Nationality And Borders Act 2022

Part 2: Asylum

Chapter 1: Treatment of refugees; support for asylum-seekers

Section 12: Differential treatment of refugees

158. Overview: This section provides for a differentiated approach to the treatment of refugees based on the criteria set out in Article 31(1) of the Refugee Convention.
159. Background: In the 12 months ending September 2019, around 62% of asylum applicants to the UK had entered the UK irregularly. At present, all asylum seekers by and large have their claims processed in the same way and receive the same entitlements, if granted refugee status in the UK, irrespective of their route to or actions in the UK.
160. This section provides a power for the UK to treat refugees differently according to whether they satisfy certain criteria under Article 31(1) of the Refugee Convention, in respect of which our interpretation is set out in section 37. Article 31(1) sets out that States shall not impose penalties on refugees that come directly from a territory where their life or freedom is threatened, provided they present themselves to the authorities without delay and show good cause for their illegal entry or presence.
161. The purpose of differentiation is to discourage asylum seekers from travelling to the UK other than via safe and legal routes. It aims to influence the choices that migrants may make when leaving their countries of origin - encouraging individuals to seek asylum in the first safe country they reach after fleeing persecution, avoiding dangerous journeys across Europe.
162. All individuals recognised as refugees by the UK will continue to be afforded the rights and protections required under international law, specifically those afforded by the 1951 Refugee Convention.
163. Subsection 1 introduces the concept of "Group 1" and "Group 2" refugees. This states that a refugee is a Group 1 refugee if they meet the requirements set out in subsection 2. If these are not met, then a person will be a Group 2 refugee.
164. Subsection 2 sets out the relevant requirements based on Article 31(1) of the Refugee Convention, as stated in section 37: (a) they must have come to the United Kingdom directly from a country or territory where their life or freedom was threatened (in the sense of Article 1 of the Refugee Convention) and (b) they must have presented themselves without delay to the authorities.
165. Subsections 3 and 4 provide that where a refugee has entered or is present in the United Kingdom unlawfully, there is an additional requirement to show good cause for their unlawful entry or presence should they later claim asylum. A person’s unlawful entry into or presence in the United Kingdom is defined as requiring leave to enter or remain but not having it.
166. Subsection 5 provides for a differential treatment of refugees based on their group. Differences may, for example, apply in terms of the duration of their permission to remain in the UK, the availability of routes to settlement, the ability to have recourse to public funds, and the ability of family members to join them in the UK. There is no obligation for these powers to be exercised and discretion may be applied.
167. Subsection 6 provides for differential treatment of family members of Group 1 and Group 2 refugees. Differences may, for example, apply in terms of granting family members permission to enter or remain in the UK, the duration of their permission to remain in the UK if granted, the availability of routes to settlement, and the ability to receive public funds. Again, there is no obligation for these powers to be exercised and discretion may be applied.
168. Subsection 7 confirms that subsection 6 would not apply where the family members are refugees in their own right.
169. Subsection 8 provides that the Immigration Rules may set out the differences in how Group 1 and Group 2 refugees are treated.
170. Subsection 9 confirms the meaning of the terms "limited leave", "indefinite leave" and "refugee". "Refugee" takes the meaning set out in the Refugee Convention as a person who, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it" (Article 1(A)(2)). Section 30 provides interpretations of the terms used in Article 1(A)(2).

Section 13: Accommodation for asylum-seekers etc.

171. Overview: This section sets out the various factors the Secretary of State may take into account when deciding on the type of accommodation to allocate to asylum seekers and failed asylum seekers in need of support.
172. Background: Sections 95, 98 and section 4(2) of the Immigration and Asylum Act 1999 ("the 1999 Act") enables the Secretary of State to provide support, including accommodation, to asylum seekers and failed asylum seekers who are or may become destitute. Section 4(2) will be replaced by a new form of support for failed asylum seekers provided under section 95A or 98A of the 1999 Act, once changes in the Immigration Act 2016 come in to force.
173. There is currently no obligation to provide a specific form of accommodation. The accommodation provided to asylum seekers and failed asylum seekers is not linked to the progress of their claim, appeal, or their compliance with the rules. However, a breach of the conditions of their support may result in withdrawal of support.
174. The intention of this section is to allow for the use of certain types of accommodation to house certain cohorts of asylum seekers and failed asylum seekers in order to increase efficiencies within the system and increase compliance.
175. Subsection 1 inserts new subsection 3A into section 97 of the 1999 Act. New subsection 3A allows the Secretary of State, when deciding the type of accommodation an individual may be offered, to take into account the stage their protection claim has reached, as well as their past compliance with conditions of bail and conditions attached to any support they have previously been receiving. In practice, this would mean that the Secretary of State could use different types of accommodation at different stages of an individual’s protection claim.
176. Subsections 2 to 8 contain consequential amendments to sections 97, 98 and 98A of the 1999 Act and sections 17, 22 and 24 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") and inserts section 22A into that Act to enable subsection 3A to also apply to asylum seekers supported under section 98 of the 1999 Act (temporary support pending consideration of whether they are eligible to section 95 support) and to failed asylum seekers receiving support under section 95A (support for failed asylum seekers) or section 98A (temporary support for failed asylum seekers).
177. Subsection 9 amends section 25 of the 2002 Act. Currently, an individual may not be accommodated in an accommodation centre if they have already been a resident of an accommodation centre for a continuous period of 6 months. However, that limit may be disapplied by agreement between the Secretary of State and the individual, and if the Secretary of State deems it appropriate because of the circumstances of an individual’s case she may direct that the limit be 9 months. The Secretary of State has a power under section 25 to reduce the time limits stipulated in that section. This amendment allows the Secretary of State to reduce or increase the time period an individual can be accommodated in an accommodation centre. The purpose of the amendment is provide for wider flexibility to ensure the appropriate form of accommodation is provided to individuals for as long as it is required.
178. Subsection 10 is a consequential amendment to section 27 of the 2002 Act that provides references in Part 2 of the 2002 Act to a "resident of an accommodation centre" include those supported under sections 95A (support for failed asylum seekers) or 98A (temporary support for failed asylum seekers).

