The Nationality and Borders Bill: “fixing” a broken system by breaking it down further by Charlotte Rubin

Last week, Home Secretary Priti Patel introduced her Nationality and Borders Bill into Parliament for its first reading. The Home Secretary said that the bill is “the change we need to fix the UK’s broken asylum system.” Its main provisions include an attempt to criminalise certain asylum claims, expand powers of detention and making more asylum claims inadmissible.

The Bill clearly brings change, if not in practice, then at the very least in black letter law. The question of whether it fixes anything is a whole different issue. It is clear as day that the asylum system in the UK is overloaded. It takes a long time for the Home Office to reach decisions, and when they do, those decisions are often overturned. The Migration observatory reports that the share of asylum applications resulting in an initial decision within six months fell from 87% in the second quarter of 2014 to 22% in the second quarter of 2020. As for appeals, 43% of appeals on initial refusals are overturned in court, meaning the Home Office gets it wrong almost half the time. These certainly are symptoms of a problematic – or potentially “broken” – system.

Ms. Patel blames this “broken system” on the asylum seekers crossing the Channel to the UK, proposing this Bill to fix this. However, the number of asylum applications is historically low, with the COVID-19 pandemic continuing a trend of falling applications that started in the early 2000s. Contrastingly, success rates are higher than ever, meaning that a high percentage of asylum applicants are recognised as refugees in need of sanctuary. In other words, as the amount of asylum seekers falls and their successful claims increase, the system has become progressively slower and inefficient. The problem does not seem to be with asylum seekers, but rather with an overly bureaucratic and complicated asylum system that is designed to make applications fail. Ms. Patel’s proposed solution only adds more legislative barriers to that process, meaning that rather than fixing its problems, it will most likely amplify them.

Substantively, the Bill introduces a differential treatment of refugees based on their means of entry to the UK. Refugees who do not arrive in the UK directly from a country of persecution, such as those who travel through Europe, will find that their asylum application upon arrival in the UK will be automatically filed as inadmissible. The Home Office will then attempt to remove them from the UK, and will only hear their asylum claim if removal turns out to be impossible. Effectively, this means more people will be stuck in detention or other forms of government accommodation for longer periods of time, when their case is likely to end up being heard at a later point anyway. Keeping people in detention when they have not even had their case heard is not only immoral and potentially in breach of the 1951 Refugee Convention, but also expensive.

Once their case is being heard, those refugees who came through “safe” third countries who are granted asylum will no longer receive leave to remain. Instead, they will receive “temporary protection” to be renewed regularly. Under ‘temporary protection,’ the refugees will be at risk of being removed every time the Home Office assesses their status for renewal. This is in contrast with those asylum seekers who are deemed to have entered the UK legally, who will receive indefinite leave to remain immediately upon the grant of asylum. This differentiation between legal and illegal entry flies in the face of the Refugee Convention, which expressly states that an asylum claim should not take mode of entry into the country of refuge into account. Evidently, this arrangement suits the Home Secretary well. The UK is an island, after all, and does not border any war zones. It is therefore highly unlikely that any asylum seeker entering the UK will have done so without crossing multiple borders, sometimes without all necessary paperwork or through unconventional routes.

Home Office rhetoric on immigration has emphasised the need for refugees to come to the UK through legal routes, and to support the expansion of those routes to then penalise those who fail to use them. However, this Bill only does the latter, failing to increase or expand on legal routes at all. It does not set a target for resettlement numbers, it limits rights to family reunion for those with ‘temporary protection,’ and limits safe routes of entry. The story Ms. Patel is selling to the British public is one of reducing the “burden” of asylum seekers on the UK, yet all her proposal will do is increase that burden by making the asylum process more complicated, more costly, and more bureaucratic. How that is going to fix anything remains a mystery.

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