposed in a Magistrates Court, and is undoubtedly a serious punishment. However, is it indicative of a ‘particularly serious crime’? Does it “restrict drastically” the offences to which Article 33 applies.
- As the exception in Article 33(2) relates only to the protection against refoulement under the Refugee Convention, it does not impact on the ECHR obligation not to remove someone to face a real risk of treatment in breach of Article 3 ECHR (or breach of Article 2 or 4, or a fundamental denial of justice under Articles 5 or 6). This means that a person who cannot rely on the principle of non-refoulement in Article 33 can still rely on the ECHR to prevent their removal form the UK to face a real risk of persecution, as long as that persecution would also amount to a violation of an ECHR right. This does not affect the Bill’s compatibility with the Refugee Convention, but does represent a ‘safety net’ providing protection for human rights.
 Horvath v. Secretary of State for the Home Department  1 AC 489, 497 (Lord Hope of Craighead)
 Clause 28(2)
 See Article 34
 In February 2005, the Government announced a five year strategy for asylum and immigration: Controlling our borders: Making migration work for Britain. Part of this strategy was, from 30 August 2005, replacing the granting of immediate indefinite leave to remain for refugees with an initial grant of five years’ limited leave which is subject to review.
 See R (ST) v Secretary of State for the Home Department  2 AC 135 (“ST”), para 61
 The UNHCR has a supervisory and co-operative role – see Article 35
 See, for example, R v SSHD, ex parte Brind  1 AC 696
 Which are made under section 3 of the Immigration Act 1971, have to be laid before Parliament and are subject to the negative resolution procedure. While they are not strictly speaking secondary legislation, they are treated as such for all practical purposes.
 No such exception applies to the obligation under the ECHR not to return an individual where there is a real risk that their Article 3 rights will be violated.
 UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, para. 8, available at: https://www.refworld.org/docid/45f17a1a4.html
 UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-22
 Protocol No.4 to the Convention does contain a right of free movement and prohibitions on expulsion of nationals and collective expulsion of aliens, but this protocol has never been ratified by the UK – although similar provisions in the International Covenant on Civil and Political Rights (ICCPR) are binding of the UK, such as Articles 12 and 13 ICCPR.
 Soering v UK Application No. 14038/88, 7 July 1989
 Al Nashiri v Poland, Application No. 28761/11, 16 February 2015, § 576. Removal to face the death penalty also engages Article 1 of Protocol 13, the abolition of the death penalty.
 See Harkins v. the United Kingdom (dec.) Application No. 71537/14 [GC], §§ 62-65
 See M.S.S. v. Belgium and Greece [GC], §§ 265-322
 For example, if the individual claiming asylum does not face persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, but instead faces a real risk of a breach of their Article 3 ECHR rights arising from indiscriminate violence.
 Khlaifia and Others v. Italy [GC], 16483/12, § 131
  2 A.C. 166
 New Plan for Immigration Policy Statement, March 2021, CP 412 at p3
 NB it would not formally be legal entry if a person applied for a visa for non-asylum purposes with the intention of claiming asylum once in the UK
 For more detail, see the Home Office’s UK Refugee Resettlement: Policy Guidance, August 2021
 Asylum Statistics, House of Commons Library Research Briefing, 13 September 2021
 For example, there are 3,700,00 refugees in Turkey alone.
 Asylum Statistics, House of Commons Library Research Briefing, 13 September 2021
 Asylum Statistics, House of Commons Library Research Briefing, 13 September 2021
 Asylum Statistics, House of Commons Library Research Briefing, 13 September 2021
 In oral evidence to the HASC on 3 September 2020, Abi Tierney, the Director General of UK Visas and Immigration (UKVI), stated that of the roughly 5,000 people who had crossed the English Channel in small boats from January to September 2020, 98% claimed asylum.
 Para 145, Explanatory Notes
 ECHR Memorandum, para 12
 UNHCR Observations on the New Plan for Immigration policy statement of the Government of the United Kingdom, May 2021.
 UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-22 at 
 UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-22 at 
 Figures as of June 2021 - see https://www.unhcr.org/uk/figures-at-a-glance.html
 Migration Observatory, Asylum and refugee resettlement in the UK, 11 May 2021
 UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-22
 The Refugee Convention, 1951: The Travaux Preparatoires
 I.e. carriers’ liability: section 40 of the Immigration and Asylum Act 1999 imposes a penalty charge on a carrier who brings a passenger to the UK who does not hold the correct documentation.
