Part 2 of the Bill deals with asylum law.
Differential treatment of refugees
Section 10 introduces the provision for differential treatment of refugees. Group 1 refugees and Group 2 refugees appear to be distinguished on the basis of the circumstances of arrival in the UK.
Under the Bill, ‘Group 1’ refugees are categorised as those who:
- Have come to the UK directly from a country or territory where their life or freedom was threatened; and
- Have presented themselves without delay to the authorities.
Where a refugee has entered the UK unlawfully, in that they require leave to enter or remain and do not have it, they must additionally satisfy the Secretary of State that they can show good cause for their unlawful entry or presence to be considered a ‘Group 1 refugee’.
Whether a refugee is categorised as a ‘Group 1 refugee’ or a ‘Group 2 refugee’ has significant implications, including the length of stay, whether they have recourse to public funds, and whether their family members are entitled to apply to join them in the UK.
Explaining the reasoning behind the new Bill, the Home Office quotes “In 2019, UK asylum applications increased by 21% on the previous year to almost 36,000”. The latest figures, from 2020, show that the number of asylum applications actually reduced by 18% from 2019, perhaps unsurprisingly, given the pandemic-related travel restrictions.
‘Illegal entrants’ and ‘safe third countries’
The Home Office’s Factsheet on the proposed legislation also indicates that those who do not come directly to the UK and those who delay claiming asylum will only be granted this new temporary protection status attached to Group 2 refugees.
This is in line with Priti Patel’s media appearances earlier this year, when she announced her plans to overhaul the asylum system, in which she consistently conflated ‘illegal entrants’ with those who come to the UK through a third country.
An illegal entrant is someone who has entered the UK without a right in law to do so, the most obvious example of such being those who enter using clandestine methods, such as in the back of vehicles travelling through the Eurotunnel, or who make the perilous journey across the Channel in a dinghy.
However, it may also apply to someone who had leave to enter the UK in a specific capacity, but does so in breach of one of the conditions of that leave. For example, a standard visitor visa requires the holder to have a genuine intention to leave the UK at the end of the visit. If the holder enters the UK with no intention of leaving and subsequently claims asylum, then they can be found to have entered illegally.
Currently, such a finding by the Secretary of State has no effect on the assessment of the asylum claim’s merits itself. However, from what we know of the proposals so far, being deemed an illegal entrant by the Secretary of State would mean you would be “regularly reassessed for removal.”
Claiming asylum in one country having travelled through safe third countries is not illegal or in contravention of domestic immigration law, European Union law (to which the UK is no longer subject to), or international law, including under the UN 1951 Refugee Convention.
The UK did, however, used to be party to the European Union’s ‘Dublin Regulation III’ (European Regulation 604/2013), the regime by which responsibility for processing asylum claims is assigned to Member States. In accordance with the Dublin Regulation III, the UK could certify a claim as ‘inadmissible’ and return an asylum seeker to another EU member state through which they had travelled to reach the UK.
Whilst the UK, by virtue of having left the European Union, is no longer subject to the Dublin Regulation III, the Immigration Rules were since amended to allow for such a return mechanism, a provision which has been reproduced in Section 14 of the Bill. However, the provisions are entirely unworkable without the cooperation of the safe third country in agreeing to the return of the asylum seeker. Having failed to secure similar reciprocal arrangements with European countries, the Home Secretary is now attempting to strong-arm them into accepting inadmissible asylum seekers’ return by proposing to block visa applications made by their citizens.
However, Section 14 of the Bill goes further to include persons ‘with a connection to a safe third State’. Theoretically, this could include countries in which an individual has never travelled through nor been to.
The effect of a declaration of inadmissibility can be significant. The Home Office are likely to also ‘certify’ a claim which is declared inadmissible. The effect of certification is to significantly restrict appeal rights. A refusal of a claim’s merits brings with it an automatic right of appeal in the First-Tier Tribunal, with the applicant retaining the right to remain in the UK pending the conclusion of the appeal proceedings. Certification removes that right, and any right of appeal must take place from outside of the UK (leaving individuals with no other right to remain in the UK liable for deportation). Clearly for those genuinely at risk of persecution in their country of origin, certification of one’s claim has potentially dangerous consequences (the only defence against which to bring a judicial review against the decision to certify the claim).
Compliance with the 1951 Refugee Convention
Under Article 31, Contracting States (emphasis added):
“shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
It appears that the word ‘directly’ has been utilised by the Secretary of State for the Home Department as a linguistic loophole in the Convention to create a less favourable type of leave for refugees coming to the UK from other countries (despite that this in itself is not illegal).
Not only does this go against the spirit of the Convention, but removing refugees’ prospect of settlement in such circumstances is arguably also in breach of the general duty of states to promote the juridical integration of refugees. If the provision is passed in its current form, it is, therefore, highly likely to be the subject of challenge in the courts.
Whilst the Bill purports to overhaul the asylum system – and to some degree, does so – many of the provisions were either existing procedure but repackaged, or likely to be the subject of significant litigation, which could ultimately lead to provisions being declared unlawful.
Gherson have extensive experience in all types of international protection cases, and a particular expertise in complex appeals and judicial reviews, successfully obtaining a grant of asylum in the UK (and abroad) in some of the most difficult and atypical cases.
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The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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