The Law Society has warned the new Nationality and Borders Bill risks jeopardising Britain’s “global reputation for justice”. 

 Law Society president, Stephanie Boyce said: “There are significant concerns and a lack of clarity over whether the Nationality and Borders Bill would comply with international law or, indeed, uphold access to justice for extremely vulnerable people”.  

Sharmistha Michaels, barrister at 5SAH (5 St Andrew's Hill) Chambers who specialises in immigration and asylum, agreed:

"The Nationality and Borders Bill is the cornerstone to the government's plan for immigration - but while it comes with a promise to 'fix the broken asylum system' in reality the impacts of these measures are harsh and unmeasured and unlikely to fix an already sluggish system".

Boyce called for the government to publish a legal assessment “of whether and how proposals in the bill – including but not limited to changes to the definition of ‘refugee’, the introduction of a two-tier asylum system and the criminalisation of arrival to the UK without permission – are compatible with the UK’s international obligations under the 1951 Refugee Convention”.

Michaels commented: "Practitioners agree that this bill will effectively curtail the rights of refugees for example by introducing a six-month long stop on all asylum claims; provisions for offshore processing centres; further criminalising those fleeing persecution, but more alarmingly undermine the Refugee Convention 1951".

The Society president said the UK’s reputation for its commitment to the international agreements it signs up to is key to “attracting business to the UK and to maintaining faith in our justice system”.

She added: “Put it another way – a country seeking to negotiate new trade deals around the world is not putting itself in a strong position by bringing its word on past agreements into question.” 

One of the most controversial elements of the bill is the proposed two-tier asylum system, which would provide a lower level of protection to refugees who arrive in the UK without permission and make it a criminal offence to seek asylum in the UK without permission. 

Boyce said: “The government points to resettlement routes as an alternative, but for most people who flee conflict or persecution these would be as hard to find as a needle in a haystack. 

“The proposed inadmissibility of asylum claims from those who have a connection to another safe country could also deny access to justice for thousands of genuine refugees”.

Michaels agreed: "In the reality of the refugee world, the majority of asylum seekers are not resettled through official schemes. They have to undertake dangerous journeys to come to the UK, not through choice or having a surfeit of money to pay people traffickers to bring them here".

Offences were “highly unlikely to be enforceable or prosecuted”, said Boyce. “Passing unenforceable laws undermines the rule of law, contributes to legal uncertainty and is damaging to Britain’s reputation as a rational jurisdiction.”

Michaels commented: "Neither the 1951 Refugee Convention, nor EU law requires a person to claim asylum in the first safe country they reach nor is any distinction made in terms of how a refugee arrives in the safe country.

"Allegations that the UK government are shifting the burden are seen as a profound threat to the asylum system, particularly when it does not appear that any deals have been struck with EU states. Is this bill just another attempt to please those voters who are under the impression that the UK is under siege by asylum seekers arriving on their shores?"

Boyce also highlighted the UK is “independently of the global community” seeking to “redefine what it is to be a refugee by radically raising the standard of proof asylum-seekers must reach to gain meaningful protection in the UK. This would take us out of step with other countries and result in people being denied refugee status”.

She urged the government, “at the very least” to clarify that the new definition “is not intended to apply retrospectively to people who have already submitted an asylum application in the UK and are currently waiting for a decision”.

The bill proposes to give tribunals the power to fine legal representatives, a move which Boyce said could risk “driving a wedge” between solicitors and clients. She expressed concern a conflict of interest could be created if solicitors were to be held “personally liable for costs for reasons outside of their control”. 

She commented: “Solicitors are fundamentally obliged to act in their clients’ best interests, which may involve adjourning a case due to a change in circumstances which they are not at liberty to disclose.

“Solicitors are subject to a rigorous regulatory regime and shouldn’t be penalised for the clients they represent. To introduce potentially overlapping regulatory requirements may have the perverse impact of undermining the effectiveness of all relevant regimes, in addition to increasing complexity and bureaucracy.”

Boyce concluded: “At a time when the UK needs to build bridges as we seek multiple new and ambitious trade agreements, we should not be putting the country’s reputation as a trustworthy and predictable partner in doubt by passing legislation that may be incompatible with our international obligations or undermine access to justice. The world will watch the passage of this bill.”

This article was first published on 19 July 2021 by The Solicitors Journal.
Sharmistha Michaels is a barrister specialising in Human Rights, Extradition, Immigration, Asylum and Professional Discipline & Regulatory law. Sharmistha provides advice and representation in all areas of immigration, asylum, nationality, EU free movement, deportation and detention.