NIROMP Position Statement: Nationality and Borders Bill

Introduction

1. The National IRO Managers Partnership (NIROMP) represents independent reviewing officers (IROs) and those who manage them across the nine government area regions of England.  

2. This submission sets out both our broad concerns in relation to the changes proposed and the implications for people seeking asylum in Britain and for British citizens, and in more detail, our concerns about the implications for unaccompanied asylum seeking and separated children.

3. We use the terminology ‘child’ and ‘children’ in the legal sense, that is, people who are aged under 18.

Context

The Nationality and Borders Bill has three stated objectives: 

  • To increase the fairness of the system to better protect and support those in need of asylum.
  • To deter illegal entry into the United Kingdom, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger.
  • To remove more easily those with no right to be in the UK. 

NIROMP is concerned about the lack of safeguards and reference to children’s rights on the face of this Bill. If made law, the Nationality and Borders Bill will endanger and thwart the life chances of some of the most vulnerable children in our society. There has been no comprehensive child rights impact assessment to show how children’s welfare and rights will be protected under each clause of this Bill. Without adequate safeguards in place, many more children are likely to suffer throughout their childhood.

This new Bill would mean that anyone who arrives in the UK via an unofficial route would be considered to have entered the UK illegally and would subsequently be denied the same rights as a person who arrives in the UK via a state-sanctioned resettlement programme. They would be criminalized and would not have the same family reunification rights; they would have limited access to public services and would never be granted permanent settled status.

The Bill is open to broad interpretation and has the potential to erode refugee, asylum-seeking rights and the rights of British citizens as enshrined in the UN Convention and international human rights law.

a two-tier system of refugee status

The Bill proposes the creation of a two-tier system of refugee status under UK law, in which only those refugees who meet specific additional “requirements” will be considered as a “Group 1” refugee and benefit from the rights guaranteed to all refugees by the Convention.

NIROMP would wish to see a cross party resolution to drastically improve the protections for asylum seekers and refugees. We are deeply alarmed by the proposal of a discriminatory two-tier system of refugee rights, which we understand would result in different requirements for each Group.

Group 1 refugees:

  1. “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
  2. “have presented themselves without delay to the authorities” and
  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”. [Clause 10(1)-(3)].

This would mean that refugees who do not meet the additional requirements will be designated as “Group 2” refugees, and the Secretary of State will be empowered to draft rules removing the rights they are entitled to and granting only a “temporary protection status”, with no possibility of settlement for at least ten years. This would impede their integration, rather than facilitating it as required by Article 34 of the Refugee Convention. It would result in Group 2 refugees facing a prohibition on access to public funds and significant and enduring uncertainty about reunification with immediate family members.

According to the Office of the High Commissioner for Human Rights (UN Human Rights), the Bill threatens to put two out of every five ethnically diverse people at risk of losing their citizenship, without any prior notification. A further concern is that foreign-born British citizens without dual nationality, could be made stateless if the government believes they are eligible for foreign citizenship and/or deems that any persons actions or conduct is done “in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory.”

Clause nine of the draft Bill states that the government does not need to notify those deprived of their citizenship if it does not have their contact details, or if it is “for any other reason” not “reasonably practicable” to do so. It also states that notice should not be given if it is “in the public interest” not to do so. The terms are seemingly so broad and vague as to be boundless.

Scrutiny of the Bill

Immigration and asylum policies are hugely complex and need full and thoughtful consideration. The progression of this Bill has involved over 100 amendments moved at committee and report stages. Some amendments corrected drafting errors and a significant number were substantial. These included the deprivation of British citizenship without notice.

Placeholder clauses have been replaced by substantive clauses, tabled as government amendments/new clauses/schedules and at the same time, without warning, at least four additional clauses have been introduced:

  • Notice of decision to deprive a person of citizenship (now clause 9)
  • Expedited appeals: joining of related appeals (now clause 23)
  • Removals: notice requirements (now clause 45)
  • Counterterrorism questioning of detained entrants (now clause 74)

NIROMP are concerned that the late tabling of government amendments to the Bill will inhibit effective legislative scrutiny and is reflective of the shortcomings in the preparation of the Bill. The late insertion of a large number of substantive clauses and other significant details left to delegated legislation concentrates power in the executive and is deeply worrying. 

insertion of Henry VIII Clauses

The Bill now contains 19 clauses which create or amend existing delegated powers and four Henry VIII clauses. In its report, the Constitution Committee recognised that “The Government seeking to amend its bills may be a welcome indicator of responsiveness to Parliament’s scrutiny of bills”. However, the Committee also noted that, if the government seeks to “add substantial new clauses or even policies to a bill part way through its passage”, this “may reflect shortcomings in the preparation of a bill prior to its introduction”.

