Nationality and Borders Bill

– in a Public Bill Committee on 23rd September 2021.

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[Siobhain McDonagh in the Chair]

Examination of Witnesses

Rossella Pagliuchi-Lor and Elizabeth Ruddick gave evidence.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden 2:01 pm, 23rd September 2021

We will now hear from Rossella Pagliuchi-Lor, United Nations High Commissioner for Refugees representative to the UK, and Elizabeth Ruddick, senior legal associate, both representing UNHCR UK. We have until 2.30 pm for this session. Will you please both introduce yourselves for the record?

Rossella Pagliuchi-Lor:

Good afternoon to everyone. My name is Rossella Pagliuchi-Lor. I am the UNHCR representative to the United Kingdom.

Elizabeth Ruddick:

Good afternoon. My name is Elizabeth Ruddick. I am a senior protection associate with the UNHCR in the United Kingdom.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Welcome, Elizabeth and Rossella. I will ask you a few questions, primarily about the legality of the Bill in relation to international law. In your opinion, do various clauses in the Bill comply with international lawQ137 ?

Rossella Pagliuchi-Lor:

Thank you very much for this question, but I would like to start with a short statement, which will also cover that. It is, of course, one of the areas of particular interest and concern to us.

You know, of course, that UNHCR has already published two sets of opinions: one on the policy document and the other on the Bill. I want to start by saying that we actually support the broad intent—the broad aims—of this Bill: combating smuggling networks, having fairer and faster procedures, and facilitating the return of those who are found not to be in need of international protection. However, we believe that the Bill is unlikely to achieve those aims, and may further exacerbate some of the identified issues.

Our concerns revolve around three areas. The first concerns the breach of international law, as the Bill contravenes the UK’s obligations under the 1951 refugee convention. The Bill revolves around the notion that refugees are required to seek asylum in the first safe country they find. To be clear, that principle is not found in the refugee convention, and it is not a requirement in international law. It is also unworkable because it would further increase pressure on those few countries that find themselves at the frontier of a crisis. The risk, of course, is that they would be overwhelmed, and that might impact on both their capacity and their good will to provide protection and solutions.

The Bill, as it stands, will cause significant suffering to people who are guilty of nothing more than seeking asylum in the UK. It makes unauthorised arrival and presence in the UK a crime punishable by up to four years in jail, without the defences that are actually provided for by the 1951 convention. It would also keep refugees in a situation of enforced precarity for up to 10 years, with no access to public welfare unless destitute, and under threat of removal to another country, if that were possible. This is really going to create massive problems not only for these individuals at a personal level, but for their communities, local councils and the NHS.

Lastly, the system as described would exacerbate the current backlog and increase costs by making procedures longer. That will delay the integration of those who are eventually found to be refugees, and will hamper the return of those who are not found to be in need of protection. It will have a number of unintended negative consequences that will impact on the very aims that the Bill purports to pursue.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q Just to paraphrase, you think that the Bill will not achieve its objectives because it will mean that people stay here longer, and because it does not comply with international law as you see it?

Rossella Pagliuchi-Lor:

Absolutely. As I said, there is no requirement in international law that refugees should seek asylum in the first safe country they find. We believe that there will be consequences if countries start reneging on or trying to diminish their responsibilities and commitments under the convention. There is a risk of triggering a race to the bottom. We have to perceive that every time we make it harder or try to discourage refugees from reaching our shores, we are diverting them to another country. It risks creating a chain in which refugees will find it harder and harder to find asylum anywhere. The international system is based on the good-faith application of the commitments that have been freely undertaken by states. When states do not fully embrace those commitments, the result is the erosion of international law. International law is nothing more than a contract between states, and it lives or dies by states’ willingness to comply with it.

Yes, we are very concerned, and we are concerned also because we are frankly in a position of constantly advocating for asylum and doing so with countries that have way more refugees than the UK. The element that has been lost in this discussion is that the UK, by reason of its geographical position and its relative distance from crisis countries, in fact receives a pretty small number of refugees. I am not suggesting that this is something you want, and there are certainly more than you would wish for, but in the big scheme of things it is a relatively small number. This is also true, by the way, of countries around you. The UK has a fairly stable number of asylum seekers in the range of 35,000 per year. France has just under 100,000 per year, with some variations. Germany has around 150,000, and Spain, Greece and Italy all receive more applications than the UK. Of course, I am not even mentioning countries closer to the crisis. Let us not forget that 73% of all refugees and asylum seekers remain in countries neighbouring their own, and that about 85% or 86% remain in developing or middle-income countries. I would like to encourage you to look at this matter in perspective. The channel crisis is certainly a challenge, but I think it has to be looked at in a broader perspective of a global challenge for all countries with respect to displacement.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q Just to follow up about other countries that neighbour areas where there are war zones and conflicts, can you talk about an example of one of the countries that border Syria, such as Jordan or Turkey?

