Change of Plan? The House of Lords’ apposite amendments to the Nationality and Borders Bill

16 March 2022

As Europe’s largest refugee crisis since World War II has unfolded in reaction to Russia’s invasion of Ukraine, the House of Lords has finalised its reporting stage review of the Nationality and Borders Bill.

This backdrop of conflict has proven to be an unavoidable point of discussion for the Lords, who have returned the Bill to the Commons with a series of amendments that are shaped in part by concerns about consequences for Ukrainians seeking refuge in the UK. If accepted, these amendments will frustrate the government’s ‘New Plan for Immigration’ and could eventually derail altogether its assault on the UK’s international obligations and the rights of asylum seekers and refugees in the UK.

Out with the old

One celebrated amendment is the removal of Clause 11. In straightforward contravention of the Refugee Convention, Clause 11 creates two classes of refugees, empowering the Secretary of State to severely limit the rights (including the length of leave granted, the path to settlement and the right to be reunited with family) of those who have not travelled directly to the UK, have delayed before claiming asylum and/or either entered or are present in the UK without leave. Were this to be in force today, Clause 11 could be used to penalise Ukrainian refugees who passed through neighbouring countries before coming to the UK, or who overstayed their visas while considering their options as the conflict unfolded.

There are other welcome amendments with clear implications for Ukrainians fleeing conflict. These include the removal of Clause 15, which strengthens the “third safe country” admissibility regime, under which the Secretary of State may declare inadmissible an asylum claim brought by someone who was previously present in, or has a connection to, a country considered to be safe; and the deletion of the power to remove an asylum seeker to a safe third country while their claim is pending.

In with the new

Unsatisfied with simply deleting unwanted clauses, the Lords also inserted new provisions aimed at enhancing the rights of asylum seekers and refugees in the UK. One such clause would entitle asylum seekers and adult dependants take up employment – without being limited to the shortage occupation list – if no decision has been made on an asylum claim or fresh claim within six months of the date the application was made. Another would permit people in Europe, including unaccompanied children, who have a close family member in the UK to enter the UK in order to seek asylum. A further clause will require the Secretary of State to resettle at least 10,000 refugees in the UK each year.

No better time for reflection

Unfortunately, several offending clauses have survived the Lords’ review. These include Clause 39, which creates an offence of arriving in the UK without a visa to seek asylum; and Clause 36, which attempts to re-write Article 31 of the Refugee Convention by requiring an individual to have come “directly” from a country where they face persecution in order to be immune from “penalisation”. In the absence of any direct travel routes to the UK from Ukraine, any individual who arrives in the UK without a visa would be liable to penalisation.

Lord Kerr of Kinlochard’s reflection during the Bill’s third reading bears repeating here:

There is never a good time for a unilateral reinterpretation of international obligations, but there could not be a worse time than when there are 2.7 million refugees in continental Europe and the Russians are trampling on the 1949 Geneva conventions. We really need to hang on to our reputation for believing in a rules-based system and the rule of law.”

As the Bill enters the final stage of consideration, the refugee crisis in Ukraine ought to serve as a sobering reminder for the House of Commons of the need to fortify rather than dilute the protections afforded to asylum seekers and refugees.

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