Borders and Nationality Bill: Return of the frightmare strategy

By Don Flynn

The creation of a hostile environment, which Theresa May announced to Parliament ten years ago, has proved disastrous for many people with migrant backgrounds over this period.  

The scandalous treatment of Windrush generation migrants provided the headlines but there have also been many accounts of denial of family reunion rights because of low income; the deportation of people who entered the country as child migrants because of run-ins with the law; international students threatened with removal because of baseless claims of fraud in English language tests; self-employed workers losing residence rights as a consequence of queries about their tax returns; the ending of most rights of appeal against errant Home Office decisions; and, of course, the cruel treatment of people seeking asylum. 

The purpose of the hostile environment was to generate precarity for the millions of people now resident in the UK because of their status as immigrants into the country, even if the date of their arrival was many decades ago.  The points at which status was to be checked extended beyond the workplace to cover entry into tenancy agreements with private landlords, opening bank accounts, obtaining driving licences, hospital treatment, enrolment in higher education, applications for social security benefits and the welfare services provided by local government.  

But, in the manner of an appetite that grows with eating, the hostile environment continually seeks out new groups of people to drag onto its terrain.  This is the significance of the Borders and Nationality Bill currently going through Parliament.

Small boat crossings

The government claims there is a need for new legislation arising from the growth in the number of small boats crossing the Channel. Despite the fact that Home Secretary Priti Patel promised to make this route ‘unviable’ back in 2020, the numbers attempting entry through this dangerous route tripled during the course of 2021 to reach 28,000 people.  While much has been said about this being an alarming rate of growth, people more closely involved in monitoring the situation report that it is an entirely predictable consequence of the closure of other routes of entry by the ever tighter security imposed on Eurostar trains and lorries using ferries.

The bill intends that entry via routes that are considered irregular will automatically disqualify individuals from consideration as refugees in need of protection, irrespective of the merits of their case.  The government’s presumption is that people coming in this way will be sent to countries which have entered into agreements to accept asylum seekers refused at the UK borders.  Plans for these agreements are currently being stymied at ever point, and claims that Rwanda, Ghana and Albania were receptive to the idea have been emphatically repudiated by the governments concerned.

If the bill ever does become law, we can expect that people arriving via the non-approved routes will be stacked up until they reach the six month point, when Priti Patel admits they will indeed have to be considered for asylum in the UK.  But the bill promises a degraded application process for these people, with a return to the fast-tracking of asylum claims which have been ruled unlawful by the courts, and an appeal procedure that allows the appellant only one hearing of their evidence. If that is not enough, the bill also allows the Home Secretary to require immigration judges to refuse to consider certain types of evidence, with no discretion to set this instruction aside.

The disadvantage of being an entrant by a non-approved route does not stop even in those cases where it has been found that the person is a refugee within the meaning of the international conventions.  This group of people will find that formally settled status – which is the point at which migrants and refugees are supposed to be finally secure in their right of residence – will be withheld for periods running into many years, during which the possibility of family reunification will not be available to them.

Article 9

Beyond the bad news for refugees, the other clause in the bill which is giving rise to deep concern is Article 9, which was introduced at a late stage in the passage though Parliamentary scrutiny and has not had the consideration it merits by MPs at Committee stage. 

To be clear, Article 9 does not create any new powers on the part of the Home Secretary to deprive anyone of British citizenship.  That authority, which once existed only for people charged with the crime of treason against the monarch, has grown in recent years after an initiative of the last Labour government to extend the power to deprive to anyone considered by the relevant minister to be “not conducive to the public good”.

The sole restraint on the power is that deprivation of citizenship is not supposed to be pursued if it has the effect of rendering the victim stateless. However, this safeguard has proven to be less effective than might have been hoped as shown in the case of Shamima Begum, where the courts have ruled that the Home Secretary may consider that the person concerned is entitled to citizenship of another country, even if this is denied by the authorities of the country concerned. 

The claim of citizenship of another country usually arises when the person concerned has parents, (or a parent) who is the citizen of that country and it is therefore plausible to believe that the principle of citizenship by descent applies.  This means that an estimated six million people who are currently British citizens have the potential of being deprived of this status should the Home Secretary feel that she has grounds to proceed against them.  Particularly in the frame for the worst of the treatment are people with family backgrounds in countries like Bangladesh, Pakistan and the Caribbean nations, all of which are most prone to judgments about the continuation of their British citizenship not being conducive to the public good. The deprivation power is exposed to the charge of structural racism for this reason.

Article 9 further tips the balance against people in the sights of the Home Secretary for deprivation of British citizenship.  It allows deprivation to take place without the person being notified that the procedure has been initiated against them.   During its passage through Parliament, ministers have given assurances that it would only be used in circumstances where the individual being deprived of citizenship cannot be contacted by the Home Office.  The examples cited include when the person is abroad and in the active service of a terrorist or criminal organisation.

Critics of the provision are not reassured that Home Office officials will confine non-notification of loss of citizenship to these limited numbers of exceptional cases.  What will stop the authorities from using the procedure in the case of people who are merely difficult to locate, as opposed to impossible to locate?  It is not difficult to imagine that any dual national suspected but not proven to be involved in dubious activity, who makes a trip aboard for a few months and whose current whereabouts are unknown, could find the Home Office has taken advantage of her absence and deprived her of British citizenship, and has been rendered unable to appeal because of lapsed appeal notice dates.

The Bill’s purpose

An important question looms about the real purpose of the bill.  The Home Office has been through a number of bad years with its hostile environment policies producing scandals like that of the Windrush generation and the numbers of people drawn into opposing its provisions across a wide range of issues.  In addition there are signs of a mood change among the general public as headlines in the news have switched to praising the role of so many migrants as key workers preventing a complete collapse of health and care services and other parts of the supply chains for essential goods.  The loss of the capacity to brand immigrants as a potential threat to British society would be a blow to any government dependent on mobilising xenophobia as a part of its electoral appeal.  It is not surprising that a Conservative government so reliant on anti-migrant anxieties should mount a fightback against the emergence of new sentiments attuned to the idea that ‘migrants are not to blame.’

The Borders and Nationality bill should properly be seen as a part of a Tory offensive which aims to rebuild the fear of migrants that was previously stoked by stories of low paid workers displacing native Brits in the labour market and taking their place in the queue for hospital appointments and other public services. Forget all you have learnt in the past few months about the heroic healthcare assistant or the farm workers filling supermarket shelves with fresh food products!  Remember, they are out there in small boats, just waiting for their chance to come at you … and maybe some of them are claiming to be British citizens as well!

Don Flynn started work as an immigration caseworker back in the 1970s, working for a central London law centre.  Since then he has worked as a policy officer for the Joint Council for the Welfare of Immigrants and as Director of the Migrant’s Rights Network until retiring from that post in 2018.  He continues to blog and campaign on all aspects of immigration law and policy.

Subscribe to the blog for email notifications of new posts