Rossella Pagliuchi-Lor:

Turkey at the moment has the largest number of refugees, as you know. We are talking about upward of 4 million or maybe even more. At one stage, Lebanon had one Syrian refugee for every four people; a huge percentage of its population were refugees. If you are talking about Afghanistan, there is a registered population of Afghan refugees of 780,000 in Iran, plus probably 1.5 million—maybe more—who are non-registered. Likewise, Pakistan has, between registered and unregistered, well above 2 million people. It has, I think, 1.4 million registered and maybe quite as many unregistered. So you are talking about numbers that are, frankly, enormous, relative to the numbers who come to Europe and, even more so, to the ones who come to the UK.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q As you have indicated, the Bill seeks to punish people on how they arrive in the UK, by giving them less temporary protection. Are you aware of any other countries that do that apart from Australia? We heard this morning from the high commissioner for Australia.

Rossella Pagliuchi-Lor:

There have been attempts by other countries, and of course the case that comes to mind is Denmark, which has been in the media, particularly in relation to the question of returns of Syrians. But I would like really to focus on the UK, rather than on other countries, if you will allow me. First, obviously there are principles that are applicable across the board. Obviously, we are asking all countries to act in a manner that is consistent with their international obligations. I think that we tend to forget that situations are sometimes different in terms of the practical applications. I know that you had the Australian high commissioner here this morning, even though I did not listen to his presentation. But of course the situation in Australia is very different from the situation in the UK. In any case, I would strongly recommend you not to follow that example, frankly.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q The vulnerable persons resettlement scheme closed. Do you think that the closure of schemes like that has an impact on the increased numbers of people seeking asylum in places like the UK?

Rossella Pagliuchi-Lor:

Yes and no. Having resettlement schemes and other legal pathways, such as a well-functioning and perhaps slightly more generous family reunion mechanism, will certainly allow certain people to come legally where they might otherwise have been tempted to do so irregularly. However, the reality is that resettlement programmes—even a generous and well-run resettlement programme such as the VPRS—are really a bit of a drop in the bucket. You have to consider that, in any given year, we manage to resettle a fraction of 1% of the refugees who would be in need of resettlement. There is really a vast disproportion. That is why we say that resettlement is extremely valuable, is a life-saving mechanism—and we really commend the UK for its efforts in this sense—but is not an offset for granting asylum.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

I know other colleagues wish to come in, so I will leave my questioning there. Thank you very much.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

When I visited the refugee camps in Jordan in 2017, I was greatly impressed by the work of the UNHCR selecting the most vulnerable people to bring them under the 20,000 scheme that David Cameron had announced. Could I ask whether you think the best way to select those who are the most needy is by using organisations like the UNHCR, or whether the economic test of who can afford to pay a people smuggler is a better way of going forward? At the moment, we seem to be swamped by people who use people smugglers rather than the legitimate, legal routes using the amazing services of the UNHCRQ .

Rossella Pagliuchi-Lor:

Thank you for this question, because it allows me actually to address what I believe is generally a bit of a misconception about spontaneous arrivals. Certainly—of course—the UNHCR has a system to identify the most vulnerable, but as I said, we only manage to submit a very small percentage of those we have identified, so the system definitely does not cover the needs. But the individuals who come here should not be regarded necessarily as wealthy people who have the means to come here. Typically, the vast, overwhelming, majority of those who move irregularly do so having gathered all the resources of themselves and their families. Homes are sold. Whole families are literally impoverished to gather the money that is required for somebody to make this trip. One of the reasons these trips can last weeks, months, or occasionally even longer, is that sometimes they have to stop in an intermediate place, such as Libya, to gather more money. We should not think of these people as being privileged and wealthy, and therefore having the luxury of travelling irregularly. The reality is quite different; these are journeys of desperation in most cases.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

Q That is certainly what I heard from the Nigerian Minister of Interior, who said that the most vulnerable people in the areas Boko Haram controlled had no chance, no way to afford paying people smugglers. It was middle-class people—by Nigerian standards—who could afford to send, say, son No. 2 on that hazardous journey.

