Desmond Fernandes
Scotland’s First Minister, the UK Joint Committee on Human Rights, Scottish and Welsh ministers, the Law Society, the union representing Border Force staff and several civil society organisations have voiced their deep concerns over the UK’s Nationality and Borders Bill. Several other organisations, parliamentarians and civil society organisations have also been highly critical of the Bill – as detailed in Parts 1, 2 and 3 of this series.
Shona Robison, Scottish Cabinet Secretary for Social Justice, Housing and Local Government, has written to the UK Home Secretary “regarding the Scottish Government’s deep concerns about the Nationality and Borders Bill. (…) The Nationality and Borders Bill takes an approach which does not align with Scotland’s values or needs. (…) The UNHCR have been clear that the Nationality and Borders Bill’s plans would violate the 1951 Refugee Convention and that they will ‘damage lives, be hard to implement and undermine international cooperation on refugee issues.’
“The UK Government’s own consultation highlighted significant concerns amongst stakeholders and the public about the changes proposed by the New Plan for Immigration. Despite the criticism, concerns, and clear damage to your international standing in this area, you have chosen to press ahead with these drastic and potentially damaging reforms to the asylum and immigration system.” In its detail, she informed the Home Sectretary that “the Bill’s proposals are deeply flawed.”
Stuart McDonald, an MP from the Scottish National Party (SNP), criticised the UK Home Secretary for her position in which she saw the “relentless flouting of lockdown rules as forgivable for the Prime Minister, but seeking safety here from Assad, the Taliban or genocide as worth four years in prison.”
Scotland’s First Minister Nicola Sturgeon has stated that “offering asylum to those in dire need is an expression of our common humanity. (…) The UK government’s Nationality and Borders Bill fails that basic test of humanity. It could criminalise those seeking sanctuary from oppression simply for claiming asylum.”
Opposition to the government’s Bill by the Joint Committee on Human Rights
The UK Joint Committee on Human Rights, appointed from both the House of Commons and the House of Lords to scrutinise every Government Bill for its compatibility with human rights, also has severely “criticised government plans to deter migrants and refugees from trying to reach Britain in small boats, saying the measures would endanger lives without stopping dangerous journeys across the English Channel.”
Euro News reported that “the Joint Committee on Human Rights, a cross-party panel that includes members from both houses of Parliament, said (…) ‘a policy of pushbacks’ would probably” also “conflict with international human rights law and maritime law.
“‘Pushbacks are known to endanger lives at sea,’ the committee said in a report.
‘This is even more so when dealing with people on small, unseaworthy vessels, in a busy shipping lane, often with rough waters, without appropriate lifesaving equipment, as is the case for migrants in small boats in the Channel.’”
Concerning the British government’s proposal to treat asylum-seekers “who sneak into Britain more harshly than those who use the few authorised routes for refugees, the Human Rights Committee said that is inconsistent with the UN Refugee Convention, which ‘explicitly prohibits refugees being penalised for unauthorized entry.’”
In its recently published 12 January report, it criticised the government’s position that “says that refugees should claim asylum in the first ‘safe country’ they reach. However, we heard evidence that there are simply not sufficient safe and legal routes available to those who seek refuge in this country.
“We also heard that asylum seekers often have little or no choice over their means of arrival in this country. Furthermore, the principle of differential treatment is fundamentally at odds with the Refugee Convention. The concept that refugees should claim asylum in the first country they reach undermines the very foundations of the international co-operation on which the Refugee Convention and the rights conferred under it, stands.”
The Joint Committee on Human Rights further added that “Part 4 of the Bill sets out provisions relating to the conducting of age assessments of age-disputed persons. The Bill will allow regulations to be made for the Secretary of State to permit the use of scientific methods for assessing a person’s age. Methods such as x-ray analysis and dental records are widely thought to lack the degree of accuracy required, and to be unethical due to the nature of procedures or the use of ionising radiation.
“Moreover, although not included in the Bill at present, the Government has indicated that they wish to reduce the threshold for the use of the benefit of the doubt. Taken together, these proposals would greatly increase the risk of a child being wrongly assessed to be an adult. This would be at odds with our human rights obligations under the UNCRC and could engage Article 3 of the ECHR if that person is detained as an adult when they are, in fact, a child and experience particularly traumatic consequences.”
