30 April 2022

On 28 April 2022, the controversial Nationality and Borders Bill (‘the Bill’) received Royal Assent and became an Act of Parliament. Speaking on the passing on the legislation, Home Secretary Priti Patel said, “This is a huge milestone in our commitment to our promise to the British – a fair but firm immigration system.” However, critics of the Bill have been less enthusiastic, labelling it “anti-refugee”.

What is the Nationality and Borders Act?
The Nationality and Borders Act 2022 (‘the Act’) is part of the government’s New Plan for Immigration, a strategy which aims, among other things, to deter illegal entry into the UK and remove people without permission to stay. The Act is a cornerstone of this plan and seeks to “overhaul” the UK’s asylum system.

The Act introduces a raft of changes, including:

• Penalties: Harsher penalties for people smugglers (with a maximum sentence of life imprisonment) as well as individuals who illegally enter the UK or overstay (up to four years’ imprisonment). Additional penalties have also been introduced for late submission of evidence, which undermine the claimant’s credibility or the weight attached to their evidence.
• Two-tier system: Individuals who arrive in the UK by irregular means may receive less favourable treatment and support. This measure will particularly affect individuals arriving to the UK on small boats via the Channel.
• Appeal: Removing stages of appeal or fast-tracking in certain circumstances, which the Home Office labels the “merry-go-round of legal challenges”.
• Tribunal powers: The Immigration Tribunal has been granted additional powers, including the power to fine lawyers for improper, unreasonable or negligent conduct.
• ETA scheme: Introducing a US-style Electronic Travel Authorisation (‘ETA’) scheme which requires all individuals (except British and Irish citizens) to seek permission to travel to the UK in advance. The scheme will be operational by the end of 2024.
• Standard of proof: Increasing the standard of proof from “reasonable likelihood” to “the balance of probabilities” (used in civil claims) when assessing whether someone has faced persecution.

What has been the response to the Act?
The Act has been the subject of fierce debate, both in the Houses of Parliament as well as in the media. The Bill suffered numerous defeats in the House of Lords, with the result that some of the more severe provisions in the original text were watered down or removed altogether.

Opposition parties and charities launched scathing attacks on the Bill, with the UNCHR saying the Act would “penalise most refugees seeking asylum in the [UK]” whilst the Refugee Council labelled the Act “inhumane”.

The Law Society also published a critical response to the Act, saying it had “significant concerns” over the potential impact of the Act’s measures. In particular, it highlighted concerns that penalising refugees who arrive in the UK via irregular would be incompatible with the Refugee Convention 1951.

What is next?
Priti Patel has said the government will “work tirelessly” to deliver the reforms under the Act. This includes establishing agreements with “safe third countries” to send asylum applicants whose claims have been deemed inadmissible. The UK recently signed one such agreement with Rwanda.