Comprehensive joint legal opinion by Raza Husain QC and others commissioned by Freedom from Torture
Barristers say Nationality and Borders Bill is biggest legal assault on international refugee law ever seen in the UK
13 October 2021
A comprehensive joint legal opinion authored by four barristers finds that the Nationality and Borders Bill is the biggest ever legal assault on international refugee law by the UK and would breach the Refugee Convention and the European Convention on Human Rights (ECHR).
The joint opinion was commissioned by Freedom from Torture and was highlighted yesterday in a short piece in the Guardian here.
The opinion was authored by Raza Husain QC and Eleanor Mitchell of Matrix, Jason Pobjoy of Blackstone Chambers, and Sarah Dobbie of 5 Essex Court.
In the opinion's introduction, the barristers say: "In our view, this Bill represents the biggest legal assault on international refugee law ever seen in the UK. This is because (a) the principle at the heart of the Bill is the penalisation, both criminally and administratively, of those who arrive by irregular means in the UK to claim asylum and (b) the Bill seeks to reverse a number of important decisions of the UK Courts, including at the House of Lords and Court of Appeal level, given over the last 20 years, without offering any justification for doing so. These are decisions where the Secretary of State lost the legal argument and which concern questions of international refugee law rather than domestic statutory provisions."
The opinion outlines at least seven reasons why the Bill's proposals to criminalise asylum seekers arriving in the UK without permission is wrong as a matter of international refugee law.
It notes, for example: "[T]he idea that such persons should not be penalised is at the core of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (collectively, the 'Refugee Convention'). It is central to the Refugee Convention's commitment to access to asylum."
While the Government's basis for the attack on irregular arrival is that refugees should instead use safe legal routes to come to the UK, the joint opinion says that there are no such safe legal routes.
The opinion explains: "In order to obtain 'entry clearance' under the current system a person must qualify for one of the visa categories provided for in the Immigration Rules. There is no visa category for an individual who wishes to enter the UK for the purpose of claiming asylum in the UK, nor is it possible to claim asylum in the UK from overseas; an asylum-seeker must be physically in the UK to make a protection claim. In short, there is no legal way to travel to the UK specifically for the purposes of seeking asylum. Further to these legal difficulties, and to the extent that an asylum-seeker may in theory be eligible for a particular visa category, asylum-seekers face enormous practical obstacles to obtaining permission to arrive/enter into the UK prior to their flight from persecution. Reflecting this, the Policy Statement itself acknowledged that the majority of asylum-seekers arriving in the UK have done so irregularly. In this context, the Bill proposes to criminalise the majority of asylum-seekers based on their journey – which, in all likelihood, was the only viable route available to them – and for failing to meet an impossible criterion."
The joint opinion addresses ten ways in which the Bill would breach the Refugee Convention and/or the ECHR.
On the Bill's objective to streamline and accelerate legal appeals, the opinion finds that this raises serious concerns in terms of procedural fairness, and the well-established requirement that decision-makers and judges independently assess the evidence and decide what weight to give to it. The barristers warn that if construed narrowly, the Bill's proposed provisions give rise to a very real risk of substantive breaches of the refoulement obligation under the Refugee Convention and the ECHR.
The opinion states: "An effective appeal process is a fundamental element of any process for determining the international protection needs of an individual applicant, and the consequences of depriving an individual of such a process are potentially devastating … The introduction of 'expedited' and 'accelerated' appeals, and the wholesale removal of the right to appeal in certain cases, may give rise to: (i) breaches of applicants' rights to an effective remedy/effective judicial protection under the ECHR and retained EU law; (ii) breaches of applicants' rights to procedural fairness, including the fundamental principle of access to justice, under the common law; and, as a result, (iii) an unacceptable risk of breaches of the UK's non-refoulement obligations under both the Refugee Convention and ECHR."
The joint opinion further notes that the Bill's proposals to allow the offshore processing of asylum claims would risk breaching Articles 2, 3 and 4 of the ECHR, Articles 3, 31 and 33 of the Refugee Convention, and the UK's obligation to implement the Refugee Convention in good faith.
The barristers note that the terms of the Bill do not include adequate protections to ensure that offshoring would be in compliance with the UK's legal obligations.
Without the introduction of significant additional safeguards, the implementation of any offshore processing system under the framework established by the Bill would risk producing consistent violations of the UK's obligations under the ECHR, the barristers find. They also find offshoring is liable to result in repeated breaches of the UK's obligations under the Refugee Convention.
In response to the legal opinion, the Guardian article quoted a Home Office spokesperson as saying: "We reject these claims entirely. The New Plan for Immigration complies with all our international obligations, including under the European Convention on Human Rights and the UN Refugee Convention."