Chapter 2: Place of Claim

Section 14: Requirement to make asylum claim at "designated place"

179. Overview: This section stipulates the places where asylum claims made in accordance with the Immigration Rules, must be made. These places (all in the UK) are an asylum intake unit, an immigration removal centre, a port or airport, a place where an officer authorised to accept an asylum application is present (except anywhere in the territorial seas of the United Kingdom), a place to which the person has been directed by the Secretary of State to make an asylum claim; and such other place as the Secretary of State may designate by regulations.
180. Background: Since the UK’s withdrawal from the European Union, the 2005 Procedures Directive, which allows Member States to require that applications for asylum be made at a designated place, ceased to be applicable to the UK. Consequently, Immigration Rules changes came into effect on 31 December 2020, specifying where asylum claims can be made.
181. This section transfers these changes into primary legislation and provides greater clarification.
182. Subsection 1 provides that a claim for asylum be made in person and at a designated place.
183. Subsection 2 provides the definition of a "designated place" in the UK as being an asylum intake unit, an immigration removal centre, a port or airport, a location where an officer authorised to accept an asylum application is present and a location to which the person has been directed by the Secretary of State or an immigration officer to make an asylum claim.
184. Subsections 2(f) and 8 confer a power on the Secretary of State to add a designated place by regulations subject to the negative resolution procedure.
185. Subsections 3 to 5 implement uncommenced amendments that remove references to "at a place designated by the Secretary of State" in the relevant sections.
186. Subsection 6 provides a definition of "asylum claim" for the purposes of this section.
187. Subsection 7 stipulates that UK territorial seas are excluded from being considered a place of claim, despite their otherwise being a person present who is authorised to accept an asylum claim on behalf of the Secretary of State.

Chapter 3: Inadmissibility

Section 15: Asylum claims by EU nationals: inadmissibility

188. Overview: This section provides that asylum claims from EU nationals must generally be declared inadmissible to the UK’s asylum system.
189. Background: Inadmissibility procedures allow a State to declare an asylum claim "inadmissible" when the claim is made by nationals of countries which are deemed inherently safe (such as those in the EU). This means that the State does not have to substantively consider the claim, except in exceptional circumstances, and individuals can be returned to their country of nationality.
190. While the UK was a member of the EU, inadmissibility processes were explicitly allowed under EU law, including through the Dublin Regulation and the Protocol on Asylum for Nationals of Member States ("the Spanish Protocol").
191. The Spanish Protocol provides, in effect, that an application for asylum made in an EU member state by a national of another EU member state should be considered inadmissible save in certain defined circumstances. The basis of the Spanish Protocol is founded in the fact that EU member states are required by Article 2 of the Treaty on European Union to respect human dignity, freedom, democracy, equality, the rule of law and human rights. It is therefore considered that the level of protection afforded to individuals’ fundamental rights and freedoms in EU member states means that they are deemed to be safe countries. As such, there is, except in the most exceptional of circumstances, no risk of persecution for individuals entitled to reside in EU countries that would give rise to a need for international protection.
192. Paragraphs 326E and 326F of the Immigration Rules implemented the Spanish Protocol in the UK, providing that an asylum application from an EU national will only be admissible where the applicant satisfies the Secretary of State that there are exceptional circumstances which require the claim to be admitted.
193. The purpose of this section is to retain the UK’s ability to treat protection claims made in the UK from nationals of EU member states, including Ireland, as inadmissible.
194. Subsection 1 inserts new Part 4A, containing new section 80A, into the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), which relates to inadmissibility asylum claims by EU nationals.
195. 80A(1) stipulates that the Secretary of State must declare an asylum claim made by a national of a member state inadmissible.
196. 80A(2) provides that an asylum claim that has been declared inadmissible to the UK’s asylum system will not be substantively considered in the UK.
197. 80A(3) stipulates that a decision to declare an asylum claim inadmissible does not attract a right of appeal under section 82 of the 2002 Act.
198. 80A(4) and (5) set out a non-exhaustive list of exceptions. They demonstrate the threshold that would have to be met in order for circumstances to be exceptional such that an asylum claim from an EU national would be admitted to the UK asylum system for consideration.
199. 80A(6) defines terms used in this section.
200. Subsection 2 consequentially amends regulation 4 of the Asylum Support Regulations 2000 (setting out who may not be provided with asylum support).

Section 16: Asylum claims by persons with connection to safe third State: Inadmissibility

201. Overview: This section provides that asylum claims from an individual with a connection to a safe third state can be declared inadmissible to the UK’s asylum system.
202. Background: Inadmissibility procedures allow a State to declare an asylum claim "inadmissible" when the claim is made by individuals who have travelled through a safe third state or have another connection to a safe third state where they could have claimed asylum.
203. While the UK was a member of the EU, inadmissibility processes were explicitly allowed under EU law. Paragraph 345A-345D of the Immigration Rules set out the inadmissibility rules in relation to asylum claims made by individuals who have travelled through a safe third country or have a connection to a safe third country.
204. The purpose of this section is to transfer these rules into primary legislation and to provide further clarification.
205. Subsection 1 inserts new sections 80B and 80C into Part 4A (itself inserted by Section 15), which relates to inadmissibility of asylum claims by persons with a connection to a safe third state.
206. 80B(1) and (2) provide that a person who has a connection to a safe third state may have their asylum claim declared inadmissible to the UK’s asylum system and, where declared inadmissible, will not have their asylum claim substantively considered.
207. 80B(3) stipulates that a decision to declare a claim inadmissible, will not constitute a decision to refuse a protection claim and will therefore not attract a right of appeal in the way that protection claims do under section 82 of the Nationality, Immigration and Asylum Act 2002.
208. 80B(4) defines a "safe third State".
209. 80B(5) states that a claimant will be deemed to have a connection to a safe third state if they meet any of the conditions set out in section 80C.
210. 80B(6) provides that an individual whose asylum claim has been declared inadmissible to the UK’s asylum system under this section may be removed from the UK to any other safe third state. This means that an individual does not have to be removed to the state to which they have a connection.
211. 80B(7) provides that if the individual whose claim has been declared inadmissible but there are exceptional circumstances or in other such cases which can be provided for in the immigration rules, their claim for asylum may nevertheless be considered.
212. 80B(8) defines terms used in this section and in section 80C.
213. 80C sets out what is meant by a "connection" to a safe third country. Condition 1 is where the person has been recognised as a refugee and can still access this protection. Condition 2 is whether the claimant has been granted another form of protection that would prevent them from being sent from that safe third state, to another state, and they can still access this protection. Condition 3 is where the claimant has already made a claim for protection in a safe third state, but that claim has not yet been determined or has been refused. Condition 4 is where the claimant was previously present in a safe third state where they could have made a claim, and that it is reasonable to expect them to have made a claim, but they failed to make a claim. Condition 5 is where it would be reasonable to expect them to have made a claim in a safe third state, instead of making a claim in the UK. An example might be where the person has close family members in a safe third state and there was nothing preventing them making a claim there.
214. 80C(6) and (7) define terms used in this section.