Lord Alton in parliament has also noted that “some 15 NGOs have called on the Government to remove Part 5 from the Bill. Others, including the Independent Anti-Slavery Commissioner, ECPAT, the Children’s Society, senior police officers and prosecutors, have also expressed alarm that these new provisions will create a fertile environment for those responsible for trafficking and enslavement, consolidating what the noble Lord, Lord Wolfson, called the ‘business model.’ (…)
“This House cannot simply give a green light to a Bill that has been found to be defective by our Joint Committee on Human Rights and by the UNHCR, which warned that the Bill would deny ‘recognised refugees’ the rights that are guaranteed to them under the refugee convention and international law, as the noble Baroness, Lady Chakrabarti, pointed out a few moments ago, in the way that we have dealt with the dehumanising of refugees, the position of children, the banning of asylum seekers from working, the use of embassies to process asylum claims of vulnerable people, and many other breaches.”
SNP resolution opposes UK government policy as Welsh and Scottish Ministers also voice their opposition
A recent Scottish National Party (SNP) conference passed the following resolution: “The conference condemns the UK Government’s inhumane approach to those seeking asylum and resolves that we should be given the powers in Scotland to build a much more compassionate system, founded on fairness and human rights.”
SNP MP Stuart McDonald said: “Tory ministers have spent years ignoring warnings over their damaging ‘hostile environment’ policies. The tragic event reported earlier” – related to the drowning of 27 refugees, asylum seekers and migrants, many of whom were Kurds – “should be a wake-up call to the UK government to provide safe and legal routes to the UK for asylum seekers. It’s time to take a completely different approach – providing safe and legal routes for those escaping unimaginable horrors, broadening family reunion rights and providing humanitarian visas.
“The Westminster government is stopping us from doing more with its hostile environment policies – that is why Scotland must be given the powers to build its own, more compassionate asylum system.”
Welsh ministers, ITV confirms, “have condemned ‘barbaric’ proposals on channel crossings after the Nationality and Borders Bill was passed in the Commons” in December. “Ministers in Wales, along with those in Scotland,” it reported, “have both warned that the legislation may need approval from the parliaments in Cardiff and Edinburgh. Social Justice Minister Jane Hutt has written a joint letter with her Scottish counterpart to Home Secretary Priti Patel to demand the UK reconsiders its ‘hostile environment strategy’ and develops ‘sufficient safe and legal routes’ for asylum seekers. (…)
“Welsh ministers have now decided that a Legislative Consent Memorandum is required at the Senedd in relation to some clauses in the Bill. Under the devolution settlement, consent is needed where UK legislation touches on areas which the devolved administrations are responsible for.”
A Welsh Cabinet 6 December 2021 statement is clear that “the UK Government’s New Plan for Immigration and its Nationality and Borders Bill (…) severely undermine our vision of Wales as a Nation of Sanctuary. (…) This Bill is the antithesis of what is needed and will only exacerbate inequity and harm communities.
“We believe many of the provisions in the Bill will breach international conventions, violate basic principles of justice and will place ultimately extreme and insurmountable conditions on people who seek our protection.”
Moreover, “the Bill proposes no right of appeal for asylum seekers, leaving them reliant on judicial review. This is tantamount to depriving people of a right to a fair trial under Article 6 of the Human Rights Act 1998.”
Union representing Border Force staff joins other organisations in voicing concerns
According to Mike Brown, who has worked with refugee rights organisations like Refugee Action and Bail for Immigration Detainees over the past 20 years, the Home Office Minister “Priti Patel knows that the provisions of the Borders Bill are unlawful, but they speak powerfully to the Conservative base.”
The Law Society “believe[s] this bill contains a number of measures which are, or are likely to be incompatible with international law, damage access to justice” and detrimentally “impact on the role of lawyers in immigration cases.”
Diane Taylor has reported that “the union representing Border Force staff has announced it is taking part in a legal challenge against a plan by Priti Patel to push back small boats in the Channel. The news that the home secretary’s own staff are participating in a legal challenge against the high-profile policy will be a significant blow to Patel.”
