Nationality and Borders Bill: letter from the Cabinet Secretary for Social Justice, Housing and Local Government to Secretary of State for the Home Department

1 September 2021

Dear Priti

Further to the First Minister’s letter of 26 July, to which we await a reply, I write to provide further detail regarding the Scottish Government’s deep concerns about the Nationality and Borders Bill. Whilst there has been some limited engagement on the Bill this has not alleviated our concerns about the impact it will have on vulnerable individuals seeking sanctuary in Scotland and elsewhere in the UK.

Scotland has a long history of welcoming people from all over the world, including those seeking refuge from war and persecution. The Scottish Government is grateful for their contribution to our communities, our economy, our public services, and our future.

The UK asylum and immigration systems are not delivering for Scotland. It is clear that wholesale reform is needed and the Scottish Government has set out detailed proposals for how a more tailored approach for Scotland could be delivered. It is regrettable that the UK Government has failed to engage on these proposals and that the Nationality and Borders Bill takes an approach which does not align with Scotland’s values or needs.

As previously noted, the UNHCR have been clear that the Nationality and Borders Bill’s plans would violate the 1951 Refugee Convention and that they will “damage lives, be hard to implement and undermine international cooperation on refugee issues”. The UK Government’s own consultation highlighted significant concerns amongst stakeholders and the public about the changes proposed by the New Plan for Immigration. Despite the criticism, concerns, and clear damage to your international standing in this area, you have chosen to press ahead with these drastic and potentially damaging reforms to the asylum and immigration system.

We are clear that people who come here to live, work or study, to seek sanctuary or who have been trafficked should be treated with dignity and respect at all times. The Scottish Government recognises the need to deter and prevent abuse of our immigration and asylum systems, but extremely vulnerable people, such as children or victims of human trafficking, deserve a system which enables access to support rather than one which erects barriers. Scotland’s reputation as a country of welcome and refuge must not be placed at risk by the actions of the UK Government.

The Bill’s proposals are deeply flawed and will fail to create an immigration system which is effective, efficient and delivers for the most vulnerable. There are a number of areas of particular concern which I have set out below.

Criminalisation of people seeking protection and those assisting them

The introduction of the new offence of “arriving” in the UK risks criminalising anyone who arrives in the UK through irregular routes, including people who should be protected, undermining their claim for asylum. Not only does this leave them potentially open to up to four years in prison, it also has the potential of increasing their vulnerability to exploitation by the very people the Bill claims to target. This element of the Bill must be immediately amended to ensure that potentially vulnerable migrants and people seeking asylum are not criminalised.

Furthermore, the widening of grounds for prosecuting those who assist migrants at sea has a number of possible unintended consequences including potentially criminalising the RNLI and other marine crew who are bound to save lives under the United Nations Law of the Sea. These elements of the Bill must be re-examined to eradicate the possibility for, what I assume are, unintended consequences.

Differential treatment of people seeking sanctuary

The differential treatment of refugees determined by how they arrived in the UK rather than their need for protection is inhumane and unfair. If implemented, people who are in need of sanctuary will be denied it. They will be placed in danger or left facing years in limbo, potentially without access to public funds or other essential services, when they could be getting on with their lives and contributing to our communities. There must be wholesale changes to this element of the bill to ensure that refugees seeking asylum through any route are provided with the protection they need.

Granting of refugee status must enable people to access the services and support they need to rebuild their lives in a place of safety. The route of arrival must not result in discrimination in terms of the protection they receive, the conditions attached to their leave or the treatment of family members. Family reunion rights should not be impacted by the journey a person had to make to reach safety.

Adding complexity to the rights of recognised refugees also risks unintentional additional discrimination in access to services, support and employment. As the existing complexity of immigration restrictions and No Recourse to Public Funds policy demonstrate, people may avoid accessing services they are entitled to over fear that this will impact their long term status. Services may similarly be cautious of providing access which may impact people’s long term status in the UK. This can result in hidden populations, who are in need but may only engage as a last resort at a time of crisis, increasing their need and often the amount of support they require.

Accommodating asylum seekers

The Bill’s proposals to strengthen the Secretary of State’s control over asylum accommodation settings clearly paves the way for increased use of accommodation centres and potential for future off-shoring.

The Independent Chief Inspector of Borders and Immigration’s report highlighted significant issues with the management of Napier Barracks and Penally, their suitability, safety and the impact this type of accommodation had on people living there. The report also raised concerns about contingency of healthcare if people are moved around the asylum estate. I would add to this contingency of legal representation, essential services and support networks, which must be considered.