Section 17: Clarification of basis for support where asylum claim inadmissible

215. Overview: This section makes consequential amendments to asylum support legislation to align with the provisions relating to inadmissibility (Sections 15 and 16). Where a claimant is declared inadmissible, their entitlement to asylum support will be comparable to that of a failed asylum seeker.
216. Subsections 1 and 2 amend section 4 of the Immigration and Asylum Act 1999 ("the 1999 Act") to extend the entitlement to accommodation and support to those whose claims have been declared inadmissible. This brings the entitlement in line with the accommodation and support provided to failed-asylum seekers.
217. Subsection 3 amends section 94 of the 1999 Act so that for the purposes of the definitions of "asylum-seeker" and "failed-asylum seeker", reference to a claim being determined or rejected will include when a claim is declared inadmissible under section 80A or 80B of the Nationality, Immigration and Asylum Act 2002. However, if a claim is declared inadmissible under section 80B of the 2002 Act but consequently considered, their claim will no longer be considered determined or rejected and they will be entitled to asylum accommodation or support as an asylum-seeker.
218. Subsections 4 to 7 amend the relevant sections of the Nationality, Immigration and Asylum Act 2002 to the same affect.

Chapter 4: Supporting evidence

Section 18: Provision of evidence in support of protection or human rights claim

219. Overview: This section provides for an evidence notice that requires a claimant to provide evidence in support of their protection or human rights claim before a specified date. Otherwise, the provision of evidence will be deemed "late" and the claimant will be required to provide a statement setting out their reasons for providing that evidence "late". The consequences for not complying with the evidence notice without good reason are provided for in section 26 and section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (claimant’s credibility) ("the 2004 Act") as amended by section 19.
220. Background: It is intended that the new evidence notice will be served on a person under the same circumstances as a notice is served under sections 120(1)(a) and 120(2) of the Nationality, Immigration and Asylum Act 2002 (requirement to state additional grounds for application etc.). A notice served on a person under sections 120(1)(a) and 120(2) creates a duty on that person to provide a statement setting out the reasons and grounds in support of that claim.
221. Non-compliance with the new evidence notice will create consequences under section 26, which sets out that a decision-maker in an asylum or human rights claim or appeal must have regard to the principle that evidence raised by the claimant late is given minimal weight, unless there are good reasons why the evidence was provided late.
222. Further consequences arise in respect of non-compliance under section 19, which amends section 8 of the 2004 Act to include the provision of late evidence in support of an asylum or human rights claim or related appeal without good reason as a behaviour that shall be taken account of as damaging the claimant’s credibility by the decision-maker.
223. Subsections 1 and 2 provide that an evidence notice may be served on an individual who has made a protection claim or a human rights claim. An evidence notice requires an individual to provide any evidence, which has not already been provided, to support their claim by a specified date.
224. Subsections 3, 4 and 5 provide that, where evidence is provided on or after the specified date, the individual must set out in a statement the reasons for providing their evidence late.
225. Subsection 6 outlines what is meant in the provision by "specified date", meaning the date stated in an evidence notice.

Section 19: Asylum or human rights claim: damage to claimant’s credibility

226. Overview: This section inserts new subsections into the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (claimant’s credibility) ("the 2004 Act"). It also inserts definitions for "immigration and nationality functions," "immigration legislation," and "Nationality Acts". In doing so, it creates a principle that if a person making an asylum or a human rights claim provides evidence late, or fails to act in good faith, this conduct shall be taken account of as damaging the claimant’s credibility by the decision-maker. Evidence that is "late" means evidence that is provided on or after a specified date set out in an evidence notice that requires a claimant to provide evidence in support of their protection or human rights claim before that specified date (as provided for in Section 18).
227. Background: The intention behind this section is to dissuade claimants from producing late evidence without good reason, and to reiterate that those engaging with the immigration authorities should act in good faith, by providing that the consequence for adverse conduct is that such behaviour shall be taken account of as damaging the credibility of the individual. Section 8(1) of the 2004 Act sets out that in determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a decision-maker shall take account of, as damaging the claimant’s credibility, any behaviour to which the section applies. This section adds further behaviours to the list that follows in section 8.
228. Subsection 2 inserts new subsections 1A and 1B into section 8 of the 2004 Act. This places a duty on the responsible bodies for establishing procedural rules for the Tribunal and the Special Immigration Appeals Commission to provide rules that, as part of the reasons for their decision on asylum and human rights claims, explicitly address the application of section 8 of the 2004 Act.
229. Subsection 3 inserts new subsections 3A and 3B into section 8 of the 2004 Act. This provides that any "relevant behaviour" that the deciding authority thinks is not in good faith shall be taken account of as damaging the claimant’s credibility and also defines the circumstances when such behaviour will be "relevant".
230. Subsection 4 inserts new subsections 6A and 6B into section 8 of the 2004 Act, which sets out that providing evidence late in respect of an asylum or a human rights claim will be treated as a behaviour which shall be taken account of as damaging the claimant’s credibility, unless there are good reasons for lateness.
231. Subsection 5 inserts, at subsection 7 of section 8 of the 2004 Act, definitions of "immigration and nationality functions," "immigration legislation," and "Nationality Acts".
232. Subsection 6 inserts a new subsection 9B within section 8 of the 2004 Act. This excludes from the definition of "immigration and nationality functions" (as inserted by subsection 4) the following: powers of arrest, entry and search as mentioned in sections 28A to 28K of the Immigration Act 1971, and power of arrest as mentioned in section 14 of the 2004 Act.
233. Subsection 7 provides details regarding commencement.

Chapter 5: Priority removal notices

Section 20: Priority removal notices

234. Overview: This section provides for a priority removal notice (PRN) to be served to anyone who is liable for removal or liable for deportation. Factors which may lead to a person being issued with a PRN will be set out in guidance and will include, for example, where a person has previously made a human rights or protection claim. The subject of a PRN will be required to provide a statement, information and/or evidence within the time specified ("the PRN cut-off date") or their reasons for providing evidence after the date.
235. Background: The aim of the PRN is to reduce the extent to which people can frustrate removal through sequential or unmeritorious claims, appeals or legal action.
236. Subsections 1 and 2 provides for a PRN to be issued to a person who is liable for removal or deportation.
237. Subsection 3 defines a PRN. The notice imposes a duty on the claimant to provide a statement setting out their reasons for wishing to enter or remain in the United Kingdom, any grounds on which they should be permitted to do so and any grounds on which they should not be removed or required to leave the United Kingdom. The notice also requires them to provide any information relating to being a victim of slavery or human trafficking as defined by Section 58 and any evidence in support of any reasons, grounds or information. The statement, grounds, information and evidence must be provided before the PRN cut-off date included within the notice.
238. Subsection 4 removes the need for a PRN recipient to provide the information mentioned in subsection 3(a) if this has previously been provided to the Secretary of State or any other competent authority.
239. Subsections 5, 6 and 7 impose a duty on the PRN recipient, if they have not provided a statement, information or evidence before the PRN cut-off date, to also provide a statement setting out the reasons for not doing so.
240. Subsections 8 and 9 define some of the terms used in this section.

