Ending 70 years of refugee protection: at what cost?
Dr Helen O’Nions scrutinises the legal foundation of the Illegal Migration Bill
“I am a refugee. I am a person. I am not illegal,” was spoken by a young Sudanese friend who arrived in the UK illegally in 2015. He had travelled hundreds of miles, spent months confined in Libya and months on the streets in Europe before arriving ‘illegally’ in the UK in 2017. His case was initially refused as he was deemed not credible. After four years, including eight months spent sleeping in a local park without access to any support, his new solicitor found a suitable interpreter to corroborate and he finally obtained refugee status in 2021.
The Illegal Migration Bill was introduced to Parliament on 7 March 2023, just over a year since the enactment of its contentious predecessor, the Nationality and Borders Act 2022. It has already reached the report stage; rushed through Parliament without consultation or adequate scrutiny, in the absence of any impact assessment.
It is perhaps the most controversial piece of legislation in modern times in its attempt to disapply the interpretative obligation under Section 3 of the Human Rights Act and limit protection that is owed to refugees by 145 state parties to the United Nations Convention on the Status of Refugees 1951. It undermines existing statutory provisions relating to children’s rights, and modern slavery, and threatens the rule of law by preventing access to justice and expanding arbitrary detention.
Unsurprisingly the Bill has received unprecedented criticism from refugee advocacy groups, social workers, medical professionals, religious leaders, the Children’s Commissioner and the legal profession. The Council of Europe’s Human Rights Commissioner has written to the speaker of the House of Commons to express concerns that the Bill would lead to ‘significant regression in the protection of refugees,’ and the body entrusted with monitoring the implementation of the Refugee Convention, the United Nations High Commission on Refugees, has described it as an ‘asylum ban.’ The parliamentary debates on the second reading illustrate a further concern expressed by MP’s across the house, namely that the measure will not succeed in meeting the Prime Minister’s objective to ‘stop the boats.’
Given the number of legal issues raised it is not possible for me to consider them all here. I have therefore focussed this analysis on two aspects. Firstly, the legal foundation of the Bill and its consistency with fundamental obligations under the Refugee Convention and European Convention on Human Rights (ECHR). Secondly, its impact on the operation of the pioneering Modern Slavery Act 2015 and its protection of modern slavery survivors.
Illegal entry and refugee status
Clause 2 imposes a duty on the Secretary of State to remove those asylum seekers who have not entered the UK lawfully, without consideration of their asylum or human rights claim. Clause 4 makes any claims for protection inadmissible. It acts as a trigger which subjects those to which it applies to mandatory detention without challenge for 28 days, followed by expulsion to a third country and further prevents them from being able to ever enter and remain in the UK or claim British citizenship.
The justification for Clause 2 relies on a shaky interpretation of Article 31 of the Refugee Convention, which provides that refugees should not be penalised for their illegal entry providing they have come directly from their country of origin and show good cause. The Home Secretary has used this interpretation to argue that lawful entry is a pre-requisite to refugee determination and protection. This is illogical, immoral and without legal basis.
Article 31 is actually a sui generis provision applying only to the imposition of criminal penalties for illegal entry (such as forged documents or obstruction of the railway). Nowhere else is the right to seek asylum predicated on lawful, authorised entry. This omission is deliberate. It has been recognised since Lord Justice Simon Brown’s ruling in R v Uxbridge Magistrates Court, ex parte Adimi , that “the combined effect of visa requirements and carrier’s liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents.” Asylum seekers cannot obtain an asylum visa, yet Article 1A(2) of the Refugee Convention requires that those seeking protection must be outside their country of nationality. Visa free travel is available to some nationalities, but the Home Office has cynically added countries to the visa list when there is a noticeable increase in asylum applications (the most recent example being El Salvador).
Lord Justice Brown scrutinised the term the meaning of ‘coming directly’ using academic authority, the travaux preparatoire and the UNHCR’s Executive Committee resolutions. He rejected the argument that Article 31 allows the refugee no element of choice as to where he or she should claim asylum. Affording ‘considerable weight’ to the UNHCR guidelines, he reasoned:
“The expression ‘coming directly’ in Article 31(1) covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection, safety and security could not be assured. It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept ‘coming directly’ and each case must be judged on its merits.” [para. 20]
This approach finds considerable support in the global consultations. The Home Secretary provides no authority to support her contrary interpretation precisely because there is none. The deliberately misleading argument that illegal entry prevents a person from being a refugee is not borne out by any evidence and is emphatically rejected by the UNHCR. Refugee status is declaratory and not dependant on legal recognition. The overwhelming majority of refugees arriving in the UK enter without authorisation, either through a non-asylum immigration route or via the Channel. Post-Brexit border checks and delays have changed the complexion of this migration such that 41 per cent of arrivals in 2022 came by small boat. The pledge to ‘stop the boats’ without any serious attempt to reduce the asylum backlog (currently more than four times greater than in France or Germany) or enable safe and legal routes for entry, will expose refugees to disproportionate and arbitrary detention, followed by expulsion.
