DESPITE protests across the country and the House of Lords relentlessly pushing against it, the UK Government successfully introduced the Nationality and Borders Act in April 2022.
The UK Parliament has stated that the 2021 Bill aims to increase the fairness of the system. However, major controversial changes are being brought in which will significantly amend asylum and citizenship rules in the UK.
Two changes implemented under the Nationality and Borders Act have been challenged but to no avail. The current legislation allows for these provisions to be implemented, despite the controversy they have caused and the ways in which they infringe on various legally binding conventions. Ultimately, at this stage, it must be considered if and when it will be decided that the Home Office has overstepped the mark.
One of the most notable powers under this Act, implemented under Clause 9, is the ability to deprive British citizens of their citizenship without giving them notice. It cannot be denied that the implementation of these administrative changes will essentially create a more seamless process for citizenship deprivation in the UK and can have significant effects on the six million Britons who could be affected by this amendment.
The UK Government has previously attempted to loosen the obligation of giving notice, with a 2018 amendment to the British Nationality (General) Regulations 2003 stating that notice can be delivered to an individual’s last known address or that a note could be input into their personal file if their location is unknown. This was found to be unlawful in the D4 v The Secretary of State for the Home Department in 2021, and so it begs the question as to how such a provision under the Nationality and Borders Bill has successfully been passed into law this year.
Additionally, in relation to international law, Article 8 of the 1961 Convention on the Reduction of Stateless states that an individual who is being deprived of their citizenship has the right to a fair hearing. This right becomes precarious with the implementation of Clause 9 as one would not even be aware of their need for a hearing if they are not given notice of their citizenship being removed.
Despite the handling of Clause 9 and its admission into UK law regardless of the ways in which it infringes on the UK’s legal obligations, I had naively hoped that the Home Secretary’s Rwanda deportation plan would have been viewed as that step too far by the High Court. Despite these hopes, no such decision materialised.
Under the Act, the Home Secretary can deport asylum seekers to Rwanda where they have “inadmissible” asylum claims or cannot return to European transit countries due to Brexit. We have seen similar systems being implemented in Australia, but if we are to follow in her footsteps, we will continue to see asylum seekers being significantly and detrimentally affected by this process, one that has also proven to be costly.
It is also questionable as to how the system can be of any real benefit to asylum seekers when they are being deported from one of the richest countries in the world to one of the poorest. Additionally, those affected by this legislation do not have the right to appeal a decision stating their asylum claim is inadmissible where this decision is certified.
Unsurprisingly, the legal challenges against this provision have already started growing in number, with the first decision on the plan to deport asylum seekers to Rwanda being given on June 10. Despite my expectations, the High Court ruled that a deportation flight scheduled to take off to Rwanda next Tuesday will go ahead as it was deemed that there was a “material public interest” in the Home Secretary’s ability to implement immigration control.
READ MORE: Rwanda deportation case to be heard in Scottish courts
The Government implemented this policy to deter migrants from crossing the Channel and to break the cycle of people smuggling. Although these are the aims that have been set out by the Home Secretary, what this legislation communicates is that the UK Government does not value the notion of having a system that is fair and humane. Instead, it allows for people, including survivors of torture and trafficking, who have risked their own and their children’s lives to flee from their homes and find safety in the UK, to be uprooted and sent to a country that they have no connections with. Out of sight and out of mind.
To deny torture survivors and others that may need support from trauma services does not exude an image of a moral immigration system, but instead displays the UK Government's lack of concern for humanity. This worry has only been strengthened by the UNHCR (The United Nations High Commissioner for Refugees) issuing a warning regarding the lack of proper treatment for refugees in Rwanda.
To add to this growing pit of problems, this power under the Act may amount to refoulement and so breaches Article 33 of the 1951 Refugee Convention. By taking someone from a different country and threatening them with removal to Rwanda as a punishment for travelling to the UK across the Channel or giving them the option of returning to their home country, some may choose to return to their home country where they will be persecuted. This would ultimately amount to constructive refoulement and so is prohibited by the 1951 Convention.
Furthermore, as emphasised by the UNHRC, we do not know how asylum seekers will be treated once they reach Rwanda. We do not know whether they will be treated poorly. We do not know if they will be denied access to the normal asylum process. We do not know if their claims will be wrongly refused as Rwanda doesn’t apply the normal interpretation of the 1951 Convention. If their claims are wrongly refused, they will be forced to return to their home country which would, again, breach the UK’s obligations under the 1951 Convention.
It is because of the number of issues arising in relation to the deportation of asylum seekers to Rwanda that I expected the High Court to finally step in and declare that the Home Office had overstepped the mark. If the courts will continuously overlook the ways in which Home Office policies infringe upon international law and the UK’s obligations under various conventions, when will it be decided that the Home Office has gone too far?
We saw a glimpse of this possibility with the judgement of the D4 case where it was decided that not giving notice before depriving someone of their citizenship was unlawful, but the Home Office was able to implement this law under the Nationality and Borders Act less than a year later.
Following this, it can be deduced that, even if the High Court ruled the Home Secretary’s deportation of asylum seekers to Rwanda is unlawful, the Home Office could simply opt to wait a year or so and then implement the policy again. From the outside looking in, it would not be unreasonable to wholly believe that, at this point, the Home Office is exempt from having to comply with the UK’s legal obligations under the various conventions we are bound by.
I still choose to hope that we will see a break in this cycle as I eagerly await the appeal of this High Court decision on the deportation on Monday, as delusional as this may be. To continuously allow the Home Office to stretch the bounds of what a fair and just immigration and asylum system looks like is a dangerous road, and it is one I fear we will continue to drive down if the court of appeal agrees with the High Court’s decision and allows for the deportation to take place on Tuesday.
If this is to be the decision, I have true concerns about what it will take to push the courts to decide that the Home Office has gone too far.
Aman Uppal is a paralegal at Aamer Anwar & Company
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