The Anti-Refugee Bill

Under clause 9 of Priti Patel’s Nationality and Borders Bill, currently at the committee stage in the House of Lords, the Home Office will no longer be required to tell someone if their citizenship is being removed. [1] This infamous clause has gained huge public attention, causing mass protests over fears that minority groups could become ‘second-class citizens’ if the Bill is passed. [2] However, this removal of citizenship clause, despite being the most publicised, is far from being the biggest violation of the UK’s international treaty obligations included in the Nationality and Borders Bill. Perhaps more pressing is the consequences of the Bill for refugees and asylum seekers. Indeed, Priti Patel’s plans are part of the biggest overhaul that the UK asylum system has seen in decades.

Of course, this is not to say that clause 9 is not important. It is a human rights violation to render people stateless, and it has been described as ‘exorbitant, ill-defined and unconstitutional’ by a report from leading international law firm Leigh Day. [3] The document included the argument that ‘citizenship is a right we must all enjoy equally’. [4] But clause 9 is not a huge departure from existing British legislation concerning citizenship removal; the Home Office already has the power to take away nationality from dual nationals, even if they were born in Britain. [5] The power to revoke citizenship has existed for over a century and had been used sparingly until the events of 9/11, from which point citizenship removals justified by protecting national security dramatically increased. [6] However, clause 9 has received disproportionate attention in the media, and it is essential to look at the wider human rights impacts of the Bill, especially on refugees. It is just as important to analyse the Bill’s propositions on asylum law because a society ought to be judged not just by how it treats its own citizens, but also by how it treats vulnerable people coming into it.

The Bill states that if someone has travelled through a ‘safe third Country’, or has connection to one, their claim for asylum could be made inadmissible in the UK, and proposes deporting people to offshore camps. [7] These two propositions show the UK evading any responsibilities towards asylum seekers, instead aiming to divert them to other countries. This policy is in breach of Article 31 of the 1951 Refugee Convention, defying the legal obligation to protect the human rights of people seeking safety. [8]

The Bill goes further in its human rights violations by introducing a two-tier immigration system for asylum seekers, based on their method of arrival [9]. However, those trying to reach the UK by dinghies are more likely than not to have a legitimate claim for asylum under international law: as the poet Michael Wilson famously wrote, ‘no one puts their children in a boat unless the water is safer than the land’. [10] Again, this goes against international law as the Refugee Convention allows people to seek asylum from persecution regardless of how they arrived and guarantees their right to claim asylum. The proposed measures reflect a crisis in the humanity of British policymakers. Their reframing of the refugee crisis as a crisis of criminality to be solved by draconian laws rather than a crisis of mismanagement speaks to the polarised and toxic nature of modern British politics.

If adopted, the Nationality and Borders Bill would ‘seriously undermine the protection of the human rights of trafficked persons, including children; increase risks of exploitation faced by all migrants and asylum seekers; and lead to serious human rights violations’. [11] This statement came from Siobhán Mullaly, United Nations Special Rapporteur on Trafficking in Persons, and is only one example of a myriad of UN expert opinions condemning the Bill. [12] In November 2021, a sent a letter to the UK government, outlining their concerns about the bill and ways in which it opposed international law. [13] However, this has arguably achieved nothing as, at the time of writing, the bill is already at the committee stage in the House of Lords. This raises questions about the extent to which human rights are enforceable and the tension between international treaties like the Refugee Convention and national laws like the Nationality and Borders Bill. Indeed, the Bill also goes against Article 2 of the European Convention on Human Rights, incorporated into UK law through the Human Rights Act 1998, but little has been done by the European Court of Human Rights. [14] This perhaps reflects the growing wedge between the continent and Britain since Brexit.

Although public discourse focussed on clause 9 (the removal of citizenship) rather than the asylum aspect of the bill, there have been notable campaigns raising awareness about the human rights ramifications of the Bill. Freedom From Torture’s ‘Anti-Refugee Bill’ campaign is important because it reframes public discourse around the Bill towards the human rights ramifications for refugees. [15] As such, looking at the Nationality and Borders Bill through the lens of asylum law is useful because it highlights how far the British Government is willing to go to exclude people from human rights. This Bill is an infringement on human rights as a whole, but is particularly heinous in its treatment of asylum seekers.

[1] Nationality and Borders HC Bill (2021-22) [82].

[2] Nalini Sivathasan ‘Nationality and Borders Bill: Why is it causing protests?’ (BBC News, 7 January 2022) <https://www.bbc.co.uk/news/newsbeat-59651523> accessed 29 January 2022.

[3] Ben van der Merwe, ‘Exclusive: Nationality and Borders Bill is “unconstitutional”, says top law firm’ (The New Statesman, 18 January 2022) <https://www.newstatesman.com/politics/uk-politics/2022/01/exclusive-nationality-and-borders-bill-is-unconstitutional-says-top-law-firm> accessed 29 January 2022.

[4] ibid.

[5] Editorial, ‘The UK’s erosion of citizenship rights’ (Financial Times, 16 January 2022) <https://www.ft.com/content/c9df527f-2ae4-48ec-ac62-43a76c5f5731> accessed 29 January 2022.

[6] ibid.

[7] Nationality and Borders Bill (n 1).

[8] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).

[9] Nationality and Borders Bill (n 1).

[10] Lucy Mayblin, ‘The Nationality and Borders Bill 2021: From Empty Threats to Further Erosion of the Right to Seek Asylum’ (Oxford Law Blog, 9 July 2021) <https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/07/nationality-and> accessed 29 January 2022; Michael Wilson, ‘No one puts their children in a boat unless the water is safer than the land’ (Global Citizen, 7 September 2015) <https://www.globalcitizen.org/en/content/no-one-puts-their-children-in-a-boat-unless-the-wa/> accessed 29 January 2022.

[11] UN News, ‘UK Borders Bill increases risk of discrimination, human rights violations’ (14 January 2022) <https://news.un.org/en/story/2022/01/1109792> accessed 29 January 2022.

[12] ibid.

[13] ibid.

[14] Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement (2021-22, HC 885, HL 112) 19, 27.

[15] Freedom From Torture, ‘Everything you need to know about Priti Patel’s Anti-Refugee Bill’ (16 April 2021) <https://www.freedomfromtorture.org/news/everything-you-need-to-know-about-priti-patels-anti-refugee-bill> accessed 29 January 2022.