Around half of those arriving by small boat in 2022 came from five countries. Afghans, Eritreans and Syrians currently have a 98 per cent chance of being recognised as refugees, whereas Sudanese nationals have an 87 per cent chance and Iranians an 82 per cent chance. Only Afghans are eligible for resettlement using one of the pathways under the Afghan resettlement scheme, but the difficulties of doing so have been well-documented with many now trapped in Afghanistan at the mercy of a hostile regime.
The argument that those arriving illegally are not genuine refugees is, thus, completely unsubstantiated. Similarly, the Home Secretary’s statement that ‘billions’ of people intend to claim asylum in the UK is also unsubstantiated, with France and Germany hosting more than twice as many asylum applicants and over three million Syrian refugees currently residing in Turkey.
Article 33 of the Refugee Convention prohibits return (‘refoulement’) if there is a risk of persecution for a Convention reason. When coupled with the absolute protection offered by Article 3 of the ECHR this necessitates access to a refugee determination procedure (Hirsi Jamaa v Italy 2012). Neither obligation is limited to those lawfully resident. Indeed, the Convention would be a very weak instrument if lawful entry was a prerequisite for protection. Only those refugees resettled or entering on family reunion visas are entering lawfully. Discounting the exceptional Homes for Ukraine scheme and the Afghan relocation scheme, there were only 1391 refugees resettled in 2022 (less than seven per cent of the number of asylum seekers arriving the same year and less than a quarter of those resettled in 2019).
The reality therefore is that Clause 2 will result in the forcible detention of refugees without access to effective challenge or scrutiny for at least 28 days (Clause 13(4)). This will include those who have experienced torture and vulnerable adults generally excluded from detention under the ‘adults at risk’ policy. It will contravene the UNHCR and Council of Europe guidelines, which emphasise that detention should be a ‘last resort.’ In a considerable policy reversal, the Home Secretary and Prime Minister have not ruled out the detention of children, including unaccompanied minors. It is intended that detainees will be removed and excluded from re-entry in the future. Those not removed will be prevented from ever gaining citizenship, a punishment that will extend to their children.
Clause 21 precludes those subject to Clause 2 from being supported under the national referral mechanism (NRM) introduced under the Modern Slavery Act 2015. It therefore contravenes the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT), which requires a recovery and reflection period of at least 30 days. Much of this instrument was only enacted into UK law last year through the Nationality and Borders Act. Former prime minister Theresa May, abstained from supporting the Bill for fears that it would undermine protection for slavery survivors and reduce prosecutions of perpetrators. The proposal is based on an unsubstantiated claim that the larger than predicted numbers of referrals to the NRM is evidence that it is being abused by migrants. More worrying still is the Home Secretary’s apparent inability to differentiate between people smuggling and human trafficking, which results in punishment of victims rather than perpetrators.
The Home Secretary points to a rise in the number of referrals to 17,000. However, only seven per cent of those who arrived via small boat were referred to the NRM between 2018 and 2022, of which 85 per cent were found to be victims of trafficking. Moreover, 27 per cent of those referred were Albanian nationals, a country known to have a particular problem with trafficking for sexual exploitation. British citizens counted for over a quarter of referrals. Thus, there is no clear evidence to support the contention that the modern slavery system is being widely abused. On the contrary, campaigners have long argued that it is not sufficiently robust in offering protection to survivors.
The option of being returned to a safe country rarely applies to survivors of trafficking. There is known to be a significant risk that returnees will be exposed to reprisals and re-trafficking, recognised by the Council of Europe’s 2020 guidance note on victims of trafficking. The Upper Tribunal has recognised that former victims of trafficking may belong to a particular social group under the Refugee Convention as they possess an immutable characteristic as a victim of trafficking, are easily identifiable and are unable to access protection before the law. The fact that survivors of trafficking are likely to be in particular danger if returned was a principal reason for the implementation of the referral mechanism. Migrants who are acutely vulnerable, such as unaccompanied children and pregnant women, are known to be at increased risk of trafficking and abuse during their migratory journey as they are targeted because of their vulnerability.
The Illegal Migration Bill has been presented to the public as part of a package of essential measures to prevent the dangerous and profitable trade of people smuggling. Opposition politicians have been accused of supporting smugglers when criticising the proposals. Sadly, the Bill will do nothing to prevent people smuggling as it does nothing to address the causes of irregular migration. Smugglers profit further when the danger and risk of detection increases.
The Bill will be unworkable as only Rwanda has been identified as a potential safe third country. Even if the senior courts approve these returns (at the time of writing, the case was due to be heard by the Court of Appeal in April), it is improbable that they have the capacity to process and support those who arrive illegally in the UK. It was initially anticipated that Rwanda could receive up to 500 people per year once the decision becomes operational. If 2022 figures alone are used, this could leave over 70,000 people plus dependants in detention pending removal. This will be a humanitarian catastrophe with enormous costs both to the taxpayer and to the UK’s reputation as a country of compassion and tolerance.
Dr Helen O’Nions is an associate professor of law at Nottingham Law School