Section 21: Priority removal notices: supplementary

241. Overview: This section details how long the priority removal notice (PRN) will remain in force for. The PRN will remain in force until 12 months after the cut-off date or the person becomes appeal rights exhausted, whichever comes last.
242. Background: This section is supplementary to section 20.
243. Subsection 1 sets outs that a priority removal notice remains in force until (a) 12 months after the PRN cut-off date; or (b) where the PRN recipient makes a protection or human rights claim, 12 months after the date on which the PRN recipient’s appeal rights are exhausted.
244. Subsection 2 defines relevant claim as any protection or human rights claim that is brought during the period a PRN is in force.
245. Subsection 3 defines appeal rights exhausted as the time when a claimant can no longer bring an appeal and no longer has an appeal pending.
246. Subsection 4 confirms that the PRN remains in force as provided for in subsection 1 even where the PRN recipient ceases to be liable for removal or deportation from the UK.
247. Subsection 5 specifies that a PRN may not be served on a claimant when there is an existing PRN in force.
248. Subsections 6 and 7 specifies that if the recipient of a PRN has previously received an evidence notice (section 18), slavery or trafficking information notice (Section 58) or a notice under section 120 of the Nationality, Immigration and Asylum Act 2002, the effects of the previous notice end when the PRN is served.
249. Subsection 8 confirms that the meanings of all terms used in section 21 have the same meanings as in section 20.

Section 22: Late compliance with priority removal notice: damage to credibility

250. Overview: This section creates a principle that material that is not provided in compliance with the priority removal notice (PRN) should be damaging to a claimant’s credibility.
251. Background: This is a new provision which sets out the consequences of failing to comply with a priority removal notice.
252. Subsections 1, 2 and 3 set out that this section applies where a claimant has provided late material in response to a priority removal notice and either their claim is being considered or a competent authority is making a reasonable grounds or conclusive grounds decision concerning the claimant’s status as a victim of slavery or human trafficking.
253. Subsection 4 specifies that a deciding authority must take into account material being brought late as damaging to a claimant’s credibility unless there are good reasons why it was brought late.
254. Subsections 5 and 6 place a duty on the responsible bodies for establishing procedural rules for the Tribunal and the Special Immigration Appeals Commission to provide rules that, as part of the reasons for a decision on asylum and human rights claims, explicitly address how they have taken account of late material provided by the claimant.
255. Subsection 7 defines material as having been brought late if it is provided on or after the PRN cut-off date.
256. Subsection 8 defines a deciding authority as the Secretary of State, an Immigration Officer, the First-tier Tribunal, the Upper Tribunal in circumstances set out in subsection 9, the Special Immigration Appeals Commission or competent authority.
257. Subsection 9 sets out the circumstances when the Upper Tribunal is acting as a deciding authority. This includes where it is acting under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 or in relation to an expedited appeal under section 82A of the Nationality, Immigration and Asylum Act 2002 or in relation to an expedited related appeal under section 24 where it involves a protection or human rights claim.
258. Subsection 10 provides a definition of terms used in this section.
259. Subsection 11 makes reference to section 26, which makes further provision relating to PRN recipients providing evidence late.

Section 23: Priority removal notices: expedited appeals

260. Overview: This section creates an expedited appeal route for appellants where they have been served with a priority removal notice (PRN) and made a protection or human rights claim or provided reasons or evidence as to why they should be allowed to remain in the UK after the PRN cut-off date but while the PRN is still in force. Their right of appeal will be to the Upper Tribunal instead of the First-tier Tribunal where certified by the Secretary of State.
261. Background: This is a new provision for a separate appeals process connected to the "priority removal notice" introduced in section 20.
262. Subsection 1 amends the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") to insert new section 82A providing for an expedited appeal process to the Upper Tribunal where certain conditions are met and the Secretary of State has certified that the appeal is an expedited appeal.
263. 82A(1) sets out the expedited appeal conditions. These are that a person has been served with a PRN, has made a protection or human rights claim on or after the PRN cut-off date (but while the PRN is still in force), which has been refused with a right of appeal.
264. 82A(2) stipulates that where the conditions in 82A(1) are met the Secretary of State must certify an appeal right as an expedited appeal unless satisfied that there were good reasons for the claimant raising their claim on or after the PRN cut-off date.
265. 82A(3) confirms that a right of appeal under this section is to the Upper Tribunal instead of the First-tier Tribunal.
266. 82A(4) provides that Tribunal Procedure Rules must make provision to try and ensure that expedited appeals are brought and determined more quickly than an appeal under section 82(1) in the First-tier Tribunal.
267. 82A(5) states that Tribunal Procedure Rules must allow for the Upper Tribunal to make an order to remove a case from the expedited process when it is the only way to secure that justice is done. Accordingly, the expedited appeal will continue as an appeal in the First-tier Tribunal and be transferred there.
268. 82A(6) confirms that "priority removal notice" and "PRN cut-off date" have the same meaning as in Section 20.
269. Subsection 2 amends section 13(8) of the Tribunals, Courts and Enforcement Act 2007 to provide that any decision of the Upper Tribunal on an expedited appeal is an "excluded decision" for the purposes of that Act so that there is no right of appeal to the Court of Appeal.
270. Subsection 3 introduces Schedule 3 which provides consequential amendments to the 2002 Act necessary by reason of this provision.

Section 24: Expedited appeals: joining of related appeals

271. Overview: This section provides that where a person brings an expedited appeal under section 82A of the Nationality, Immigration and Asylum Act 2002, certain other appeals brought by that person are also to be subject to the expedited procedure as a "related appeal".
272. Background: The aim of this section is to prevent people from using the appeal process as a means of frustrating their removal, by ensuring that where an individual is subject to the expedited appeal process, any "related appeal" (which will normally be heard at the First-tier tribunal) should be joined to the expedited appeal and transferred to the Upper Tribunal. This will make sure that the expedited appeal process provides finality and that an individual has no outstanding appeal rights once the expedited appeal process is concluded.
273. Subsections 1, 2 and 5 define an expedited section 82 appeal, a related appeal and an expedited related appeal for the purpose of this section.
274. Subsections 3 and 4 provide for a related appeal that is pending or that may be brought to the First-tier Tribunal, to be transferred to the Upper Tribunal where an expedited section 82 appeal is brought.
275. Subsection 6 sets out that Tribunal Procedure Rules must make provision to ensure that an expedited section 82 appeal and an expedited related appeal are combined or heard together.
276. Subsection 7 provides that Tribunal Procedure Rules must allow for the Upper Tribunal to make an order to remove a case from the expedited process when it is the only way to secure that justice is done. Accordingly, the expedited related appeal will continue as an appeal in the First-tier Tribunal and be transferred there.
277. Subsection 8 defines pending appeal for the purpose of this section.
278. Subsection 9 amends section 13(8) of the Tribunals, Courts and Enforcement Act 2007 to provide that any decision of the Upper Tribunal on an expedited related appeal is an "excluded decision" for the purposes of that Act so that there is no right of appeal to the Court of Appeal.

