Home Secretary Priti Patel’s Nationality and Borders Bill (“the Bill”) has faced yet another round of setbacks in the House of Lords in the late hours of 4 April 2022. Although far-reaching from their original trajectory the Lords have reiterated to the Government that, whilst concessions have been made, they will remain firm in ensuring the Government are steadfast in its commitments to the 1951 Refugee Convention and its 1967 Protocol (“Refugee Convention”). 

The controversial bill titled the ‘anti-refugee’ bill by critics, is the Government’s new hard-line approach to immigration intended to “tackle illegal migration, reform the asylum system and control the UK borders” [Nationality and Borders Bill: Explanatory Notes (December 2021) para 2]. The Government’s hope in reforming the UK asylum system is to reduce the influx of illegal migration and the risks associated with methods of irregular entry, a method which they remark as giving rise to migrant exploitation via organised criminal groups.

On the face of it the Nationality and Borders Bill intends:

  • “to increase the fairness of the system to better protect and support those in need of asylum;
  • to deter illegal entry into the United Kingdom, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger; and 
  • to remove more easily those with no right to be in the UK” [Nationality and Borders Bill: Explanatory Notes (December 2021) para 1]. 

Despite the Commons’ rejection of the Lords Amendments in the House on 22 March 2022, the Lords have declared a clear interest in ensuring they function as a counterbalance to the uncompromising approach of the Government, and do not budge on central issues to the Bill. Most consequential to the comprehensive totality of the proposal is the Lord’s insistence on asserting compliance to the Refugee Convention on the face of the Bill (Amendment 5). Despite its rejection in the House of Commons Baroness Chakrabati proposed a new amendment in lieu which seeks to ensure the Bill will be in adherence to the Refugee Convention.

For the avoidance of doubt, the provisions of this Part are compliant with the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, and must be read and given effect as such”.

[Lords Amendment 5B]

This new amendment will act as a safeguard for, as Lord Brown of Eaton-under-Heywood puts forth, “several later clauses in…the Bill [which] purport to define or redefine…obligations under the convention”. This will assure that, in the event of inconsistency, the Courts when the ruling will comply with the Refugee Convention. The Government insists that there is no need for an express provision as they “have made it explicitly clear that everything they do is compliant with their obligations under international law, including their obligations under the refugee convention” [Baroness Williams of Trafford (Conservative)].

The Lords have made it known that such assurance on the face of the Bill is a necessity, especially in regards to Part 2 of the Bill which concerns the Government’s proposed asylum policies. The proposed policies, which have the potential to criminalise and differentiate refugees on the basis of their arrival, have prompted numerous NGOs and humanitarian agencies to speak out against the advancement of the Bill. Clause 11 of the Bill seeks to create two separate classes of refugees on the basis of whether they arrived directly in the UK and sought authorisation beforehand. The notion that this Bill seeks to encourage refugees to claim asylum in the first safe country in which they arrive has been deemed to, “undermine the global, humanitarian, and cooperative principles on which the refugee system is founded” [UNHCR, ‘UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-22’ (October 2021) para 4]. Members of Parliament were keen to point out that logistically as an “island surrounded by water” [Tim Farron MP (Liberal Democrat)], the UK acting as a first safe country is highly unlikely. 

Whilst the Lords have remained resolute in their attempts to rectify the Bill they deem it to be, “narrow and mean-minded and at times [approaching] the vindictive” [Lord Cormack (Conservative)]. They have, to no fault of their own, conceded to the primacy of the House of Commons resulting in a diluted form of their amendments being put forth for consideration. The risk this poses to refugee rights is evident through the proposed criminalisation of refugees (Clause 39), as well as those who may seek to aid them (Clause 40), and clauses that facilitate offshore processing for the detention of asylum seekers (Clause 28). Although Lords have been vocal about their reluctance to leave offshoring on the face of the Bill, it is apparent that the Government believes this unyielding approach sends a “clear message to those risking their lives and funding criminal gangs both here in the UK and abroad, or else otherwise abusing the asylum system, that such behaviour is not worth it” [Baroness Williams of Trafford (Conservative)]. The Lords in their considerations have made allowances within their amendments and forgone a number of others. It is yet to be seen whether the Commons will follow suit, or display a similar scene to that shown on 22 March 2022.

Amendments to be put forth in the House of Commons on 20 April 2022: 

concerning nationality, asylum and immigration control.

