1. After our meeting on 21 July, you sent by email the follow up questions below, which we address in this note.
3. The Bill sets out proposed powers. The Home Office intends to use these powers in a way that is compatible with all of the UK’s international obligations, and consideration will be given whether, consistent with operational sensitivities, a policy can in due course be published. It notes, however, that those on small boats at sea, who are amongst those whom the new powers are designed to deal with, are not lawfully in the territory of the UK at the point they are encountered and would therefore not fall within the scope of Article 13.
HO’s analysis of compatibility of the Bill with A4P4 ECHR – given the obligation not to frustrate the object and purpose of treaties that the UK has signed (but not yet ratified)
4. This was raised in the context of the maritime enforcement powers in Schedule 5 to the Bill.
5. The Home Office accepts that as a result of the Vienna Convention on the Law of Treaties (“VCLT”), Article 18 and the UK’s signature of Protocol 4 in 1963, the UK is obliged to refrain from acts which would defeat the object and purpose of Article 4 of Protocol 4. The Home Office observes that the Bill sets out proposed powers. The Home Office intends to use these powers in a way that is compatible with all of the UK’s international obligations, and consideration will be given whether, consistent with operational sensitivities, a policy can be published in due course.
HO’s analysis of Article 14; proportionality analysis of the differential treatment of different groups of refugees (Group 1 and 2) – e.g. in terms of Article 14 as read with Article 8 (i.e. explaining the proportionality building from para 50 of the ECHR Memorandum)
6. Differential treatment of refugees is a proportionate means of achieving the legitimate aim of migration control and deterring dangerous, unnecessary journeys to the UK facilitated by criminal smugglers when individuals could reasonably be expected to claim asylum in another safe country. The Nationality and Borders Bill takes powers to differentiate based on the requirements of Article 31(1) of the Refugee Convention, from which it is implicit that refugees do not in all respects need to be treated equally. Four examples of the powers to differentiate are set out in the Bill. The powers in the Bill are not prescriptive. To the extent that the exercise of the powers engages Convention rights, including Article 3 or Article 8 when taken with Article 14, the powers will be exercised in a way that ensures compliance with Convention rights.
Any comparative legal analysis of the interpretation of Article 31 Refugee Convention. In particular in relation to the words “penalty” and “coming directly from”
7. We are confident that our analysis undertaken in respect of the law and commentaries has led us to an interpretation compatible with Article 31 of the Refugee Convention.
The human rights analysis relating to inadmissibility and removal on the basis of connection to third countries (including as may have been provided with the immigration rules, and the January 2021 extension)
8. Clause 13: Asylum claims by EU nationals: inadmissibility The wording “life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion” derives from the 2005 Procedures Directive which defined a safe third country, and is reflective of the wording in the current immigration rules (paragraph 345B) and in Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
9. Both the 2005 Procedures Directive and the immigration rules which implemented it, refer only to the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law. Furthermore, the wording here reflects the rebuttable presumption in paragraph 5 of Schedule 3 of the Nationality and Borders Bill which relates to Article 3 of the ECHR. That is because Article 3 is relied upon frequently by individuals to seek a last-minute injunction to prevent or delay their removal. The policy is designed to make decisions more efficient by starting from the presumption that certain states are safe for Article 3 purposes.
10. If an individual claims that they should not be sent to a ‘safe third country’ on the basis of an ECHR right, that claim must be assessed, and removal can only take place if the claim is certified clearly unfounded. This process already exists in Schedule 3 of the 2004 Act in respect of all human rights claims except a claim made on the basis of onward refoulement. Where the human rights claim is on the basis of onward refoulement there is currently an irrebuttable presumption. The Bill will amend Schedule 3 of the 2004 Act so all human rights claims made on the basis of a breach in the safe third country are to be treated in the same manner, bringing claims based on onward refoulement in line with other human rights claims; they will need to be considered and removal can only take place if the claim is certified totally without merit before removal.
11. The Home Office is therefore of the view that this fully complies with the ECHR.
Evidence of misuse of the modern slavery/NCM system and the evidence as to the likely impact of changes in the Bill on victims of modern slavery; Evidence that late information/late applications are likely not to be credible (in relation to that suite of clauses in the Bill)
12. This is a link to the publication we referred to in the meeting. https://www.gov.uk/government/publications/issues-raised-by-people-facing-return-in-immigration-detention, which concerns pressures in the system and where referrals are coming from.
13. NRM referrals from detention and prison have increased. In 2020, 27% (1,005) of people detained within the UK following immigration offences were referred as potential victims of modern slavery. Detention use in 2020 was affected by the pandemic, but even prior to this there was a clear rise in referrals from 3% (501) in 2017 to 16% (1,767) in 2019. NRM referrals for Foreign National Offenders and foreign nationals held on remand are rising, with an average of 85 per month in the first five months of 2021 (compared to 19 per month in 2018).
14. In 2019, only a small proportion (1%) of individuals detained within the UK following an immigration offence who made an NRM referral were returned.
15. Similar to the trend for all NRM referrals, in 2019 the majority (90%) of NRM referrals made from detention for people detained following immigration offences received a positive RG decision.
16. The CG decision data between all NRM referrals and referrals from detention are harder to compare due to the time lag to a conclusive decision and the number of outstanding decisions.
17. Separately, during the meeting, we offered to provide some information about numbers of stateless minors. We attach this information.
18. We hope that this information is helpful and are happy to discuss any further points you may wish to raise.