Blog post by David Cantor, Eric Fripp, Hugo Storey and Mark Symes*
One of the most disturbing clauses of the 2021 Nationality and Borders Bill remains intact as the Bill moves towards adoption. Clause 11, which purports to allow the United Kingdom to create a two-tier system of refugee status, attacks the principle that all refugees should receive the same basic standards of treatment in the country where they are hosted. It has the potential to create significant injustices for the majority of refugees arriving in the UK, without in any way affecting how refugees travel to the UK or reducing such arrivals.
As specialised researchers and practitioners of longstanding experience in refugee protection, we are extremely concerned about clause 11 and its impact on both asylum-seekers and the UK asylum system more generally. In this short piece, we take the opportunity to reiterate our views – originally set out in the evidence given by the Refugee Law Initiative to Parliament in September 2021 – on why clause 11 is not only ineffective but likely unlawful too. We believe it should be removed in its entirety from the Bill.
Why worry about clause 11?
For the reader’s reference, the text of clause 11 is set out at the end of this piece. Its deficiencies were amply recognised by the House of Lords on 28 February 2022 when it voted by 204 to 126 to remove clause 11 from the draft law. However, on 22 March, on the Bill’s return to the House of Commons, MPs voted by 318 votes to 220 to reinstate clause 11. Given the large government majority in the Commons, clause 11 looks set to remain in the Bill, as it goes through final readings and (presumably) gains Royal Assent.
Many provisions of the 2021 Bill are objectionable on humanitarian, moral, political, legal and economic grounds. But some of the more eye-catching powers – such as the (reinstated) clause 28 power to send asylum-seekers to some (as yet unknown) other country for the claims to be processed – may garner headlines. But they look very challenging to implement on a general basis. This is not to say that having such powers on the statute book is anything other than undesirable – but their impact on refugees in practice may well be minimal.
Clause 11 of the Bill allows the UK immigration authorities to treat some refugees (Group 2 refugees) less favourably than others (Group 1 refugees). It creates a two-tier form of refugee status in which Group 2 refugees are disadvantaged in material ways as a sanction for the manner in which they sought asylum in the UK. But, in contrast to some other objectionable clauses in the Bill, this differential treatment of refugees (yes, it affects people already found to be ‘genuine’ refugees) is a power that can be easily used – and abused – in practice.
Of course, the fact that clause 11 might be easily implemented does not mean it will make the UK asylum system work any better (indeed, quite the reverse). Nor that the power is lawful, or even that it will achieve its purported purpose of stopping asylum-seekers using unsafe routes. Instead, the provision plainly contravenes key principles of international and UK law, creates perverse outcomes for refugees, and will only increase the burden of bureaucracy and litigation for an asylum system that is already creaking at the edges, as we explain now.
Purpose of the clause
It is certain that clause 11 will not achieve its purported purpose.
According to the latest version of the Explanatory Notes to the Bill tabled by the government, the purpose of clause 11 ‘is to discourage asylum-seekers from travelling to the UK other than via safe and legal routes’ (para. 159).
If so, then the clause rests on a fallacy. No ‘safe and legal routes’ exist by which asylum-seekers can travel to the UK to apply for asylum, and the UK does not presently allow applications for asylum to be lodged from outside the UK. Thus, clause 11 merely unjustly penalises asylum-seekers for a decision by the UK not to create such routes.
This injustice is particularly acute for sur place refugees, who can never fulfil the Group 1 criteria. A person becomes a refugee sur place ‘due to circumstances arising in his country of origin during his absence’ (UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, para. 95).
The government’s Explanatory Notes add that clause 11 is aimed at ‘encouraging individuals to seek asylum in the first safe country they reach’ (para. 159). However, the data suggests that these kinds of ‘hostile environment’ measures in the UK have little to no impact on decisions about where to seek asylum. As such, clause 11 is not likely to influence decisions about where to claim asylum. It serves merely as a ‘sting in the tail’ to pointlessly penalise asylum-seekers after arrival in the UK.
Moreover, the attempt to push persons fleeing persecution to claim asylum only in frontline States runs contrary to the refugee law principle of cooperation. Thus, in the 2018 Global Compact on Refugees, the UK – alongside other UN States – jointly agreed to the objectives of ‘easing the pressure’ on frontline host States and ‘expanding access to third country solutions’ (para. 7). Clause 11 not only casts doubt on the UK’s good faith in shouldering its fair share of refugees. It also seriously undermines the already fragile basis for cooperation for those countries in a global refugee regime in which, even before the Ukraine crisis, many of them shelter a far greater proportion of the world’s refugees than does the UK.
