Nationality and Borders Act 2022: Asylum Seekers

The new Nationality and Borders Act 2022 was enacted on 28 April 2022. This article will summarise some aspects affecting asylum seekers. 

The following topics will be discussed in this article in relation to the Nationality and Borders Act 2022:

• Differential treatment of refugees
• Increasing the standard of proof for finding persecution 
• Late evidence submission

The Secretary of State has expressed the Act’s motivations to ensure ‘a fair but firm immigration system’, aim to overhaul ‘our decades-old, broken asylum system’ and prevent criminals from smuggling individuals into the UK. The government have defined their objectives to:

• Increase the fairness and efficacy of our system so that we can better protect and support those in genuine need of asylum.
• To deter illegal entry into the UK, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger.
• To remove more easily from the UK those with no right to be here.

Applying as a refugee

To be recognised as a refugee, those seeking asylum must satisfy the requirements set out in paragraph 334 of the Immigration Rules:

1. they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
2. they are a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
3. there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom;
4. having been convicted by a final judgment of a particularly serious crime, they do not constitute a danger to the community of the United Kingdom; and
5. refusing their application would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Refugee Convention, to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group.

Differential treatment 

The Nationality and Borders Act has created a two tier system where asylum seekers may be treated differently based on their actions. 

Group 1 refugees are classed as those who enter the UK via lawful means, and Group 2 are those who enter the UK via irregular routes. An example of an irregular route may be by crossing the Channel via a small boat.

Group 1

Group 1 refugees are those that arrive in the UK: 

1. directly from a country or territory where their life or freedom was threatened, and;
2. they have presented themselves without delay to the authorities.

Those who enter or are present in the UK unlawfully may also be classed under this group if they can show a ‘good cause for their unlawful entry or presence’.

As upheld in the UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers, to enter the UK from a country directly would be classed as not stopping in another country where protection could be sought. 

Furthermore, presenting yourself to the authorities without delay considers:

 “the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances may vary enormously from one asylum seeker to another”.

Therefore, there is no rigid time limit.

Group 2

These are all individuals that do not meet the requirements above.

The Nationality and Borders Act grants the Secretary of State the power to treat the two groups and their family members differently. This includes matters such as:

1. the length of any period of limited leave to enter or remain;
2. the requirements that must be met to be given indefinite leave to remain;
3. whether the condition to maintain and accommodate themselves and any dependents without recourse to public funds is attached to any period of limited leave to enter or remain given;
4. whether leave to enter or remain is given to members of the refugee’s family.

The above differentiation is maintained for any family members of the refugee, unless the family member is classed as a refugee themselves. 

An example of such treatment is that the Home Secretary has recently declared that these two groups may be granted different lengths of permission to stay under a protection route at the same time or immediately after being granted refugee status. The Statement of Changes to the Immigration Rules created new paragraph 339 QA, which will be enforced from 28 June 2022. Group 1 refugees ‘will be granted refugee permission to stay for a minimum period of 5 years’. However, those under Group 2 ‘will be granted temporary refugee permission to stay for a minimum period of 30 months, unless exceptional circumstances apply.’ 

However, some discretion may be applied and argued as the Act states the two groups may be treated differently. 

It should be noted that if an asylum claim is made before 28 June 2022, these will be decided in line with the Immigration Rules in force on 27 June 2022.

Increasing the standard of proof for finding persecution 

Article 1A(2) of the Refugee Convention states that a refugee is an individual who is outside of their country of nationality or habitual residence, and has a:

…a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group of political opinion…and is unable, or [due] to such fear, is unwilling to avail himself of the protection of that country; or…is unwilling to return to it.”

Previously, an individual would need to prove there was a reasonable likelihood that they would be persecuted in their home country. This standard has been upheld for 34 years since the House of Lords considered the matter in  R v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] AC 958, [1988] 1 All ER 193, [1988] 2 WLR 92, [1987] UKHL 1, [1988] Imm AR 147. Here, it was held that to determine if an applicant’s fear of persecution is well-founded, there must be a reasonable degree of likelihood that they would be persecuted if they returned to their home country.

However, the standard of proof has increased for some aspects of the test. The Nationality and Borders Act has introduced a two limb test.

The decision-maker must first decide that on the balance of probabilities, an applicant:

1. has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
2. does in fact fear such persecution in their country of nationality (or…former habitual residence) as a result of that characteristic.

If this is established, it must then be decided whether there is a reasonable likelihood that if the applicant were returned to their country of nationality or former habitual residence:

1. they would be persecuted as a result of the characteristics mentioned above, and
2. they would not be protected 

Protection from persecution is deemed as protection by the State, or any party or organisation controlling that State.

What does this mean in practice? Asylum seekers or their legal representatives would need to gather more evidence from the beginning.

Late evidence submission

Applicants will be penalised for late evidence submission for an asylum or human rights  claim or an appeal.

Late submissions are classified as providing evidence on or after the date specified on the evidence notice or Priority Removal Notice (PRN). 

In both cases, if the evidence is submitted late, the decision-maker will be required to “take account, as damaging the [individual’s] credibility” of the late submission of evidence “unless there are good reasons”  as to why the evidence was provided on or after the date specified.

Additionally, The Nationality and Borders Act notes that unless there is a good reason as to why the evidence was submitted late, ‘minimal weight’ should also be given to the evidence.

Currently, there are no examples provided of what may be treated as a good reason and whether this will be broadly or narrowly interpreted. 

Contact our Immigration Lawyers

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