The Nationality and Borders Bill

The UK Government intends to overhaul the asylum system in the UK, with the stated aims of making the immigration system fairer and more efficient whilst being strict on illegal immigration and tackling people smuggling. 

The New Plan for Immigration was announced in May 2021. Before the Bill entered Parliament UNHCR contributed to the consultation process. In July 2021 legislation was introduced. The new Nationality and Borders Bill was debated in Parliament on the 19 and 20 July 2021. It passed its Second Reading in the House of Commons by 366 votes to 265. 

The Nationality and Border Bill Committee stage completes in October, after which it will pass through Parliament and The House of Lords, to become law if voted through with a majority. 

UNHCR has raised serious concerns about the plans. Through the publication of comprehensive legal analysis UNHCR has warned that the Bill undermines the 1951 Refugee Convention, the agreement which has protected refugees for decades and of which the UK is a signatory. At the same time, if implemented, the policies would risk the lives and well-being of vulnerable people. UNHCR believes this Bill would undermine, not promote, the Government’s stated goal of improving protection for those at risk of persecution. 

UNHCR statements and legal opinions 

October 2021  

UNHCR released a detailed legal opinion

For the Summary see: UNHCR Summary Observations on the Nationality and Borders Bill, Bill 141, 2021-22 

September 2021  

UNHCR’s Representative to the UK, Rossella Pagliuchi-Lor, gave evidence to the House of Commons Bill Committee outlining UNHCR’s legal analysis of the Bill. 

“This Bill would undermine, not promote, the Government’s stated goal of improving  protection for those at risk of persecution. It seems to be aimed at deterring refugees, but  there’s no evidence that would be the result.” 

-Rossella Pagliuchi-Lor, UNHCR Representative in the UK 

Press release - UNHCR: UK asylum bill would break international law, damaging refugees and global co-operation

UNHCR Summary Observations on the Nationality and Borders Bill, Bill 141, 2021-22 

May 2021   

UNHCR Observations on the New Plan for Immigration policy statement of the Government of the United Kingdom 

Press release - UNHCR deeply concerned at discriminatory two-tier UK asylum plans, urges rethink

“It is entirely possible for the UK to protect its borders, and security, while implementing  fair, humane and efficient policies towards asylum-seekers in line with the 1951  Convention. These are not mutually exclusive.” 

-Rossella Pagliuchi-Lor, UNHCR Representative in the UK


What in a nutshell are the UK's proposed asylum changes?

They include: 

  • Restricting access to asylum by introducing a two-tiered approach in which only those who come to the UK through so-called safe and legal pathways will have access to the full benefits of the 1951 Refugee Convention. Most other refugees may be denied many of their rights under the Convention, as well as the fundamental human right to family reunion.
  • Declaring many applicants "inadmissible" and ineligible to claim asylum in the UK because of their connection to a country the UK deems safe, including countries where they have never been or where they were unable to apply for refugee status. Because the UK does not have any agreements to return refugees to other countries, the result is that their cases are placed on hold for around six months, significantly increasing backlogs and costs.
  • Introducing the possibility of "externalization" (sending asylum seekers to other countries the Home Secretary designates as safe). 
  • Introducing a new criminal offence of arriving in the UK without entry clearance. The maximum sentence for arriving without clearance, entering unlawfully, or overstaying will be increased to 4 years imprisonment. Those helping asylum-seekers come to the UK would also be criminalised, even when this is not 'for gain', and regardless of whether or not the asylum-seeker arrived irregularly. 
  • Changes to asylum procedures and safeguards, including accelerated appeals processes, centralized age assessment, and higher standards of proof for. 
  • Restricting access to the National Referral Mechanism for victims of trafficking. 

Are asylum seekers arriving in the UK spontaneously 'jumping the queue?'

There is no 'queue.' The number of resettlement places (the main route for regular arrival) offered by states, though important, pales in comparison to needs. In the past four years, UNHCR has on average resettled 51,828 refugees per year globally against estimated needs for 1.4 million places. Because of COVID and other limitations, only 22,770 were resettled through UNHCR last year, with 829 arriving in the UK. 

Under resettlement, UNHCR and its partners (NGOs, religious and civic groups) seek to identify those most at risk or in need and submit them to potential host countries. Refugees cannot simply apply for resettlement (the list would be unmanageable and run into decades), and people who are displaced or being persecuted within their own country are not eligible.  So, while most refugees and victims of persecution remain where they are, others take the risk of moving further afield, often to countries where they have family members or friends who can help them integrate and where they feel safe. 

Should people arriving from other safe countries like France be inadmissible for asylum in the UK? Is that supported by international law

Not necessarily. The key document in international refugee protection is the 1951 Refugee Convention, which the UK played an important part in drafting. The Convention does not require refugees to claim asylum in the first safe country they reach, or make it illegal to seek asylum if a claimant has passed through another safe country. While asylum-seekers do not have an unlimited right to choose their country of asylum, some might have very legitimate reasons to seek protection in a specific country, including where they might have family links. They may not have had a reasonable opportunity to claim asylum in other countries that might appear at first glance to be "safe." 

However, asylum-seekers may be returned to a country that is deemed safe based on reliable, objective and up-to-date information, and where they could have sought asylum provided that a fair process is available to them, there are proper standards of reception and their rights under the Convention will be respected in practice. This should only happen after the asylum-seeker's personal situation has been considered, and based on agreements between states. 

Does the UK receive a disproportionately high number of asylum applicants?

There are about 21 million refugees globally (over 26 million counting Palestinian refugees in the Middle East). About 86% live in lower or middle income countries, and 73% are hosted by States neighbouring countries of origin. As to Europe, last year, France had 95,600 asylum applications, Germany 122,170, Spain 88,530, Greece 40,560 and the UK 29,456 – a drop of 18% year on year.