 B010 v Minister of Citizenship and Immigration (2015) SCC 58
 Summary Conclusions: Article 31 of the 1951 Convention (adopted at the expert roundtable organised by the UNHCR and the Graduate Institute of International Studies, 8-9 Nov 2001), para 10(c)
  QB 667
 According to Lord Bingham: “It seems to me that Adimi is fully supported by such authority as there is, both before and since, and was rightly decided.”
  UKHL 31, which considered the test currently applicable in domestic criminal law under the Immigration and Asylum Act 1999 s.31
 R v Mateta  1 WLR 1516
 Immigration and Asylum Act 1999 s.31
 Adimi  QB 667 at 677
 Subject to minor limitations set out in Article 24(b)
 Available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=25185&lang=en
 Article 13: “The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.” Article 21: “As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.”
 “Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.”
 ECHR memo, para 50
 Hode and Abdi v United Kingdom at 
 Migration Observatory note a Home Office report from 2002, Understanding the decision-making of asylum-seekers, in which the researchers found little evidence that asylum-seekers were aware of asylum policy in the UK
 See Oral Evidence, 8 September 2021, session 1 and session 2
 See Home Office Guidance: Inadmissibility: safe third country cases: “The agreement by a third country to accept a person’s return must be obtained no later than 6 months from the date the person claimed asylum. If there is no such agreement, the person’s claim must be admitted for substantive consideration.”
 UNHCR, Legal considerations regarding access to protection and a connection between the refugee and the third country in the context of return or transfer to safe third countries, April 2018, available at: https://www.refworld.org/docid/5acb33ad4.html;
 UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-22
 NB the ECHR prohibits removing someone from the UK where there is a real risk of treatment that would violate Article 2, Article 3 or Article 4 ECHR – regardless of whether that person has been recognised as a refugee or indeed any other status they may or may not have
 R v Secretary of State for the Home Department; ex parte Adan  2 AC 477 The same principle would apply to a real risk of a violation of Article 2 or Article 4 ECHR or of a ‘flagrant denial of justice’ in breach of Articles 5 or 6.
 See Article 26 of the Vienna Convention on the Law of Treaties, itself an international agreement which the UK has ratified.
 Saad v Secretary of State for the Home Department  EWCA Civ 2008, para 11
 Ilias and Ahmed v Hungary (App. No. 47287/16, 21 November 2019)
 UNHCR, “Legal considerations regarding access to protection and a connection between the refugee and the third country in the context of return or transfer to safe third countries” (April 2018), paras 4, 9;
 According to Home Office sources
 UNHCR Observations on the New Plan for Immigration policy statement of the Government of the United Kingdom, May 2021, Annex, para 28
 For example, the Supreme Court of Canada has held, in the case of B010 v Minister of Citizenship and Immigration (2015) SCC 58, that “obstructed or delayed access to the refugee process” amounts to a penalty within the meaning of Article 31(1).
 See section 77 of the Nationality, Immigration and Asylum Act 2002
 See new sub-section (2C) to section 77 NIAA 2002, proposed in Schedule 3 of the Bill
 Although, as the UNHCR has noted, “there is nothing in the language of the Bill itself that would limit removals to such a purpose” – see UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-22
 UNHCR Observations on the New Plan for Immigration policy statement of the Government of the United Kingdom, May 2021
 “The Committee is concerned at the State party’s policy of transferring asylum seekers to the regional processing centres located in Papua New Guinea (Manus Island) and Nauru for the processing of their claims, despite reports on the harsh conditions prevailing in those centres, such as mandatory detention, including for children, overcrowding, inadequate health care, and even allegations of sexual abuse and ill-treatment. The combination of the harsh conditions, the protracted periods of closed detention and the uncertainty about the future reportedly creates serious physical and mental pain and suffering.” CAT/C/AUS/CO/4-5, December 2014
 Other human rights treaties which the UK has ratified, such as the UN Convention Against Torture, could also be violated.
 To provide one further example: “Australia: UN experts urge immediate medical attention to migrants in its offshore facilities”, UNHCR, 18/6/19. A group of UN experts reported: “These individuals are subject to years of effective confinement in Australia’s custody, based solely on their migration status. The situation of their indefinite and prolonged confinement, exacerbated by the lack of appropriate medical care amounts to cruel, inhuman and degrading treatment according to international standards,”
 Schedule 3, clause 1
 For an EN, the obligation to take into account lateness as damaging to credibility applies to both the immigration official considering the application and also to any tribunal establishing the facts on appeal. For a PRN, the obligation to take into account lateness as damaging to credibility applies only to the immigration official considering the application or “a person who is a competent authority of the United Kingdom for the purposes of the Trafficking Convention”.
