The Nationality and Borders Act 2022: Differential Treatment of Asylum Seekers
The Nationality and Borders Act 2022 is a relatively recent UK Parliament Act.
As you may already know, it mainly focuses on immigration, asylum and modern slavery. But at the same time, there have been significant changes affecting overseas territory British passports and the registration of stateless citizens.
Said asylum system changes through this landmark legislation include:
- The creation of a two-tier asylum system based on how refugees enter the UK.
- The differential treatment of the Group 1 Refugees and Group 2 Refugees affects the status and leave they will receive, their family reunification rights and the settlement route available to them.
- The downgrading of the leave associated with the humanitarian protection status.
- An expanded definition of ‘inadmissible asylum claims’ made by people who have a connection to a safe third country.
- A lowered threshold at which someone is considered to have committed a ‘particularly serious crime’ for the purposes of receiving refugee protection.
- The introduction of a criminal offence to knowingly arrive in the UK without a valid entry clearance when one is required.
- The introduction of an Accelerated Detained Appeals scheme.
- The removal of the out-of-country right of appeal.
What does 'differential treatment' mean in this context?
However, most of these changes do not apply to people who claimed asylum before 28 June 2022. Under the transitional arrangements, their claim will be decided under the Immigration Rules that were in force prior to 28 June 2022.
At the heart of the Act is Section 12, which allows for ‘differential treatment of refugees’ depending on their mode of arrival. Section 12 introduces a two-tier approach to asylum, differentiating between those entering by legal routes, Group 1 Refugees, and those arriving spontaneously or having passed through countries deemed safe, Group 2 Refugees.
The stated policy objective of this differentiation is ‘to discourage asylum seekers from travelling to the UK other than via safe and legal routes.’ Thus, the underpinning philosophy of the new policy is that it is wrong for a refugee to arrive by irregular means and that therefore such conduct should be penalised.
The 2022 Act and Part 11 of the Immigration Rules contain the legal framework within which a person granted refugee status in the UK will be provided with either refugee permission to stay – Group 1 refugee – or temporary refugee permission to stay – Group 2 refugee.
Section 12(1) of the 2022 Act states that a refugee is considered to be a part of Group 1 if:
- (a) they have come to the United Kingdom directly from a country or territory where their life or freedom was threatened (in the sense of Article 1 of the Refugee Convention), and
- (b) they have presented themselves without delay to the authorities.
Group 2 refugees are defined negatively as all the other claimants who do not come to the UK ‘directly’ and present themselves ‘without delay’ to the authorities. They are still refugees as defined by the Refugee Convention, but the conditions of their stay in the United Kingdom are different from those of Group 2 refugees.
The decision-maker may utilise the screening interview, substantive interview, and any other available information to determine which group a refugee falls into. Any individual deemed to be a Group 2 refugee will be provided with an opportunity to rebut the provisional grouping. This means that they will be given 10 working days to explain why their claim should be moved to Group 1. There is no further right of appeal or administrative review of a decision that a refugee falls into Group 2, so any challenges will have to be by way of an application for judicial review.
Both Group 1 refugees and Group 2 refugees will be granted immediate and unrestricted access to the labour market (the right to work), recourse to public funds and the opportunity to apply for a refugee integration loan.
Variations in Permissions to Stay
However, Group 1 refugees will be granted refugee permission to stay in the UK for an initial period of 5 years, with a 5-year route to settlement for those who continue to need protection on the settlement protection route. There will be no requirement to demonstrate their knowledge of language and life in the UK when applying for settlement. In addition, Group 1 refugees will normally be provided with full access to the family reunion route for their family members.
On contrary, Group 2 refugees will be granted temporary refugee permission to stay in the UK for an initial period of only 30 months and would be able to apply for settlement after 10 years of continuous and lawful residence under the Long Residency Rules. Moreover, Group 2 refugees may be granted access to the family reunion route for their family members only where there are ‘insurmountable obstacles’ to continuing family life without family reunification. This means that they are not able to sponsor their partner and children under the age of 18 to join them in the UK unless such a refusal would be in breach of Article 8 of the European Convention on Human Rights.
The differential treatment of asylum seekers has attracted criticism from the Refugee Council, which describes the new law as ‘flying in the face of the Refugee Convention’. The UN Refugee Agency has further expressed deep concerns about the new discriminatory two-tier asylum approach. The UNHCR Representative in the UK, Ms Rossella Pagliuchi-Lor, emphasised that the changes would damage lives, hamper people’s ability to integrate and undermine international cooperation on refugee issues. The Law Society has expressed further concerns that penalising refugees who arrive in the UK via irregular means would damage their access to justice, and such measures are likely to be incompatible with international law.
Another significant change introduced by the 2022 Act is the downgrading of the leave associated with the Humanitarian Protection status with the introduction of Temporary Humanitarian Permission to stay. As mentioned in one of our previous articles, a person must be at risk of serious harm in their country of origin to qualify for Humanitarian Protection.
Prior to 28 June 2022, people under humanitarian protection were granted leave to remain in the UK for 5 years with a possibility to apply for Indefinite Leave to Remain (ILR) after the completion of the 5-year continuous residence, enjoying almost the same rights as those granted the Refugee Status.
However, people claiming asylum on or after 28 June 2022 would now be granted temporary humanitarian permission to stay in the UK, with a Leave valid for only 30 months. They would be treated in the same way as Group 2 Refugees in regard to their right to work, recourse to public funds, and access to the family reunion route. Furthermore, they may be eligible to apply for settlement only after 10 years of continuous residence under the Long Residency Rules.
Individuals with temporary refugee permission to stay (Group 2 refugees) and those with temporary humanitarian permission to stay are eligible to apply for further permission to stay after 30 months on a protection route. The applications for further permission to stay should be made within the last 28 days of their current grant of permission to stay. The specified application form will be available on the Government website before the first cohort of applicants is due to apply. The new policy anticipates that individuals who fail to apply for further permission to stay before the application deadlines will become overstayers and will no longer be entitled to the benefits associated with their permission to stay, such as the right to work or the recourse to public funds.
These changes are likely to contribute to the current massive backlog in processing asylum applications. Previously, the Home Office had to consider and grant two applications per refugee: the initial grant of asylum and the grant of settlement after five years. Now they have to consider and grant five applications for a Group 2 refugee: the initial grant of asylum, further grants after 2.5 years, 5 years and 7.5 years and the grant of settlement after 10 years.
For further advice as to whether your asylum claim will fall within Group 1 refugees or Group 2 refugees, or more information on any other immigration matter, whether it be of an Individual, Business or Humanitarian nature, contact us to book a consultation.