An act of criminalising refugees: A critical perspective of the UK Nationality and Boards Act
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The United Kingdom (UK) receives 0.6% of all refugees worldwide with 91% of them fleeing from human rights abuses (British Refugee Council, 2021). The UK has policies in place to assist refugees to find a better life in the UK, however, there has been public controversy over the Nationality and Borders Act that passed Parliament on 28th April 2022 and will soon be enacted as law. This legislation aims to strengthen the existing British asylum system by making it more equitable and humane, as well as imposing stricter security measures for safer borders. This would aim to serve as a deterrent for human traffickers, combat illegal immigration, and prevent the tragic deaths of those crossing the English Channel (Nationality and Borders Act, 2022).
Although the present government is convinced that this strategy represents a breakthrough in international migration and economic development (Ibid), critics of the policy and those affected feel otherwise. This law has been challenged for being draconian as it appears to be incompatible with international law (Amnesty International UK, Dec 2021). It further impedes access to justice as it is severely defective and motivated by ideology with long-term devastating implications (Ibid). As such, it has piqued public curiosity with diverse opinions. This article seeks to critically examine the new legislation and its ramifications for the individuals who will be impacted by this change.
Dissecting the fundamentals of the Act
The Nationality and Borders Act fundamentally alters the UK asylum system in two ways: first, it grants the Home Secretary the authority to revoke anyone's citizenship without reason, thereby rendering them stateless; and second, any unauthorised entry into the UK is henceforth punishable by a maximum of four-year imprisonment whereby refugees will be processed in Rwanda (Ibid). Other changes include:
1) a two-tier system in which individuals entering the UK through unorthodox means will be treated less favourably and with harsher penalties
2) the elimination of additional stages of appeals
3) the expansion of the Immigration Tribunal's powers
4) the introduction of the Electronic Travel Authorisation scheme in which non-British and Irish citizens will be required to apply for permission to enter the UK; and
5) the standard of proof for civil claims (Ibid).
Rwanda signed the Memorandum of Understanding two weeks before the Nationality and Borders Act received Royal Assent, agreeing to accept asylum seekers whose claims are inadmissible in the UK in return for monetary incentives (Home Office, 14 April 2022). This UK-Rwanda Migration and Economic Development Partnership is part of the New Plan for Immigration, rendering it an attempt to bridge the gap between illegal and legal migration routes (Ibid). The processing of asylum seekers' applications will adhere to Rwandan law and the Refugee Convention, according to the Act (Nationality and Borders Act, 2022).
The need for reformation
In 2019 there were approximately 36,000 UK asylum applications, an almost 21% increase from 2018, which is the highest it reached since the 2015/16 migrant crisis with a cost of £1 billion a year to operate (Home Office, 2021). Furthermore, the existing appeals process is far too slow: approximately 32% and 9% in the year 2019 and 2018 respectively of asylum appeals did not have a known outcome (Ibid). Given that 16,000 people are reported to have entered the country illegally in 2020, and as a result, there are currently over 10,000 foreign national offenders in the UK posing a risk to the public (Ibid). The reality that fewer people are being removed owed to legal challenges only compounds the issue, necessitating the desperate need for reforms (Ibid).
To remedy these issues, Home Secretary Priti Patel has “committed to [her] promise to the British public [for] a fair[er] but firm international system” (Home Office, 28 April 2022). She argues that “there is no single solution to the global migration crisis” and this legislation is one of the “first steps in overhauling [UK’s] decades-old, broken asylum system” (Ibid). This is alleged to “protect those in genuine need while cracking down on abuse of the system and evil people-smuggling gangs” (Ibid). In an innovative approach, this law simultaneously addresses the challenges of asylum and human trafficking. Undoubtedly, this is a significant shift in the way the British legal system approaches refugees and strives to maintain national security. While these assertions appear to be encouraging, they are not well supported.
This legislation has been heavily criticised, primarily on account of its discriminatory and unjust treatment of refugees. It criminalises refugees who attempt to enter the country and subjects them to a potential prison sentence (Ibid). Interestingly, Britain was one of the first nations to sign and commit to the 1951 Refugee Convention, which obligated signatories to aid refugees fleeing persecution and arriving from places of danger and threat. Many international organisations have criticised this Act. According to the United Nations High Commissioner for Refugees (UNHCR), the law violates the 1951 Refugee Convention by failing to further the British government's mandate of safeguarding those facing persecution (UNHCR, 2022). The 1951 Refugee Convention stipulates that refugees should not be returned to a country where they may be persecuted and that they should be protected. Therefore, each state's approach must conform to a framework that reflects this international consensus. Meanwhile, the British government has surreptitiously enacted measures that make it more difficult for migrants to claim asylum and even punishes them for doing so. In addition, the British government abuses the concept of a safer country by limiting it to its own residents, disregarding its moral and ethical duty to humanity (Costello, 2016). This contradicts the universal obligation states must uphold under the Universal Declaration of Human Rights and the Refugee Convention.
Apart from the 1951 Refugee Convention, there are other mandates that this Nationality and borders Act violates. First, the Universal Declaration of Human Rights states that “everyone has the right to seek and to enjoy asylum from persecution in other country” (UHDR, 1948, art.14), emphasising the morality that underpins a state's responsibility to refugees and the inherent dignity of humans. Second, the new legislation also circumvents UK human rights law, which must comply with the European Convention on Human Rights despite Brexit, posing a significant legal dilemma (Council of Europe, 1950). By default, asylum seekers are protected by UK human rights law upon entering the UK, thus the Nationality and Borders Act arguably stands on unconstitutional grounds (Sen et al., 2022). Numerous non-government organisations, including UNHCR and Amnesty International, have made it very apparent that they do not support or accept this Act (Amnesty International UK, Dec 2021 & UNHCR, 2022).