References in the Chief Inspector’s report of the impact of prolonged isolation in accommodation that was not designed or intended for long term stays is an increasingly significant concern when I see the direction you appear to be taking for future asylum accommodation provision. We have already seen too many examples of the devastating impact that the UK’s asylum system can have on people who should be supported. This Government is clear that people should be supported to integrate within our communities from day one of arrival in line with the key principle of our New Scots refugee integration strategy. We are committed to the principle of community based integration for refugees and people seeking asylum. The New Scots approach is not compatible with use of remote and institutionalised camps. Such asylum accommodation will also not fix the underlying issues causing shortages in the asylum estate, which include the fairness, quality and timeliness of the asylum application and decision process.

Changes to the asylum process

Concerns have already been raised with me by stakeholders about the disproportionate impact the Bill will have on people seeking asylum due to changes to evidencing requirements, expedited appeals and the standard of proof required. In particular, the LGBTI community and people who have fled fear of persecution may not be aware of the asylum process or how to claim, or in some instances obtaining evidence may endanger others still in an unsafe country. Where people have been at risk of persecution, being open about the basis for their claim can be challenging and must be taken into account as part of the asylum process, particularly where that persecution may have been state sanctioned.

We have a moral obligation to offer a place of safety to desperate people fleeing conflict and persecution. This is particularly important when caring for children who arrive in Scotland every year seeking asylum, many of whom have no family support and are wholly dependent on local authorities. The creation of safe and legal routes to the UK is critical to opening up opportunities for managed migration and reducing the number of people making perilous journeys.

Human trafficking

Turning to the proposed Modern Slavery changes within Part 4 of the Bill, you will be aware that Scottish Ministers have statutory obligations to potential victims of human trafficking and exploitation under the Human Trafficking and Exploitation (Scotland) Act 2015. The Bill must ensure that the identification of potential trafficking victims is of primary importance. Placing arbitrary deadlines on vulnerable people to declare human trafficking issues does not recognise the impact of trauma on the individual. Further, developing a system where the failure to meet such deadlines or the provision of inconsistent information may negatively impact on credibility is in conflict with a trauma informed approach.

The Bill contains proposals to strengthen the threshold for Reasonable Grounds Decisions (RGD), with a likely limiting effect on the number of individuals who receive a positive RGD. The Scottish Government is clear that extensive training for First Responder Organisations, to improve the quality of referrals within the National Referral Mechanism, should be prioritised before any changes are made to decision making thresholds which may weaken safeguarding opportunities for vulnerable individuals.

The Bill appears to provide the Secretary of State with significant powers to define in regulations “victims of slavery” and “victim of human trafficking”. The Scottish Government would like to understand what plans the Secretary of State has to bring forward regulations for scrutiny.

Age assessment

The UK Government proposals on reforming age assessment processes could have significant ramifications for the human rights of children and young people who are unaccompanied and seeking asylum in Scotland. It is regrettable that the detail of these provisions have yet to be shared with the Scottish Government as it is currently unclear how reforms to the age assessment process will impact our operational partners. As we have repeatedly made clear, Scotland has established age assessment practices which are carried out by trained social work professionals in line with our national approach, Getting It Right For Every Child (GIRFEC) which places the rights and wellbeing of children and young people at the heart of the process.

In any circumstance where there is doubt of a person’s age, but there are reasonable grounds to believe they are under 18 years old, Section 12 of the Human Trafficking and Exploitation (Scotland) Act 2015 requires that the relevant local authority should presume they are a child for the purpose of receiving immediate support and services until their age is formally established. Scottish Government published revised age assessment guidance in 2018, and recently funded a series of training sessions to support social workers to carry out holistic age-assessment practices.

Use of placeholder clauses

I would like to reiterate the point made by the First Minister regarding the process used to take this matter through Parliament and, in particular, the use of placeholder clauses. With around three weeks until the Bill is scheduled to pass to committee stage, there remain a number of important clauses of the Bill where there is little or no detail. The Scottish Government has pressed for this detail on several occasions without success. This continues to prevent full scrutiny of the Bill’s implications, including any requirement for legislative consent motions.

Over the years, the Scottish Government has pressed the UK Government to introduce a fairer, more flexible immigration system which meets Scotland’s specific needs. As an economy, we need the inward flow of people not just to support the growth of our businesses and services, but to provide diversity and vibrancy to our communities. Any move which limits migration, whether from within or beyond the EU has the potential to seriously harm Scotland’s economy, our public services and our communities.