Why don't asylum-seekers stay in France?

Far more asylum-seekers remain in France than come to the UK. France had more than three times the asylum applications of the UK last year. Due to COVID (and the closure of many transport links), more asylum-seekers trying to enter the UK came via small boats crossing the Channel. We understand the concerns -  these sea journeys are dangerous, putting at risk those on board - but overall numbers of asylum-seekers entering the UK are down year on year and compared to a decade ago.

Why is international responsibility-sharing so important to support people forced to flee and address the many challenges of global forced displacement?

If all refugees were obliged to remain in the first safe country they encountered, the whole system would probably collapse. The countries closer to zones of conflict and displacement would be totally overwhelmed, while countries further removed would share little or none of the responsibility. This would hardly be fair, or workable, and runs against the spirit of the Convention. 

The Refugee Convention was written decades ago and the world has changed. Nonetheless the Convention and its 1967 Protocol remain cornerstones of refugee protection, and their provisions are as relevant now as when they were drafted. This year, the Convention turns 70 years old and has withstood the test of time. It is important that all countries cooperate and share the responsibility for global displacement, which currently falls overwhelmingly on lower- and middle-income countries. What is needed are concerted regional and global responses to forced displacement, not standalone national initiatives.

Are asylum seekers arriving in the UK spontaneously 'jumping the queue?'

There is no 'queue.' The number of resettlement places (the main route for regular arrival) offered by states, though important, pales in comparison to needs. In the past four years, UNHCR has on average resettled 51,828 refugees per year globally against estimated needs for 1.4 million places. Because of COVID and other limitations, only 22,770 were resettled through UNHCR last year, with 829 arriving in the UK. 

Under resettlement, UNHCR and its partners (NGOs, religious and civic groups) seek to identify those most at risk or in need and submit them to potential host countries. Refugees cannot simply apply for resettlement (the list would be unmanageable and run into decades), and people who are displaced or being persecuted within their own country are not eligible.  So, while most refugees and victims of persecution remain where they are, others take the risk of moving further afield, often to countries where they have family members or friends who can help them integrate and where they feel safe. 

Why are the majority of asylum seekers arriving in the UK spontaneously men?

About 75% of recent spontaneous arrivals in the UK are indeed males – mainly older teenagers or working-age men. One reason is because the journey is incredibly difficult and dangerous, and can last weeks, months, or in some cases years. In many cultures, males are regarded as hardier and more likely to be able to manage, and find work to support themselves. In many conflict zones, men and boys who remain would be forced to fight. In many cultures, men and boys play a larger role in the public sphere than women and girls, and therefore are the more immediate targets of repressive regimes. Hence, men will often move ahead, often with the aim that their wives, children, and in some cases siblings or elderly parents, join later, safely, via family reunion visas. 

About 90% of those who have arrived in the UK on family reunion grounds in recent years are women and children. And since resettled refugees usually arrive as a family unit, the majority of those who arrive via family reunion are likely to be the family members of male refugees who arrived spontaneously.

Are there many adults presenting as children when claiming asylum in the UK?

UNHCR previously released a summary of our legal opinion on the Nationality and Borders Bill in September. In October 2021 more detailed observations were released which can be read here. While there are elements of the Government's overall plans that could be positive – for example better support for the integration of those resettled – these are not legislative changes and are not included in the Bill. UNHCR opposes creating two tiers of refugees and denying most of them their rights under the 1951 Convention and their right to family unity. UNHCR also remains opposed to externalization of asylum and protection obligations, for example through off-shoring of asylum.  

Certainly, there are improvements that can be made to asylum procedures in the UK, and UNHCR supports the commitment to make the procedures faster and more efficient. UNHCR has shared a proposal with the Government suggesting reforms to the existing system toward fair and fast procedures and is pleased to note that many of these suggestions have been welcomed by the Home Office. For example, efficiencies could be found and backlogs cut by improving the screening process and triaging cases towards simpler processing; and there's scope for obtaining swifter yet fair final decisions. We believe these changes would result in better outcomes for all and savings in the longer term.

What's UNHCR's opinion on the UK's proposed asylum changes? Does it have suggestions for improving the system?

While there are elements of the plan that could be positive – for example better support for the integration of those resettled – UNHCR opposes steps that differentiate the access to asylum and treatment of asylum-seekers based on their means and way of arrival.UNHCR also remains opposed to externalization of asylum and protection obligations, for example through off-shoring of asylum. 

Certainly, there are improvements that can be made to asylum, and UNHCR supports the commitment to make the procedures faster and more efficient. UNHCR has shared a proposal with the Government suggesting reforms to the existing system toward fair and fast procedures. For example, efficiencies could be found and backlogs cut by improving the screening process and triaging cases towards simpler processing; and there's scope for obtaining swifter yet fair final decisions. We believe these changes would result in better outcomes for all and savings in the longer term.

Do many migrants pose as refugees?

Of course, it does happen – and that is why UNHCR recommends that States have well designed and managed, fair and fast procedures to determine who is a refugee. Those who are found not to be in need of protection, and have no other legitimate reasons to stay, should return home. Returning rejected asylum-seekers and irregular migrants is complex and requires a concerted effort and international cooperation. Return is more likely if the asylum adjudication process is not prolonged. UNHCR believes it is necessary to invest more at the front end of the asylum procedure, to make sure that all the relevant information is collected and properly considered – to limit the need for appeals afterwards.   

Some context: 45% of claimants in the UK are from five countries; four of these are countries with major refugee outflows, while the other is a source of economic migration but also has a major problem of modern slavery. In 2020, around 45% of asylum claimants in the UK were recognised at first instance, and a further 10 to 20% were recognised on appeal. So, between half to two-thirds were found by the UK to be refugees in need of international protection.