Reconsidering Asylum: Is it for those who need protection?

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Guest post by Devyani Prabhat, Professor in Law, University of Bristol; Raawiyah Rifath, Lecturer in Law, University of Exeter; Ann Singleton, Reader in Migration Policy, University of Bristol; Ruven (Ruvi) Ziegler, Associate Professor in International Refugee Law, University of Reading; Alex Powell, Lecturer in Law, Oxford Brookes University; Natalie Sedacca, Lecturer in Law, University of Exeter.

In a recent workshop, funded by the Society of Legal Scholars, several legal practitioners, NGOs, policy experts and legal scholars in the field of asylum and nationality studies came together to analyse the asylum related provisions of the new Nationality and Borders Act 2022 (‘the Act’).  Whilst in Bill form, the UNHCR found the provisions ‘would penalise most refugees seeking asylum in the country via damaging and unjustified penalties, creating an asylum model that undermines established international refugee protection rules and practices.’

Yet, the Bill proceeded to become an Act instantiating a two-tier system for those seeking asylum in the UK – prioritising those arriving through (virtually unavailable) safe and legal routes over the vast majority of asylum-seekers who, absent such routes, are forced to come to the UK through irregular means. In the workshop, participants raised questions regarding how many claimants would be placed under the restricted system, with some suggesting that almost all claimants would fall into group 2. Claimants with the very same genuine asylum claim would be treated differently simply based on their mode of arrival. Given that asylum is about protecting those who are fleeing persecution, an asylum law provision must have that as its central objective.  While the government claims that this is designed to prevent people traffickers from bringing people into the country through unsafe means of travel, such as in small boats or in closed lorries, it has failed to create safe legal routes to asylum – and has removed the ‘for profit’ component from the offence pertaining to facilitation of entry. Hence, while people arriving in the UK without valid entry clearance for the purposes of seeking asylum are at risk of prosecution the legislation penalising them for utilising the only means available to them. The two-tier system is an example of how the UK is circumventing the Refugee Convention which specifically stipulates that refugees must not be penalised for their mode of entry.

Concomitantly, the Memorandum of Understanding signed with Rwanda prior to the Act coming into effect (and not presented to Parliament as per the Ponsonby rule as it is not a treaty) seeks to absolve the UK of responsibility for asylum seekers who had arrived on its shores. Under the scheme, asylum seekers arriving in the UK irregularly will be deemed inadmissible and deported to Rwanda; they would not return to the UK irrespective of whether Rwanda deems their application to merit protection, and their removal to Rwanda may expose them to grave dangers there given concerns about Rwanda’s human rights record, especially in respect of LGBTIQ+ rights.

The need for Ukrainians to acquire a visa to seek protection in the UK, following Russia’s invasion, is another example of how the UK is circumventing obligations under the Refugee Convention. The right to asylum was never meant to be dependent on prior permission. Under the Act, however, one Ukrainian national arriving in the UK via ‘unofficial’ means to seek asylum would be treated differently from a Ukrainian national arriving with a visa, also to seek asylum, despite the purpose of seeking asylum being the same.  A Home Office Minister specifically refused to rule out that Ukrainian refugees could be also deported to Rwanda.

Given that the Act explicitly treats people differently and in a discriminatory manner despite their equally genuine claims to asylum, it could also potentially be deemed incompatible with the Human Rights Act, the principle of legality, as well as the rule of law, which are enshrined in the UK through the common law.  Critically, the legislation lacks substantive detail on how the new provisions of law will actually operate on the ground. In the absence of details in primary legislation, it will presumably be through secondary legislation and other schemes that further operational information can be obtained. Such instruments of law must be compliant with the Human Rights Act as well as administrative law requirements derived such as the principle of legality and the rule of law – otherwise they can be quashed.

The workshop participants were keen to remain involved in this area in the foreseeable future. Additionally, participants noted, with concern, that politicians in positions of power have been commenting on how lawyers will obstruct the process of asylum rather than commending the role of lawyers and legal scholars in ensuring compliance with the rule of law. The rule of law is a cornerstone of a functioning democracy. Attacking lawyers for their professional values and roles is an attack on democratic values and should not be what public representatives undertake while holding public office.

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How to cite this blog post (Harvard style) 

Prabhat, D., Rifath, R., Singleton, A., Ziegler, R., Powell, A. and Sedacca, N. (2022) Reconsidering Asylum: Is it for those who need protection?  . Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/05/reconsidering [date]

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Externalisation
Immigration law
Rwanda
UK
Border control

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