In the Delegated Powers Memorandum (DPM) for the Nationality and Borders Bill, the government has stated that it included the placeholder clauses in “the interests of transparency, and to allow full examination of this Bill”. However, the government also states that it “does not intend to use these powers as drafted” and that the new “substantive provisions may mean that it is appropriate to remove some delegated powers entirely or to replace them with a delegated power that is subject to a different parliamentary procedure”.

Given NIROMPS understanding that these clauses may be subject to potentially substantial changes, there is concern about the arrangements for effective scrutiny of these powers and how other clauses may interact with them. For parliament to be able to fulfil their role as legislators, they must be given the opportunity to fully debate substantive provisions in this Bill.

Equality, Inclusion, Racial Discrimination and Human Rights

Structural racism can be seen in the way historic white supremacy is reflected in today’s wealth and health disparities, employment patterns, concentrations of poverty, unequal educational opportunity and inclusion, unequal policing, and white narratives based on white normativity. We may all be unequal inheritors of structural racism, but we shouldn’t use this as a reason to normalise the presence of racism and its impact on our lives through legislation that reinforces hostility. Policy makers and politicians have the power to challenge, change, and organise against structural racism and a white supremacy narrative.

Examples of national and international milestones that have shaped the concept of human rights in Britain over the last 800 years include the 1679: Habeas Corpus Act, a crucial step towards the right to a fair trial, this law protected and extended the right of a detained person to go before a judge to determine whether the detention was legal.

A milestone in human rights was the 1689: English Bill of Rights that represented a landmark moment in the political history of Britain by limiting the powers of the monarch and setting out the rights of Parliament. Including the freedom to petition the monarch (a step towards political protest rights); the freedom from cruel and unusual punishments (the forerunner to the ban on torture in our Human Rights Act) and the freedom from being fined without trial.

In 1951 the European Convention on Human Rights was ratified by the UK and came into force in 1953. Unlike the Universal Declaration, the European Convention on Human Rights, contains rights which can be relied on and used in a court of law.

By 1965 the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was introduced and ratified by the UK in 1969. This was the first human rights treaty adopted by the United Nations (UN). CERD defines what constitutes race discrimination and sets out a comprehensive framework for ensuring that civil, political, economic and social rights are enjoyed by all, without distinction of race, colour, descent or national or ethnic origin. ( duplicated sentence removed)

Progressing to 1966, the UK signed up to the European Court of Human Rights. Six years after this court was created, the UK granted what is known as an ‘individual petition’ – enabling the right for people to take their cases directly to the court in Strasbourg.

All of this legislation represents an important part of our shared history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, these protocols which are enshrined in law, provide common standards of achievement for all peoples and all nations. They have inspired and paved the way for international communities of nations to join together in a shared responsibility for upholding agreed rights and entitlements enshrined in international law:

In 1951, the UK signed up to the Refugee Convention, an instrument of international human rights law for which it had been a leading proponent. This convention defines the term ‘refugee’ and outlines their rights, as well as the legal obligations of States to protect them. The core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a rule of customary international law. The non-refoulement obligations derived from international human rights, humanitarian, and refugee law would be undermined by the Bill. The obligations codified in article 33 of the 1951 Refugee Convention and in article 3 of CAT should not be diluted.

Unaccompanied Asylum-Seeking Children

Under the UNCRC, the international community is under an obligation to comply with the Convention’s four guiding principles when developing and enacting laws and policies, including those in the area of asylum and immigration. These include:

  • the principles of nondiscrimination (Article 2)
  • the child’s best interests principle (Article 3)
  • the child’s right to life, survival and development (Article 6)
  • and the child’s right to participate in matters which affect them (Article 12).

