Blog post by Professor Elspeth Guild (Queen Mary University of London) and Maja Grundler (Queen Mary University of London), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
The UK Government’s policy proposal for a “New Plan for Immigration” was published on 24 March 2021 and a public consultation on the proposal was conducted until 6 May 2021. In spite of the relevant feedback being largely critical of the policy proposal (‘around three quarters of those who responded said they opposed many of the policies set out in the New Plan for Immigration’), the Government quickly made up its mind: in the Queen’s Speech on 11 May, it was confirmed that ‘[m]easures will be brought forward to establish a fairer immigration system that strengthens the United Kingdom’s borders and deters criminals who facilitate dangerous and illegal journeys [New Plan for Immigration Legislation].’ Subsequently, the government on 6 July 2021 published the text of the proposed Nationality and Borders Bill, which, at the time of writing, has passed through second reading in the House of Commons and has proceeded to the Committee stage.
Thus, the consultation on the New Plan was not only poorly designed, it seems that, with regard to informing ensuing legislation, it was also utterly pointless. This is, perhaps, unsurprising given the broader failings within the Home Office and its inefficient case processing and poor decision-making, which are the real cause for many of the “problems” the New Plan, and the Bill, seek to address. Although the UK Government apparently never intended to rely on the consultation responses to improve the policy, this consultation has given different actors working on migration the opportunity to review and critique the proposals. The New Plan has been described as ‘cruel’ and ‘unfair’, and numerous stakeholders, including UNHCR, have debunked a number of claims made in the New Plan. A House of Commons Library reading list collates a selection of recent media coverage, stakeholder responses and other background material on the New Plan. It has also come to light that, apparently, ‘there is an evidential appendix to the new plan for immigration which was not published because the evidence contradicts the policy document.’ However, the Home Office is not prepared to release this appendix, let alone to confirm it exists.
While the Nationality and Borders Bill is based on the New Plan, there are a number of provisions in it, which the policy document did not mention, so that civil society will now have little time to scrutinise and advise Parliament on these before the Bill becomes law. Relevant provisions include the requirement to make asylum claims at a ‘designated place’ (cl 12), which not only makes it difficult for asylum seekers to have ‘presented themselves without delay to the authorities’ as required by cl 10 (2)(b), but which also seems to be designed to enable pushbacks, since asylum claims cannot be lodged while on the ‘territorial sea of the United Kingdom’ (cl 12(7)). Another concerning provision not announced in the New Plan concerns so-called ‘priority removal notices’ (cl 18).
In light of the Government choosing to ignore consultation responses to the New Plan, public criticism of the proposed legislation is especially important. In this blog series, we have given academics who are working specifically on issues of UK immigration and asylum law the opportunity to share their knowledge and expertise on the subjects raised in the Plan. In contrast to the policy itself, these contributions are evidence-based, drawing on relevant research and jurisprudence. With this post, we conclude the blog series on the New Plan by highlighting the main deficiencies in the Plan and the proposed Bill, as well as the UK Government’s legal obligations and commitments with regard to immigration and asylum/refugee protection. Unless the Nationality and Borders Bill is substantially amended before passing into law, it is likely to lead to extensive litigation. One of the aims of this blog post is to provide a resource for those conducting such litigation.
In particular, we will point out why the New Plan and the Bill are incompatible with objectives and measures foreseen under the UN Global Compact for Safe, Orderly and Regular Migration (Marrakesh Compact) and the Global Compact for Refugees (Refugee Compact), both explicitly endorsed by the UK Government, as well as the 1951 Convention relating to the Status of Refugees (Refugee Convention) and the European Convention on Human Rights (ECHR). Although, as the individual contributions to this blog series demonstrate, the Plan and the Bill are inherently discriminatory and incompatible with a large number of other international instruments, as well as with UK domestic refugee law jurisprudence, the instruments discussed below set a number of important standards, which would provide a first point of departure for policy makers when overhauling the proposed legislation, and for lawyers who seek to challenge the provisions of the Bill.
