Removing Asylum-Seekers under the Nationality and Borders Bill: the Legal Foundation for Off-shore Processing

Introduction

The Nationality and Borders Bill makes provision for people claiming asylum to be removed from the UK without determination of those claims. The provision works in harness with the provision made also to enable asylum claims to be declared inadmissible, see my Post 3rd Country Rules on the Inadmissibility of Asylum Claims in the Nationality and Borders Bill. The proposed powers to remove asylum seekers will lead to cases where rights that the UK is bound to protect under the Refugee Convention and the European Convention on Human Rights (ECHR) are violated or are at risk of violation. How do these provisions work?

The present position

At present, there are two statutory provisions that regulate the power to remove a person who has made an asylum claim, so that:

  • There may be no removal while an asylum claim is pending (s 77 of the Nationality, Immigration and Asylum Act 2002); and
  • In certain circumstances, that default position may be overridden where there a third country is considered ‘safe’ (s 33 and Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

The new proposals

Clause 26 and Schedule 3 of the Nationality and Borders Bill makes alterations of substance to both provisions. Prior to the end of the Brexit transition period (31 December 2020), these provisions operated in the context of EU Regulation 604/2013 (‘the Dublin III Regulation’), which allowed the transfer of asylum seekers to other EU states to have their claims determined there.

In the absence of any international agreement to replace the Dublin III Regulation to like effect, the UK is making unilateral provision in its law. The expectation must be that, at some point, the EU, one or more EU states, or one or more third countries (non-EU, foreign countries), will agree to take UK asylum seekers and determine their claims there.

As the UK has left the Common European Asylum System (on leaving the EU), the prosect for such an agreement with the EU or one or more of its member states are slim or non-existent.

As regards third countries, no country has yet agreed to assume this burden.

As. noted, the proposals in the Bill, not only further enable return to EU states (in the event such returns prove possible) but also enhance the provision made to allow for sending people to third countries for off-shore processing of their asylum claims. Such off-shore processing would manufacture violations of rights and standards of protection that protected in the UK by the Refugee Convention, the ECHR and the Common Law.

The detail

The proposed amendment to s 77 of the Nationality, Immigration, and Asylum Act 20002 enable the UK to remove an asylum-seeker to a ‘safe’ third country whilst their asylum claim is pending, without having to issue a certificate under schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

The criteria for a safe third country for removal purposes  would not be exactly the same as those applying when declaring an asylum claim inadmissible, see my Post 3rd Country Rules on the Inadmissibility of Asylum Claims in the Nationality and Borders Bill. Common to both are the criteria that for a third country to be safe, it must be a place where a person’s life and liberty are not threatened by reason of the person’s race, religion, nationality, membership of a particular social group or political opinion; and a place from which they will not be removed elsewhere other than in accordance with the Refugee Convention.

However, in addition, for a country to be safe for removal purposes, removal must not violate rights protected by Article 3 ECHR. Further, as regards the protection for human rights in onward removal from the safe third country to another state, the provisions for declaring an asylum claim inadmissible say only that there must be no violation of Article 3 ECHR, whereas in these removal provisions all ECHR rights are protected.

Part 2 and Part 3 Countries

As regards the provision for removal, a country that is subject to Parts 2 and 3 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (that is EU/EEA countries, and other specified countries (none are specified at present)) is presumed to be safe for the purposes of determining whether a person’s life and liberty are not threatened by reason of the person’s race, religion, nationality, membership of a particular social group or political opinion; and a place from which they will not be removed elsewhere other than in accordance with the Refugee Convention.

But as regards removal to safe third country, a place to which a person can be removed without their Article 3 ECHR rights being contravened, and from which a person will not be sent to another country in contravention of any of the ECHR rights, is presumed
safe, unless the contrary is shown by a person to be the case in their particular circumstances.

Part 4 Countries

As regards the provision for removal, a country that is subject to Part 4 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (specified countries(none are specified at present))  is presumed to be safe for the purposes of determining whether a person’s life and liberty are not threatened by reason of the person’s race, religion, nationality, membership of a particular social group or political opinion; and a place from which they will not be removed elsewhere other than in accordance with the Refugee Convention. There is no human rights regulation in relation return to these countries, so human rights claims are unencumbered by presumptions of safety, rebuttable or otherwise.

However, for these countries, a reference to anything being done in accordance with the Refugee Convention is a reference to the thing being done inaccordance with the principles of that Convention, whether or not by a state that is a signatory to it. Thus, receiving state need not be bound by the Refugee Convention and the procedural and substantive standards of protection under that Convention need not apply in practice.

Further, a state is defined to include any territory outside of the UK and thus could include a British overseas territory such as St Helena in the Atlantic Ocean (to where Napoleon was exiled by the British Government on account its remoteness).

Presumptions: rebuttable and non-rebuttable

As they work together, if amended, s 77 of the Nationality, Immigration and Asylum Act 2002 and Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004  will provide for a rebuttable presumption that certain countries specified in Schedule 3 of the 2004 Act are ‘safe’, in that the person does not face a risk that their rights under Article 3 ECHR would be breached in that safe third country and that they will not be sent onwards to another country in contravention of their ECHR rights. The presumption may be rebutted by the provision of evidence and assessment of the same. However, unfortunately, there is want of procedural machinery to ensure this: there being no procedure to apply to rebut the presumption and no right of appeal to the First-tier Tribunal against the application of the presumption.

As regards the Refugee Convention, without provision for any rebuttable presumption, by legislative fiat, a third country is still to be deemed safe as regards question of threats to their life and liberty for reasons of their race, religion, nationality, membership of a particular social group or political opinion; and deemed safe on the presumption that they will not be refouled from there to another country. That is wrong. That presumption too should be rebuttable. Risks may emerge in a country that is presumed safe. Decision-makers and judges should be free to assess them to ensure the UK complies with its Refugee Convention commitments.

Other human rights considerations

For countries subject to Parts 2, 3 and 4 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, for removal purposes, ECHR rights are the rights identified as Convention rights by section 1 of the Human Rights Act 1998, whether or not in relation to a country that is a party to the ECHR. This paves the way for a proleptic assessment of human rights risks in countries not bound by ECHR. This is an indication that removal is contemplated to a country that is not part of  the Council of Europe system in the European region. Assessing human rights in such countries will be less straightforward. Further, as regards Part 2 and Part 3 countries, insofar as any are not bound by the ECHR, there should be no presumption of human rights compliance (even if rebuttable). Such an approach is not warranted where the ECHR does not apply.

Conclusion

The proposed powers to remove asylum seekers will lead to cases where rights that the UK is bound to protect under the Refugee Convention and the ECHR) are violated or are at risk of violation. These should not stand part of the Nationality and Borders Bill.

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