Taylor added: “The Public and Commercial Services union (PCS) has joined Care4Calais and one other charity in their legal fight to prevent the pushback plans from going ahead. (…)
“PCS and the two charities it is bringing the legal challenge with are demanding Patel publish the details of the policy and the legal basis for it. (…) Other organisations, including Channel Rescue and the charity Freedom from Torture, have launched separate legal challenges against the pushback plans.”
Mark Serwotka, the PCS General Secretary, said: “The pushback policy being pursued by the home secretary is unlawful, unworkable and above all morally reprehensible. Our Border Force members are aghast at the thought they will be forced to implement such a cruel and inhumane policy.
“Migrants who are trying to reach this country should be allowed to do so via safe routes so that their claims can be assessed here. If the government does not abandon this appalling approach, we will pursue all legal avenues including a judicial review. PCS will not rule out all forms of industrial action, including disrupting the implementation of the pushback policy if the home secretary insists on going ahead.”
The Guardian has also “revealed that government lawyers have warned Patel she is likely to lose any legal challenge against her pushbacks policy. (…) Government sources briefed some media outlets in September that a Border Force team had been training for months in preparation for the start of the operation. Days later Channel Rescue volunteers witnessed Border Force officials on jet skis practising turning around dinghies off the coast of Kingsdown in Kent. (…)
“Kim Bryan of Channel Rescue said its volunteers witnessed a practice run by Border Force officials using jet skis to surround a dinghy on both sides and push it from the back. ‘We believe this is life-threatening and unlawful,’ said Bryan.”
An Independent report noted: “UK Border Force staff have already been trained to use the ‘turn-around’ tactics. (…) Priti Patel’s ‘turn around’ tactics would involve the Border Force blocking a migrant boat’s passage into UK waters. The Border Force would then contact the French coastguard to tell them that there was a vessel in their territorial waters in need of rescue. This would then place the legal obligation for the migrant boats onto the French. If the migrant boat was already in UK waters, Border Force officers on jet skis would force it to turn around.”
The Independent added: “One Home Office document about the tactics allegedly explained that the lawfulness – or vires – of the plan could be successfully challenged. It read: ‘(…) Legal advice is that a ruling against the government is the more likely outcome in relation to vires. (…) The Attorney General said the government should expect a legal challenge on the tactic. A challenge could be brought by the representatives of any migrant subject to the tactic or by a migrant pressure group to the police itself.
“‘While the prospects of successful challenge are highest in relation to vires, a challenge would likely be brought on grounds relating to proportionality and compliance with the government’s obligations under the Human Rights Act.’ It also described a successful legal challenge as ‘reputationally damaging,’ saying: ‘This needs to be factored into the presentational consideration.’”
Just less than a year and a half ago, the WSWS also reported that “the deployment of the Royal Navy to hound and drive back lightweight vessels, overcrowded, and unfit for sea crossing will result in disaster. It is a breach of maritime law, which stipulates that those at risk of drowning at sea must be rescued.”
Less than a month ago, an All Party Parliamentary Group (APPG) published a report “calling on the government to end its use of Napier Barracks in Kent to accommodate people seeking asylum. The report also recommend[ed] the scrapping of government plans for more large-scale accommodation based on Napier as a pilot. (…)
“The report explains how features of the sites – including their prison-like conditions – make them ‘fundamentally unsuitable’ as asylum accommodation. For survivors of torture, trafficking or other serious forms of violence – as many asylum-seekers are – such conditions can cause them to relive past abuses and be highly re-traumatising.
“The report also documents serious operational failings by the Home Office and its contractors in their running of the sites. It details how people accommodated at the sites have been subjected to ‘appalling treatment and conditions.’ (…) In August 2021, the government extended its use of Napier Barracks until 2025 without consultation.
“The High Court has now granted permission for a judicial review challenging this decision. The government has also confirmed that Napier may act as a pilot for the new asylum accommodation centres proposed in the Nationality and Borders Bill currently making its way through Parliament. In its report, the APPG Inquiry Panel makes clear its opposition to these centres.”
Legal Opinions criticise government proposals
A 70-page legal opinion, commissioned by Freedom from Torture, suggested that “those facing transfer” to offshore destinations “would be eligible for the same legal protections as in the UK, and there would be grounds to challenge their potential removal. (…) The opinion also warned that plans for offshore processing risked putting the UK in breach of its obligations under the 1951 United Nations Refugee Convention. (…) The opinion argued that subsequent legislation gave the Refugee Convention the same force as domestic law. (…) ‘The inadmissibility regime is in our view inconsistent with the UK’s obligations under Article 31 of the Refugee Convention,’ the barristers wrote.”