Section 25: Civil legal services for recipients of priority removal notices

279. Overview: This section amends Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012") to enable recipients of a priority removal notice (PRN) to receive advice and assistance in the form of civil legal services.
280. Background: Each paragraph of Part 1 of Schedule 1 to LASPO 2012 describes the types of civil legal service that may be made available. Services listed in that Part are known colloquially as "in scope". To obtain legal aid, an applicant must have a determination from the Director of Legal Aid Casework that their issue is in scope by virtue of being listed in Schedule 1, and that they qualify for the services in accordance with the statutory means and merits tests which are set out in section 11 LASPO 2012 and in Regulations made under that Act.
281. The intention of this section is to introduce certain types of civil legal service into scope. In particular, by amending Schedule 1 to add the following civil legal services for recipients of a PRN: advice and assistance on, a) the priority removal notice; b) the recipient’s immigration status; c) the lawfulness of their removal from the United Kingdom; and d) immigration detention. The advice provided under c might, for example, include advice on the National Referral Mechanism (NRM) insofar as it was relevant to the lawfulness of the individual’s removal from the UK.
282. The aim of the section is to help individuals to understand their immigration status, the meaning of the PRN and to determine their next steps (if any), in raising claims that they may have as to why they should not be removed from the country.
283. Subsection 1 amends Part 1 of Schedule 1 by inserting a new paragraph 31ZA which sets out that civil legal services are made available to recipients of a PRN.
284. 31ZA(1) sets out that advice and assistance can be provided to these individuals on the PRN itself; the individual’s immigration status; the lawfulness of the removal of the individual from the UK; and immigration detention.
285. 31ZA(2) and (3) provide that these civil legal services are available under this paragraph for up to but no more than 7 hours, and that these civil legal services are available to individuals for each PRN issued to them. The intention of the sub-paragraph is that advice will generally be available for no more than 5 hours, but where certain circumstances demand it, no more than 7 hours will be available.
286. 31ZA(4) to (5) provide for certain services to be excluded from being provided within the time limit. Those services are: attendance at an interview under the NRM, attendance at an interview as part of an individual’s application in relation to rights to enter and remain in the UK, advocacy (as this advice is for advice and assistance only), and also private law rights or claims for damages. These exclusions reflect that the intention is for advice and assistance to be provided primarily on an individual’s immigration status and potential removal from the country, rather than the exercise of private law rights or anything not directly related to either of those things.
287. 31ZA(6) provides a definition.
288. Subsection 2 amends the Lord Chancellor’s power in section 9 of LASPO 2012 to allow the Lord Chancellor to change the maximum amount of time the civil legal services in subsection 1 may be provided for, and to allow the Lord Chancellor to make an order to show how the time limit could operate in practice, including an order setting out the circumstances where a full 7 hours of advice may be provided.
289. Subsection 3 amends the Civil Legal Aid (Merits Criteria) Regulations 2013 to say that these civil legal services provided to recipients of a PRN are available without the application of the merits criteria (to assess the merits of their case).
290. Subsection 4 amends the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 to say that these civil legal services provided to recipients of a PRN are available without a determination in respect of an individual’s financial resources.

Chapter 6: Evidence

Section 26: Late provision of evidence in asylum or human rights claim: weight

291. Overview: This section creates the principle that a decision-maker in an asylum or human rights claim or appeal must have regard to the principle that evidence raised by the claimant late should be given minimal weight, unless there are good reasons why the evidence was provided late. For this purpose, evidence is considered "late" if it is provided in response to an evidence notice and it is provided on or after the date specified by that notice (as provided for by section 18); and also, if it is provided in response to a priority removal notice (PRN) and is provided on or after the PRN cut-off date (as required by section 20).
292. Background: The aim of this section is to strengthen existing provisions in respect of late evidence following an evidence notice or a PRN. It adds a further consideration for decision-makers when considering how much weight should be applied to evidence provided late without good reason.
293. Subsection 1 sets out that this section will apply to evidence that is provided late as part of an asylum or human rights claim. It will apply when a deciding authority, as defined by subsections 7 and 8, considers evidence as part of a claim or as part of a decision where such claims are subject to an appeal.
294. Subsection 2 imposes a duty on the deciding authority, when considering the evidence in a claim or appeal, to have regard to the principle of giving minimal weight to evidence that is provided late unless there are good reasons why the evidence was provided late.
295. Subsections 3 to 5 relate to the definition of late evidence. Subsection 4 provides for evidence that has been provided on or after the specified date in the evidence notice as detailed in section 18; and subsection 5 provides for evidence that is provided on or after a PRN cut-off date provided for in section 20.
296. Subsection 6 specifies that determining a claim includes deciding whether a claim should be certified as clearly unfounded and whether to accept or reject evidence as a further submission.
297. Subsection 7 defines a deciding authority as an Immigration Officer, the Secretary of State, the First-tier or Upper Tribunals or the Special Immigration Appeals Commission. It also defines a "relevant appeal" as an appeal that is heard at the First-tier or Upper Tribunals or by the Special Immigration Appeals Commission.
298. Subsection 8 sets out the circumstances when the Upper Tribunal is acting as a deciding authority.

Chapter 7: Appeals

Section 27: Accelerated Detained Appeals

299. Overview: This section imposes a duty on the Tribunal Procedure Rules Committee to make rules for an accelerated timeframe for certain appeals made from detention which are considered suitable for consideration within the accelerated timeframe.
300. Background: The Tribunal Procedure Committee is responsible for drafting procedural rules for tribunal cases. The procedure for immigration and asylum appeals is set out in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 ("the Rules").
301. While appeals involving detained appellants are administratively prioritised by Her Majesty’s Courts and Tribunals Service (HMCTS) under the Detained Immigration Appeals (DIA) approach, there is no set timeframe in which these have to be determined under the Rules.
302. This section aims to establish an accelerated route for those appeals made in detention which are considered suitable for a quick decision, to allow appellants to be released or removed more quickly.
303. Subsections 1, 2 and 6 define an accelerated detained appeal for the purpose of this section and set out criteria which must apply for an appeal to be certified as such. An accelerated detained appeal is an appeal brought by an appellant who:
     • is appealing against a deprivation of citizenship, protection and human rights, EU citizens’ rights, or EEA immigration decision;
     • received notice of that decision while in detention;
     • remains in detention under a relevant detention provision;
     • is appealing a decision which was certified by the Secretary of State as suitable for an accelerated detained appeal; and
     • meets further criteria which will be set out in regulations.

