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Tug of War: The Borders Bill vs Human Rights

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The Nationality and Borders bill in the UK has attracted criticism since its introduction in July 2021 by the Home Secretary, Priti Patel. Since its inception, the bill has been criticized for its potential breach of human rights law and the UK’s commitments under the Refugee Convention. The core principle of the Refugee convention is ‘non-refoulement meaning that refugees should not be returned to a country where they “face serious threats to their life or freedom”. But the new Nationality and Borders Bill comes into potential conflict with the Refugee Convention as it curbs the rights of those claiming refuge in the UK, making it harder to claim asylum. There has been a row of critics against the bill ranging from the UN Refugee Agency (UNHCR) in the UK to the Green Party’s MP, Caroline Lucas. Adding to this, a recent report from a team of leading immigration lawyers has concluded that the new problematic borders bill breaches international and domestic law in at least 10 different ways.  

The UK’s existing asylum system is under pressure as a staggering report by the Refugee Council found that 33,000 people were waiting for more than 12 months for an initial decision on their asylum claims last year. The UK government proposed that the new bill seeks to achieve the following objectives: 1) make the system fairer and more effective, 2) deter illegal entry in the UK and 3) remove from the UK those “with no right to be here”. In this way, the bill echoes the UK government’s tagline for the Brexit referendum of ‘taking back control’.  

But, in contrast to the government’s positive framing of the bill’s purpose and objectives, the new bill seeks to introduce a discriminatory two-tier asylum system that will treat migrants ‘worthy’ or ‘unworthy’ of asylum based on the means they use to enter the country. The report by four barristers led by the human rights QC Raza Husain claims that the new bill will face challenges under international human rights and refugee treaties. The report which was commissioned by human rights group Freedom from Torture concluded that “This bill represents the biggest legal assault on international refugee law ever seen in the UK.”  

The bill indicates that anyone who knowingly arrives in the country without permission or entry clearance will be viewed as a criminal offence. It means that anyone arriving in the UK by ‘illegal routes’ such as by a small boat through the English Channel, could have their claim ruled as inadmissible and be subjected to a jail sentence for up to four years. In addition to this, they could have their family members prohibited from joining them and could cut off their access to public funds.  

As per the legal report, the new immigration bill’s introduction of granting fewer rights to those travelling via ‘irregular means’ would be inconsistent with the Refugee Convention and the European Convention on Human Rights (ECHR). The barristers said, “The basis for the attack on irregular arrival is that refugees should use safe legal routes. But there are no such safe legal routes. There is no such thing as a refugee visa”. 

The report also indicated that the ‘inadmissibility’ clause outlined in the bill potentially breaches article 31 and 33 of the UN Refugee Convention as well as articles 2, 3 and 4 of the ECHR.  

Article 31 of the UN convention was introduced in the recognition of the fact that refugees would often have to flee undocumented and thus should not be penalised for doing so. Article 33 states that refugees cannot be sent to a place where they may be persecuted.  

Article 2 of ECHR protects the right to life. Article 3 states that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.  Under article 4, it protects the right not to be held in slavery or servitude, or made to do forced labour.  

The bill also has a clause which states that those seeking asylum would be sent to offshore centres. This clause would breach three articles of the ECHR and three articles of the UN Refugee Convention. The clause is inconsistent with articles 2, 3, 4, 8 and 13 of the ECHR. Article 8 of the ECHR provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in democratic society”. Article 13 provides protection if people’s rights are violated by giving them access to an effective remedy. This means that they can take their case to court to seek judgement.  

The barristers in their report concluded: “The principle at the heart of the bill is the penalisation, both criminally and administratively, of those who arrive by irregular means in the UK to claim asylum and the bill seeks to reverse a number of important decisions of the UK courts, including at the House of Lords and court of appeal level, given over the last 20 years.” 

This report comes on the heel of challenges faced by Priti Patel from members of the cabinet who wish to allow asylum seekers to work in the UK. These include Dominic Raab, the justice secretary, and the business secretary, Kwasi Kwarteng.  

However, the Home Office has rejected the claims made by the barristers in their report. It insisted that the UN Refugee Convention allows for a different treatment of refugees if they have not come directly from a country where they faced persecution.  

The report has instigated a conflict between the government and the international human rights lawyers. The Nationality and Borders Bill and its accompanying conflict is indicative of the post-globalization period that we inhabit today. The world saw a peak of globalization in the 1990s and 2000s which is termed as a period of ‘high globalization’. It was the period in which the world economy became more and more integrated. The proliferation of the internet and communication technologies intersected with large-scale movements of people leading to post-national forms of citizenship. But since 2007, the world has seen a retreat from globalization. The peak of the globalization period diluted the power of nation-states. The international institutions and the idea of the ‘global’ or ‘universal’ was empowered. But today, we realise that the ‘borderless world’ was a myth and the power of nation-states cannot be underestimated. As the UK tries to control its borders in a stricter manner and at the cost of universal human rights, it will be interesting to see if, and how, international institutions and their laws can combat the power of nation-states.  

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