The Rule of Law and Access to Justice in the Nationality and Borders Bill

ILPA documents

The Government’s Nationality and Borders Bill enters the next pivotal phase of parliamentary scrutiny, on 27 January 2022, during Committee Stage in the House of Lords. Only five days have been allotted at present to discuss the Bill despite many peers speaking in opposition at its Second Reading on 5 January 2022.

ILPA has serious concerns about many aspects of the proposed legislation, which has wide-ranging implications for immigration, nationality, and asylum law. As a priority, we are urging peers to amend proposals that undermine the rule of law and/or limit access to justice for some of the most vulnerable people who engage with nationality, asylum and immigration law in the UK.

Rule of law

The Bill is inconsistent with international law in various ways that are at best unnecessary, if we are to believe the Government’s repeated assertions that it intends to remain compliant with current international treaties and obligations such as the Refugee Convention. At worst, these provisions could pose a significant threat to individuals’ rights and lives. 

Without justification, the Bill proposes to introduce a more stringent definition of a ‘particular social group’, which forms one of the grounds of persecution under which a person may qualify as a refugee under the 1951 Refugee Convention. The proposed definition of ‘a particular social group’ is contrary to both UNHCR’s position and settled UK case law, which only require one of two conditions to be met. Current domestic law and UNHCR standards only require a person to establish they are a member of a group of persons who share innate unchangeable characteristics, a common background that cannot be changed, or a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it; further, or alternatively, they can show they are a member of a group that would be perceived as having a distinct identity in their home country. In contrast, the Bill requires that both conditions must be met.

We stand with Women for Refugee Women in opposing this fundamental change in the test for determining whether someone is a refugee. It is likely to have disastrous consequences for highly vulnerable people seeking asylum, particularly survivors of gender-based violence as the Refugee Convention does not list ‘gender’ as a specific ground for persecution. Our amendment to rectify this has been tabled by Baroness Lister of Burtersett with the support of Baroness Coussins, Lord Paddick and The Lord Bishop of Gloucester. Read our joint briefing on Clause 32.

Following its introduction, the Government amended the Bill to remove a safeguard preserving the UK’s international law commitments as regards the law of the sea in relation to the exercise of maritime enforcement powers. The duty of rescue is a duty embedded ‘in every mariner’s psyche’, as stated by Baroness Jolly in the Second Reading of the Bill in the House of Lords. We hope that peers will strongly oppose the removal of this safeguard, which should be a mandatory consideration of the Home Secretary before she authorises the use of maritime enforcement powers against a ship. Read our briefing on Schedule 6.

The Bill also attempts to immunise Home Office officials from criminal and civil liability arising out of maritime enforcement operations. That the Government seeks to include such a provision suggests it is conscious that use of these maritime enforcement powers could lead to conduct that might otherwise be judged as criminal beyond all reasonable doubt. In the same stroke, the Government makes it an offence, punishable by imprisonment for life, to provide assistance – even if the assistance is not for financial gain –  to those at sea who may be making perilous journeys to seek asylum in the UK.

The Bill also proposes to elevate the prohibition on making an asylum claim in UK territorial waters to an Act of Parliament, frustrating a person’s ability to seek to make an asylum claim in a place where the UK has full jurisdiction. Our amendment to rectify this has been tabled by Lord Russell of Liverpool, with the support of Baroness Hamwee. Read our briefing on Clause 13(7).

Each of these measures seeks to erode the international refugee protection regime and is an affront to the rule of law in the United Kingdom.  

Access to justice 

The proposed legislation will restrict access to justice in various ways.

The Bill introduces an expedited appeal procedure, which is a further attempt by the Government to revive the detained fast track scheme the Court of Appeal ruled unlawful in 2015. The procedure seeks to oust ​​the jurisdiction of the Court of Appeal to prohibit an appeal from a first-instance decision on appeal by the Upper Tribunal. There is a public interest in legal issues of general importance being reviewed by appellate courts and to exclude that possibility is an affront to the rule of law and access to justice. Read our briefing on Clause 22 and 23.

Through the Bill, the Home Office seeks to regulate (for itself and local authorities) the process of age assessments that determine whether or not a person subject to immigration control is a minor child. These provisions were inserted at a very late stage, during Committee stage in the House of Commons, preventing the full scrutiny of Parliament. They crucially impact the welfare of children. However, without having conducted meaningful pre-legislative consultation, the Bill proposes that certain ‘scientific methods’ to determine age (the use of which is highly contested) may be prescribed in regulations to be made by the Secretary of State. The proposals would also move age assessment hearings, when the outcome of an assessment is in dispute, to the First-tier Tribunal.

Age assessment hearings are – for all practical purposes – trials where both sides call witnesses of fact (social workers, adult carers, etc) and expert witnesses; trials that may last for a day or more. They are not like the ordinary matters heard by the First-tier Tribunal: relatively brief immigration appeals that may last a couple of hours, where only the person appealing calls witness evidence. To shoe-horn age disputes into the First-tier Tribunal without adequate pre-legislative scrutiny is a mistake. Read our briefing on Part 4.

The Joint Committee on Human Rights has expressed its concerns on the Bill’s proposals to change the law on modern slavery. Proposals include setting a deadline for potential victims to disclose any exploitation, a presumption that credibility ‘must’ be damaged by late evidence unless there are ‘good reasons’ for late evidence, and the exclusion of potential victims of slavery or human trafficking from protection on the basis of threats to“public order” and “bad faith”. The Bill will allow for people already in receipt of legal aid for an immigration, asylum or human rights claim to receive legal aid advice regarding a referral into the National Referral Mechanism. However, these provisions do not assist potential victims who are not in receipt of legal aid. 

The lack of access to independent immigration advice is a powerful deterrent to people coming forward when they are escaping exploitation. Bringing this work within the scope of legal aid is particularly important for cases where there is no asylum claim, but there is an immigration claim, for example, where the person may be eligible for a grant of discretionary leave to remain or leave as an overseas domestic worker if they were recognised as a victim of trafficking. These victims may be too scared to come forward to the authorities or may not know what immigration options are available to them. The current position is that they would be unable to easily access legal advice, as immigration advice on this issue is not in scope for legal aid. This restriction poses an unnecessary barrier to this group of vulnerable people accessing legal advice. The Government has said that it wishes to prevent matters such as trafficking being raised at a late stage. To do this, we recommend the provision of survivors’ access to free legal advice at an early stage. Our amendment to rectify this has been tabled by Lord Paddick with the support of Baroness Jones of Moulsecoomb. Read our briefing on Clauses 65 and 66.

Finally, the Bill has rightly been widely criticised for seeking to allow the Secretary of State to deprive a person of their citizenship without giving them notice that this has been done. The grounds for dispensing with notice are very wide, open to subjectivity, and lack safeguards. A person cannot take note, exercise a right of appeal, or instruct representatives to challenge a decision, if they are not informed. Clause 9 offends the common law, international legal standards, and human rights incorporated into domestic law. It should not stand part of the Bill and should be omitted. Read our briefing on Clause 9.

Amend the Bill

A number of amendments addressing these vital issues of fairness, consistency, and discrimination were tabled and subsequently rejected at Committee and Report stage in the House of Commons. We hope that peers will now lend their voices to urgently mitigate the harmful impact that aspects of the Bill would have and to bring it into line with the UK’s obligations under international law, including with respect to the Refugee Convention and international maritime law.