Clause 67 amendment provisions

Finally, I would like to highlight that Clause 67 of the Bill is a significant concern to the Scottish Government. A clarifying amendment must be made to clause 67(3) so that in any situation where a devolved matter is involved this must require the prior consent of the Scottish Parliament and that any regulations that would amend, repeal or revoke any Scottish legislation on any devolved matter should be subject to super-affirmative procedure.

Afghan response

I also want to take this opportunity, further to the First Minister’s letter to the Prime Minister of 24 August, to raise the UK’s response to Afghanistan in this context and to seek further detail from you to support Scotland’s participation in the resettlement of refugees from Afghanistan.

We are clear that Scotland must play our role in supporting Afghan refugees. We are proud of the work of Scottish local authorities who had already stepped up to increase support for the Afghan Locally Employed Staff (LES) relocation programme under your Afghan Relocations and Assistance Policy (ARAP). Following the strong response to the Syrian resettlement programme, which saw refugees resettled to all 32 Scottish local authorities, we are confident that Scotland’s local authorities and communities will be well placed to continue to support refugee resettlement. Indeed, many of our local authorities had already indicated their continuing commitment under the UK’s global resettlement programme.

Local authorities need more detail about the new resettlement scheme to enable them to identify capacity to participate and ensure plans can be put in place to support people. I appreciate that the Home Office is working at pace to establish this new programme, but would encourage you to share details as soon as possible. As you know, local authorities will need to secure political agreement to participation. You will appreciate that the timing of expansion of the LES combined with lack of detail about the new resettlement programme will impact on local authorities’ ability to make firm offers.

The associated funding package will also be important for encouraging participation and ensuring that refugees arriving receive the support they need. I welcome indications that the new resettlement programme will be supported by a funding package similar to the Syrian resettlement programme, but am keen to get confirmation of this in writing to local authorities. I understand that there have been limited discussions about funding provision to support health and education services in England. It is crucial that devolved governments are involved in these discussions to ensure adequate resource is provided to support devolved services to respond and support newly arrived refugees. I am also keen to receive more information about Operation Warm Welcome announced on 29 August and its implications for Scotland.

I note that the refugee resettlement scheme will provide protection for Afghan citizens identified as most at risk, such as women and girls. More detail on eligibility for refugee resettlement under the programme would also be welcome, in particular, the reference to vulnerable Afghan citizens who were called forward by FCDO, but could not be evacuated. I am keen to learn whether this means prominent figures who may be targeted by the Taliban, including members of the judiciary, human rights champions and people who worked with international charities and NGOs, will be included in the scope of the scheme. People who may be vulnerable in Afghanistan or the region due to protected characteristics should also be considered for resettlement and appropriately supported to apply. For the LGBTI community, certain faith groups and minorities it can be difficult to trust official processes and therefore the Home Office and UNHCR must work to overcome any barriers that could leave vulnerable people at risk.

The UK’s currently restrictive family reunion rules limit who can join family already settled in the UK. I am keen to learn whether the UK Government will consider easing the eligibility criteria for family reunion to enable more people from Afghanistan (and elsewhere around the world) to join family members in the UK.

I also seek your assurance that Home Office asylum caseworker guidance on Afghanistan has been updated. While I understand that each asylum application must be considered on its individual merits, asylum applications from Afghan nationals in the UK should be considered quickly and compassionately. I also expect the Home Office to urgently review any cases which are in the asylum appeals process or where people have previously been refused asylum on the basis that Kabul is safe.

The Afghanistan crisis clearly illustrates that the Nationality and Borders Bill is flawed. We know that not everyone who needs protection has been able to access support to safely leave Afghanistan and the complexity of asylum and refugee routes, yet the Nationality and Borders Bill would stop people like them who flee persecution and violence from accessing safety here.

Conclusion

Scotland is a country that lives up to its global responsibilities as a place of welcome and sanctuary. As I have made clear, the Scottish Government is deeply concerned about the contents of the Nationality and Borders Bill and its potential for severe and long-lasting impacts on some of the most vulnerable people arriving at our shores. The current Afghanistan crisis just highlights even further the flaws in the Bill. I call on the government to engage on the matters above with Scottish ministers with a view to making urgent amendments to this Bill as I have outlined above.

I have copied this letter to the Home Affairs Committee for their awareness.

Yours sincerely,

SHONA ROBISON