I’ve written to Labour’s Shadow Home Secretary, Nick Thomas-Symonds, and my local MP, Emma Hardy, asking them to make sure that Labour votes against Priti Patel’s new asylum Bill.

Scrutiny of the Nationality and Borders Bill begins tomorrow (19 July). It is of particular interest to me because of my earlier research at Hull University on the treatment of asylum seekers. My particular concern today is that Labour should give no credibility to the Bill. In particular Labour shouldn’t abstain at any point on the grounds that “we understand voters’ concerns”. Labour did this on the Welfare Bill in 2015 and the front bench tried to do it on the Immigration and Social Security Bill in, I think, 2017. But it is time to stand up for a few principles now and not just run scared. The current Bill is the worst Bill of its kind that I can remember and it will do untold harm to people from the moment it becomes law. Labour should have no truck with it from day 1.

I’ve looked at the Bill itself now, so I thought I’d make some preliminary comments. I will focus on Part 2, which is about asylum, but for now I will only mention a couple of points.

Section 10 is unacceptable from the outset: it immediately creates two groups of refugees. Group 1 refugees are legal; Group 2 refugees are not. They are “unlawful”. What makes them unlawful is, according to s.10 (4), because “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.” This new definition of “unlawful” makes the vast majority of asylum seekers illegal. The Bill achieves this end, in part, because it creates an entirely new offence. According to s.37(2), (C1), a person who

“(a) requires entry clearance under the immigration rules, and

(b) knowingly arrives in the United Kingdom without a valid entry

clearance,

commits an offence.”

Plus, according to s. 37 (3):

“In proceedings for an offence under subsection (C1) above of

arriving in the United Kingdom without a valid entry

clearance  … (b) proof that a person had a valid entry clearance is to lie on the defence.”

This offence of “arriving in the UK” is a new offence, created by this Bill. According to criminal defence barrister Aneurin Brewer, the current situation is that

“those who merely arrive, immediately claim asylum and are as a result admitted to the UK while their asylum claim is processed have not entered the UK illegally.” https://www.freemovement.org.uk/prosecutions-for-assisting-unlawful-immigration-in-small-boats-cases-the-key-to-acquittal/ 

If this Bill is passed, they will have done so and thus, although the Bill doesn’t breach Convention Article 31 (1) according to Patel’s narrow and restrictive interpretation, it certainly ignores the spirit of UNHCR recommendations on applying a “flexible and liberal” approach and on giving “the benefit of the doubt”.

Patel is legally entitled to do this. It may be worth bearing in mind that the Refugee Convention is not a perfect instrument for protecting refugees. Its final form was the result of a deal. Every state wanted to limit its obligations to give protection to refugees. So the Convention and UNHCR’s Guidelines, despite talk of liberality and benefit of doubt, provided them with caveats and ways of avoiding their responsibilities. One example of this is Article 31(1). While it is generally interpreted as prohibiting governments from imposing any penalties on asylum seekers who arrive without passports or other travel documents, governments generally do impose penalties because the article talks of asylum seekers who come “directly” from the country of their persecution and refers to illegal entry. The word “directly” can be interpreted to mean that penalties can be imposed if the asylum seeker comes to the UK and passes through another “safe” country where, it is always assumed, they could have claimed asylum. This interpretation of the word “directly” was probably the reason why the Dublin Convention, now not applicable after Brexit, was not regarded as a contravention of the Refugee Convention. one of the things Patel is proud of doing in this Bill is making this requirement part of UK law now, thus dealing with the “problem” of the disappearance of the Dublin Convention after Brexit.

So what I’m saying is that, in principle, the Convention seems to establish the primacy of refugee protection, but in its detail and in practice it has proved to be ambiguous and open to a variety of interpretations. UNHCR “advocates that governments adopt a rapid, flexible and liberal process” when dealing with asylum applicants because it recognises “how difficult it often is to document persecution”. However, its interpretation of the Convention contradicts this stance. In its definition of a refugee, the Convention’s reference to persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion” suggests the possibility of group persecution and a collective refugee experience. But, when interpreted by UNHCR, the definition turns out to be based on a concept of persecution in which the burden of proof falls on the individual asylum seeker. Thus people “who apply for refugee status normally need to establish individually that their fear of persecution is well-founded”, i.e. they must provide evidence that it is not just their social group, members of their political party or people who share their religion or ethnicity who are in danger but themselves as individuals. I have sat in a good few solicitors’ offices listening to them explaining to their clients how their letters, newspaper reports, and their photographs are absolutely not proof. A “flexible and liberal process” becomes less likely as governments demand this rigorous standard of proof. To put the burden of proof on refugees is to consider them guilty until proved innocent.

But Patel is clearly entitled to do what she’s trying to do here. She can invent laws and move the goalposts, she can choose only to follow the UNHCR advice that suits her and ignore the rest. But I think Labour should do its best to stop her. It should, if it can’t eliminate all her hostile purposes from the Bill, vote against the whole shebang and campaign loudly against it from the start. It should never abstain. Not just because of the Refugee Convention, important though that is. But because of the principle of refugee protection and the defence of human rights.