The Nationality and Borders bill threatens to create a two-tier asylum system which could result in more unsafe and perilous journeys, according to the Law Society of Scotland.

As consideration of the Nationality and Borders Bill at committee stage continues this week, the professional body for Scottish solicitors has also criticised the Bill for putting those who attempt to save the lives of asylum seekers at sea at risk of facing criminal charges for their action.

It is currently a criminal offence to help an asylum seeker to the UK if it is done for gain, however the new Bill proposes removing the ‘for gain’ element, which could open up anyone who has helped asylum seekers reach the UK facing charges. The Law Society has raised the question of how the proposals would impact on lifesaving organisations and ships’ masters who save asylum seekers from drowning as they are obliged to do under the UN Convention on the Law of the Sea.

Stuart McWilliams, Convener of the Law Society's Immigration and Asylum policy committee, said: “No one should face a risk of committing an offence for rightly attempting to save people’s lives and yet this would be one of the consequences of retaining the Bill in its current form. This is particularly alarming given that the Bill increases the already hefty minimum sentence of 14 years to life imprisonment for those found guilty.

“MPs must also endeavour to avoid creating a two-tier system. The proposals differentiating between types of refugee based on how they arrived in the UK have already been criticised by the UN High Commissioner for Refugees, who has already said it would undermine the 50 year-old Refugee Convention and longstanding global cooperation on refugee issues.”

“By adopting a restricted interpretation of the Refugee Convention, a refugee must have come to the UK directly from the country in which their life or freedom was threatened unless they can show they could not reasonably have sought protection in another country along their journey.

“We take the view that how a person enters the UK should not impact on family reunion. Safe and legal routes have reduced since the UK left the EU and this provision appears to be further reducing the prospect of families using one of only the two safe and legal routes the asylum seeker has – that of refugee family reunion, along with UNHCR resettlement. Fewer safe and legal routes are likely to result in more unsafe and perilous journeys.”

The Law Society supports aspects of the Bill which resolve historical injustices, including removing the discriminatory inability for mothers and for unmarried fathers to transmit citizenship, but states that the registration process for this should be free.

It also believes that nationality law should be amended to allow children born in the UK to become British citizens automatically, restoring a policy that applied before 1983.

In considering children and asylum, the Law Society raises serious defects around the legislation’s handling of citizenship of stateless minors. It has urged replacing the age range of minors, set at 5 to 17 within the Bill, to incorporate the UN Convention on the Rights of the Child (UNCRC) definition that a child is “every human being under the age of eighteen years”.

Stuart McWilliams added: “We also question what it means to “acquire” citizenship as outlined in the Bill. It currently fails to take into account the challenges that many parents have in evidencing the citizenship of their children. It is not after all the child’s fault if the parent cannot evidence the child’s nationality and there are many legitimate difficulties in doing so.

“Furthermore, the UK Government should explain how this proposal complies with the Refugee Convention and the Convention on the Rights of the Child.

“At a time when we are seeing increasing numbers of asylum seekers and refugees, we must ensure that we have laws that, while rigorous, comply with internationally agreed conventions on how we treat those who are displaced from their homeland and are forced to seek refuge elsewhere in the world.”


Influencing the law and policy

One of the main functions of our policy team, along with our network of volunteers, is to analyse and respond to proposed changes in the law.