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1 February 2022

Proof clauses in borders bill “threaten women fleeing abuse”

Peers and campaigners say the "iniquitous" legislation would lead to women and girls wrongly being denied asylum.

By Ben van der Merwe

The government’s borders bill could put women and girls fleeing domestic violence, female genital mutilation and human trafficking at risk, according to peers.

The Labour peer Ruth Lister told the New Statesman that the Nationality and Borders Bill, currently being scrutinised by the House of Lords, is “iniquitous” and “bad news for women”. She said: “If it gets through it will put a coach and horses through the treatment of refugees in this country, especially women and girls. It’s one of the worst bills I’ve worked on.”

[See also: What does the Nationality and Borders Bill mean for you?]

Lister has tabled an amendment to remove clause 32 of the bill, with support from Jean Coussins, a crossbench peer, and Rachel Treweek, the Bishop of Gloucester.

Clause 32 would entrench in British law the EU’s interpretation of the 1951 Refugee Convention, an interpretation which both British courts and the UN have rejected as faulty. It would require those who seek asylum on the basis of their membership of a persecuted social group, such as female divorcees or victims of domestic violence, to prove both that the group is defined by the possession of immutable characteristics (characteristics that cannot or should not be changed, such as gender, religion or personal history) and that it is perceived as a distinct, separate group by the surrounding society.

[See also: Exclusive: British citizenship of six million people could be jeopardised by Home Office plans]

Current UK law, by contrast, holds that an individual need only demonstrate one or the other fact to be true: an interpretation backed by the UN High Commissioner for Refugees (UNHCR).

Priscilla Dudhia, policy and advocacy co-ordinator at the campaign group Women for Refugee Women, told the New Statesman that the bill is “likely to result in many more women being wrongly refused asylum, retraumatised and subject to further violence and abuse in the UK”. She added: “The only reasoning the government has provided for clause 32 is that it will improve decision-making by clarifying an area where there has been ‘contradiction and confusion’. But there is no confusion. The UNHCR has had a clear and constant interpretation, and the issue is now settled in UK case law.”

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A Home Office spokesperson said: “The UK has a proud history of providing protection to the most vulnerable people in genuine need and this will not change – this changes we are making are to ensure we have a more consistent approach to assessing asylum claims.

“Under the Bill, we also are clarifying the UK’s interpretation of some of the key concepts of the Refugee Convention, and putting it into law so that they are applied effectively amongst decision makers. The Government provides a safe and legal route to bring families together through its family reunion policy and will continue to uphold our international obligations – more than 39,000 family reunion visas have been granted since 2015 under our refugee family reunion policy, with over half issued to children.”

[See also: Exclusive: Appeals against being stripped of UK citizenship reach record levels]

In 2020 a landmark tribunal ruling against the Home Office rejected the EU’s interpretation of the Refugee Convention in favour of that put forward by the UNHCR, reaffirming a 2006 majority opinion of the House of Lords. The Immigration and Asylum Chamber of the Upper Tribunal argued that the differences between the EU and UNHCR’s interpretations are “not mere semantics but can give rise to protection gaps which [are] contrary to the obligations of signatories to the convention”.

The Home Office did not appeal against the judgement.

Clause 32 was not included in the government’s “New Plan for Immigration” policy statement, meaning it was not subject to public or expert consultation and was not addressed in the government’s equality impact assessment of the bill.

Zoe Bantleman, legal director of the Immigration Law Practitioners’ Association (ILPA), said that the change risked undermining refugee protection for women and girls, in particular. She said: “The government has failed to justify this significant change to the law and refugee protection which will disproportionately affect women and girls fleeing gender-based persecution, who will need to meet an additional hurdle in order to obtain refugee protection.”

[See also: Priti Patel’s powers to revoke citizenship are the broadest in the G20]

Peers will also consider an amendment to remove clause 31, which would raise the standard of proof required for asylum applicants. If this became law, women would need to show that it was “more likely than not” that all past events in their claim took place, rather than showing a “reasonable likelihood”.

“For example,” said Bantleman, “a woman claiming asylum for fear of persecution by her husband upon return to her country, would, at first, have her past persecution judged on this higher standard.

“Rather than the benefit of any doubt being given to her, it may be asked if she can prove it was more likely than not that she had been beaten by her husband before fleeing her country of nationality. If she had no hard proof, no photographs, had feared turning to the police and thus had no police reports, had left all of her family and friends behind and no one to corroborate her account, or simply arrived here empty-handed, it would be more difficult to prove her past persecution under this new standard.”

Peers also plan to challenge the government over clause 11 of the bill, which would allow the government to deprive refugees of their right to public funds and family reunion in cases where they arrived in the UK irregularly or via another safe country, or if they failed to immediately claim asylum upon entry, even if their application is ultimately accepted.

The Refugee Council has said that restricting the right to family reunion “flies in the face” of the government’s stated commitment to maintaining safe and legal routes for asylum entry, with family reunion being the main safe route used by women and girls in particular.

The UNHCR has warned that the change would mean “more women and children are likely to attempt dangerous journeys”. Restricting access to public funds can also have “adverse consequences”, particularly for women, it noted. These include “difficulty accessing shelters for victims of domestic violence, denial of free school meals where these are linked to the parents’ benefit entitlement and de facto exclusion from the job market for single parents (largely women) who have limited access to government-subsidised childcare”.

[See also: Exclusive: Nationality and Borders Bill is “unconstitutional”, says top law firm]

Dudhia told the New Statesman that removing the right to access public funds risked leaving refugee women “locked in abusive situations”. She said: “Desperate women are often forced to take irregular routes to the UK, especially when safe and regular routes are few and far between. And those who are traumatised, such as through sexual abuse, often need time to feel safe before they can open up about their traumatising experiences and claim asylum.”

On 24 January a report by the British Red Cross said that “women seeking asylum do not feel they are treated with basic human dignity” and that current processes “fail to make women feel safe or to respond to trauma”.

“The government has repeatedly claimed that this bill will protect women, but it’s ignoring the concerns of these women, in spite of constant warnings from expert organisations and legal practitioners,” said Dudhia. “This is not a bill designed to protect refugees, it’s a bill designed to scapegoat and punish them.”

This article was amended on 2 February 2022 to add comment from the Home Office.

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