The Nationality and Borders Bill – What does it mean for Ukrainians coming to the UK?
What is the Nationality and Borders Bill?
The Nationality and Borders Bill (the Bill) was introduced to reform the asylum system in the UK, and to implement aspects of the Government’s New Plan for Immigration. The Government’s aims in passing this Bill include making the asylum system fairer and more efficient while taking a strict stance against illegal immigration and people smuggling. The Bill is currently at its third reading stage in the House of Lords. It makes provisions about nationality, immigration, and asylum, and imposes greater restrictions on individuals seeking refuge in the UK. Specifically, the Bill introduces long criminal sentences targeted at asylum-seekers arriving in the UK. It also introduces a system to delay or deny protection by declaring asylum claims ‘inadmissible’ where a person has a connection to a safe country, and it grants powers to ‘push back’ any asylum-seeker boats at sea. Furthermore, it generally makes it more difficult for people to gain refugee status and grants fewer rights to those who eventually are recognised as refugees.
However, the House of Lords’ reporting stage saw the striking down of several of the Bill’s harshest provisions. The Lords voted to delete clause 11 which proposed to punish refugees depending on how they arrive in the UK. The Lords also voted to remove provisions that would see asylum-seekers being held in offshore detention centers, as well as provisions that would criminalise asylum-seekers. These are some of the key elements of the Bill from the Government’s perspective, so it is now crucial to see whether these amendments will be approved when the Bill goes back to the House of Commons. However, UNHCR has warned that the Bill undermines the 1951 Refugee Convention, to which the UK is a contracting party. UNHCR believes that if this Bill is enacted into law, it will pose severe risks to those seeking asylum in the UK. The Joint Council for the Welfare of Immigrants (JCWI) has called the Bill “an attack on the fundamental principles of refugee protection”. One of the Government’s main goals in passing this Bill is to reduce the number of channel crossings taking place. However, the JCWI has found there is no evidence that this new approach would reduce the number of channel crossings, concluding that it would simply force people into more dangerous irregular routes to reach the UK.
What does the Nationality and Borders Bill mean for Ukrainian refugees trying to come to the UK?
Ukrainians are ‘visa nationals’. This means that they require a visa to enter the UK. The UK Government has put in place some special visa schemes, such as the Ukraine Family Scheme which permits three years’ residence to those eligible for the scheme. However, the scheme only applies to Ukrainian individuals who have a family member who is a British citizen or who have a family member who is a migrant in the UK. The scheme’s relatively narrow scope is one of its drawbacks. Another issue is posed by the fact that all visas must be obtained from Visa Application Centres, which are currently located across international borders from Ukraine. Therefore, it remains difficult for many Ukrainian refugees to obtain a visa. While the Ukraine Family Scheme is important for immigration routes into the UK, it does not address the situation for those seeking asylum. Furthermore, the Bill seeks to punish asylum-seekers who arrive in the UK by irregular routes, but it does not set out any new safe routes.
The Nationality and Borders Bill would mean that those who arrive in the UK without a visa might have to resort to the dangerous option of people-smugglers or maybe at the risk of criminal charges. If they do manage to arrive in the UK without facing these issues, they will still be ineligible to work or get any kind of asylum support.
The effect of the Bill also means that refugees will be grouped into two categories – those who will have arrived in the UK directly and those who will have stopped in another country on the way. Some argue this will perpetuate discrimination against refugees. Furthermore, since there are no direct means of travel from Ukraine to the UK, given the deteriorating security situation, the Bill will exclude all Ukrainian refugees from being granted asylum in the UK if they arrive without a visa. These refugees are therefore at risk of being ‘pushed back’ (if arriving by boat), criminalised upon arrival, removed for offshore detention and processing, and provided less protection.
Article 31 of the Refugee Convention states that the Contracting States shall not impose penalties on refugees who come “directly” from a territory where their life or freedom was threatened. However, under the Bill, a person will be said not to arrive in the UK ‘directly’ if they stopped in another country and could reasonably be expected to have sought refuge in that country. This essentially makes it impossible for Ukrainians fleeing Ukraine because currently, there are no direct modes of travel between Ukraine and the UK, and people fleeing the country are obliged to cross the border into Poland, Hungary, Moldova, Romania, or Slovakia. Lord Etherton, the former Masters of the Rolls, was quoted in the legal opinion issued by human rights law firm Leigh Day. He observed that it is not possible for Ukrainians to come ‘directly’ and so, in seeking to reinterpret Article 31 of the Refugee Convention, “the UK will wrongly deprive asylum seekers of one of their most fundamental rights”. This Bill would, therefore, be in breach of the 1951 Refugee Convention at a time when the UNHCR observes Europe is facing the “fastest growing refugee crisis since the Second World War”.
While the Government seeks to take a strict stance against illegal immigration and people smuggling through passing the Nationality and Borders Bill, it will ultimately turn away people who are in desperate need of refuge.