304. Subsection 4 sets out that if an appellant is released from detention their appeal will cease to be an accelerated detained appeal.
305. Subsections 3 and 5 impose a duty on the Tribunal Procedure Committee to introduce procedure rules for accelerated detained appeals, setting time limits for certain stages of the appeal process and stipulating that the rules must contain provision for the tribunal to transfer cases out of the accelerated route where that is the only way to secure that justice is done.

Section 28: Claims certified as clearly unfounded: removal of right of appeal

306. Overview: This section removes the out-of-country right of appeal for human rights and protection claims that are certified as clearly unfounded.
307. Background: Currently if an asylum claim is determined as being clearly unfounded and certified under section 94 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), the claimant is provided with an out-of-country right of appeal. However, for asylum further submissions, which in effect are repeat asylum claims, the test is higher – namely "the claimant has to show that their claim has a realistic prospect of success" in order to be provided with a right of appeal. This creates a perverse situation whereby certain claimants with unfounded claims are given a right of appeal, whereas others who have claims that have a low or unrealistic prospect of success (but are not themselves entirely without merit) are not given such right to appeal.
308. Subsection 2 amends section 92 of the 2002 Act, removing the out-of-country right of appeal where a human rights or protection claim certified under section 94. It also removes the right to continue an in-country appeal as an out-of-country appeal if an appellant leaves the UK, if the human rights or protection claim that they are appealing has been certified as clearly unfounded.
309. Subsection 3 amends section 94 of the 2002 Act, removing the right of appeal against a human rights or protection claim that has been certified as clearly unfounded.
310. Subsection 4 limits the application of this section to human rights or protection claims that are certified after this section comes into effect.

Chapter 8: Removal to safe third country

Section 29: Removal of asylum seeker to safe country

311. Overview: This section and Schedule 4 make amendments to the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (the "2004 Act") in relation to the removal of asylum seekers, and those individuals who have had their asylum claim refused, to safe third countries. This includes provision for the removal of asylum seekers from the UK, provided such removal is in accordance with the UK’s international obligations. It also creates a new rebuttable presumption that certain specified countries are compliant with their obligations under the 1950 European Convention of Human Rights (ECHR) to the extent that an individual’s Convention rights under Article 3 (no torture or inhuman or degrading treatment or punishment) would be respected upon an individual’s return to these specified countries.
312. Background: Section 77 of the 2002 Act prevents the removal of an asylum seeker from the UK while their asylum claim is pending. While the UK was a member of the EU and until the end of the Transition Period (11pm on 31 December 2020), this operated alongside the Dublin Regulations, which permitted removal of asylum seekers who had already made protection claims to safe third countries that were EU Member States and managed the UK’s asylum intake.
313. This section and Schedule 4, by amending section 77 of the 2002 Act, makes it possible to remove someone to a safe third country while their asylum claim is pending without having to issue a certificate under Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This supports the future object of enabling asylum claims to be processed outside the UK and in another country. The purpose of such a model is to manage the UK’s asylum intake and deter irregular migration and clandestine entry to the UK.
314. The UK Government is committed to upholding its international obligations under the Refugee Convention and the ECHR; therefore, any such removal of asylum seekers will be considered in line with these obligations. One of the core principles of the Refugee Convention is non-refoulement, which provides that a state must not expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion (see Article 33(1)). Under Article 3 of the ECHR, no one shall be subjected to torture or to inhuman or degrading treatment or punishment. This places an absolute bar on removing an individual from the UK where there are substantial grounds to believe that there is a real risk that the individual would experience such treatment in the country to which they are being removed.
315. Schedule 3 of the 2004 Act is amended to include a rebuttable presumption that certain countries specified in Schedule 3 of the 2004 Act are safe. "Safe" in this context means that an individual does not face a risk that their rights under Article 3 of the ECHR will be breached and that they will not be sent onwards to another country in contravention of their ECHR rights. In some instances, individuals who have had their asylum claim refused and are facing removal from the UK, try to frustrate their removal from the UK by claiming that their Article 3 rights may be breached in the country to which they are being removed. This can include where the removal is to countries which the UK considers to be safe. EU member states, for example, are countries which the UK considers, due to the constitutional and administrative structures of the European Union, are highly likely to be compliant with their ECHR obligations and therefore safe for the purpose of removing an individual whose claim for asylum has failed. The presumption will only be overturned where an individual can provide evidence that there is a real risk that their Article 3 rights will be breached upon removal to the safe country.
316. This section and Schedule 4 also amend an existing power which allows the Secretary of State to add countries to the list of safe countries specified in paragraph 2 of Schedule 3 to the 2004 Act so that the Secretary of State can also remove countries from the list of safe countries in paragraph 2.
317. The Section and Schedule 4 also clarify that there is no right of appeal in reliance on an asylum claim which asserts that to remove the person to a safe country would breach the UK’s obligations under the Refugee Convention. They also remove rights of appeal for human rights claims brought against removal to the safe country which are declared clearly unfounded in line with the amendments to section 94 of the 2002 Act.

Interpretation of Refugee Convention

318. The current UK asylum law is derived from a range of sources: international and European law, primary and secondary legislation, the Immigration Rules (which are in turn supported by policy and guidance), and a substantial body of case law.
319. The following sections intend to consolidate the legislation which underpins the system to make it easier to navigate for all those who use it.
320. The Refugee Convention, which sets out the international legal framework for the protection of refugees, contains broad concepts and principles, many of which are open to some degree of interpretation as to exactly what they mean in practice.
321. In order to create a consistent and fair EU-wide asylum system, the EU created the Common European Asylum System (CEAS) in 1999. CEAS sets out common standards and co-operation to ensure that asylum seekers are treated equally in an open and fair system. This was set out in a number of Directives, the contents of which were transposed into domestic law (where there was not already a suitable domestic provision), largely via the Immigration Rules. Several statutory instruments were also made to complete transposition where there was no pre-existing domestic statute, or the Immigration Rules were not suitable.
322. One such statutory instrument was the Refugee or Person in Need of International Protections (Qualification) Regulations 2006, which transposed (in part) The Qualification Directive (2004/83/EC) into UK legislation. This is an EU law which set out criteria for the CEAS when determining when an individual is eligible for recognition as a refugee and the rights and assistance that must be afforded to those individuals who are recognised as such.
323. The UK’s departure from the EU provides an opportunity to clearly define, in a unified source, some of the key elements of the Refugee Convention in UK domestic law.