Before we commence our substantive analysis, we would highlight the Marrakesh Compact’s overarching principle (endorsed by the UK) which includes an undertaking of non-regression. This is a term better known in employment and environmental law. Its use in the immigration context is consistent with those other areas of law. What non-regression means is that standards of law which protect individuals must not be diminished in legislation which postdates the adoption of the instrument which contains the commitment. The Marrakesh Compact was adopted in December 2018. Thus, all legislation proposed thereafter must not offend the principle of non-regression.
Coherence with the Global Compacts
Across the board, the proposals in the New Plan are incompatible with objectives of the Marrakesh Compact and the Refugee Compact. While not claiming to be comprehensive, the following gives an overview of how the UK policy proposal clashes with the objectives of the Compacts.
Objective 4: Ensure that all migrants have proof of legal identity and adequate documentation
The New Plan’s proposal on making it more difficult for children who can allegedly acquire another nationality to become British citizens is not in line with the Marrakesh Compact’s aim to ‘[s]trengthen measures to reduce statelessness […] and providing nationality to children born in another State’s territory, especially in situations where a child would otherwise be stateless (para 20e). In contrast, the Bill only allows stateless minors born in the UK or a British overseas territory to obtain British citizenship where ‘the Secretary of State is satisfied that the person is unable to acquire another nationality’ (cl 9(4)).
Objective 7: Address and reduce vulnerabilities in migration
The absence of meaningful reference to disability in the New Plan is incompatible with the Marrakesh Compact’s aim to address and reduce vulnerabilities in migration by ‘[r]eview[ing] relevant policies and practices to ensure they do not create, exacerbate or unintentionally increase vulnerabilities of migrants, including by applying a […] disability-responsive […] approach’ (para 23a). Further, the focus on enforcement and returns and the absence of any provisions on regularisation of persons irregularly present in the UK cannot be reconciled with the Compact’s goal to ‘enable individual status assessments for migrants, including for those who have fallen out of regular status, without fear of arbitrary expulsion’ (para 23h) and to ‘facilitate access for migrants in an irregular status to an individual assessment that may lead to regular status, on a case by case basis and with clear and transparent criteria, especially in cases where children, youth and families are involved’ (para 23i).
Objective 9: Strengthen the transnational response to smuggling of migrants
The New Plan’s intention to criminalise attempting “illegal entry”, and to increase penalties so that convicted individuals will face imprisonment of 2-5 years is incompatible with the Marrakesh Compact’s aim ‘to ensure that migrants shall not become liable to criminal prosecution for the fact of having been the object of smuggling’ (para 25). More generally, the Plan’s reliance on overcriminalisation is highly problematic, including with regard to omitting the purpose element of the smuggling definition in relevant legislation. Indeed, the Marrakesh Compact calls on states to ‘[a]dopt legislative and other measures as may be necessary to establish the smuggling of migrants as a criminal offence, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit for the smuggler’ (para 25d).
This provision is also of dubious consistency with Article 33 Refugee Convention, where, in respect of one group, refugees, criminalisation of irregularly entry is prohibited (see below).
Objective 10: Prevent, combat and eradicate trafficking in persons in the context of international migration
The New Plan seeks to outsource its obligations towards victims of modern slavery and to limit their rights by removing them to third countries, however the Marrakesh Compact calls on states to ‘permit [trafficked persons] to remain in the country of destination, temporarily or permanently’ (para 26h). A welcome clarification in the Bill is the provision stating that ‘the identified potential victim may not be removed from, or required to leave, the United Kingdom during the recovery period’ (cl 49(3)). However, the Bill proposes that conclusively identified trafficked persons can be removed to their countries of origins or to third countries in order to receive assistance (cl 53(3)-(4)). Further, while the Compact explicitly calls for strengthening victim identification, the Bill’s provisions are likely to lead to many trafficked persons remaining unidentified (cl 47 and cl 48).
Objective 12: Strengthen certainty and predictability in migration procedures for appropriate screening, assessment and referral
The age assessment methods proposed in the New Plan and in cl 58(2) of the Bill are not compatible with the Marrakesh Compact’s call for ‘a multi-disciplinary, independent and child-sensitive age assessment’ (para 28d).
