The home secretary, Priti Patel, claims that the asylum provisions in the Nationality and Borders Bill, which returned to the House of Commons on 22 March after a mauling in the Lords, are ‘humane, compassionate and fair’. It’s hard to recognise these qualities in a bill that is intended to look tough, by dividing refugees up into those who do and those who don’t have visas, or who aren’t eligible for entry under a recognised resettlement scheme. Many of its measures are aimed at stopping uninvited refugees arriving at Britain’s borders. Anyone landing at a UK port without a visa will immediately be liable to a four-year prison sentence. The bill also criminalises anyone – including humanitarian volunteers – taking asylum seekers without visas to a port in order for them to claim asylum, with the maximum penalty now life imprisonment. (An exception for coastguards and lifeboat crews, and other rescuers in certain circumstances, was brought in during the bill’s passage.) Refugees, of course, are rarely able to get visas: you aren’t classified as a refugee under the 1951 Geneva Convention until you are outside your country and unable or unwilling to return. And once outside it, you will be told you’re not eligible for a visa because you’re in a safe third country.
This is the catch-22 that results in the dangerous journeys organised by people smugglers. But what are the ‘safe and legal routes’ the government says refugees should take? It is referring to the ‘world-beating’ resettlement schemes which, it claims, ‘have resettled over 25,000 refugees since 2015 – more than any other European country’. But last year fewer than two thousand people were resettled. The Afghan Citizens Resettlement Scheme, announced with great fanfare in August 2021 and described in a government policy paper as ‘one of the most generous schemes in our country’s history’, is intended to resettle 20,000 Afghan citizens over five years. It is not open for applications: the UN High Commissioner for Refugees refers eligible candidates. When the scheme opened in January, the government immediately announced that more than 6000 people who were evacuated last August, including family members of British citizens, would be counted in that 20,000, with the result that few others are likely to be offered resettlement in the near future. The only scheme open for applications from Afghanistan is the Afghan Relocations and Assistance Programme, and even that is only available to those who worked for the British there. The beneficiaries of an equivalent scheme for Hong Kong are former British nationals and their children who were redefined as British Nationals (Overseas) in 1981. All these numbers are of course dwarfed by the figures for asylum seekers without visas, which stood at 48,500 in 2021.
The invasion of Ukraine has brought these issues into relief. Public opinion and backbench unrest have pushed the government by degrees to be more generous: the offer of visas to extended family members in Ukraine of British citizens and settled migrants in the UK is far more generous than most refugees get (though it’s less than Ukrainians are being offered elsewhere in Europe). The Homes for Ukraine scheme announced by the Department for Levelling Up is a stroke of genius, a heart-warming gesture that relies on charities to do the work of finding refugees and matching them to sponsors, and on public generosity to house them. It pleases the Tory right, which is happy enough to take in those of ‘good human stock’, as the 1949 Royal Commission on Population put it. It silences all those who have been complaining about the absence of ‘safe and legal routes’ and puts refugee charities in the invidious situation of having to support and help implement a scheme that gives preferential treatment to one group of refugees over all others. Potential beneficiaries still have to apply online for a visa and fill in a complicated form; those without passports still have to attend a visa application centre; all must wait, in uncomfortable or intolerable conditions, for the visa to be issued. A visa system like this enables the government to choose the refugees it wants to let in, producing a system that makes a mockery of the provision in the Universal Declaration of Human Rights of the ‘right to seek and enjoy asylum’.
The other blow dealt by the new bill to the institution of asylum is the treatment of so-called ‘spontaneous’ refugees who do not come ‘directly’ from the country they are fleeing. These people – ‘inadmissibles’, as they are described in the bill – are to be housed in barracks for six months while the government seeks to remove them to a safe country. If no country will take them, their asylum claims will be processed, but even if they are found to be refugees they will receive only thirty months’ leave to remain, with a reduced right to family reunion and no welfare benefits, and the prospect of removal to an unknown destination after that. The higher courts have ruled that the statement in the Refugee Convention that, to avoid penalties for unauthorised entry, a refugee must come ‘directly’ from their country of origin should not be taken literally – but this bill tries to override that judgment. Until now, however badly applicants have been treated during the asylum process – and reports from independent inspectors and parliamentary committees demonstrate the grim conditions they face – at the end of the process, if they are recognised as refugees, they can feel secure and able to start their lives again. The current bill would change this, creating a two-tier system that leaves successful asylum seekers with reduced rights and no guarantee of being able to stay in the country. In effect, it extends the hostile environment to recognised refugees.
The bill also gives Border Force officials the power to intercept migrant boats in the Channel and turn them round, and provides those officials with civil and criminal immunity for deaths or injuries ‘reasonably’ caused during such operations. It also enables ministers to strip people of citizenship without notice for a wide variety of reasons. This clause was voted down in the House of Lords, which also removed the clauses criminalising those who arrive in the UK without visas, establishing the two-tier refugee system, and the ‘offshoring’ provisions, which would allow asylum seekers to be sent to another country temporarily or permanently (the bill does not specify). Lord Dubs – who came to Britain as a small child on the Kindertransport – added a clause that extends family reunion rights, and gives children who are on their own in Europe the right to join family members here (for the Home Office, if a child is alone in a country like France or Greece this is not a sufficiently ‘serious and compelling circumstance’ to allow them to join a relative here). The Lords also added a right to work for asylum seekers who have spent six months waiting for their claim to be determined – something long demanded by refugee support groups and business leaders. But back in the Commons, the government pushed through votes striking down these clauses and reinstating those the Lords voted down, destroying the system of asylum as we know it.