Section 30: Refugee Convention: general

324. Overview: This section instructs decision makers to use the definitions in the following sections when considering whether an individual meets the definition of refugee in accordance with the Refugee Convention.
325. Subsection 1 instructs decision-makers, including immigration officers, the Secretary of State or a court or tribunal, to use the sections in this section for the interpretation of Article 1(A)(2) of the Refugee Convention.
326. Article 1(A)(2) defines "refugee" as a person who, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".
327. Subsection 2 instructs the decision-maker to use section 36 when deciding whether a person should be excluded from the definition of a refugee on the basis of serious criminal behaviour or behaviour contrary to the principles of the UN.
328. Subsection 3 instructs the decision-maker to use section 37 when deciding whether a person should be immune from penalty.
329. Subsection 4 revokes the Refugee or Person in Need of International Protections (Qualification) Regulations 2006. The provisions of the 2006 regulations are added to the statute book via the sections in this section, such as the definition of persecution (section 31).
330. Subsection 5 stipulates that the provisions in this section and those in sections 31 to 36 only apply to claims made on or after the day this section takes effect.
331. Subsection 6 confirms that a "claim for asylum" in subsection 5, refers to a claim as set out in subsection 1 of this section.

Section 31: Article 1(A)(2): persecution

332. Overview: This section provides a definition of "persecution" for the purpose of interpreting Article 1(A)(2) of the Refugee Convention.
333. Background: For an individual to be considered a refugee, they must have a well-founded fear of being "persecuted" for a Convention reason. The UK currently relies on the definition of "persecution" provided in regulation 5 of the 2006 Regulations, which is revoked by section 30(4). The intention of this section is to create a definition in primary legislation.
334. Subsection 1 specifies that persecution can be carried out by: the state; a party or organisation which controls the state, or a large part of it; or a person or organisation that is not part of the state, but which the state cannot or is unwilling to protect the individual from.
335. Subsection 2 specifies that an act will be considered as persecution if it breaches a basic human right, particularly those rights which cannot be limited: Articles 2 (Right to life), 3 (prohibition of torture), 4 (prohibition of slavery and forced labour) and 7 (No punishment without law). Alternatively, breaches of other human rights in accumulation, resulting in a severe violation, may be defined as persecution.
336. Subsection 3 provides examples of persecution.

Section 32: Article 1(A)(2): Well-founded Fear

337. Overview: This section sets out a two-limb test to be used by a relevant decision maker (persons, Courts or tribunals) when deciding whether an individual has a "well-founded fear" of persecution in accordance with Article 1(A)(2) of the Refugee Convention.
338. Background: For an individual to be considered a refugee, they must have a "well-founded fear" of being persecuted for a Convention reason. The Refugee Convention does not elaborate on the definition of a "well-founded fear" and so the Courts have developed case law in this area. Under current case law, the standard to which a claim must be assessed is low. The claimant must show that there is a "reasonable degree of likelihood" of persecution due to one, or more, of the reasons outlined in the Refugee Convention. The decision maker will take into account statements made by the claimant together with information about the situation in the country to which the claimant may be removed if the claim fails.
339. This provision establishes a clear two-limb test for assessing whether an asylum seeker has a well-founded fear of persecution and will raise the standard of proof which an asylum seeker must satisfy for certain elements of the test.
340. Subsection 1 provides that the approach set out by this section is to be taken when deciding whether a person’s fear of persecution is "well-founded".
341. Subsection 2 sets out the first limb of a two-limb test. Under the first limb, the decision-maker determines whether the claimant has established that they have a characteristic, as set out in the Refugee Convention, which could cause them to fear persecution in their country of nationality (or the country of their former habitual residence) and whether they do in fact fear such persecution based on that characteristic. This is assessed on the "balance of probabilities" standard.
342. Subsections 3 to 5 set out the second limb of the test. Should the first test be met, the decision maker is instructed to consider whether the claimant may be persecuted if returned to their country of nationality (or the country of their former habitual residence) as a result of the reason established under subsection 2. This is assessed on the basis of whether there is a "reasonable likelihood" that they may face such persecution. This assessment must include an assessment of protection from persecution (see section 34) and internal relocation (see section 35).

Section 33: Article 1(A)(2): Reasons for Persecution

343. Overview: This section provides a definition of the term "particular social group" as used in Article 1(A)(2) of the Refugee Convention, and provides examples illustrating the meaning of race, religion and other terms used in the Refugee Convention.
344. Background: For an individual to be considered a refugee, they must have a well-founded fear of being persecuted for a Convention reason, one of which may be membership of a "particular social group". The UK currently relies on the definition of "particular social group" provided in regulation 6 of the 2006 Regulations, which is revoked by section 30(4). The intention of this section is to create a definition in primary legislation.
345. Subsection 1 provides examples of matters that are included in concepts from Article 1(A)(2) of the Refugee Convention which can be the basis of persecution. This includes race, religion, and nationality.
346. Subsections 2 to 4 provide two conditions, both of which must be satisfied by a group for it to meet the definition of "particular social group". Firstly, all members of the group must share an innate characteristic or common background which cannot be changed, or a characteristic or belief which is so central to a person’s identity they should not be forced to renounce it, for example a religious belief. Secondly, the group’s possession of such characteristics must distinguish it from the relevant society at large.
347. Subsection 5 provides a particular social group may be based on a characteristic of sexual orientation but does not include acts that are criminal in the UK.

Section 34: Article 1(A)(2): Protection from Persecution

348. Overview: This section provides a definition of "protection" as used in Article 1(A)(2) of the Refugee Convention.
349. Background: In determining whether a fear of persecution is likely to manifest, decision makers will also consider what protection is available to the individual within the country of origin to protect them from the risk of persecution.
350. The UK currently relies on the definition of "protection" provided in regulation 4 of the 2006 Regulations, which is revoked by section 30(4). The intention of this section is to create a definition of protection from persecution in primary legislation.
351. Subsection 1 specifies who is considered able to provide protection from persecution: the state or a party or organisation in control of the state, or a large part of it.
352. Subsection 2 provides that consideration be given to the sufficiency of protection. Actors of protection mentioned in subsection 1 must take reasonable steps to provide protection through its criminal law system, police force and judicial system.

Section 35: Article 1(A)(2): Internal Relocation

353. Overview: This section provides that a decision-maker must consider an asylum seeker’s opportunity for internal relocation when determining whether or not they meet the definition of "refugee" found in Article 1(A)(2) of the Refugee Convention.
354. Background: The concept of internal relocation refers to a situation where a person may be at risk in one part of a country, but not in another. If an individual could relocate to part of the country where they would not fear persecution, then the individual is considered to be able to avail themselves of the protection.
355. Subsection 1 provides that an individual will not meet the definition of "refugee" as found in the Refugee Convention if, by relocating within their country, they would no longer have a well-founded fear of being persecuted. The reasonableness of any potential relocation must be weighed into this consideration.
356. Subsection 2 provides that, when considering the reasonableness of any potential internal relocation, the decision-maker must consider the circumstances in that part of the country to which the individual could relocate, and the circumstances of the individual so as to determine whether it would be practical to expect them to move there. Any technical obstacles which might cause difficulty in relocating are not to be considered.

Section 36: Article 1(F): Disapplication of Convention in Case of Serious Crime etc.