Steve Crawshaw, Freedom from Torture’s policy and advocacy director, concluded that this “authoritative analysis” indicated the UK government was seeking to drive a “‘coach and horses’ through the UN Refugee Convention. ‘It beggars belief that the government seems determined to plough ahead regardless,’ he said. The Home Office, for its part, stated that its proposals were ‘entirely in line’ with the UK’s international obligations, including the Refugee Convention.”
Over 40 women’s charities including Women’s Aid, Southall Black Sisters and the End Violence Against Women coalition and leading barristers have also condemned the government’s Nationality and Borders Bill as ‘harmful and discriminatory’ to women who have survived sexual and gender-based violence. The legal opinion of Stephanie Harrison QC and barristers Ubah Dirie, Emma Fitzsimons and Hannah Lynes of Garden Court Chambers, reports Politics, “is that the Bill will ‘disproportionately adversely disadvantage women and girls.’
“In advice prepared for the charity Women for Refugee Women, the barristers state that a number of measures within the Bill are incompatible with Home Office policy, UK case law and international standards on refugee protection and human rights, and therefore open to legal challenge.
“Their legal opinion concludes: ‘It is clear that the Bill will have multiple adverse impacts and create additional obstacles to women and girls seeking international protection in the UK. These measures individually and cumulatively increase the risk of claims being wrongly rejected and the UK acting in breach of the Refugee and/or Human Rights Convention.’
Professor Siraj Sait, director of the Noon Centre for Equality and Diversity and director of Research at the Royal Docks School of Business and Law at the University of East London and Chair of the United Nations high-level Advisory Group on Gender Issues, also notes that “this ‘first safe country’” suggestion made in the Bill (i.e., that asylum seekers must be returned back to the ‘first safe country’ they cross into) “is not a principle of international refugee law. (…)
“The UN High Commissioner for Refugees (UNHCR) has raised concerns about these bills saying it undermines the 1951 Refugee Convention, which the UK has obligations under. Thus, UK actions are being criticised by advocacy groups as being inhumane and illegal as they put at risk the lives and well-being of vulnerable people by denying their right to seek asylum from persecution.
“‘When an asylum seeker is sent back to another safe country, the UK cannot be sure that through a chain of deportations it has initiated, the asylum seekers will not be returned to unsafe countries,’” noted Sait.
JRS: ‘The UK is a hostile environment for asylum seekers’
Once in the UK, of course, there is a ‘hostile environment’ institutionally in place to discriminate against and target asylum seekers – an issue that I have extensively examined in my book ‘Call it by its name: Persecution!’ and that others, including All Party Parliamentary Groups, have also raised their concerns over.
My findings in ‘Call it by its name: Persecution!’ point towards a specific UK government immigration policy that explicitly discriminates against nationals from Pakistan – to take but one example – by placing them on a ‘secret list.’ We are made aware that Mansouri and Son, a solicitors and law firm, has confirmed that “the UK Border Agency has drawn up” a “secret list” which “is not available publicly and Entry Clearance Officers are explicitly forbidden from disclosing the existence of the list.”
This ‘secret list,’ human rights lawyer Shahram Taghavi points out, scandalously “not only offends against the established fundamental human rights principle of not discriminating on the grounds of nationality or race, but also violates a cardinal principle of the rule of law, the principle that laws must be accessible to citizens.” This policy, when placed within a wider framework that is detailed in my book, is shown to sit alongside others that have targeted the Windrush generation, Chagossian islanders and refugees seeking protection from all around the world.
As I have also noted elsewhere: “The Home Office produces and relies on Country Policy and Information Notes (CPINs) that provide dangerously misleading guidance to refugee determination officers regarding the nature and extent of ethno-religious and other forms of persecution in several countries. This guidance often seeks to deny that persecution, in general, is experienced by the groups under consideration. ‘The hostile environment approach has undoubtedly made it harder for asylum case workers to perform their functions to a standard that reflects the principle of refugee protection, the right to rehabilitation for torture survivors and respect for the rule of law,’ said Sile Reynolds, senior policy adviser at Freedom from Torture.”
