Rule of law

Is the UK blowing its reputation for justice

Britain’s global reputation for justice risks being jeopardised by the new Nationality and Borders Bill, the Law Society of England and Wales warned as it responded to the detail of the legislation ahead of its second reading in parliament on 19-20 July 2021.

The bill seeks to make changes to the UK immigration system for asylum seekers and refugees, primarily by introducing a two-tier system for asylum-seekers arriving in the UK, differentiating their treatment depending on how they get here. It would alter processes for asylum claims and appeals in ways we believe would damage access to justice.

Law Society president I. Stephanie Boyce said: “There are significant concerns and a lack of clarity over whether the Nationality and Borders Bill would comply with international law* or, indeed, uphold access to justice for extremely vulnerable people.

“The government should publish a detailed legal assessment of whether and how proposals in the bill – including but not limited to changes to the definition of ‘refugee’, the introduction of a two-tier asylum system and the criminalisation of arrival to the UK without permission – are compatible with the UK’s international obligations under the 1951 Refugee Convention.

“The UK’s commitment to international agreements we sign up to is key to the country’s reputation, to attracting business to the UK and to maintaining faith in our justice system.

“Put it another way – a country seeking to negotiate new trade deals around the world is not putting itself in a strong position by bringing its word on past agreements into question.”

Commenting on the proposed two-tier asylum system, I. Stephanie Boyce said: “A key element of the bill is to bring in laws that would provide a lower level of protection to refugees who arrive in the UK without permission.

“The government points to resettlement routes as an alternative but for most people who flee conflict or persecution these would be as hard to find as a needle in a haystack. The proposed inadmissibility of asylum claims from those who have a connection to another safe country could also deny access to justice for thousands of genuine refugees.”

Commenting on proposals to change the definition of what it is to be a refugee, I. Stephanie Boyce said: “Independently of the global community, the Nationality and Borders Bill seeks to redefine what it is to be a refugee by radically raising the standard of proof asylum-seekers must reach to gain meaningful protection in the UK. This would take us out of step with other countries and result in people being denied refugee status.

“At the very least the government must clarify the new definition of refugee is not intended to apply retrospectively to people who have already submitted an asylum application in the UK and are currently waiting for a decision.”

Commenting on proposals to make it a criminal offence to arrive in the UK to seek asylum without permission, I. Stephanie Boyce said: “This is highly unlikely to be enforceable or prosecuted, given public interest factors recently highlighted by the CPS **. Passing unenforceable laws undermines the rule of law, contributes to legal uncertainty and is damaging to Britain’s reputation as a rational jurisdiction.”

Of proposals to introduce accelerated detained appeals, I. Stephanie Boyce said: “This may amount to a new ‘Detained Fast Track’ procedure, which was twice found to be unlawful because it was deemed ‘structurally unfair’.

“Streamlining appeals could have serious consequences for access to justice. It is central to the proper functioning of the justice system that legal processes allow adequate time for preparing a case, particularly if this is complex, sensitive and will determine the safety of a vulnerable person who may not speak the English language.”

Of proposals to give the Tribunal the power to fine legal representatives, I. Stephanie Boyce said: “This could risk driving a wedge between solicitors and their clients, by creating a conflict of interest if solicitors are to be held personally liable for costs for reasons outside of their control. Solicitors are fundamentally obliged to act in their clients’ best interests, which may involve adjourning a case due to a change in circumstances which they are not at liberty to disclose.

“Solicitors are subject to a rigorous regulatory regime and shouldn’t be penalised for the clients they represent. To introduce potentially overlapping regulatory requirements may have the perverse impact of undermining the effectiveness of all relevant regimes, in addition to increasing complexity and bureaucracy.”

I. Stephanie Boyce concluded: “The rule of law and access to justice should underpin any reform of the asylum system.

“At a time when the UK needs to build bridges as we seek multiple new and ambitious trade agreements we should not be putting the country’s reputation as a trustworthy and predictable partner in doubt by passing legislation that may be incompatible with our international obligations or undermine access to justice. The world will watch the passage of this bill.”

Notes to editor

* United Nations High Commissioner for Refugees legal opinion on the UK government’s New Plan for Immigration

** Criminal Prosecution Service guidance on handling illegal entry cases: “…It is unlikely that those who are simply occupants would be prosecuted”, and the “focus for prosecutions should be on those with more significant roles, i.e. those that facilitate the entry”

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

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