Structure of the clause
The Explanatory Notes state that clause 11 is ‘based on the criteria set out in Article 31(1) of the Refugee Convention’ (para. 156). In fact, clause 11 inverts the logic of that provision, creating a perverse outcome for some refugees – contrary to the rationale of Article 31(1) of the 1951 Convention relating to the Status of Refugees (Refugee Convention), which the UK is obliged to follow. The structure of clause 11 does not render the provision compliant with the UK’s international legal obligations – rather, it highlights its incompatibility.
In the Refugee Convention, Article 31(1) establishes an obligation not to impose penalties for ‘illegal entry or presence’ on refugees who meet its terms. Thus, those individual refugees who are protected by Article 31(1) must be exempt from the usual penalties that might otherwise be applied to aliens for illegal entry or presence. The provision functions as a limited exception to immigration law penalties applicable to aliens generally.
Clause 11 of the Bill, by contrast, draws on the Article 31(1) criteria to create a two-tier system of entitlements within the refugee class only. As such, the penalties imposed by clause 11 on Group 2 refugees have no parallel in, and are additional to, other penalties that may be imposed on aliens for illegal entry or presence. As a result of clause 11, Group 2 refugees will thus face penalties for illegal entry/presence additional to those imposed on aliens generally, merely because they are refugees. This is fundamentally unjust.
Content of the clause
The content of the clause raises further prospects of illegality on the face of the clause and in its application. In particular, this can be seen in the way that clause 11 confers excessively broad discretionary powers on the UK immigration authorities.
Firstly, although clauses 11(5)-(6) do not specify any limit on how the UK ‘may treat Group 1 and Group 2 refugees differently’, important general legal limits to such powers do exist as a result of binding standards contained in treaties to which the UK is party. Moreover, the modes of differentiation listed in clauses 11(5)-(6) also raise questions of compliance with specific obligations in those treaties, including the non-penalisation provisions in Article 31(1) and 31(2) of the Refugee Convention, the employment and welfare rights in Articles 17-24 of the Refugee Convention, and equality and non-discrimination obligations in domestic and international human rights law.
Secondly, by allowing the discretionary powers to be exercised in particular cases by the ‘Secretary of State or an immigration officer’, clauses 11(5)-(6) create the risk that other factors, including discrimination on the basis of protected characteristics, may influence decisions about whether to treat an individual as a Group 1 or Group 2 refugee. The courts have had to intervene previously where UK immigration authorities have abused such broad discretionary powers to disadvantage asylum-seekers on discriminatory racial grounds. Article 3 of the Refugee Convention forbids discrimination on grounds of ‘race, religion or country of origin’, as do other domestic and international legal standards.
Implications of the clause
Clause 11 has truly worrying implications for the functioning of the UK asylum system but also for the future of the global refugee regime.
Recent data confirm that the UK asylum system remains beset by inefficiency, delays and backlogs in decision-making, which have only increased during the COVID-19 pandemic. The two-tier refugee status envisaged by clause 11 will not achieve its purported purpose, nor does it serve any practical function. The only guaranteed impact on the UK asylum system will be to make it even more complex, bureaucratic, costly and unworkable.
Few refugee situations globally resolve themselves promptly, such that refugees usually wait years if not decades before it is safe to return to their countries of origin. Against this backdrop, clause 11 will have the effect of exponentially increasing the number of decisions that the Home Office has to take each year (due to shorter periods of leave and increased requirements for indefinite leave) and increasing the number of legal challenges to decisions likely to come before UK tribunals and courts (due to the lack of access to public funds and the denial of family reunification). At the same time, clause 11 will curtail the prospects of integration for Group 2 refugees, bringing with it the consequent tangible costs to Britain of their social exclusion and lost productivity.
Meanwhile, on the international stage, clause 11 will firmly position the UK as an outlier and pariah in the collective endeavour of refugee protection, rather than a global leader post-Brexit. The clause 11 intention to push refugees to seek asylum elsewhere implicitly banks on other countries maintaining a more equitable reception policy for refugees. But other countries will not easily reconcile the UK playing this ‘beggar-my-neighbour’ brand of international relations with our aspiration to be a leader on the world stage.
Finally, there is a real risk that those same countries will decide to follow our lead and also row back from their commitments towards refugees, thereby unravelling the international refugee regime. Paradoxical though it may seem, history suggests that a world without a viable global refugee regime is actually one in which the UK is likely to receive many more refugees entering its territory illegally and living irregularly in the shadows of our society…
* Prof. David Cantor is Director of the Refugee Law Initiative (RLI). Eric Fripp is a barrister at The 36 Group. Dr Hugo Storey is a former Judge of the UK Upper Tribunal. Mark Symes is a barrister at Garden Court Chambers. Eric, Hugo and Mark are RLI Visiting Fellows.
