Human Rights Act reform consultation: Scottish Government response

25. While respecting our international obligations, how could we more effectively address, at both the domestic and international levels, the impediments arising from the Convention and the Human Rights Act to tackling the challenges posed by illegal and irregular migration?

353. The Scottish Government fundamentally disagrees with the premise to this question.

354. The ECHR and the HRA do not constitute "impediments" to dealing with the challenge of migration. It is also inaccurate and misleading to refer to "illegal migration". The UK has very clear international obligations, including the requirement to render assistance to individuals who have a well-founded fear of persecution.

355. The Scottish Government has repeatedly made clear that action to deter and prevent abuse of the immigration and asylum systems must be fully compatible with the UK's human rights obligations and with the need to treat individuals and their families with dignity and respect. The Scottish Government also remains extremely concerned by the UK Government's response to the pressures created by large-scale migration.

356. In particular, there are significant concerns in relation to the UK Government's inhumane and unlawful plans to intercept and divert people crossing the English Channel in small boats. Action to turn back or obstruct vessels which are already out at sea is inherently dangerous and will significantly increase the already unacceptable risk to life. The UK Government must instead prioritise the preservation of life and ensure that action is taken to ensure the immediate rescue of the occupants of boats attempting to make the crossing.

357. The UK has both a moral and a legal duty to fully comply with the requirements of the 1951 UN Refugee Convention. Support and assistance must be rendered to refugees seeking protection and entry provided into the UK for the purposes of claiming asylum. Individuals exercising their right to claim asylum under international law should never be treated as having committed a criminal offence.

358. The Scottish Government does, however, explicitly condemn the actions of the criminals who profit from the desperation of those who attempt to reach the UK. Robust deterrent action is required to target the criminal gangs whose illegal, irresponsible and exploitative people-smuggling activities continue to place individual migrants and asylum-seekers in grave danger.

359. It should be remembered that the current migration pressures felt in Europe and in the UK are themselves a consequence of larger patterns of population displacement. These are a global phenomenon and have their roots in war, famine, poverty, political instability and, increasingly, climate change.

360. In response to these pressures the Scottish Government has urged the UK to adopt a humane and flexible approach to asylum and migration and to support international co-operation to address the root causes of population displacement. The UK should start with the immediate opening up of safe, legal routes for people seeking sanctuary in the UK including a replacement for the Dublin III agreement and the Dubs amendment.

361. The Scottish Government wishes also to take this opportunity to underline the need for the UK to have an asylum system which is effective and efficient, and which works for the benefit not only of people seeking asylum, and of the communities to which they belong, but which also supports the wider socio-economic interests of Scottish society.

362. The Scottish Government is very clear, in particular, that asylum seekers and refugees have the potential to contribute to wider society in many positive ways, and that Scotland can benefit directly from the skills, hard work and economic productivity that they can deliver as new, and very welcome, members of Scottish society.

363. Significant investment is therefore needed to improve the quality and speed of asylum decisions, so that people who have been forced to flee their home country, or have been living in the UK at a point it became unsafe for them to return, can access the protection they need.

364. Home Office statistics show that there has been an increasing backlog in cases waiting for initial asylum decisions, with significant increases in the number of people waiting more than six months for a decision even prior to the Covid-19 pandemic. Home Office outcome analysis of asylum applications shows a significant decline in the number of initial decisions made in 2019. As a result, an increased number of people were waiting for an initial decision the year prior to pandemic restrictions.

365. Plans to increase the complexity of the UK asylum system through use of inadmissibility notices and introduction of new classes of refugee risk creating further delays which will increase the cost of the asylum system and to people who are awaiting a decision. Reduced rights for people with recognised protection needs, based on how they reached the UK, will also increase the risk that people are marginalised and at risk of exploitation, including by organised criminals profiting from irregular migration.

366. There is currently no way for someone to apply for asylum from outside the UK. The UK has increased refugee resettlement in recent years, but this has remained limited. Family reunion can support people to come to the UK, but this is only available where someone already in the UK has recognised status and only allows for a spouse or partner and dependent children who were part of the family prior to the need to flee persecution to travel.

367. Increasing the number of safe and legal routes for people to come to the UK as refugees or be reunited with family already living in the UK would help to reduce irregular migration. For this to work, routes also need to be accessible and processes clear. At present the complexity of visa and immigration rules, high cost of associated fees and restrictions make this challenging.

368. Rather than wasting time and effort on unnecessary proposals for a "modern Bill of Rights", the UK Government should be investing in action to address and resolve the manifest deficiencies and failures which characterise current UK immigration policies.