Policy paper

Nationality and Borders Bill: A differentiated approach factsheet

Updated 13 October 2023

1. What are we going to do?

• There were 48,540 asylum applications (main applicants only) in the UK in 2021, 63% more than the previous year. This is higher than at the peak of the European Migration crisis, and the highest since 2003. More than 60% of claims in the year ending September 2019 were from people who are thought to have entered the UK irregularly, many of whom have passed through numerous safe countries such as Greece and France before making dangerous journeys – including by small boat – to reach the UK.

• The purpose of the power to differentiate being introduced through the Nationality and Borders Bill is to influence the choices that migrants may make when leaving their country of origin, seeking to encourage them to claim asylum in the first safe country they reach and discourage them from travelling to the UK by means of dangerous journeys and instead use safe and legal routes.

2. How are we going to do it?

• The Bill provides a power for the differential treatment of refugees. Those who are granted refugee status having come to the UK directly from a country or territory where their life or freedom was threatened and have presented themselves to the authorities without delay will be considered Group 1 refugees.

• Those who are granted refugee status having travelled through a safe third country where they could have reasonably been expected to claim asylum or did not claimed asylum without delay may be considered Group 2 refugees.

• The powers to differentiate set out in the Bill are not prescriptive and the Secretary of State is under no compulsion to use them – which provides for flexibility in the fair and lawful implementation of the provisions. Differentiation may relate to length of leave, requirements for settlement, family reunion, and recourse to public funds.

3. Frequently asked questions

3.1 Doesn’t this breach the UN Refugee Convention?

• No. Where there is no specific provision within the Refugee Convention which defines a certain term or sets out a specific procedure, and where there is no supra-national body akin to the European Court of Human Rights for example, it is open to states to interpret the terms of the Refugee Convention. Limit is placed on that autonomy to interpret by way of the principles of treaty interpretation in the Vienna Convention on the Law of Treaties.

• Distinguishing between different refugees forms part of the Refugee Convention itself. For example, the entire ‘structure of entitlement’ under the Refugee Convention rests on different levels of attachment, with physical presence and lawful presence, distinguished for purposes of various entitlements. Article 31 does not contain a blanket prohibition on the imposition of penalties on refugees who enter or are present illegally. Article 31 prohibits penalties only in respect of refugees who (a) are coming directly from a territory where their life or freedom was threatened, (b) present themselves without delay to the authorities, and (c) show good cause for their illegal entry or presence. We consider that differentiation is not a penalty, taking into account the fact that the Convention does not explicitly define ‘penalty’ and the fact that there is no unanimity on the definition of penalty. In any event, the Convention does not prohibit differentiation and the clear implication of Article 31 is that states are entitled to impose penalties on refugees who enter their territory illegally when the three conditions are not satisfied.

• The Convention does not explicitly define what is meant by ‘coming directly’ or ‘without delay’. To do this, we have taken into account the broad wording of the Refugee Convention, and the principles of the Vienna Convention. We have also considered the original intention of Parliament in in relation to s.31(2) of the Immigration and Asylum Act 1999 and that there is sufficient flexibility within policy to allow an individual to demonstrate that the provisions should not apply in their particular circumstances. We have also taken into account that Group 2 refugees will still be protected (not refouled) and receive relevant entitlements so that the object and purpose of the Convention is upheld. Accordingly, the provision is considered a good faith, compatible interpretation of the Refugee Convention.

• But the powers in clause 11 do not compel the Secretary of State to act in a certain way and leave clear discretion to impose or not impose conditions as appropriate depending on the individual circumstances of a particular refugee, including any relevant vulnerabilities and protected characteristics. We will set out our policy in Immigration Rules and guidance in due course. Everything we do will comply with the UK’s international obligations – and there is nothing in the Refugee Convention that prevents signatories from differentiating between refugees in the manner proposed.

3.2 Doesn’t removing a route to settlement put people indefinitely in limbo?

• If return is not possible after 10 years, and if the necessary criteria are met, those with temporary protection status will be eligible to apply to settle in the UK based on long residency rules.

• It is right that settlement should not be straightforward or automatic for those who put their lives in the hands of smugglers to make dangerous journeys to the UK when they could claim asylum in a first safe country.

3.3 Will people who came from France face differentiation?

• Those who come to the UK from safe countries like France where they could have claimed asylum may, if granted refugee status in the UK, get different entitlements from those refugees who came via safe and legal routes. This will depend on whether they can show they could not have been reasonably expected to claim in another safe country or it was not reasonably practicable to claim asylum without delay in the UK.

3.4 What about people who use asylum claims to avoid removal?

• People who claim asylum to delay removal may also get different entitlements if they are granted refugee status, if they cannot show their claim was made as soon as reasonably practicable in the context of their individual circumstances.