Annex: for reference – Clause 11 text
Clause 11 – Differential treatment of refugees
(1) For the purposes of this section—
(a) a refugee is a Group 1 refugee if they have complied with both of the requirements set out in subsection (2) and, where applicable, the additional requirement in subsection (3);
(b) otherwise, a refugee is a Group 2 refugee.
(2) The requirements in this subsection are that—
(a) they 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), and
(b) they have presented themselves without delay to the authorities. Subsections (1) to (3) of section 36 apply in relation to the interpretation of paragraphs (a) and (b) as they apply in relation to the interpretation of those requirements in Article 31(1) of the Refugee Convention.
(3) Where a refugee has entered or is present in the United Kingdom unlawfully, the additional requirement is that they can show good cause for their unlawful entry or presence.
(4) For the purposes of subsection (3), a person’s entry into or presence in the United Kingdom is unlawful if they require leave to enter or remain and do not have it.
(5) The Secretary of State or an immigration officer may treat Group 1 and Group 2 refugees differently, for example in respect of—
(a) the length of any period of limited leave to enter or remain which is given to the refugee;
(b) the requirements that the refugee must meet in order to be given indefinite leave to remain;
(c) whether a condition under section 3(1)(c)(ii) of the Immigration Act 1971 (no recourse to public funds) is attached to any period of limited leave to enter or remain that is given to the refugee;
(d) whether leave to enter or remain is given to members of the refugee’s family.
(6) The Secretary of State or an immigration officer may also treat the family members of Group 1 and Group 2 refugees differently, for example in respect of—
(a) whether to give the person leave to enter or remain;
(b) the length of any period of limited leave to enter or remain which is given to the person;
(c) the requirements that the person must meet in order to be given indefinite leave to remain;
(d) whether a condition under section 3(1)(c)(ii) of the Immigration Act 1971 (no recourse to public funds) is attached to any period of limited leave to enter or remain that is given to the person.
(7) But subsection (6) does not apply to family members who are refugees themselves.
(8) Immigration rules may include provision for the differential treatment allowed for by subsections (5) and (6).
(9) In this section— “limited leave” and “indefinite leave” have the same meaning as in the Immigration Act 1971 (see section 33 of that Act); “refugee” has the same meaning as in the Refugee Convention.
 In general, refugee resettlement schemes are open only to refugees and not asylum-seekers. For instance, a UK scheme to resettle a set number of Syrian refugees in the MENA region is not open to asylum-seekers at all, nor is it open to refugees from other countries and regions (UK Visas and Immigration, Vulnerable Persons and Vulnerable Children’s Resettlement Schemes Factsheet, 18 March 2021).
 There is a longstanding body of research on this point. See, for example, H. Crawley & J. Hagen-Zanker, “Deciding Where to Go: Policies, People and Perceptions Shaping Destination Preferences”, International Migration, 57(1), 2019, 20-35; A. Gilbert & K. Koser, “Coming to the UK: What do Asylum-seekers Know about the UK before Arrival?”, Journal of Ethnic and Migration Studies, 32(7), 2006, 1209-1225; E. Thielemann, Does Policy Matter? On Governments’ Attempts to Control Unwanted Migration. Center for Comparative Immigration Studies, Working Paper 112, December 2004.
 See, for example, the preamble to the Refugee Convention: ‘Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution… cannot therefore be achieved without international co-operation’.
 See the most recent absolute numbers of refugees per country, World Bank, Refugee population by country or territory of asylum.
 The modes of differentiation listed in clause 11(5) are clearly illustrative rather than exhaustive, as signalled by the words ‘for example in respect of’.
 Pertinent standards from treaties to which the UK is party derive from the 1951 Refugee Convention, 1950 European Convention on Human Rights, 1966 International Covenant on Civil and Political Rights and 1966 International Covenant on Economic, Social and Cultural Rights.
 See, for example, the facts and findings in Regina v. Immigration Officer at Prague Airport and Another, Ex parte European Roma Rights Centre and Others  UKHL 55.
 See, for instance, A. Hewett, Living in Limbo: A decade of delays in the UK asylum system, London, Refugee Council, July 2021.
 UNHCR estimates that, at the end of 2020, 15.7 million refugees (76 per cent) were in a ‘protracted’ situation (i.e. one in which 25,000 or more refugees from the same nationality have been in exile for at least five consecutive years in a given host country). See UNHCR, Global Trends in Forced Displacement in 2020, Geneva, UNHCR, 2021, 20.
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