Overall, this is a horrible and unnecessary Bill. The UK does not have a problem with asylum seekers, nor indeed immigration. Asylum seekers have been unjustly and cruelly demonised. Some specific examples regarding asylum seekers are being magnified and generalised in order to rationalise bad law. Conflict, gross human rights abuses and persecution will result in more and more movements of people over the course of the century. Indeed, climate change will likely be a major driver of that conflict. The UK must acknowledge both its capacity to assist and indeed the requirements of basic humanity, and therefore ensure that its laws are consistent with those realities.
On a per capita basis, the UK accepts fewer asylum seekers than most other European jurisdictions, and faces less pressure due to its geographically peripheral position in relation to some of the migrant routes. The UK is not being invaded or overrun. Asylum seekers and, indeed, immigrants are not overwhelming public services or stealing jobs. Where pressures exist on services, that reflects both poor planning and under-investment.
Where pockets of unemployment or under-employment exist, that reflects poor investment in skills and job creation initiatives.
The current high bar to acceptance of asylum claims is expected to be even higher as a result of the Bill, and those who try to assist run the risk of being criminalised. The notion of offshoring asylum seekers is particularly repugnant. We need a system based on humanitarian values and objective consideration of cases. Crucial to that are safe and legal routes to sanctuary in the UK.
I will flag some other concerns on the Bill. The first relates to the clause on electronic travel authorisation. The EU settlement scheme covers those European economic area citizens who are normally resident in the UK, but it does not apply to EU citizens who live in the Republic of Ireland, and they are also not covered by the common travel area. There is a danger that that could have an impact on thousands of people who live on the island of Ireland and cross the border, sometimes daily.
Although the Government have said that there will be no immigration controls at the border on the island of Ireland, there could still be a bureaucratic complication for those EU nationals to comply with any requirements around an ETA, and legal uncertainty for those entering Northern Ireland without one. I would be grateful for clarification on how these particular circumstances will be taken into account.
The nationality parts of the Bill have received much less attention, and I want to focus on the Government’s failure properly to reflect in domestic law the citizenship and identity aspects of the Good Friday agreement, namely that it is the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.
Like many people, I am comfortable with both a British and an Irish identity. However, there is a core of people born in Northern Ireland, as a full part of the United Kingdom, who wish only to identify as Irish and be accepted as Irish. The Good Friday agreement clearly provides for this situation. However, this reality is not yet reflected in UK domestic law, where people are legally treated as British by default at birth.
That problem was crystallised in the Emma DeSouza case. The Committee on the Administration of Justice reported:
“The Home Office response to the DeSouza case included taking the position that it did not have to comply with the GFA as it is not domestically enforceable; arguing a reduction of the scope of the birthright provisions to one of ‘national identity’ in the abstract (overlooking the ‘accept as’ duty)”.
At the very least, the UK and Irish Governments need to meet to discuss these differences and what acceptance of choice should mean in practice. Indeed, that was a recommendation of the recent report of the Northern Ireland Affairs Committee. Renunciation is cited as one possible solution, and it may well be for some, but at present the process requires someone to declare that they start as British, which is at odds with the wording of the Good Friday agreement.
At present, this may well be framed as a problem solely for those who identify as Irish, but at some stage in the future there may well be a united Ireland. In those circumstances, there will also be an expectation that those who wish solely to identify as British from birth should also be accommodated, so this issue works both ways.
There is potentially a legislative way forward in the 2020 report completed by the barrister Alison Harvey on behalf of the joint committee of the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission. I urge the Government to give strong consideration to those recommendations.
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