The nationality and borders bill returns to the commons in the week of 21 March for its final reading. If it passes into law, as initially drafted by the government, the UK faces a precarious future. If it passes into law with some or most of the amendments passed in the Lords, it will be an infinitely more humane act than it would otherwise be but, even then, this may not be enough to stop the UK’s slide into deliberate and systemic cruelty.
Apart from Part 1 which, uncontentiously, regularises the status of people from British overseas territories, the bill is about those seeking asylum and refugees. As with any other act, it has potential for much wider application and will require not much by way of amendments in the future, to make it much more extensive than currently drafted. For example, we can see how the British Nationality Act (1981) which allowed for the revocation of British citizenship, has paved the way to allow for revocation of citizenship without notification in this bill.
I have written extensively about my concerns in terms of the bill’s impact on those fleeing their countries but in this piece, I will address concerns that this legislation is only the beginning of a range of oppressive measures that pave the way for the imprisonment of other minority groups or political dissidents in the UK.
I will focus on two aspects of the bill – categorising refugees as criminals and the introduction of internment without time limit for groups of people.
Categorising refugees as criminals
According to the 1951 UN Refugee convention a refugee is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”. Refugee status (which bestows certain rights and freedoms) is applied to those who have been granted ‘asylum’ and those seeking asylum are ‘asylum applicants’.
The bill does not seek to redefine refugees but to broaden other non-refugee categories so as to include many more people who, previously, would have been considered refugees. In other words, to retain the categories but to shrink the number of people eligible to be included. The two categories that the government plans to expand to include almost all current refugees and asylum seekers are ‘illegal immigrant’ and those who are ‘ineligible’ to apply for asylum.
The bill separates all entrants into the UK into two groups. Those who have prior entry approval and those who have not. The first category will include people who have been given asylum through a designated ‘re-settlement’ route or, as in the case of those fleeing Ukraine or leaving Hong Kong, a ‘bespoke’ visa. We can already see, from the government’s response to Afghanistan, Hong Kong, and Ukraine, the numbers will be small, entry tightly controlled, and the decisions based on ethnicity or nationality as opposed to need.
The second category, those without prior approval, would include almost all of those who arrive in the UK seeking asylum under current provisions and all those who cross the channel by boat. Those who come without prior approval are to be categorised and treated as illegal immigrants from the moment they reach UK territorial waters or set foot on UK soil. The bill allows for immediate charging with a criminal offence and immediate detention. The bill requires bail, not custodial remand, to be justified.
If convicted of being an illegal immigrant, the person would be automatically ‘ineligible’ to apply for asylum, be liable for deportation at the end of their sentence and forever be refused entry into the UK. They will not be a refugee, an asylum seeker or even a failed asylum seeker as they would be at present, but a criminal. By denying them access to an asylum application, the government hopes to get around the refugee convention.
If the bill is passed there will be several legal challenges. The UN refugee convention and the European Convention on Human Rights are both incorporated into British law and current legal opinion suggests that the bill’s provisions are unlawful. However, given the government’s intentions to overturn current human rights legislation in the UK, this may not be viewed as a significant obstacle to implementation.
Internment without time limit
It is the bill’s intention that those without prior entry authorisation will be treated as criminals and remanded in custody. The bill, by making alternative provisions, appears to recognise that there may be many loopholes in this policy and that it may be difficult to apply in every case, particularly perhaps in respect of children.
It therefore intends to establish immigration centres to which asylum seekers will be sent while their cases are being processed. These may be off shore in any country that will accept the task. There will be no limit to the length of time people can be detained in this way. This detention will be entirely based on status, not behaviour. There is no possibility of appeal as there is no sentence and no decision to be appealed.
Refugees first – but who next?
The focus of opposition to the bill, including mine, has been on its cruelty towards refugees but we should also be concerned about its capacity to extend far beyond refugees and enable an authoritarian or tyrannical government to imprison and detain at will almost any group it does not like.
The bill takes out of this country’s protection, the majority of those who seek asylum here. It does not strip them of their rights or protections, it has contrived to make them ‘ineligible’ to exercise them. At the same time, it is extending the state’s capacity to strip more people of their citizenship by enabling it to be done without prior notification.
If this bill is passed, extending internment and loss of protection and personhood to other groups will not require much of an imaginative or legislative leap. Along with existing legislation that already limits the freedoms of many groups, it paves the way for denying personhood to foreign or dual nationals, criminals, or others who, like Windrush victims, simply cannot prove their right to be here.
This is not some farfetched fantasy. The UK has already revoked the British passport of Shamima Begum, who, at 15 years of age, was groomed and married off to an Isis fighter in Syria. It has already removed the rights of its own citizens to free movement across 30 countries as well as the freedom of movement of EU citizens. It has already illegally detained and deported many people who had a right to be here, and illegally imprisoned those steering fragile dinghies across the channel to protect lives.
Other draconian legislation
This bill is one of a raft of measures the government is introducing to curtail rights and protections and persecute minorities. The police, crime, sentencing and courts bill will deny the rights of Gypsy, Roma and traveller people to move freely and park on open land and it will permit ‘suspicionless’ stop and search opening the way for greater targeting of black people and migrants.
Meanwhile, other legislation such as the proposed dismantling of the Human Rights Act and the proposals in the judicial review and courts bill to overrule decisions the government does not like, will make many more people ‘ineligible’ to have their cases heard or to appeal decisions.
Inability to protest
Not only will currently proposals be cruel and oppressive, but our capacity to oppose them will be diminished. The police, crime, sentencing and courts bill will deny people the right to protest against these changes and the online safety bill will make it will make it more difficult to criticise the government online. The government intends to further restrict voting rights by requiring voter ID and it will curtail the oversight provided by the Electoral Commission. The time to act is now, before it is too late.
The nationality and borders bill is dangerous. It sets a precedent for categorising people as ‘ineligible’ for the rights and protections we are due as human beings and enables incarceration of groups based purely on their racial or ethnic status. Just as Nazi Germany’s programme of persecution was easily extended from dissidents and the opposition to Jews, this programme of persecution of refugees can be easily extended to other groups. It must be defeated.