At other times, when certain aspects of the guidance are accurate and recommend against deporting asylum seekers back to countries where they will not be safe, Home Office refugee determination officers have acted against their own guidance in order to deport asylum applicants (and only changed their mind when such scandalous behaviour appeared to have been exposed by the press and challenged by solicitors acting on behalf of the asylum seekers).
On 9 January, for example, the Guardian reported that “the Home Office has told a Syrian asylum seeker he can return to the country he fled during the war because it is safe to do so. (…) The 25-year-old asylum seeker sought sanctuary in the UK in May 2020. He fled forcible conscription into Bashar al-Assad’s army in 2017, saying that he would have been forced to kill other Syrians. He said that if he is forced back to Syria he will be targeted as a draft evader, arrested, detained and killed.”
The Guardian report adds: “The charity Refugee Action expressed alarm at the Home Office’s decision. Mariam Kemple Hardy, its head of campaigns, said the decision ‘beggars belief,’ and (…) added: ‘Frankly, if this government is no longer granting sanctuary to Syrian refugees, who will it grant sanctuary to? This decision pulls up the drawbridge to those fleeing war and persecution. It fails to meet even the bare minimum anyone would expect of a government claiming to uphold its obligations on the world stage.’ (…)
“A report from Human Rights Watch in October 2021 said that refugees should not be returned to Syria. By examining the fate of those who returned voluntarily, it found that they faced grave human rights abuses and persecution at the hands of the Syrian government and affiliated militias – including torture, extra-judicial killings and kidnappings.”
Tellingly, the Guardian reports: “The day after the Guardian approached the Home Office for comment about the case, the man’s lawyers” – who had also lodged an appeal – “received a letter retracting the decision. ‘It has been concluded that the decision to refuse your client’s protection claim is not in accordance with the Home Office’s published country policy position and is therefore withdrawn with a view to granting asylum,’ it said.”
The Guardian stated in the same article that it “further learned of an asylum seeker from Yemen who was told by the Home Office in a refusal of his asylum claim in June 2021 that he could return to his country because officials ‘do not accept that there are problems in Yemen.’ (…) His lawyers have appealed against the decision. (…)
“In a third case, a 21-year-old Afghan man who arrived in the UK as a 16-year-old boy after fleeing forced conscription by the Taliban at his madrassa has been informed by Home Office officials that they want to revoke the refugee status he was previously given and return him to Afghanistan because he has a cannabis-related conviction. (…) The Home Office letter (…) states that, ‘It is not considered that they [the Taliban] would still have an adverse interest in a low level person such as you.’”
UNHCR, the UN Refugee agency, meanwhile, has “call[ed] on states to suspend forcible returns of asylum seekers ‘to countries that remain volatile, lack sufficient security or are unable to offer adequate human rights protection.’ A spokesperson added: ‘Afghanistan, Yemen and Syria’” – all countries where UK government promoted interventions (of a direct and/or indirect kind – as a forthcoming article of mine will reveal) have served to generate conflict that has led to the creation of substantial refugee movements – “are among the countries which UNHCR recommends forcible returns should be avoided.”
The head of immigration of the firm representing the Syrian asylum seeker described the above cited decision as “yet another shocking example of terrible and unlawful decision-making on the part of the Home Office,” whilst the solicitors representing the Afghan refugee stated it was “deeply concerning that the Home Office have seemingly indicated without foundation and in breach of their own policies that Afghanistan may be safe for those who have been previous victims of the Taliban.”
Even after the Taliban took over Afghanistan, Lord Kerr, on 18 August last year in parliament, reported that: “It is plainly wrong that, as recently as last week, some” Afghan asylum seekers “were receiving rejection letters based on the current Home Office guidance, which states that ‘the proportion of the population affected by indiscriminate violence is small and not at a level where a returnee, even one with no family or other network and who has no experience living in Kabul, would face a serious (…) threat to their life or person.’
“That is shaming. (…) Surely it was obvious by then that anyone who had fled Afghanistan, perhaps particularly those who had come here, would be at serious risk if sent back. We must not send them back. (…) I hope that” the government representative will “respond to the leader of the Opposition’s call to drop the plan in the Nationality and Borders Bill to criminalise those fleeing from the Taliban who arrive in small boats.”
