Home Secretary Priti Patel’s immigration bill has passed through parliament and has received the Royal Assent. It is now law. It’s called the Nationality and Borders Act (NBA) and is bad news for us all, but especially for anyone forced to flee persecution.

The UK long ago signed the 1951 Refugee Convention but some believe that the passing of this Act is a prelude to the present government withdrawing from it. Others predict that the UK will be forced out for breaching it.

What is so objectionable about the Act?

First, although the Act seems to accept the Refugee Convention’s definition of a refugee — i.e. someone who is outside their home country, has a “well-founded fear” of persecution in that country and is, for that reason, “unwilling” or “unable” to return there (Refugee Convention, Art. 1 (A) (2); NBA s.32 (1)) — it immediately starts to make refugee protection in the UK impossible to achieve for most people who need it. At the heart of the Act is a two-tier system which discriminates between refugees, depending on how they travel to the UK. If you have a passport and you come on a regular flight or cross the Channel on EuroStar, and you apply for asylum soon after you arrive, the Act presents no obstacles at this stage. Likewise, if you travel by some kind of official route — a government resettlement scheme or a family reunion scheme, or a scheme related to a specific crisis in a particular country or region — once again the Act presents no obstacles at this stage. In both these cases, if your asylum claim is accepted, you will be classed as a Group 1 refugee and given Indefinite Leave to Remain (ILR). If you have arrived on a resettlement scheme you may have already been granted refugee status before you set out on your journey. With ILR, you will also have the right to work and to apply for family members to come to join you. If, however, you don’t have a passport, and you’re not travelling by an official route, you will have problems. Unable to get a genuine passport in your own country due to persecution, you may have managed to get a false passport (which, if it isn’t spotted as false in the course of your journey, will probably be identified as false on your arrival in the UK). Or you may simply have travelled the best way you could (by walking, hitch-hiking, or maybe paying an agent to get you through part of your journey across continents or across the Channel. Many refugees fleeing persecution and violence travel in these ways because to do so is their only option and the official schemes and routes are few and limited. But if you do, you will be classed as “unlawful” immediately on arrival. In the words of the Act:

… 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 (NBA s.12 (4).

In similar vein:

A person who (a) requires leave to enter the United Kingdom under this Act, and (b) knowingly enters the United Kingdom without such leave, commits an offence (NBA s. 40 (2) (B1).

It is worth pausing here to look at what the Refugee Convention says about penalties for illegal entry. It says there shouldn’t be any penalties. States that have signed the Convention

shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence (Refugee Convention, Art. 31 (1).

So no passport no penalty. It begins to look like the penalty for illegal entry may itself be illegal, and we may expect it to be challenged in the courts. But as things stand, having been defined as “unlawful”, if you now apply for asylum you will be put into an immigration reception centre while you wait for a decision on your claim. On the face of it, this may sound like a reason to be hopeful. But we will see that the system is not as straightforward as that and you shouldn’t be so positive so soon. For one thing, the process is supposed to take up to six months, but may last considerably longer. At the end of it your claim may be refused. In that case, apart from a possible right of appeal, you will be considered ripe for detention pending deportation.

However, even if you are granted asylum at the end of this decision-making process, you will not be given refugee status as it was defined before this Act was passed. You will instead be punished for the way you travelled to the UK: you will be classed as a “Group 2 refugee” (NBA s.12 (5)) with very limited rights. They will be limited because the Home Secretary is specifically empowered by the Act to limit them. Section 12 of the Act allows the Home Secretary to treat Group 2 refugees differently (i.e. less advantageously) in terms of the length of their right to remain, the requirements they must fulfil in order to get ILR, and whether they have access to public funds (i.e. whether they can claim state or other benefits). The Home Secretary has the same powers over the refugee’s family (i.e. whether they would be entitled to enter, or remain in, the UK, what requirements they must fulfil and whether they would have access to public funds (NBA s.12 (5), (6)). Yet UNHCR is clear: it “reiterates that the attempt to create two different classes of recognised refugees is inconsistent with the Refugee Convention and has no basis in international law” (UNHCR Observations on the Nationality and Borders Bill, para 8).

The Act falls foul of the Convention and of international law in another respect. You may also find yourself, as an “unlawful” traveller, in yet another category. Your claim may be “inadmissible” if, on your journey to the UK, you passed through another “safe” country where you might have applied for asylum, but didn’t (NBA ss. 16-17). When the UK was in the EU the rules of the Dublin Convention allowed the government to send asylum seekers back to the first safe country they had passed through. So if you had passed through France, you could be sent back to France to make your claim there. But we have left the EU and the Dublin Convention no longer applies. So shouldn’t your claim, in these circumstances, now be admissible? And can’t it now be considered?

