2 March 2022

The Ukraine crisis throws the problems with the Nationality and Borders Bill into stark relief


On Monday, the Government suffered four major defeats during the passage of its Nationality and Borders Bill through the House of Lords. Notably the controversial clause 11 – which would allow the immigration authorities to differentiate between ‘legal’ and ‘illegal’ asylum seekers – was voted down by a sizeable majority of 78.

It’s hardly surprising that this blow to the bill has been met with jubilation from human rights and refugee activist groups. The main point of contention over this clause has been whether it is compatible with the 1951 Refugee Convention, and therefore with the UK’s own immigration law. After all, section 2 of the Asylum and Immigration Appeals Act 1993 explicitly states that ‘nothing in the immigration rules.. shall lay down any practice which would be contradictory to the Convention’.

To explain, the Bill proposes separating refugees into ‘Group 1’ and ‘Group 2’. In the former category would be those who have ‘come to the United Kingdom directly,’ whereas those in the latter are deemed to have entered unlawfully, and may therefore be given inferior forms of protection. They may even face punishment; their claims made inadmissible, family members could be barred from joining them, or they could even face a jail sentence of up to four years.

This appears to directly contradict the Refugee Convention, Article 31 of which states that ‘contracting States shall not impose penalties, on account of their illegal entry or presence’ on refugees. The Government has argued that the bill is compatible because the article refers to refugees coming directly from their country of origin. However, the UNHCR says this is a misinterpretation; states may only treat refugees differently if they have already settled in another country and subsequently move on for reasons unrelated to their need for protection. The UNHCR is bitingly condemnatory of the bill; it is both discriminatory and would create very serious human costs.

If those principled arguments aren’t enough to persuade politicians and the public that this bill has no place in a country which prides itself on its treatment of refugees fleeing war-torn countries, then the current, and ever-intensifying Ukrainian refugee crisis should do so. As Lord Kerr pointed out in the House of Lords on Monday, were this bill to pass, no one in Ukraine would be entitled to full protection under the Refugee Convention in this country. Ukrainian refugees could technically be criminalised for fleeing the Russian bombardment of their homes.

The new measures announced by the Home Office, in particular the expansion of the family eligibility criteria and the introduction of a Humanitarian Sponsorship Pathway, are certainly welcome But we should ask why the UK is not being as generous as the EU, which is allowing Ukrainians who flee the war the right to stay and work for up to three years without the time-consuming rigmarole of claiming asylum.

Already 600,000 civilians have fled Ukraine, and some estimates suggest that up to 4 million people may yet try to leave the country. At the time of writing, an armoured Russian convoy stretching 40 miles in length is approaching Kyiv. The people fleeing this deserve our protection, not bureaucratic eligibility checks and the threat of criminalisation. The Home Office says that the Nationality and Borders Bill will create a fairer system. But where is the justice in Clause 11 for Ukrainian refugees? If we want to live in a truly Global Britain, which stands by its obligations to the world’s most vulnerable, it is time to rethink the Nationality and Borders Bill.

Click here to subscribe to our daily briefing – the best pieces from CapX and across the web.

CapX depends on the generosity of its readers. If you value what we do, please consider making a donation.

Emily Fielder is Head of Communications at the Adam Smith Institute.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.