Immigration

Rwanda and refugee rights: six things to know about the Nationality and Borders Act

Solicitors representing asylum seekers will need to understand the implications of the Nationality and Borders Act for themselves and their clients. Here are six key things you should know about this new law.

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The Nationality and Borders Act became law in April 2022, making sweeping changes to the UK asylum system.

1. The act plays a part in government plans to send asylum seekers to Rwanda

The act puts into statute provisions that already exist in the Immigration Rules.

Under those rules, asylum seekers whose claims are inadmissible (including on the basis they’ve stopped in another country during their journey to the UK) can be removed to a ‘safe third country’, as long as that country agrees to receive them.

Previously, no agreements were reached and so no one was removed under these provisions.

However, under the recently announced UK-Rwanda migration and economic development partnership, Rwanda has agreed to receive asylum seekers whose claims are inadmissible in the UK.

If no other country agrees to receive the person (including a country where the person has a ‘connection’), it’s possible that they may face relocation to Rwanda, even if they have no connection there.

Read newly updated government guidance to find out more (PDF)

2. It provides less protection to refugees arriving via ‘irregular’ means

At the heart of the Nationality and Borders Act is the creation of a two-tier system of asylum.

This determines the level of protection a refugee will be provided and is based on how an asylum seeker arrives in the UK.

Those that arrive through a pre-agreed legal route – such as a humanitarian visa or a resettlement or family reunification scheme – will be entitled to full protection.

However, not everyone is able to arrange arrival via a pre-agreed route before travelling.

Those that do not arrive ‘directly’ – meaning they have stopped in another country where they could have sought protection, and not arrived through a pre-agreed legal route – will receive a lower standard of protection.

Such asylum seekers may be treated differently, including by:

  • only being granted temporary leave to remain
  • being denied access to public funds
  • being denied the right to family reunification

Find out more about the impact of the two-tier system on refugees

3. It raises legal and ‘serious crime’ thresholds for refugees

The act seeks to redefine a number of thresholds which relate to standards in the UN Refugee Convention.

Standard of proof for ‘fear of persecution’

One of the ways it does this is to raise the standard of proof for establishing that an asylum seeker has a “well-founded fear” of persecution.

It’s now necessary to prove on “the balance of probabilities” that the individual would be persecuted in their country of origin, instead of meeting the previous “reasonable likelihood” threshold.

To meet this higher threshold, more evidence will need to be gathered by solicitors from the outset.

‘Serious crime’ threshold

Changes have also been made to what is considered to be a “particularly serious crime”.

Previously, a ‘serious crime’ was a crime carrying a two-year sentence of imprisonment, it has now been changed to one carrying a 12-month sentence.

Those who have committed particularly serious crimes are excluded from refugee protections, including non-refoulement.

As such, this change will have significant consequences for a wider group of people who may be at risk of being returned to a country where they would face persecution.

4. It removes or fast-tracks appeals

The act makes changes that reduce the ability to, or time allowed for, appealing decisions.

Priority removal notices (PRNs)

It has introduced priority removal notices (PRNs) which can be served on those liable to removal or deportation.

PRNs shorten the period of time in which a deportation can be challenged.

Challenges to a PRN will be sent straight to the Upper Tribunal. Also relevant here is the new Judicial Review and Courts Act, which removes the ability to judicially review decisions of the Upper Tribunal and prevents reconsideration even on important points of law.

Fast-tracked appeals

Other appeals made from detention may be fast-tracked.

Depending on the criteria established, we believe this could amount to a new ‘Detained Fast Track’ procedure, which was found to be unlawful in 2015 due to being "structurally unfair".

What is the impact of this?

The reduction of appeals will not only impact access to justice but will place solicitors under increased pressure and simply shift, rather than address, delays.

5. It penalises late submission of evidence

A number of provisions penalise claimants where evidence in their case is submitted late.

The late submission of evidence in asylum or human rights claims and in response to a PRN will be taken to damage a claimant’s credibility.

Late evidence will also be given “minimal weight” in considerations, unless there is good reason.

Failing to submit evidence on time could therefore harm a client’s case.

We know that solicitors are already vigilant in adhering to deadlines, but that the practical hurdles to obtaining evidence in asylum cases makes this difficult.

It’s therefore concerning that these realities have not been taken into account and that critical material may be disregarded as a result.

6. It allows additional ‘wasted resources’ fines on solicitors

Tribunals will have further powers to fine solicitors for “improper, unreasonable or negligent behaviour”.

Not only does this fine duplicate the numerous regulatory regimes solicitors already abide by, but the impact of such a broad formulation, teamed with the personal financial liability of solicitors, is particularly concerning.

We remain concerned that this could drive a wedge between solicitors and their clients.

Find out more

Take a look at our work on the Nationality and Borders Act

We’ll be monitoring the effects of both the Nationality and Borders Act and the UK-Rwanda migration and economic development partnership.

If you've represented a client where any of the new measures have caused concern, email our policy adviser Hazel Blake.

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