Lord Boateng also asked in desperation on 18 August, after the Taliban had secured power: “Will the Government undertake to halt all forced removals of existing asylum seekers to Afghanistan and abandon the pretence that was on the website only 48 hours ago that Afghanistan is now, or is likely to become in the foreseeable future, a ‘safe country’ for that purpose? The reality is that we are not treating fairly Afghani refugee asylum seekers who are here in this country now.
“Will the Government undertake to do that and to restore their full rights to them in the knowledge that they cannot return to that country? Will they undertake that no Afghani asylum seeker will be housed in the appalling conditions that exist in the Napier barracks in Kent and that we will support the desire of local authorities up and down the country to provide decent accommodation for asylum seekers?”
Lord Bruce similarly noted in that parliamentary debate: “Our priority now” should be “to offer protection and support for those who relied on promises from the international community” – inclusive of the UK government which was a key government in supporting the US led war and new governance structures put in place after overthrowing the Taliban in 2001 – “and now experience the bitter taste of betrayal. The numbers and timings for refugees announced” that the UK government will accept “fall short of our obligations – will they be urgently reviewed?”
Lord Dubs added: “I am frequently asked why it is mainly young boys from Afghanistan who fled to Calais and the Greek islands. I have asked them this, and many of them give me a simple answer: if they had stayed in Afghanistan, they would have been compelled to join the Taliban and become a fighter. That is why they fled. Now there is a desperate need for family reunion, including where one family member is already here and desperate to have other family members, particularly sisters and parents, join them.
“Will the Government urgently review the Nationality and Borders Bill, so that it does not become a criminal offence to arrive in the UK on a boat or dinghy across the channel? Will they give an assurance that there will be no returns to Afghanistan, as it is entirely unsafe?”
Many asylum seekers provided with accommodation by the government also discover, as Lord Boateng and others have noted, that they are being placed in clearly unacceptable premises: “Freedom of information responses from the Home Office obtained by the Scottish Refugee Council found that between January and March 2020, 83% of Home Office properties to accommodate asylum seekers had defects and 40 percent of the defects were so serious they made the properties uninhabitable. The defects were identified by Home Office inspectors.” Yet this situation – intentionally, many feel – persists.
Sabrina Velandia further notes that “the Jesuit Refugee Service (JRS) has listed the many challenges faced by asylum seekers in the country, starting with an unfair asylum determination system. This is because the Home Office’s approach is based on disbelieving people since ‘they always think that refugees are not telling the truth.’ They said: ‘The UK is a hostile environment for asylum seekers. That’s not an accident. Home Office policies deliberately set out to frustrate asylum seekers so that they leave the United Kingdom.’
“The JRS added that some Home Office caseworkers are insufficiently trained to handle asylum cases and make biased decisions ignoring essential information … Though the government has stated its intention to treat refugees fairly, its policies do not reflect this. In May 2021, the UK House overhauled its immigration systems and implemented the New Plan for Immigration which is expected to worsen an already precarious situation. The new plan would allow the government to send asylum seekers out of the country while their cases are reviewed, bar refugees from accessing public services and make it even more challenging to apply for asylum status in the UK.”
As Velandia notes: “Many human rights groups have criticised this plan and said it violates the 1951 Refugee Convention. Rossella Pagliuchi-Lor of the UN Human Rights Council (UNHRC) said in a press release: ‘This Bill would undermine, not promote, the Government’s stated goal of improving protection for those at risk of persecution.’”
In the above context, there are very real reasons why people and organisations nationally and internationally need to mobilise to oppose the passing of this Bill.
*Desmond Fernandes is a former Senior Lecturer in Human Geography at De Montfort University and is the author of ‘The Kurdish and Armenian Genocides: From Censorship and Denial to Recognition?,’ ‘Education, Human Rights Violations in Pakistan and the Scandal involving UNHCR and Christian asylum seekers in Thailand’ and ‘Call it by its name: Persecution!’ He has co-authored ‘The Targeting of Minority Others in Pakistan’ and ‘The Education System in Pakistan: Discrimination and the Targeting of the Other.’
