Britain's proposed new laws to deal with migration have been criticized by a group of lawyers, commissioned by the NGO Freedom from Torture. The bill has already passed its second reading in parliament.
Cross-Channel migration has continued to rise in 2021, despite a plethora of measures put in place to try and control, or block it. Currently, the British government is waiting for its latest measures, the Nationality and Borders Bill to make its way through parliament. If approved, it would have additional powers to try and deter or expel those who try and make it across the Channel without papers.
But, the legal basis for the bill, say a group of lawyers commissioned to write a report by the NGO Freedom from Torture, is shaky, if not illegal. On Tuesday, October 12, the human rights organization issued its report, written by a group of four lawyers, led by the QC (Queen’s Counsel Barrister) Raza Husain.
'Biggest legal assault on refugee law'
In the report, Husain and his team found "at least 10 different ways" in which the bill breached either international or domestic law. The bill, which already passed its second reading in July, "represents the biggest legal assault on international refugee law ever seen in the UK," read the report’s introduction.
The reason, continued the report is "the principle at the heart of the Bill is the penalization, both criminally and administratively, of those who arrive by irregular means in the UK to claim asylum." Secondly, the lawyers found that the bill was seeking to reverse "a number of important decisions of the UK Courts, including the House of Lords and the Court of Appeal Level," related to migration.
If the Bill is allowed to pass, people who arrive in the UK without papers, could face a maximum of four years imprisonment. Claims for asylum should be treated equally and not as "inadmissible" because of the way a migrant entered the UK, as the bill intends. Processing asylum claims off-shore also raises difficulties says the report, as do delays in a processing of claims or a withholding of accommodation to any potential asylum seeker.
Different categories of refugees
Even if the migrant is granted refugee status, they would, under the provision of the bill, be regarded as a "Group 2 refugee" which essentially allows the Secretary of State to "discriminate as regards family reunion rights and the duration and terms of leave granted." In plain terms, the protection status would not extend the same rights as a refugee who had arrived legally to claim asylum.
According to the report, there are "at least seven reasons why this is wrong as a matter of international refugee law." At the heart of the refugee convention, is the possibility of accessing asylum without any penalization, notes the report. Saying that some people are not "authorized" to enter a country in order to apply for asylum is reminiscent of laws from the 1930s, which prevented some people from seeking asylum if they did not have prior permission to enter a country, write the report's authors.
Back to the 1930s?
As an example, they use the 937 Jewish people who tried to flee Hitler’s Germany on a boat the SS St Louis over the Atlantic. The boat was then "turned away from Cuba, the US and Canada and forced to sail back to Europe, where more than 250 were killed by the Nazis," notes the report, referring to a documentary on the BBC in 2017.
Events like these, they note, were recognized by those who wrote the Refugee Convention in the 1950s, which is designed to prevent things like that happening ever again. The report also notes that the argument that asylum seekers should seek asylum in the "first safe country" they reach is not a requirement in international refugee law. They argue that refugees, like anyone else, should be entitled to an element of choice about where they claim asylum.
According to the report, the bill also goes against the spirit of international cooperation. The responsibility of receiving refugees was always intended to be shared. Another foundation of the new bill, say the report’s authors, is that instead of using smugglers or arriving illegally in the UK, those who hope to seek asylum are told to come by "safe legal routes" by the UK government.
'No such safe legal routes'
The report’s authors say there are "no such safe legal routes" at the moment to the UK and that there is "no such thing as a refugee visa." The only way therefore, is to either fly in via false travel documents or engage a smuggler to carry them across the Channel.
Resettlement schemes, say the report’s authors, which the British government promotes when asked to talk about the types of migration it would allow, are not meant to be an alternative to seeking asylum but rather a "complement" to the Refugee convention. The report makes the point that if you have to be number 5001 when a country has set an annual cap of 5000 then the idea of "jumping a queue" (rhetoric that the British Home Secretary Priti Patel has often invoked) is "false: there is either no queue, no adequate queue, or no safe queue."
Recently, several newspapers have reported claims that the UK was hoping to establish off-shore processing centers for those hoping to claim asylum in the UK. One of the latest centers was meant to be established in Albania, a report the Albanian authorities denied. Other locations mooted were as far away as the South Atlantic, and on board ferries moored off the British Isles.
Any of these centers though, judges the report, would "risk breaching Articles 2, 3 and 4 of the European Court of Human Rights, Articles 3, 31 and 33 of the Refugee Convention" and would renege on the UK’s "obligation to implement the Refugee Convention in good faith."
At risk of chain refoulement?
The report also talks about how the UK’s measures to try and keep migrants and asylum seekers in France, or return them to France, could put them at risk of a chain or indirect refoulement. In other words, this could amount to expulsion or removal to a territory "where a person does not face the kinds of risks set out in Article 33 (2) but from which there is a real risk that they will be expelled to their country of origin or to somewhere else where such a risk exists."
For instance, since in France the EU's Dublin Treaty still holds sway, someone who entered the EU first in another country would risk being sent back there (for instance say to Romania or Hungary --where human rights organizations have documented numerous pushbacks taking place) and perhaps then expelled to their country of origin via those territories if their attempts to seek asylum had already not been recognized and they had already been issued with an expulsion order.
Sending someone back to a perceived "safe third country" reads the report, requires the country sending a migrant back to do a "thorough examination of the relevant conditions in the third country concerned, and, in particular the accessibility and reliability of its asylum system." Merely assuming compliance with a convention is not enough, it underlines.
The actual processing of asylum seekers in a third country could also present myriad problems, said the report, but since there was a lack of detail in the government’s proposal, they could only point out issues which "may" arise rather than criticize concrete proposals.
Asylum statistics in the UK
According to UK government statistics, updated in August 2021, the UK government currently grants asylum to 55% of applicants. In the year to June 2021, that meant that 10,725 people were granted asylum. 82% of those received refugee status. Additionally, 6,449 partners and children of refugees living in the UK were granted entry to the UK through family reunion visas -- up 2% from the year before.
Asylum seekers from Iran, Albania and Eritrea were among the nationalities applying for asylum most frequently in the UK. Those with the greatest recognition rate in 2021, however, were Syrians, at 88%, followed by Eritreans at 87%, Vietnamese at 69% and Iranians at 68%. The recognition rate, notes the report, relates to the year of the decision and not to the year of the application, which could have been made some time before.
In the year ending March 2021, the UK received 33,046 asylum applications, the fourth largest number of applicants in Europe. According to the UK government, "this equates to 7% of the total asylum applications across the EU+ and UK combined over that period, or the 17th largest intake when measured per head of population."