The Nationality and Borders Bill has Passed the Commons, With the UK Set to Renege on Fundamental Protections for Asylum Seekers and Migrants

by | Dec 15, 2021

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About Emilie McDonnell

Emilie McDonnell is the UK Advocacy and Communications Coordinator with Human Rights Watch. She is a former OxHRH Researcher and completed her DPhil in Law at Oxford University as the 2016 Tasmanian Rhodes Scholar.

Last Wednesday, the Nationality and Borders Bill ­– fittingly dubbed the “Anti-refugee bill”­– passed its third reading in the House of Commons, 298 ayes to 231 noes.

The Borders Bill works to dismantle the international refugee protection regime in the UK and renege on the fundamental principles underpinning the 1951 Refugee Convention: non-discrimination, non-penalisation and non-refoulement. The UK Government has taken inspiration from Australia and the United States, well-known for their attempts to bypass their obligations towards asylum seekers and migrants through offshore detention and pushbacks at sea (and on land by the US). The Bill empowers the UK Government to send asylum seekers to a “safe” third country for offshore asylum processing (clause 28 and schedule 3) and push back boats at sea (clause 44 and schedule 6).

The inhumanity and unlawfulness of such practices is clear. As the Special Rapporteur on the Human Rights of Migrants has concluded, pushbacks “demonstrate a denial of States’ international obligations to protect the human rights of migrants at international border”, undermining the right to seek asylum and violating the prohibition on collective expulsion and the principle of non-refoulement. Pushbacks also involve extremely dangerous manoeuvres; the Joint Committee on Human Rights concluded in its scrutiny of the Bill that pushbacks are inconsistent with the right to life and duty to render assistance to individuals in distress at sea

The immense human suffering caused by offshore detention is also well-documented, with detainees on Australia’s offshore detention sites on Nauru and Papua New Guinea having experienced severe abuse, inhuman treatment and neglect, leading to violations of their rights not to be subjected to torture or to cruel, inhuman or degrading treatment or arbitrarily detained. The UNHCR has expressed its deep concern that the UK’s plans to transfer asylum seekers to third countries for processing effectively amounts to a rejection of its ongoing legal responsibilities towards such individuals, with the Bill failing to provide the minimum legal safeguards and setting a low threshold for when a state would be deemed safe.

Pushbacks and offshoring stand alongside other unlawful and reprehensible provisions, including discrimination against recognised refugees based on their mode of arrival (clause 11), criminalisation for exercising one’s right to seek asylum, with a penalty of up to four years imprisonment for irregular arrival or entry (clause 39), and increasing the maximum penalty for assisting an asylum seeker arrive or enter the UK in breach of immigration law to life imprisonment (clause 40). These provisions raise clear issues with the UK’s obligation not to penalise asylum seekers and refugees for ‘illegal entry and stay’.

During the reports stage in the Commons, around 120 non-government amendments were tabled. Many of these amendments sought to bring the Bill in line with the Human Rights Act and the UK’s international obligations. However, none were passed, such as key amendments that would have prevented the government from being able to engage in offshore detention and pushbacks. As a result, such egregious provisions are retained. The government did, however, make a notable concession in the latest iteration of the Bill, introducing specific exemptions within the smuggling offence (clause 40) for Her Majesty’s Coastguard and others rescuing persons in distress at sea.

The Bill will now enter the Lords and it is hoped that the back and forth between the two Houses will result in amendments that would minimise the inhumanity of the proposed law, increase compliance with international law and indeed, preserve domestic obligations that protect those who arrive at its shores. Nonetheless, what is truly needed is for the Bill to be withdrawn and a reaffirmation by the UK Government of its commitment to fundamental protections and basic human rights for all persons, including those travelling irregularly.

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