22 July 2021

The Nationality and Borders Bill was laid before Parliament on Tuesday 6 July 2021.

The Bill has three key objectives:

1. To make the system ‘fairer and more effective’;
2. To deter illegal entry into the UK; and
3. To remove people who do not have a right to be in the UK.

The Bill is primarily concerned with issues of asylum; however, it does address some issues of nationality.

Main changes under the new Bill
The Bill proposes several notable changes. These include:

• differential treatment for refugees: Group 1 refugees (ie those who meet the new statutory entry requirements) will receive preferential treatment over Group 2 refugees (ie those who do not meet the entry requirements).
• differential accommodation: Asylum seekers may be provided with different accommodation depending on the stage of their claim and/or their previous compliance with immigration law.
• appeals: People who are liable to removal or deportation from the UK may be served with a “priority removal notice” and subject to an “expedited appeal” in the Upper Tribunal rather than a two-tier appeal process starting in the First-Tier Tribunal.
• removal of asylum seekers: Asylum seekers may be removed to a ‘safe third’ country while their application is pending.
• criminal offence: It will be a criminal offence to knowingly enter the UK without leave to enter or entry clearance, or in breach of a deportation order.
• sentencing: Illegal entry will incur a maximum of 12 months’ imprisonment on summary conviction in England or Wales, or up to 5 years’ imprisonment on indictment (up from 6 months now).

Potential problems with the Bill
There are a number of potential problems we foresee with the Bill in its current state. First, Clause 37 of the Bill creates a criminal offence for knowingly arriving in the UK without leave to enter or entry clearance, or in breach of a deportation order. The inclusion of the word ‘arrive’ is potentially more cumbersome than the word ‘enter’ in section 11(1) of the Immigration Act 1971, and could mean that asylum seekers will automatically commit an offence by stepping foot on the UK mainland.

Another potential issue with the Bill is the differential treatment of refugees. Clause 11 allows the Secretary of State to provide different types of accommodation to asylum seekers depending on the status of their claim and/or their previous compliance with immigration law. The risk is that more asylum seekers will be accommodated in controversial asylum-seeker camps. In June 2021, the High Court ruled that it was unlawful for the Home Office to accommodate asylum seekers in the ‘squalid’ Napier Barracks. The barracks are still in use.

The removal of asylum seekers also poses potential problems. Schedule 3 of the Bill makes amendments to the Nationality, Immigration and Asylum Act 2002 and Asylum and Immigration (Treatment of Claimants,etc) Act 2004, and allows the Home Office to remove an asylum seeker to a ‘safe third country’ while their application is pending. The effectiveness of this clause will largely depend on the UK striking agreements with other countries. No such agreements exist at present.

A welcome change is the clarity provided in relation to the removal of persons unlawfully in the UK. Clause 43 amends the removal process in section 10 of the Immigration and Asylum Act 1999. If the Bill is passed, the Secretary of State must give a written notice to remove a person declaring the date on which they will be removed and the country to which they will be removed, and must allow five working days elapse before removing them. This comes after the Court of Appeal declared that the Home Office ‘notice of removal window’ was unlawful (see R((1)FB (Afghanistan) (2) Medical Justice) v SSHD).

Next steps
The Bill has entered the second reading stage. This gives MPs the first opportunity to debate the main principles of the Bill in Parliament.

If the Bill is given its second reading by voting, it will then proceed to the committee stage where the clauses and amendments to the Bill will be debated.

In addition to the Bill, the government is planning to introduce a raft of new secondary legislation, rule changes and operational reforms within the coming year.