The Nationality and Borders Act’s in action: differentiating refugees

The controversial Nationality and Borders Act, which had been criticised by everyone ranging from the UNHCR to faith groups to NGO’s in the field, became law on 28 April 2022. We look at the major changes in law, and what it means for the UK immigration system more broadly.

The Act makes significant changes to Nationality law as well as Asylum law. This post looks at the main changes for asylum seekers and refugees; next we will consider the effects on Nationality law.

Section 12 of the Act starts by explicitly differentiating between “Group 1” and “Group 2” refugees. The distinction is paramount. “Group 1” refugees, once they receive refugee status, will get access to public funds and a ‘relatively clear’ path to settlement, not dissimilar from the one that exists for refugees now. They will be granted leave to remain for five years and be able to apply for indefinite leave to remain thereafter.

All remaining asylum seekers are considered “Group 2” refugees, meaning that even if they can prove their genuine fear of persecution, their status will remain more precarious. The intention is to grant “Group 2” refugees a temporary protection status for 30 months, to be re-evaluated when the 30 months end. Permission to stay will be renewable if the person is still eligible for refugee status when the Home Office re-evaluates the case, at the end of the 30-month period.

“Group 2” refugees will have no possibility to settle in the UK for at least a decade and no access to public funds. In some cases, Home Secretary Priti Patel has proposed to relocate “Group 2” asylum seekers to Rwanda, though she has not explained clearly how the Home Office would decide who to send away and who would be allowed to stay. All of the above is also applicable to any family members who may be accompanying or trying to join the “Group 2” asylum seeker.

So how does the Home Office differentiate between the two groups?

“Group 1” refugees are those who are considered to have complied with the new rules for claiming asylum. Those rules consider three factors. Firstly, the person claiming asylum must have come to the UK directly from a territory where their life or freedom was threatened as defined in the 1951 Refugee Convention (we did a background briefing on the Convention recently if you want to read up on it). This requirement means that all asylum seekers and refugees who stopped in any other third-party country before reaching the UK will not be considered as “Group 1” refugees. Most refugees globally are unable to flee their country of origin by plane due to lack of means, time, and/or the right paperwork (including passports).

Since the UK is an island, it is only logical that most asylum seekers will not appear out of thin air without passing through European countries such as France first. This means most refugees will not be considered “Group 1” refugees based on this condition alone. As a caveat to this restrictive requirement, s.12(3) of the Nationality and Borders Act sets out that if a refugee has entered or is present in the UK unlawfully, they may still be considered a “Group 1” refugee if they have and can show good reason or their unlawful entry or presence. What exactly constitutes “good cause” remains vague.

The person claiming asylum must also present themselves to the relevant authorities without delay. This has always been the case; previously, if an asylum seeker delayed their asylum application, the Home Office would often use the delay against them in the decision-making process, arguing that it was a sign of dishonesty on behalf of the asylum seeker.

Importantly, if an asylum seeker enters the UK without the required entry clearance, they will not only be considered a “Group 2” refugee, curtailing their rights and benefits in the UK (unless they make up for it under s.12(3)), but they will also be committing a criminal offence. Section 40 of the Act defines the offence and sets the punishment as a fine and/or imprisonment of up to 12 months; in addition, the asylum seeker will of course have a criminal record to deal with in the future.

In addition, the Act amends existing law to broaden the definition of the existing crime of “assisting unlawful immigration” so that it is now an offence to facilitate the commission of a breach or attempted breach of ‘immigration law’, the latter being broadly defined, and including regulation of entitlement to arrive in a state. Maximum penalties for such assistance has been raised, from 14 years to life imprisonment. The Act also changes the offence of helping asylum seekers enter the UK; the new definition includes not only those who help them enter for gain, but also everyone else. This may have implications for rescuers at sea, for example, who help sinking vessels in the Mediterranean to make it to the shores safely. There is limited provision, therefore, in the Act, in s.25(BA), for a defence: a person does not commit a facilitation offence if the act of facilitation was an act done by or on behalf of, or co-ordinated by either Her Majesty’s Coastguard, or an overseas maritime search and rescue authority exercising similar functions.

The government stated goal with these changes is to improve protection for those at risk of persecution and combatting people smugglers by discouraging asylum seekers from traveling to the UK other than via safe routes; its effect, however, will most likely do the opposite. The Home Secretary has said that the Act “aims to influence he choices that migrants may make when leaving countries of origin.” But of course, refugees and asylum seekers do not choose to leave their country of origin at all – there is no choice involved in the matter, as the whole point of the Refugee Convention is to protect those forced to flee their homes. There is no legal justification in the Convention, for differentiating between refugees based on mode of arrival; for penalising it, or altering conditions of their stay thereafter. The only thing that matters, according to the Convention, is the actual merits of the asylum claim. That is what should determine the outcome of an application.

The UNHCR has highlighted that the Act potentially breaches international law at numerous stages, including the international law of the sea, international human rights law, the 1951 Refugee Convention, and the European Convention on Human Rights, of which the UK is a signatory. What will happen next is most likely a long battle in the courts fighting many of these provisions to uphold international law; a slow and costly affair – for which lawyers and judges, holding the Government to account, will be labelled by the the Government as its enemies. In the meantime, the 2022 Act has become law, and once it is in force (most provisions discussed above will be by 28 June) affect the most vulnerable seeking help when they arrive on UK shores.