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UK – New Immigration and Asylum Bill Provides Fundamental Change

The following is a guest post by Chris Brain, a foreign law intern working in the Global Legal Research Directorate of the Law Library of Congress under the supervision of Clare Feikert-Ahalt, senior foreign law specialist for the United Kingdom.

On July 6, 2021, the Nationality and Borders Bill (the bill) was introduced in the UK Parliament with the aim of amending the current asylum and immigration system in the United Kingdom (UK). The Home Secretary, Priti Patel, introduced the bill so that the UK can “take full control of its borders” and prevent the asylum system from being abused. The bill has raised concerns from immigration practitioners.

The bill has just passed the first reading, which is the initial stage in the UK’s legislative process. The reading is usually described as a formality as at this stage a bill is passed without a debate. A date for a second reading is then usually set when the Members of Parliament will debate the bill, make amendments, and vote on passing the bill to the next stage of the law-making process.

If enacted, the bill will make fundamental amendments to the asylum and immigration system. With respect to existing asylum law, the bill seeks to amend the criminal offense of illegal entry by removing the requirement of “entry.” The difference between arriving and entry is that asylum seekers are not deemed to have ‘entered’ the UK until they disembark. Under the proposals in this bill, any person arriving in the UK without permission can be prosecuted. Currently, if an asylum seeker disembarks at a port, they do not ‘enter’ the UK until they have passed through immigration control. Removing the requirement of entry may open asylum seekers to prosecution for just arriving in the UK before being able to claim asylum. Immigration practitioners have expressed concern that the broadness of the offense may potentially lead to “thousands of additional convictions every year.” However, any potential criminal prosecution must first meet the Crown Prosecution Service’s two-stage test: (i) whether there is sufficient evidence to prosecute; and (ii) whether it is in the public interest to prosecute.

The bill aims to amend the offense of helping an asylum seeker to enter the UK by removing the requirement of facilitating “for gain.” This means that any person who knowingly facilitates the arrival, or attempted arrival, of an asylum seeker, will be guilty of an offense and subject to life imprisonment, regardless of whether they facilitated the entry “for gain.” (Clause 38.) An exemption to this offense is maintained for organizations that aim to assist asylum seekers and do not charge for their services. Lawyers have queried whether this offense would conflict with maritime law if a person were to help a boat in distress that contained asylum seekers, and also whether organizations such as the Maritime and Coastguard Agency and the Royal National Lifeboat Institution may be prosecuted under this bill as they would not fall into the above exemption. The Home Office published a tweet stating that the coastguard and lifeboat services would not be prosecuted for helping boats in distress, however, it did not provide a legal basis for this statement.

The bill provides for “differential treatment of refugees” depending on their mode of arrival. (Clause 10.) As a result, the length of time a refugee may be granted permission to stay in the UK, whether permission to enter the UK will be given to a refugee’s family, and the requirements a refugee must meet to obtain indefinite permission to remain in the UK may vary depending on how they arrived in the UK. Additionally, the bill provides the power to remove an asylum seeker to a ‘safe third country’ to claim asylum if they stopped in that country prior to the UK. The bill also allows the government to remove asylum seekers to a safe third country while their asylum appeal in the UK is processing. (Schedule 3(1).) In line with that provision, the Home Secretary is set to propose offshore processing centers for asylum seekers in the UK.

The bill will make changes to the court process. First, it will provide “Priority Removal Notices”, which will cause some removal and deportation appeals to be heard directly in the Upper Tribunal (Immigration and Asylum Chamber). This will create a single-tier appeal system for those select cases, which was previously in place in the UK but was abolished in 2010. The immigration appeal system is currently two-tiered, with the First-Tier Tribunal hearing appeals on Home Office decisions, followed by  the Upper Tribunal hearing subsequent appeals. The bill provides the courts with the power to fine legal representatives personally – including the Secretary of State and the Home Office’s representatives – for “improper, unreasonable, or negligent behaviour.” (Clause 62.) This follows from the Home Secretary’s promise to “tackle the practice of meritless claims which clog up the courts,” although cases only go to court after the Home Office denies an initial application.

The bill seeks to fix the naturalization issue for victims of the Windrush Scandal, which saw many migrants – who had permission to remain in the UK  indefinitely but had no records to evidence this – being refused re-entry to the UK after traveling abroad. The Windrush Scheme, launched in 2018, allowed those victims to obtain documentation and compensation. However, these individuals did not automatically receive British citizenship and had to live in the UK for five years, among other requirements, in order to apply for citizenship. The bill will enable the government to waive that five-year requirement, which will allow a person who had been forced to remain outside of the UK by no fault of their own, including the Windrush victims, to become a British citizen without waiting five years.

This post details just some of the amendments in this bill.

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