Rossella Pagliuchi-Lor:

I cannot talk about the statement by the Minister about the Boko Haram area, but I can tell you that, first, “middle class” means something different in different countries. Secondly, the people you see applying for refugee status here are not necessarily members of the middle classes. There is a much wider range. I suggest that if someone is truly wealthy, they might be able to come by plane. That is the most expensive kind of irregular journey because it would mean purchasing a passport and a ticket.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

Thank you very much for your time today. I have one quick question on that: if a person is middle class in the country they live in, can they still be a refugee, still be in danger and still have protection needsQ ?

Rossella Pagliuchi-Lor:

Of course.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

Q Thank you. If the Bill is enacted, anyone acting with purely humanitarian motives could be criminalised just for facilitating the arrival of a person who does not have entry clearance for the UK. They could face a long time in prison. The Canadian Supreme Court found that similar provisions in Canada violated article 31 of the refugee convention. Can you tell me more about that?

Rossella Pagliuchi-Lor:

Thank you very much for that question. Being or not being a refugee has nothing to do with economic status. Refugees can be poor, middle class, or very wealthy. What makes a person a refugee is a well-founded fear of persecution for one of the five reasons established in the convention. Since we are talking about this in the Bill, the manner of a person’s arrival also has no bearing on this whatsoever. A refugee is a refugee is a refugee. If you are a refugee, you are entitled to certain things. That is really the bottom line.

On the criminalisation of those who may be assisting people to move across borders, there is an important difference to be made between those who do so for gain—the smuggler; we all know that there are criminal networks preying on people’s despair, and we commend the Government for their robust action in pursuing these people and bringing them to justice; that is a relief—and those who provide assistance to people in difficulty. They could be organisations rescuing asylum seekers and migrants at sea, for example. That is a completely different kettle of fish, and we definitely believe that it should not be penalised. The difference is between gain and humanitarian purpose.

Rossella Pagliuchi-Lor:

I do not. Perhaps Elizabeth does. Otherwise, I can of course let you know

Elizabeth Ruddick:

In Canada, there was an attempt to prosecute refugees who had been abandoned by the smugglers and were steering a boat to safety. They were prosecuted for facilitating each other’s safe arrival. That was found to be a violation of the convention, because if you criminalise refugees assisting each other to survive during the course of their journey, you are criminalising seeking asylum.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

Q It is important for the Government to hear that. They will face the same possible actions if they go ahead with this.

My other question involves the raging debates we have here all the time, which has come down to, “Yes, it does”, or, “No, it doesn’t”. People who are refugees seeking protection do not have to seek protection in the first country that they come to. We say that all the time, but we have debates with our colleagues who say, “Yes, they do. If they don’t, they are not refugees.” You say, “No, they don’t.” Will you explain that more?

Rossella Pagliuchi-Lor:

The answer is, unequivocally, no. Refugees are not required to seek asylum in the first country, full stop. The manner of travel has no bearing on refugee status—none at all. That said, it does not translate into an unfettered right for people to choose where they want to seek asylum.

What is important to consider here—it has a bearing on your situation—is that UNHCR encourages countries to enter into agreements that allow them to transfer responsibilities for asylum seekers in a manner that ensures that every individual has access to a fair procedure, to decent and appropriate reception and, if found to be a refugee, a viable integration path. They do so by sharing responsibility in such a way that protection space is expanded rather than decreased.

One of the specifics of your Bill is that it makes extensive use of so-called inadmissibility in a situation in which there is no agreement that would allow the UK to transfer these people to another safe country in which it would make sense for them to be assessed. The UK, as you know, was part of the Dublin scheme, which is not perfect by any means but was at least a mechanism that established certain rules allowing states to share responsibility and to decide who should be assessed where.

At the moment, you do not have any such agreement with the EU, so a bit of a strange situation is realising itself. Since the entry into force of the changes to the initial rules, I understand that about 4,500 individuals have been notified of their possible inadmissibility. Seven of them have been found inadmissible, but I do not think that anyone has been returned to anywhere, because this has simply created a very long queue leading to nowhere. It is fundamental to the good management of the international refugee system that there should be strong collaboration between states. I hope that clarifies things.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

That really does help. I have one more brief question. Would you say that you are an authority on the refugee convention?

Rossella Pagliuchi-Lor:

The UNHCR is the established guardian of the 1951 convention. Our statute is an annex to a General Assembly resolution. The duty of states to collaborate with UNHCR is enshrined in article 35 of the 1951 convention, so yes.