Recent examples demonstrate the effectiveness of refugee deterrence strategies in Australia, the United States (US), and Europe. While Australia's detention of refugees on Nauru and Papua New Guinea was effective in limiting “unlawful” refugees and ending people-smuggling, the programme was criticised as cruel. However, Britain does not aim to address asylum seekers in the same way (Murphy, 2014 & UNHCR, 2022). Neither does it attempt to deport asylum seekers back to their home countries, as the US did following the COVID-19 pandemic (Cénat, 2020), nor as Europe did with Syrian refugees crossing from Turkey to Greece (Zablotsky, 2020). Instead, Britain intends to adopt a new asylum application process by transferring all “illegal” asylum seekers to Africa, irrespective of their country of origin (Nationality and Borders Act, 2022). However, Denmark is a country that signed a much broader agreement with Rwanda last year but failed to send asylum seekers to the country and it is only now that they have decided to follow Britain’s example (Anon, 2021). Lastly, Israel transported refugees to Rwanda between 2014 and 2017, but few remained there while the majority attempted to reach Europe (Orgal, Liberman and Avivi, 2019). The British government is determined to execute this law and unwilling to draw lessons from the past or other countries, preferring to establish the legislation that forecasts to do more harm than good.
The UK government has justified their decision to close its borders and send refugees to Rwanda in an attempt to dismantle the human trafficking model (Home Office, 28 April 2022). There are two elements at play here, one partnership with Rwanda, and the second is the deterrence of vulnerable people. Firstly, Rwanda is a country where the effects of genocide are still felt today but it is now bearing the burden of the UK in exchange for monetary incentives, as refugee claims will be inadmissible in the UK. Ironically, the UK pointed out last year that Rwanda had the worst human rights record; in fact, Rwanda refused to allow the UK to conduct credible and transparent investigations into human rights abuses such as torture and enforced disappearances (French, 2021). The treatment of refugees, particularly those who are victims of human traffickers, does not meet the UK standards of protection.
Second, some may argue that going through the English Channel is dangerous, thus deterring refugees is the best course of action to adopt in order to preserve life and break down a trafficking model. This legislation imposes numerous arbitrary procedural requirements that make it harder for victims of human trafficking to seek protection (Amnesty International, 3 November 2021). Understandably, the global migrant crisis has led nations to control their borders against those who exploit international crisis, however this legislation attempts to assign value to life that threatens human rights.
In a desperate attempt, the UK has extended its authority by potentially deploying wave machines to deter refugees from crossing the English Channel (Syal, 2022). Amnesty International has also voiced its concern, arguing that making it harder to cross the English Channel won’t deter people smugglers or those escaping conflict, but will instead increase the reliance on them for the crossing and put their lives in danger (Amnesty International, 3 November 2021). This is a prime example of necropolitics, in which governmental and societal powers regulate the lives and deaths of individuals (Mayblin, Wake and Kazemi 2019).
This legislation is deeply characterised by systemic racism and bias. The response in Europe to refugee crises has been somewhat inequitable, especially when a clear distinction is made between Ukrainian refugees from those of other nationalities, such as Afghan, Syrian and Iraqi refugees (Potemkina, 2022). The UK has implemented the Ukraine Family Scheme, which allows individuals affected by the Ukrainian crisis to join British family in their homes. This includes the ability to work, study, and live in the UK, as well as access to public funds (Free Movement, 2022). These policies are not given to refugees and asylum seekers coming from the Middle East and Africa. Naturally, this begs the question of why such generosity and accommodations are not extended to other refugees.
This compels us to examine this topic from a post-colonial perspective, which may form its foundation. Critics claim that decolonisation ended when individuals were granted citizenship and the world shifted from colonial empires to nation-states (Boyce, 1999). Though, this may be a bit naïve. According to nationalism, the political structure of a state must be reflective of the people (Bieber, 2018). Colonial authority is an openly racist power structure, where individuals are separated into categories with and without entry privileges in a re-enactment of colonial methods of classifying people by race (El-Enany, 2020). This leads to the second aspect of the legislation, which allows the Home Secretary to revoke citizenship without reason and render a person stateless. This move is projected to affect up to six million people in the UK, especially of those who are of an ethnic minority (Van der Merwe, 2021). It produces a second-class citizenship status and raises the question of who is more British than the other, thus marginalising vulnerable communities. This dehumanises and inflicts violence upon the bodies of racialised 'Otherness' (those viewed inferior) when the constricted community is underpinned by white nationalism (Said, 1994).
The Nationality and Borders Act addresses refugees based on their method of entry into the UK and not their circumstance negates the core refugee protection principles. Rather, this approach leaves refugees more vulnerable in Rwanda owing to its human rights record. The British government further hides behind a concept of a “safer nation” and unleashes a controversial legislation that endangers civil liberties by targeting refugees, marginalising ethnic minorities on a national scale, and violating the norms and principles of international law.
This is an attempt by the British government to cover up and almost certainly justify criminalising refugees by “removing the problem” and sending them to Rwanda. The description of this legislation for being draconian and lacking compassion fits perfectly, as it is severely defective and motivated by ideology with long-term devastating implications. The migration crisis has created a higher need for humanitarian relief than ever before. When there is a distinction made between the types of refugees entering the UK and how they are treated, with some being welcomed into the warmth of UK homes and others deterred, the negatives of this legislation outweigh its positive applicability. This creates a deeply concerning immigration system that categorises refugees solely based on their national origin and the means by which they seek asylum, thus strengthening the notion of the UK as a post-colonial power with divisive ideology. While it is evident that this legislation is contentious, its applicability and implementation is yet to unfold.