This is a source of much friction as the additional guarantees applicable to minors are very important and underpinned by the Convention on the Rights of the Child (CRC). Thus, the determination of age is critical to the correct application of UK commitments including under the CRC.
Objective 13: Use immigration detention only as a measure of last resort and work towards alternatives
The New Plan foresees a reintroduction of detained fast-track processing of asylum claims, written into the Bill at cl 24, which is incompatible with the Marrakesh Compact’s aim of ‘guaranteeing due process and proportionality, [and] that [detention] is for the shortest period of time’ (para 29f). A comparison with Australian model of asylum processing shows that such measures lead to human rights concerns, high costs, legal and bureaucratic confusion, and diplomatic relations controversies. Nevertheless, the Bill envisages immigration detention as a standard tool of immigration control (cl 45).
Objective 15: Provide access to basic services for migrants
The absence of meaningful reference to disability in the New Plan is incompatible with the Marrakesh Compact’s aim to provide access to basic services for migrants without discrimination on grounds of disability and in disability-responsive manner (paras 31 a and c).
Objective 17: Eliminate all forms of discrimination and promote evidence-based public discourse to shape perceptions of migration
Differentiating between protection seekers based on their mode of arrival, as provided in the Bill (cl 10(1)), is incompatible with the Marrakesh Compact’s commitment to non-discrimination (see also its guiding principles which ‘reaffirm the commitment to eliminate all forms of discrimination’ (para 15)).
Objective 21: Cooperate in facilitating safe and dignified return and readmission, as well as sustainable reintegration
The focus on return, including the return of so-called foreign national offenders, does not take account of the best interest of the child principle, which is endorsed in the Marrakesh Compact (para 37g). Nor does the presumption in favour of return assist a full and effective assessment of the personal circumstances of each person as risk of removal from a perspective of safeguarding human rights.
Objectives (i) ease pressures on host countries; and (iii) expand access to third country solutions
The New Plan’s resettlement policy must be in line with existing international standards and procedures for resettlement to ensure that pressures on states hosting substantial numbers of refugees is relieved. However, resettlement cannot be instrumentalised to limit the UK’s obligations towards spontaneously arriving asylum seekers.
Measures on reception and admission: identifying international protection needs
Treating spontaneous arrivals as “inadmissible” and seeking to remove them to “safe third countries” is incompatible with the Refugee Compact which foresees ‘[m]echanisms for the fair and efficient determination of individual international protection claims [which] provide an opportunity for States to duly determine the status of those on their territory in accordance with their applicable international and regional obligations […]’ (para 61). The Bill foresees that any asylum claim by a person ‘who has a connection to a safe third State’ can be declared inadmissible (cl 14). Further, the Bill introduces wide-ranging conditions to establish such a connection, including that ‘the claimant was previously present in, and eligible to make a relevant claim to, the safe third State, it would have been reasonable to expect them to make such a claim, and they failed to do so.’ With provisions like these, it will be difficult for most asylum seekers not to have their claims declared inadmissible.
Measures meaningfully engaging and seeking input from those with diverse needs and potential vulnerabilities
The absence of meaningful reference to disability in the New Plan is incompatible with the Refugee Compact’s aim to ‘take into account, meaningfully engage and seek input from those with diverse needs and potential vulnerabilities’ when implementing the measures foreseen in the Compact (para 51). This includes measures to ‘strengthen national capacities for reception, including for the establishment of reception and transit areas sensitive to […] disability’ (para 54) and supporting education and learning for persons with disabilities (para 69).
Compliance with International Refugee and Human Rights Law
Even though the UK is no longer bound by EU law, it remains a party to international human rights and refugee law instruments. Nevertheless, a number of proposals in the New Plan and the Bill are clearly incompatible with the UK’s international legal obligations. In this context, the statement of compatibility with the ECHR rights prefacing the Bill, in which Home Secretary declares that, in her view, ‘the provisions of the Nationality and Borders Bill are compatible with the Convention rights,’ is astonishing. The following list, again, is not comprehensive, but rather aims to give an overview of the provisions which are not respected in the policy proposal and the Bill.