No, it can’t. Because the new law (apparently substituting itself for the now-disappeared Dublin Convention) says that you have a “connection” to that “safe” country and should apply for asylum there, not here (NBA s.16). In the words of the Act itself, you were “previously [i.e. during your journey] present in, and eligible to make a relevant claim to,” that country (NBA s.16 (80C) (4)). However, in its observations on the Bill in 2021, UNHCR made clear that the “first safe country” principle

is not found in the Refugee Convention and there is no such requirement under international law. On the contrary, in international law, the primary responsibility for identifying refugees and affording international protection rests with the State in which an asylum-seeker arrives and seeks that protection (UNHCR Observations, para. 3).

So, once again, the Act could well be in breach of the Refugee Convention and found to be breaking international law.

Moreover, the Act is silent about what should actually happen to you once it has declared your claim to be “inadmissible”. For the government hoped, in the absence of the Dublin Convention, for agreements with other “safe” countries where asylum seekers could be sent. Unfortunately for the government, no state seemed interested, either within the EU or outside it. All the government could say about declarations of “inadmissibility” was that there is no right of appeal against them, on the grounds that appeals are made against refusals of claims after they have been considered and these claims haven’t been considered because they have been declared “inadmissible”. In the words of the Act: “A declaration … that an asylum claim is inadmissible is not a decision to refuse the claim and, accordingly, no right of appeal … arises” (NBA s. 16 (80B) (3)).This tricky, not to say devious, argument left these particular asylum seekers in an impossible position: they were “unlawful”, their claims couldn’t even be examined, and they had nowhere to go.

At least, not until Rwanda came on the scene. The UK government has reached a “Memorandum of Understanding” with Rwanda in which Rwanda

commits to receive asylum seekers from the United Kingdom, to consider their claims for asylum, giving effect to their rights under international law through the Rwanda domestic asylum system and arranging for the settlement in Rwanda of those recognised as refugees or otherwise requiring protection … (Memorandum of Understanding, para. 1.1).

Apparently the asylum seekers chosen for despatch to Rwanda will be the “unlawful” ones “whose claims are not being considered by the United Kingdom”, so they will be, at the very least, the “inadmissible” ones who failed to stop in France, Germany, Spain, Italy, etc., to claim asylum there, but there is no clarity about which asylum seekers will eventually be sent to Rwanda. Whoever they are, Rwanda will “process their claims and settle or remove (as appropriate) individuals after their claim is decided” (Memorandum, para. 2.1). Those granted asylum will not be returned to the the UK. Rwanda will arrange their “settlement” in Rwanda. Some of those whose claims are refused may also be “settled” in Rwanda, but others will be deported (“removed”). It is not clear where they will be sent.

There have been numerous concerns raised about this deal, not least about Rwanda’s own human rights record (Rwandans themselves apply for asylum in the UK) and about the legality of the “Arrangement”. The Memorandum itself states: “This Arrangement will not be binding in international law” (Memorandum, para. 1.6). Advocacy groups have talked of legal challenges but it may be difficult to do so. The Memorandum also declares that

the commitments set out in this Memorandum … do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals (Memorandum, para 2.2).

I will try to deal with some of this in a later blog. For now we can assume that other “Agreements” with other countries are in the pipeline. The British Overseas Territory of Ascension Island has been mooted as a destination for offshoring asylum claims, and with Denmark reportedly interested in doing such deals with Tunisia, Egypt and Ethiopia the UK is unlikely to be far behind.

Secondly, there is another danger faced by anyone who applies for asylum in ways that have now been defined by the Act as “unlawful”: they may find themselves facing a prison sentence. They may be charged and taken to court and, if found guilty, they would be “liable on summary conviction [in a magistrates’ court] to imprisonment for a term not exceeding twelve months or a fine (or both) …” (NBA s.40 (2) (F1A)). Even more seriously, if they are convicted on indictment (in the Crown Court), they may face prison for up to four years, or a fine, or both (NBA s.40 (2) (F1) (d) (ii)). It’s not clear whether this process applies both to refused asylum seekers and Group 2 refugees or to just one of these categories of people. This is quite something when, according to the Refugee Convention, there shouldn’t be any penalties at all.

In the next blog I will look a bit more at what refusal means for the “unlawful”.