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Joint Committee on Human Rights finds Nationality and Borders Bill’s reform of asylum would fail to meet UK’s human rights obligations


Parliamentary committee looks at Bill's asylum provisions, Home Office decision-making, age assessments, and deprivation of citizenship

Date of Publication:
21 January 2022

Joint Committee on Human Rights finds Nationality and Borders Bill’s reform of asylum would fail to meet UK’s human rights obligations

21 January 2022

A new legislative scrutiny report on Parts 1, 2 and 4 of the Nationality and Borders Bill was issued by Parliament's Joint Committee on Human Rights on Wednesday.

Palace of WestminsterThe comprehensive 93-page report can be read here.

It considers the parts of the Bill that deal with asylum provisions and Home Office decision-making, age assessments, and the deprivation of citizenship.

Overall, the Joint Committee finds that the Bill would fail to meet the UK's human rights obligations and it would risk increasing the already unacceptably large backlog of asylum claims waiting for a decision.

Joanna Cherry QC MP, the Deputy Chair of the Joint Committee, said the Bill would increase the chances of the UK turning its back on people it should be helping.

Cherry commented: "The bill is at odds with the refugee convention and with our human rights obligations and should be amended. Rather than coming up with new punitive measures and lambasting the difficulties in rejecting asylum applications, the Government should focus on dealing with the lengthy backlog of cases. This needs to be achieved by better processing and adequate resourcing. Instead we have measures that would harm decision making, through needlessly penalising the late submission of evidence, and even cause further delays due to the new consideration of whether asylum seekers should have applied to another country first."

The report finds that the clauses of the Bill that would treat asylum seekers and refugees differently depending on how, and from where, they arrived in the UK would be at odds with the UK's obligations.

It states: "There is no requirement under the Refugee Convention for asylum seekers to claim asylum in the first safe country they reach. The Bill should not establish in domestic law an interpretation of Article 31 of the Refugee Convention that explicitly or implicitly says the opposite."

The report further notes: "Clause 11 would allow for individuals who have been recognised as refugees to be given inferior treatment, based on the way in which they came to the UK. We consider this to be inconsistent with the UK's obligations under the Refugee Convention, which does not require asylum seekers to wait to be selected for resettlement programmes and does not require them to claim asylum in the first safe country they reach. The proposed differential treatment also appears likely to be inconsistent with the right to private and family life under Article 8 ECHR and the prohibition on discrimination under Article 14 ECHR. At a time when there is already an unprecedented backlog of asylum claims, these changes would make the asylum decision-making process longer, more complicated and open to further appeals."

The Joint Committee calls for the offending clauses to be amended or removed.

On age assessment changes introduced by the Bill (see also our earlier article here), the Joint Committee is concerned that they would greatly increase the risk that a child would be wrongly assessed to be an adult.

In particular, the Committee is concerned that any lowering of the threshold test for giving age-disputed persons the benefit of the doubt could have severe consequences for child's rights.

The report warns: "[I]t must be borne in mind that there are severe consequences of mistakenly treating a child as an adult, which would amount to a denial of that child's rights to education, support, and accommodation. … Whilst it is a burden on resources to give young adults the benefit of the doubt and treat them as children, a lower threshold may result in more children being placed into unsafe accommodation with inadequate safeguarding and no access to services such as education, to which they are legally entitled. Depending on the circumstances, treating a child as an adult may also result in trauma which may reach the threshold of violating Article 3 ECHR. It is imperative that the threshold test minimises as far as possible the risk that children will be misidentified as adults and denied their rights."

Proposals for the use of scientific methods for assessing age are also a concern for the Joint Committee. The Committee is not convinced that there is any justification for the their use. Any methods that are used would need to scrutinised to ensure they do not breach human rights law.

On the Bill's controversial clause 9 allowing the Home Secretary to remove a person's British citizenship without notice, the report states: "Whilst it is inevitable that serving notice of deprivation of citizenship orders will present challenges in some cases, it is disproportionate to remove the obligation to give notice entirely … Bearing in mind the public law principle of fairness, it is questionable that an uncommunicated administrative decision of such a grave nature, with such severe consequences for the individual affected, should bind an individual who is being stripped of their rights."

The Joint Committee suggests that clause 9 should be deleted from the Bill.