1951 Refugee Convention
Art 1(A)(2): Save for the two-tier test of well-foundedness, the New Plan’s provisions on defining “persecution” have not made it into the Bill. However, qualifying the well-founded fear test in cl 29 remains problematic, and the Bill also limits the concept of “particular social group at cl 30(2)-(4).
Art 1(F)(b): The Refugee Convention, in Art 1(F)(b) excludes from refugee status those who have ‘committed a serious non-political crime outside the country of refuge prior to [their] admission to that country as a refugee.’ The Bill, however, stipulates that ‘the reference to a crime being committed by a person outside the country of refuge prior to their admission to that country as a refugee includes a crime committed by that person at any time up to and including the day on which they are issued with a relevant biometric immigration document by the Secretary of State’ (cl 33(3)). While Art 1(F)(b) is aimed at excluding persons who are trying to make use of the refugee protection system to evade justice, the Bill clearly seeks to exclude a broader class of persons.
Art 3: Differentiating between protection seekers based on their mode of arrival, and the ensuing temporary protection status envisaged in the New Plan, go against the Refugee Convention’s prohibition of discrimination. The Bill foresees a distinction between so-called “Group 1” and “Group 2” refugees (cl 10(1)). “Group 1 refugees” must ‘have come to the United Kingdom directly from a country or territory where their life or freedom was threatened (in the sense of Article 1 of the Refugee Convention), have presented themselves without delay to the authorities’ (cl 10(2)) and if entering irregularly must ‘show good cause for their unlawful entry or presence’ (cl 10(3)). Seeing as the Bill reinterprets Art 31(1) of the Refugee Convention (see below), there are unlikely to be many “Group 1 refugees.”
Art 31(1): The Bill completely distorts the intended meaning of Art 31(1) of the Refugee Convention, introducing a wide range of penalties for refugees having entered the UK irregularly, which are incompatible with the Convention’s non-penalisation clause.
Art 33(1): The New Plan’s pushback proposals violate the Refugee Convention’s non-refoulement guarantee. The international law prohibiting push backs as a violation of the right to an individual assessment of the circumstances of every applicant has been very extensively reviewed and developed in academic literature. It is also the subject of a number of judgments of the European Court of Human Rights (and the Court of Justice of the European Union).
Art 33(2): The Bill seeks to re-define “particularly serious crime” and aligns it with the 12-month sentence upon summary conviction available for those who arrive in the UK without entry clearance introduced by cl 37, thus, in theory, enabling those who arrive irregularly to be excluded from the benefit of non-refoulement.
European Convention on Human Rights
Art 3: The New Plan’s pushback proposals violate the ECHR’s non-refoulement guarantees, for example under Article 3 (prohibition of torture, inhuman or degrading treatment or punishment).
Art 4: Both the New Plan and the Bill ( cl 53(2)) foresee granting residence permits to trafficked persons at the discretion of the UK authorities. However, human trafficking falls within the scope of the ECHR’s prohibition of slavery and forced labour. As such, obligations towards trafficked persons under the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) are a matter of human rights law and can oblige the state to grant a residence permit.
Art 14: Differentiating between protection seekers based on their mode of arrival, and the ensuing temporary protection status envisaged in the New Plan, are contrary to the ECHR’s prohibition of discrimination.
Protocol No 4, Art 3(1): The New Plan’s pushback proposals violate the ECHR’s prohibition of collective expulsions.
In light of the shortcomings of the Bill both in international law and regional human rights law binding on the UK, we recommend that the Bill be withdrawn and that the government appoint a committee of independent international law experts (including representatives of UNHCR and OHCHR) to assess the compatibility of each provision separately and cumulatively with a view to proposing deletions and amendments as required to bring the proposals into line with existing obligations (including the duty of non-regression).
Further, any future proposals should be fully compatible with the UK’s commitments under the Marrakesh Compact to ensure that legislation in this field is consistent with the principle of non-regression. Legislative proposals which neither comply with the principle of non-regression nor international and regional refugee and human rights law and standards are unworthy of support by Parliament. They are also a betrayal of the UK’s long-standing status as a champion of international law and in particular international human rights law.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.
What is this feedback about? I don’t know. The Home Office proceeded yesterday and published the Bill without releasing its response.