Lords Amendment 4G: Contents 209 / Not Contents 165

The Lords did not insist on Amendment 4 which would delete Clause 9 ‘Notice of decision to deprive a person of citizenship and agreed with the Commons in their Amendments 4A to 4F which restore to the Bill safeguards proposed by Lord Anderson of Ipswich. Lords have agreed to Amendment 4G which will remove subsection (5) to (7) of Clause 9, thereby removing the validity of previous deprivations without notice held to be unlawful by the courts. 

Lords Amendment 5B: Contents 189 / Not Contents 151

The Lords did not insist on Amendment 5 which would insert a ‘Compliance with the Refugee Convention’ Clause. Lords have agreed to Amendment 5B in lieu which inserts an ‘Interpretation of Part 2’ Clause, this offers clarity that the provisions in Part 2 are compliant with the Refugee Convention.

Lords Amendment 6B: Contents 191 / Not Contents 148

The Lords did not insist on Amendment 6 which would delete Clause 11 ‘Differential treatment of refugees’. Lords have agreed on Amendment 6B in lieu which will remove subsections (5) to (8) of Clause 11, and insert subsection (5) which allows group differentiation of refugees but ensures group 2 refugees still have access to their rights granted under the Refugee Convention.

Lords Amendment 7B, 7C: Contents 199 / Not Contents 132

The Lords did not insist on Amendment 7 which would insert a ‘Right to Work’ Clause allowing a change to the Immigration Act 1971 extending the right to work for asylum seekers and reducing the qualifying period from 12 months to 6. Lords have agreed to Amendment 7B and 7C in lieu which inserts a repeal option should the Government report that this amendment encouraged asylum seeker applications.  

Lords Amendment 8B, 8C: Contents 179 / Not Contents 152

The Lords did not insist on Amendment 8 which would insert a ‘Safe third State: commencement’ Clause preventing the Government from declaring an asylum claim with a connection to a safe third country as inadmissible until formal returns agreements are in place. Lords have agreed to Amendment 8B and 8C in lieu which inserts a sunset provision that will prevent the inadmissibility provision for a period of up to 5 years. 

Lords Amendments 53B, 53C, 53D: Contents 176 / Not Contents 153

The Lords did not insist on Amendment 53 which would remove provisions from the Bill allowing the Government to remove a person to a safe third country whilst their asylum claim is pending with greater ease. Lords have agreed to Amendment 53B, 53C and 53D in lieu which inserts provisions limiting the Government’s ability to offshore pending asylum claims until both the House of Commons and House of Lords agreed, by order to a state as being safe, this is inclusive of an estimation of costs for third state arrangements.

Lords Amendment 10B: Government defeat (Contents 181 / Not Contents 144)

The Lords did not insist on Amendment 10 which would insert an ‘entry to seek asylum and join family’ Clause thereby expanding family reunion rights for asylum seekers with familial connections in Europe. Lords have agreed to Amendment 10B in lieu which reduced the scope to unaccompanied children.

Lords Amendment 11B: Contents 159 / Not Contents 150

The Lords did not insist on Amendment 11 which would insert a ‘Refugee resettlement schemes’ Clause that sets a target for the Government to resettle 10,000 refugees per year. Lords have agreed to Amendment 11B in lieu which replaces the numerical figure to an undecided target to be published each year. 

Lords Amendments 13B and 15: Contents 163 / Not Contents 138

The Lords did not insist on Amendment 13 which would remove the criminalisation of arriving in the UK without a valid entry clearance where such clearance is required. Lords have agreed to Amendment 13B in lieu which would impose limits only allowing the criminalisation of those arriving in the UK in breach of a deportation order. The Lords have agreed to insist on Amendment 15 which removed subsection (5) of Clause 39, a ‘tidying-up’ amendment which inserted section 24(D1) the new arrival offence.

Lords Amendments 20B: Contents 162 / Not Contents 141

The Lords did not insist on Amendment 20 which removed subsection (3) from Clause 40 ‘Assisting unlawful immigration or asylum seeker’, thereby reinserting the prosecutorial requirement to prove gain when aiding the entry of an asylum seeker into the UK. Lords have agreed to Amendment 20B in lieu which would only make the facilitation of asylum seekers an offence if done so without a reasonable excuse.

The Bill returns to the House of Commons on 20 April 2022 for Considerations of Lords Amendments and will continue in its ping-pong stage until an agreement is reached.

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