Photo of Duncan Baker Duncan Baker Conservative, North Norfolk

When you spoke first, you said that the Bill would not carry out its intentions. To pick up on that, many parts of the Bill have similarities to the Australian model, which was implemented in 2014. As we know, that was very successful —no migrants were crossing after about nine months of that policy coming in. You said that there were differences from the situation that arose in Australia. I get that, there are differences between them and us, but there are also a great deal of similarities. In your eyes, what are the differences that would make this legislation so unsuccessful?

Rossella Pagliuchi-Lor:

Let me just take a step back on Australia. The Australian approach was essentially based on offshoring and externalisation, and on turning around the boats. The offshoring and externalisation did not have any impact on the boats, but it did have a terrible, terrible impact on the people who got caught in it. If you read reports of what happened on Nauru and Manus island and so on, there were very high levels of violence, sexual violence against women and children and suicides. Children were found to be the most traumatised that most practitioners had ever seen. Children were essentially withdrawing into themselves and becoming entirely irresponsive to external stimuli. There were also suicides and self-harm. You really need to ask yourselves whether that situation is something you would like to associate your country with, to be entirely frank.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

I am sorry to interrupt when you are giving such good testimony, but quite a few people want to ask questions and I would like to get them in if I could. We will take Jonathan Gullis, then Paul Blomfield, and then the Minister. Apologies.

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North

I will keep it brief. Stoke-on-Trent North, Kidsgrove and Talke residents, in the overwhelming majorityQ —

Rossella Pagliuchi-Lor:

Sorry?

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North

In the constituency I serve, the residents are livid with the situation in the English Channel. We are more than happy to do our fair share on a global perspective—we have seen that with Afghanistan and Syria—but illegal economic migrants crossing the Channel is totally unacceptable. Do you not think that having a system in place that says that if you enter this country illegally, that will have an impact on your application, that will help to deter people and make them understand that it will harm their opportunity to get permanent residency in this country?

Rossella Pagliuchi-Lor:

No, I do not. I think that the reasons why people come are not likely to be affected by what you are saying. Most of the people who arrive here are found to be genuine refugees, not illegal immigrants, by the Government and by your procedures. The fact that they came as they came has got nothing to do with whether or not they are refugees.

The best way of ensuring that the system works is by having a very fast, fair and efficient procedure, because that allows you to move quickly and determine who is a refugee and can stay, and who is not a refugee and needs to be returned, if they have no other legitimate reasons to remain. That can be done if it is done quickly, not if it happens five or 10 years down the line. The Home Office is working now on procedures that will allow it to deliver much faster and, we think, better quality judgments. That would help to deter those who might be trying their luck and at the same time provide protection for those who need proper security.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

Sorry, Jonathan; can I just bring in Paul Blomfield? Paul, I am then going to have to interrupt you to get the Minister in.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

Of course, Chair, I will be very quick. You mentioned that in your view the Bill will be counterproductive to its own objectives. I think I heard you right in saying that it would hamper returns. Could you develop that pointQ ?

Rossella Pagliuchi-Lor:

I will. One of the important elements is that if you have a system, there have to be consequences to that system. It does not make any sense to have a system that determines who is a refugee and who is not, and then the results go nowhere. I know that it is difficult to arrange for returns—there are a number of issues and they need a great deal of partnerships internationally—but it is a fact that if somebody is properly looked at in a proper procedure and then found not in need of international protection, it is a lot easier if that happens closer to the time than after a few years, when they have had time to establish a family and when perhaps the whole question of identification is getting a little more vague. It is a fact that good case management increases the chances of people returning, and it increases the chances of people returning voluntarily, too.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q Clearly, one of the fundamental cornerstones of the policy is prioritising safe and legal routes, and I am sure that you would strongly support that. Presumably you also think it is right to try to deter and dissuade people from making those very dangerous crossings across the channel, which pose a grave risk to life. What do you suggest, if not the approach we are suggesting?

Rossella Pagliuchi-Lor:

Granted, you will never have a silver bullet that solves all of your issues until and unless people no longer feel the need to seek asylum elsewhere. However, as I said, I think that a fast and fair procedure is your best defence, alongside strong agreements with the European Union on the allocation of responsibility for asylum seekers. That is by far the best way of dissuading people who might sometimes be hopping around countries to choose a jurisdiction or who are just giving it a shot—people whom your colleague referred to as illegal immigrants. There are some who could masquerade as asylum seekers; there is no question about that.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

Order. I am sorry, but that brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank our witnesses for their evidence.