IT doesn’t quite fill one with confidence when a bill has to begin by saying it is compatible with Human Rights, as one would hope this is a given in 2021. However what follows from page two of the bill is harrowing for refugees.

By bill, I am of course referring to the Nationality and Borders Bill 2021. It is important to note that this is only a snapshot, merely a headline of the 87 pages of the entire document. A bill which is mostly full of hot air in my view. In time, solicitors, advocates and judges will all have various interpretations of it.

There are a few (and I mean few) positives in part 1 of the bill which relates to British citizenship, namely the correcting of historical discrimination based on gender, and children born out of wedlock. There is also the proposal to introduce an overall discretion to adults applying for citizenship, whereas this only currently exists for children. How that is implemented by the Home Office, how the discretion is actually exercised is unknown. However, it has taken a step backwards in making it harder for stateless children by introducing additional requirements to make it more difficult. What happened to not blaming children?

What is bizarre beyond measure begins at section 10 of the bill, which categorises those seeking asylum into “group 1” and “group 2”. Group 1 applies to those who have come to the UK directly from a country from which they fear persecution, with no transit in between. This no doubt includes those already here from their home country on valid visas but subsequently claim asylum, known as a sur place claim, anyone else being group 2.

It is nothing short of astonishing if Parliament actually passes a bill that differentiates an asylum seeker depending on how they arrive to the UK. For example, two LGBTQ asylum seekers flee Iran as they face being killed because of their sexuality. Why would it matter how they got here? What possible justification is there to treat them differently, which is expressly what the bill is proposing? Remember, the 1951 Refugee Convention, which the UK has signed, safeguards refugees in that they will have to enter a safe country without permission. Sadly, section 37 will criminalise asylum seekers for doing so, and this will, in my view, undoubtedly raise plenty of litigation.

Section 14 of the bill appears to target those who have passed through a so-called “safe” country and didn’t claim asylum there. Their claims may be held inadmissible. The Home Office has already been trying this but if the other country doesn’t accept the asylum seeker then they cannot be removed. I personally have not come across anyone removed since they started doing this.

However, there are several reasons (which I have mentioned in articles previously and in a recent BBC documentary) why people cannot actually claim asylum in those countries. Moreover – and this is crucial – most people do in fact claim asylum in other safe countries. By comparison, not many come here. The UK has some of the lowest refugee numbers in the world.

The other major and very controversial part is section 38 (2) which amends section 25A(1)(a) of the Immigration Act 1971 by taking out the words “and for gain”. What this means is that anyone helping an asylum seeker trying to enter the UK will not need to do it “for any gain”, they will be prosecuted either way. In my opinion this is horrific as it means in theory that if you see a child refugee drown at the UK Border and you help, you, technically, will be prosecuted.

Section 21 seems to suggest that the Home Office could expedite cases, some of which will go directly to the Upper Tribunal. Currently cases go through the First-tier Tribunal and only on to the Upper Tribunal if there is an error in law by the first judge. For a case to go directly to the Upper Tribunal will arguably create more litigation in the higher, more expensive courts for further challenges.

There appears to be an introduction of a higher standard of proof for part of the application (section 29 (2) and (4)). This is critical as there is a reason why the standard of proof is low, and in my view must remain low. That is the very nature of those who have had to flee persecution immediately, who cannot be expected to prove to a higher standard that they are at risk.

There is so much more, for example the types of accommodation to be offered depending on the status of their claim at section 11 which sounds disastrous. The bill, therefore, is mostly hot air with some very unpleasant – nasty – changes that will arguably do one thing, that is increase litigation.

We should be looking at the heart of the problem and not forgetting why we signed the 1951 Refugee Convention.

Usman Aslam is a senior solicitor, at Rea Law, in Glasgow