Nationality and Border Bill – We urge the UK to take the right decision

GENEVA (28 February 2022) – At the end of this month, the House of Lords will be discussing the amendments introduced to the Nationality and Border Bill. Since the draft law was first introduced on the 6th of July 2021, several of us independent experts mandated by the Human Rights Council have expressed grave concerns in several letters to the permanent mission of the UK.

Most concerning, is the way in which this bill results in a series of negative consequences for refugee women and girls, and for victims of trafficking, making it more difficult for them to access the territory of the UK, and find safety from conflict and violence.  The UK has prided itself over the years in adopting a humanitarian and foreign policy that prioritizes safeguarding and ending violence against women and combating modern slavery and trafficking. A read of Clause 32 of the Bill as it stands tells a different story however, particularly given its misconstrued definition of “particular social group” Many women and girls fleeing gender-based persecution in their countries, have been able to obtain international protection after they were recognized as members of this category – one of five used to claim refugee status according to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

In contrast, Clause 32 requires that women seeking asylum based on their belonging to a particular social group, prove that they are both members of a group of persons that share an innate characteristic and a distinct identity in their country that is perceived as different by their surrounding society. Insisting that groups of women and girls, including victims of trafficking, fulfil both conditions is contrary to internationally recognized standards and reverses UK case law. Most importantly however, it raises the bar that these women and girls would have to reach, particularly as many of them are already in desperate and vulnerable situations. Many of them will therefore be unfairly denied protection in the UK and sent home to be at the mercy of their abusers. These consequences have been perfectly summed up by the Upper Tribunal of the UK when it said in 2020 that requiring both criteria to be met ‘can give rise to protection gaps which is contrary to the obligations of signatories to the Convention’

The UK’s obligations under the 1951 Convention and its 1967 Protocol are mirrored in other fundamental human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women. The Committee in charge of monitoring the implementation of CEDAW drew attention to the relevance of CEDAW to refugee and migrant women. In 2015, it called “on States parties to fully respect the rights of women and girls during the entire asylum-seeking process and to fully integrate a gender-sensitive approach in the implementation of national legislation on asylum, in particular regarding the special claims for asylum that women and girls may have due to their exposure to discrimination and/or violence in their country of origin and/or during their flight”.

As a country with a long-standing system of rule of law, one would have expected the potential consequences of the change in the clause to be vetted by the UK Government’s Impact Assessment of the Bill. Unfortunately, this has not been the case. To the best of our knowledge, the Government does not have a concrete plan for how it intends to monitor the impact of this clause on the women and girls that will be most affected by it.

The Government’s proposed changes to the asylum system were put to a public consultation last year but the change to Clause 32 was not included in that process, for reasons that may have not been shared so far. Nonetheless, organizations working on ending violence against women have voiced warnings about Clause 32 during the Bill’s passage. We urge the Government of the UK to listen to these experts. Similarly, the Domestic Abuse Commissioner for England and Wales Nicole Jacobs had stated recently that she remains  “concerned by the measures outlined in the Nationality and Borders Bill could disproportionately impact victims of domestic abuse who are seeking safe asylum in the UK” and that “without access to asylum, these survivors will face significant insecurity and destitution.”

The Bill further raises the odds against women and girls seeking asylum, the vast majority of who arrive irregularly in the UK, by making it a criminal offence for them to arrive to the UK without the required entry clearance or valid Electronic Travel Authorization. Due to the absence of regular alternative avenues, many of them are also trafficked into the UK. Proposing to punish them for being trafficked only serves to strengthen the control that these traffickers and criminal networks have on them, potentially keeping them locked in a spiral of exploitation and abuse as they are forced further underground by such measures. Once again, such proposals are contrary to the letter and spirit of international human rights and refugee law, which asserts that clandestine entry should not be treated as a criminal offence; that seeking asylum is legal and that no one should be returned to a territory where they may experience torture, or their lives may be in danger.

We are also very concerned about the impact that the recently introduced Clause 9 of the Bill on notice of decision to deprive a person of citizenship will have on women and girls, on victims of trafficking and on minority communities. The clause, which goes against several international law prohibitions on the arbitrary deprivation of citizenship and the obligation to reduce statelessness will inevitably have a differentiated impact on men and women, and is likely to discriminate directly and indirectly against minority communities. Deprivation of citizenship as we know, has a troubled history, rooted in racism and xenophobia. In this regard, it is not uncommon for measures combatting terrorism to profile and target women from certain groups, based on their ethnicity, migration status, or place of origin, in part because they do not sufficiently take into consideration the way women and girls can also be coerced and co-opted by non-state armed groups as well as have their human rights violated by them. In addition, the arbitrary deprivation of nationality will increase the risks of trafficking, including of women and girls. The UK has a positive obligation to identify and assist victims of trafficking. This includes repatriation of victims of trafficking, without discrimination on grounds of race or ethnicity or migration status. Such repatriation is essential to ensuring assistance and protection and breaking the cycle of trafficking and re-trafficking. 

The Nationality and Borders Bill does not comply with the UK’s obligation to identify victims and ensure protection, without discrimination. The failure to recognize the specific needs and rights of child victims of trafficking is of great concern. The Bill, as it currently stands, flies in the face of the UK’s repeated commitments to prioritizing the fight against modern slavery and trafficking.

We urge the Government of the UK to reconsider its decision and to adjust it in a way that reflects the human rights obligations and the values to which the UK has subscribed.

ENDS

The experts: Reem Alsalem, Special Rapporteur on violence against women, its causes and consequences; Felipe González Morales, Special Rapporteur on the human rights of migrants;  Siobhán Mullally, Special Rapporteur on trafficking in persons, especially women and children.

The Experts are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent of any government or organisation and serve in their individual capacity.