Nationality and Borders Bill, Bill 141 of 2021-22

The Nationality and Borders Bill, Bill 14 of 2021-22, was published on 6 July 2021. Second reading will be on 19 and 20 July.

The Bill would implement many of the measures outlined in the Government’s New Plan for Immigration policy statement (published March 2021). The New Plan was open to public consultation for six weeks.

At the time of writing, the Government had not formally responded to the consultation or published an analysis of responses. It has cited the continued pressures of irregular migration across the Channel as a reason why it is keen to proceed with the Bill at pace.

Immigration and asylum are reserved matters. This means most of the Bill’s provisions apply across the UK.

What does the Bill do?

The three main objectives of the Bill, and the underlying policy statement, are:

• To increase the fairness of the system to better protect and support those in need of asylum.
• To deter illegal entry into the United Kingdom, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger.
• To remove those with no right to be in the UK more easily.

Nationality

Various historical anomalies and areas of unfairness in British nationality law would be removed. An additional requirement for citizenship applications made on behalf of stateless children born in the UK would be introduced.

Asylum, irregular migration and enforcement

Irregular journeys to the UK and late claims for asylum would be deterred and penalised in various ways. Irregular entrants would have restricted access to the UK asylum system and could be granted inferior immigration rights if allowed to stay. The Bill also allows for off-shore processing of asylum claims and codifies the UK’s interpretation of key concepts in the 1951 Refugee Convention.

The Bill introduces new ways to deter claims without merit and late claims. These include a new “priority removal” process, which would include some new eligibility for publicly funded legal advice, and a new fast-track appeal process for detained cases.

The Bill would broaden criminal sanctions for offences related to illegal entry and facilitation of unlawful immigration and increase the associated maximum penalties. It would also give border and immigration staff additional powers to stop and redirect vessels out of UK territorial seas, subject to the UK’s international legal responsibilities.

Trafficking and modern slavery

Some measures are intended to support the early identification of potential victims of trafficking or modern slavery and protect the system from misuse by people who make unfounded claims.

These include the introduction of slavery or trafficking notices, changes to the reasonable grounds threshold, and a new “public order” threshold for denying protection to potential trafficking and slavery victims who have committed a crime or acted in “bad faith.”

The Bill also creates a statutory obligation to grant limited leave to remain to recognised victims of trafficking or modern slavery in certain circumstances.

Background: Asylum statistics

There were around 29,500 asylum applications in 2020, which was fewer than in 2019 but roughly the same number as in 2018. The number of people awaiting an initial decision and the number subject to removal were at their highest level in 2020 since the records series began in 2011.

Looking at the final outcome of asylum applications made between 2010 and 2019, around 48% were ultimately successful.

The comparable rate for applications decided between 2004 and 2009 was lower, at around 34%.

Reactions to the Bill

At the time of writing, very few stakeholders had published detailed responses to the Bill.

This briefing mostly draws on a selection of stakeholders’ responses to the New Plan for Immigration, where this is relevant to clauses in the Bill.

Most of the stakeholder commentary on the New Plan focuses on the proposals affecting irregular migrants, asylum seekers and potential victims of trafficking and modern slavery.

Some of the overarching themes in published responses are:

• That the Government’s proposals will establish a ‘two-tier’ protection system, which unfairly distinguishes between refugees depending on their mode of arrival to the UK.
• Doubts about whether proposals are novel, workable, and/or likely to achieve their stated objectives.
• Concerns that proposals are contrary to established caselaw and international refugee law, and/or may be vulnerable to legal challenges.
• Critiques that the measures outlined in the Plan (and Bill) overlook other aspects of the asylum system in need of reform and more effective ways to improve the efficiency of the asylum system.