 See clause 17 and clause 20. Clause 17 also provides that the same impact on credibility should apply in respect of “any relevant behaviour by the claimant that the deciding authority thinks is not in good faith”, which essentially covers any behaviour related to any immigration proceedings. Clause 64 provides for further consequences of failing to act in good faith. This is all, perhaps, less controversial, as a lack of good faith is likely to affect a view on credibility in any event. There is, however, currently no guidance on what would amount to a lack of good faith.
 For both an EN and a PRN, the obligation “to have regard to the principle that minimum weight should be given to the evidence” applies to both the immigration official considering the application and also to any tribunal establishing the facts on appeal.
 See IM v France App.No. 9152/09 in which a five-day limit for lodging an initial asylum application and a 48-hour time-limit for an appeal were found to violate these provisions. See also MSS v Belgium and Greece App.No. 30696/09
 The UNHCR has noted in respect of delayed claims “the special situation of asylum-seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances vary enormously from one asylum-seeker to another.” See the ‘Revised guidelines on applicable criteria and standards relating to the detention of asylum-seekers’ (26 February 1999), para 4.
 See ‘Enforcing Human Rights’, Tenth Report of Session 2017-19, at para 83
 The importance of ensuring procedural correctness does not trump a substantive asylum claim was recognised in the context of fresh claims by Lord Bingham in Ex parte Onibiyo  QB 768: “[I]t is not hard to imagine cases in which an initial "claim for asylum" might be made on insubstantial, or even bogus, grounds, and be rightly rejected, but in which circumstances would arise or come to light showing a clear and serious threat of a kind recognised by the Convention to the life or freedom of the formerly unsuccessful applicant. A scheme of legal protection which could not accommodate that possibility would in my view be seriously defective.”
 The UNHCR accepts that “delays in making claims or presenting evidence may properly be taken into account in assessing credibility” but notes that “the weight given to delay depends on the entirety of the individual and contextual circumstances” – see para 77, UNHCR Observations on the New Plan for Immigration policy statement of the Government of the United Kingdom, May 2021
 This requirement was recognised by the House of Lords in R v Sivakumar v SSHD  1 WLR 840
 UNHCR Observations on the New Plan for Immigration policy statement of the Government of the United Kingdom, May 2021
 In the five years between 2015 and 2019 over 40% of all appeals were successful. See the House of Commons Library research briefing on Asylum Statistics, 13 September 2021
 As Lord Bingham put it in Ex parte Onibiyo  QB 768: “The risk to an individual if a state acts in breach of this obligation [not to send a refugee back to face persecution] is so obvious and so potentially serious that the courts have habitually treated asylum cases as calling for particular care at all stages of the administrative and appellate processes.”
 R (Cart) v Upper Tribunal  UKSC 28 at 
 UNHCR, Determination of Refugee Status No. 8 (XXVIII) (1977), para (e)(vii)
 See IM v France App.No. 9152/09 in which a five-day limit for lodging an initial asylum application and a 48-hour time-limit for an appeal were found to violate these provisions. See also MSS v Belgium and Greece App.No. 30696/09
 Summary taken from the headnote to the Weekly Law Reports report of the Court of Appeal judgment –  1 WLR 5341
 The clause would not alter the approach to claims for humanitarian protection based on a risk of a human rights breach outside the definition of persecution under the Refugee Convention.
 UNHCR Observations on the New Plan for Immigration and UNHCR Handbook (n 83), pp. 37-42.
 UNHCR Handbook, 196-197. See also The UN High Commissioner’s Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998, which explains that the applicant need only make a “credible” case:
“11. […] Credibility is established where the applicant has presented a claim
which is coherent and plausible, not contradicting generally known
facts, and therefore is, on balance, capable of being believed. […]
12. […] Where the adjudicator considers that the applicant’s story is on the
whole coherent and plausible, any element of doubt [about particular
factual assertions] should not prejudice the applicant’s claim; that is,
the applicant should be given the “benefit of the doubt”.
  1 AC 596 at 
 Settled law since Soering v UK (1989) 11 EHRR 439
 See the July 2021 House of Commons Library research briefing on asylum statistics, at para 2.3, https://researchbriefings.files.parliament.uk/documents/SN01403/SN01403.pdf
 Section 72 of the Nationality, Immigration and Asylum Act 2002
 UNHCR Observations on the ‘New Plan for Immigration’, para 22
 Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (4 September 2003)
 Twenty-Second Report of session 2003-04, on the human rights compatibility of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes Order) 2004, at paras 26 and 28.
 Para 59-60
 EN (Serbia) v SSHD  QB 633
 The 12 month threshold can also be contrasted with domestic assessments of dangerousness - such as the limited circumstances in which a court may impose an extended sentence on an offender. See section 306 and Sch 18 of the Sentencing Act 2020, which relates to far more serious offences.