On July the 20th, the British Government’s Nationality and Borders Bill (1) passed its second reading in the House of Commons with 366 votes in support of the bill, and 265 against (2). Although we are still in the early stages of the process, should the bill pass through the House of Commons and the House of Lords to become an Act of Parliament, it will change many of the laws in this country that determine how somebody can claim asylum in the UK in the hope of being granted refugee status. The bill contains six Parts; Part 2 of the bill details changes that the Government seeks to implement to the Asylum system, while part 3 elaborates on what would constitute an ‘Immigration offence’ and how the new laws will be enforced.
Unfortunately, much of the discussion in the national news has been focussed on the politics of the bill and the Home Secretary. So, this article will discuss the contents of the bill itself, and whether it seizes the opportunity to overhaul the current, dysfunctional system for the better. Let’s examine why an overhaul to the asylum system was necessary and whether the new bill suitably addresses the current issues in the asylum system.
Why does the current system need to be changed?
The current system means that if a person wants to officially seek asylum in the UK, then they must be present in the UK. However, strict immigration laws in the UK mean that many potential asylum seekers arrive through unconventional means such as small boat crossings over the English Channel (3). It is acknowledged by people with differing opinions on the difficulties that asylum seekers face that these unconventional forms of arrival into the UK are unsafe. These journeys put some of the most vulnerable people in the world in grave danger. In addition, as many asylum seekers lack the resources to arrive in the UK through conventional means, that is, on a flight with a visa and money, they are seen as vulnerable targets by human traffickers and that often leads to the most tragic of outcomes (4).
Now, assuming that an asylum seeker has officially sought asylum upon arrival in the UK and they are awaiting a decision to be made by the Home Office on their claim, what happens next? Many asylum seekers come from some of the most deprived communities in the world and are therefore unlikely to have a source of money to depend upon. Currently, the Government provides accommodation to asylum seekers and a weekly cash allowance of £39.63 (5). Asylum seekers with a pending or rejected claim are not allowed to work in the UK and also have no recourse to public funds, beyond what they are given in their allowance. While there are benefits to the support system such as access to the NHS and education for children aged 5-17, the weekly cash allowance is limited, and, as has been seen with Napier barracks, the accommodation provided to asylum seekers falls short of what should be afforded to such vulnerable people (6).
Finally, how successful is the current system in dealing with the number of claims it receives, and does it make the correct initial decisions when determining whether or not to grant refugee status an asylum seeker? The Government’s website says that an initial decision will usually be made within 6 months, however, at the end of March 2021, 76% of the people still awaiting a decision from the Home Office had been waiting for more than 6 months (7). In addition to this, many appeals are allowed. Between 2004 and 2019 77% of asylum applicants appealed the initial decision (8), and in the year up to March 2021 47% of those appeals were allowed, meaning the initial decision was overturned (7).
To summarise, what do we see in the current system? Many asylum seekers have no choice but to pursue unconventional and often unsafe means to arrive in the UK in order to claim asylum. Upon arrival the accommodation that they receive is often deeply inadequate, and the claims process faces a deep backlog and when an initial decision is finally made it is the incorrect one nearly 50% of the time.
So, what is in the new bill, and does it address these issues?
One key part of the new bill will place asylum seekers into two distinct groups. Group 1 asylum seekers are those who have arrived directly in the UK from the country which they are fleeing from, while Group 2 refugees are those who have passed through another ‘safe’ country where they could have sought refuge before they arrived in the UK (9). The Government hopes that this will incentivise asylum seekers, those who would be classed as Group 2, not to take unsafe, unconventional routes, largely across the English Channel from the north of France, into the UK. However, the idea that an asylum seeker should seek refuge in the first safe country that they arrive in is based upon an EU law called the Dublin Regulation, which no longer applies to the UK now that it has left the EU, and leading EU countries no longer want to maintain this arrangement with the UK (10). Furthermore, while many of the countries that an asylum seeker has travelled through may be deemed ‘safe’, an asylum seeker might regard the UK as the safest country for their self. This might be due to the presence of family members and the ability to communicate with authorities and the public with the widely-spoken English language, for example.
With regards to the support that asylum seekers receive when they arrive in the UK, there are some significant changes to the accommodation that asylum seekers can expect to receive. The new bill supports an increased use of accommodation centres, such as the repurposed Napier barracks (11). Given the well-documented inadequacies, and in some cases illegalities, of the accommodation at Napier barracks, there would need to be a profound improvement in the quality of the accommodation centres in order to justify the transition away from community housing for asylum seekers.
One of, if not the, biggest issues with current system is the inefficiency with which it processes claims, and the number of cases where the initial decision is incorrect and overturned upon appeal. Will the bill improve the efficiency of the claims system, and lead to an increased number of correct initial decisions? Unfortunately, it largely appears that the bill does not contain any provisions that would improve this system (12). It is possible that the claims system could actually regress due to proposals that would allow for offshore asylum processing (13), a model used in Australia at great expense and with strong criticism from human rights lawyers (14).
So, what can we conclude from this?
The existing asylum system has many well-documented flaws, and an overhaul of the system is an opportunity for the Government to create a system that treats asylum seekers with greater dignity and sensitivity. Unfortunately, many of the analyses of the Nationality and Borders Bill suggest that the contents of the bill will fail to tackle the main problems that plague the existing system. These analyses suggest that the contents of the bill should be further considered, as there is still the opportunity to present and implement ideas that would make the asylum system both more efficient and more compassionate for those who so badly need it. The upcoming cross-party scrutiny of the bill at the committee stages and in the House of Lords provides such an opportunity.