As guiding principles, this means that all other convention rights, including those which relate to asylum and immigration such as Article 22 UNCRC, must be realised according to these principles. It is right that no child should be returned to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6 and 37 of the Convention, either in the country to which removal is to be affected or in any country to which the child may subsequently be removed. The Convention’s purpose, and the need for it, remain undiminished.

NIROMP are deeply concerned about the Bill. The binding legal obligations towards all refugees, should continue to be reflected in domestic law, regardless of refugees’ mode of arrival, or the timing of their asylum claim. We believe that the obligations set out at Articles 3-34 of the Convention including, and not limited to, the following obligations should remain binding:

  • providing refugees who are lawfully staying in the country with “public relief” on the same terms as nationals (Article 23);
  • not expelling refugees who are lawfully in the territory except on grounds of national security or public order, and in accordance with due process safeguards (Article 32);

Children and young people under the age of 18 years of age possess distinct human rights under the UNCRC. For example, an asylum-seeking child, whether accompanied or unaccompanied, has the right: to receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set out in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. These rights and entitlements should remain binding.

The UNCRC also recognises that an asylum-seeking child enjoys the right to:

  • non-discrimination (Article 2),
  • the right to life, survival and development (Article 6),
  • the right to family life (Article 16),
  • the right not be separated from their parents (Article 9),
  • the right to family reunification (Article 10)
  • and the right to be free from cruel, inhuman or degrading punishment or treatment and the arbitrary or unlawful deprivation of liberty (Article 37).

The principle of non-discrimination (article 2), in all its forms, but as it applies to the care of separated and unaccompanied children, should continue to prohibit any discrimination based on the status of a child as being unaccompanied or separated, or as being a refugee, asylum-seeker or migrant. Measures should also be taken to address stigmatization of unaccompanied or separated children.  

We are deeply concerned about the protection gaps in the treatment of such children, including in the following areas:

  • they face greater risks of being trafficked, exploited, and abused.
  • girls are at particular risk of gender-based violence;
  • In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice;
  • unaccompanied and separated children are routinely denied entry to or are being detained by border or immigration officials in many countries;
  • some children are being admitted and then denied access to asylum procedures or their asylum claims are not being handled in an age and gender-sensitive manner;
  • some countries prohibit separated children who are recognized as refugees from applying for family reunification;
  • some countries permit reunification but impose conditions so restrictive that such children are granted only temporary status, which ends when they turn 18, and there are few effective return programmes.

Children are entitled to have their best interests taken as a primary consideration in all matters which affect them (UNCRC, Article 3). In the context of asylum and immigration, the UNCRC Committee has confirmed that it “must also be a guiding principle for determining the priority of protection needs and the chronology of measures to be applied in respect of unaccompanied and separated children”.

They have further stated that: “Non-rights-based arguments such as those relating to general migration control, cannot override best interests considerations”. In the case of ZH (Tanzania) (FC) v Secretary of State for the Home Department, the UK Supreme Court stated on the best interests principle:

This is a mother’s appeal to the Supreme Court on the ground that her removal from the United Kingdom will constitute a disproportionate interference with her right to respect for her private and family life, guaranteed by article 8 of the European Convention on Human Rights. The over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this is a more specific question: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?

Conclusion and Recommendations

NIROMP is deeply concerned that the Nationality and Borders Bill would appear to constitute a reinterpretation of fundamental human and child rights and obligations, rights established under legally binding international protocols. New powers in the Bill have been outlined in such broad terms that they would seem to give an almost unlimited exercise of discretion to the Secretary of State.

The changes we wish to see include a cross-party resolution focused on:

  1. A humanitarian visa which would allow people in France seeking to come to the UK to make an asylum claim to be granted safe passage where their claims have a good prospect of success.
  2. To allow people with settled or pre-settled status to obtain physical proof of their status, for EU citizens for example, to reduce the burdensome process of immigrations status.
  3. We support the New Clauses 12 and 13 which seek to limit the barriers to migrants’ access to public funds, work and services, as well as amendments 8 and 11 which would prevent differential treatment of refuges depending on their method of arrival in the UK.

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