This article was originally published on Borders and Development.
The Nationality and Borders Bill 2021 was introduced on 6 of July with much fanfare and equally vociferous criticisms. Primarily aimed at fixing a broken asylum system, the Bill confirms the UK government’s desire to do whatever it can to prevent the unauthorised arrival of foreign nationals and their stay in UK territory.
The Bill’s measures are perhaps less novel than the discussion surrounding its introduction would make us believe. Yet they confirm and expand the Government’s relentless attack on the right to asylum.
From a hostile to a nasty environment
The Bill takes to completion the trajectory initiated almost ten years ago by the then Home Secretary Theresa May, who introduced a series of reforms concerned with migrants’ access to labour markets, health services, housing, bank accounts and driving licences, all of which had as their explicit aim making the UK a hostile place for illegal migrants.
Priti Patel takes this logic forward by effectively trying to prevent access to such a hostile place.
Schedule 5 of the Bill is concerned with Maritime Enforcement and details a series of changes that expand the powers of the UK Border Force to intercept ships carrying migrants as they attempt to enter national waters without authorisation, permitting the use of “reasonable force, if necessary”. These practices are generally referred to as push-backs and are common practice at Europe’s peripheries and elsewhere. They have been widely condemned by the UNHCR and civil society organisations, as they defy the injunction, expressed in the 1951 Refugee Convention and the European Convention on Human Rights, to protect the right of people to seek asylum even if they cross borders irregularly.
Migrants who manage to breach this “reasonably violent” border net and to reach UK shores, are welcomed by the Bill’s raft of new measures, including, but not limited to, increasing the penalty for “illegal entry” from six months to four years; limiting appeal rights for those whose requests for protection have been refused; and increasing deportation powers.
Many of these measures are not entirely new, and were already contained in procedures and guidance notes to asylum caseworkers issued by the Home Office in January. Furthermore, until it was part of the EU, the UK had already participated in the EU Border Agency’s militarised patrolling of the European external border, both financially and operationally.
One of the most controversial measures contained in the Bill refers to the removal of asylum seekers to third countries. Clause 26 makes amendments to the Nationality, Immigration and Asylum Act 2002 and to the Asylum and Immigration Act 2004, by allowing removal to a Safe Country while the claim for asylum is still pending. This means that the Bill envisages offshore accommodation centres for asylum seekers as one component of its asylum reception system.
Offshoring involves relocating asylum seekers to a third country until their claim to asylum is adjudicated upon. It is part of a broader range of border externalisation measures entailing the relocation of border control functions away from the territory that these borders are supposed to control. There is ample evidence suggesting that offshoring asylum procedures involves the forced transfer of migrants to countries with inadequate asylum systems and standards, exposes migrants to physical and sexual abuse and violence, and reinforces negative representations that dehumanise, discredit and isolate migrants. Yet offshoring remains common practice in Australia, the US, and the EU.
The introduction of offshoring as part of the UK Government’s asylum management system was criticised both nationally and internationally, and has set in motion calls for action. Some of these criticisms focus on the practicalities of the proposal. For offshoring to happen there must be agreements with third countries, which, despite some reports, do not exist at present.
UNHCR stresses that the Plan does not provide sufficient detail to enable an informed assessment of its compliance with the UK’s international obligations, albeit their involvement in EU’s and Australia’s offshoring facilities makes such claim disingenuous. More interestingly, critical scholars remind us that throughout Imperial history, ‘the offshore’ has been always been a space destined to the management of racialised populations – a space used by sovereign states to avoid responsibility.
More broadly, this measure also speaks to and is to be read in conjunction with the Bill’s Clause 11, concerned with the accommodation of asylum seekers in general. The latter envisages the provision of different types of accommodation for asylum seekers based on the stage that their protection claim has reached, and their previous compliance with various conditions. Asylum camps like the Napier barracks become, with these provisos, a form of punishment for asylum seekers who travel via safe third countries or do not comply with those conditions. Offshoring such camps simply implies removing them from public scrutiny.
This asylum system blurs the line between immigration detention and asylum reception.
The Death of Asylum?
In a wonderful book, Alison Mountz evidences how states in the Global North use remote offshore facilities to confine migrants, and demonstrates how this curtails the basic human right to seek asylum. A series of transformations that lead to what she defines as the Death of Asylum.
The Home Secretary is right to say, however, that measures contained in the Bill meet international law obligations, however minimally. This is likely to be the case as contemporary asylum practices are never formally outside the parameters of the law. Rather, they reconfigure asylum governance in ways that weaken democratic accountability and are detrimental for migrants escaping violence and persecution. Asylum is not dead. Rather, paraphrasing Achille Membe, it is kept alive but in a state of injury.