357. Overview: This section defines the situations where the Refugee Convention will not apply to someone where they have committed, or been involved in committing, a serious crime as stipulated in Article 1(F) of the Refugee Convention.
358. Background: There are circumstances where a person is excluded from the definition of a refugee on the basis of serious criminal behaviour, or behaviour contrary to the principles of the UN (Article 1(F) of the Refugee Convention). The UK currently applies this through regulation 7 of the 2006 Regulations, which is revoked by section 30(4). The intention of this section is to reflect these exclusions in primary legislation.
359. Subsection 1 provides that an individual be considered to have committed a crime described in Article 1(F) if they encouraged or played a role in those crimes. Article 1(F) relates to serious crimes, including crimes against peace, war crimes, crimes against humanity, serious non-political crimes outside the country of refuge, or acts contrary to the purpose and principles of the UN.
360. Subsection 2 provides an interpretation for "serious non-political crime", which includes a particularly cruel action, even if it is committed with an allegedly political objective, for example murder, rape, arson and armed robbery.
361. Subsection 3 clarifies that crimes committed outside the country of refuge include crimes committed at any point up until and including the day the individual is granted permission to enter or remain in the UK as a refugee.
362. Subsection 4 provides a definition of "biometric immigration document" for the purpose of subsection 3.

Section 37: Article 31(1): Immunity from Penalties

363. Overview: This section sets out the UK’s interpretation of Article 31(1) of the Refugee Convention, setting out the circumstances in which refugees who have entered a country illegally, or are present in a country illegally, are immune from penalties.
364. Background: The UK is a signatory of the 1951 Refugee Convention. Article 31(1) of the Refugee Convention instructs that refugees be protected from penalties for their illegal entry or illegal presence where they have come directly from a territory where their life or freedom was threatened, presented themselves without delay to the authorities, and shown good cause for their illegal entry or presence.
365. The Refugee Convention does not explicitly define what is meant by "coming directly from a territory where their life or freedom was threatened" and "present themselves without delay to the authorities".
366. The purpose of this section is to create an interpretation of the criteria set out in Article 31(1), in order to clarify when a refugee would and would not benefit from the immunity from penalty provided for by that Article.
367. Subsection 1 provides an interpretation of the term "coming directly" as found in Article 31(1). It stipulates that a person will not be deemed to have come directly if they have stopped in another country between leaving the country where they faced persecution and arriving in the UK. An exception would apply if the individual can demonstrate that it was not reasonable for them to have sought protection under the Refugee Convention in the country they stopped in, for example, where a person was under the control of people smugglers and therefore unable to present themselves to the authorities in that country. Individuals who are deemed not to have come directly, as defined by this section, may not be immune to penalties imposed on them on grounds of their illegal presence or illegal entry into the UK.
368. Subsection 2 specifies what it means for a refugee to "present themselves without delay" in making a claim for asylum. In cases where an individual has fled persecution and arrives in the UK, they would be expected to make a claim for asylum as soon as it was reasonably practicable to do so after their arrival in the UK. In cases where an individual was present in the UK with permission (for example on a visa) and experienced a change in their circumstances meaning they have a well-founded fear of persecution preventing them from returning to their country of nationality, they would be expected to make their claim for asylum before their permission to stay in the UK expires. In cases where an individual was present in the UK without permission (for example a visa overstayer) and experienced a change in their circumstances preventing them from returning to their country of nationality, they would also be expected to make their claim for asylum as soon as it was reasonably practicable after their need for protection arose. Such individuals who require permission to be present in the UK and do not have it will be considered to be present in the UK illegally (subsection 3). Therefore, such individuals even if they present themselves without delay, as defined by this section, would not be immune to penalties imposed on them on grounds of not having good cause for their illegal presence or illegal entry into the UK.
369. Subsection 4 provides an exemption to imposing penalties on individuals where they have broken these rules in the course of leaving the UK.
370. Subsection 5 substitutes wording used in subsection 2 of section 31 of the Immigration and Asylum Act 1999 to align it to wording used in Section 36, and also inserts new subsection 4A into section 31 relating to the defences based on Article 31(1) that an individual may rely upon if charged of an offence. 4A provides an exception, whereby an individual may not use the section 31 defence if they committed an offence in their attempt to leave the UK.
371. Subsection 6 provides definitions for terms used in this section.

Section 38: Article 33(2): Particularly Serious Crime

372. Overview: This section reduces the threshold at which a refugee is considered to have committed a particularly serious crime. It reduces the threshold from a period of imprisonment of at least two years to a period of imprisonment of at least 12 months.
373. Background: Under the Refugee Convention, a refugee is defined as a person who, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it" (Article 1A(2)).
374. One of the core principles of the Refugee Convention is non-refoulement, which stipulates that a state must not expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion (see Article 33(1)).
375. Article 33(2) of the Refugee Convention provides an exception to non-refoulement and allows signatories to the Convention to remove refugees where there are reasonable grounds for regarding them as a danger to the security of the country of refuge or where, having been convicted by a final judgement of a particularly serious crime, they constitute a danger to the community of that country.
376. The Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") was enacted for the purpose of applying Article 33(2) of the Refugee Convention. Section 72(2) of the 2002 Act sets out the UK’s interpretation of "particularly serious crime". It currently provides that, where a person has been convicted in the UK of an offence and sentenced to a period of imprisonment of at least two years, they are considered to have committed a particularly serious crime. The individual can rebut the presumption that their "particularly serious crime" means that they pose a danger to the community of the UK, and if successful, the exception to non-refoulement will not apply. Likewise, this section also provides that where an individual has been convicted of an offence outside the UK which would have attracted a sentence of at least two years if convicted in the UK of a similar offence, they will be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community. This section also confers a power to the Secretary of State to make an order specifying which offences are considered to constitute a particularly serious crime, including where offences have been committed outside the UK.
377. There is currently ambiguity in this section as to what elements of this test in section 72 an individual may seek to rebut. Specifically whether the rebuttable presumption applies to both the assertion that a crime attracting a particular sentence is therefore particularly serious, and the presumption that, as a result of being convicted for a particularly serious crime, the individual poses a danger to the community of the UK.
378. This section is intended to lower the criminality threshold in section 72 meaning that crimes which attract a sentence of 12 months or more will be considered to be particularly serious. This is to ensure that all those who commit serious crimes can be considered for removal from the UK.
379. Additionally, this section intends to clarify that the rebuttable presumption applies only to whether an individual constitutes a danger to the community of the UK. The fact that a crime is considered to be particularly serious based on the sentence passed by the Court, is not rebuttable.
380. Subsection 1 provides for the amendment of Section 72 of the Nationality, Immigration and Asylum Act 2002, which outlines when a person is considered to have committed a particularly serious crime for the purpose of applying Article 33(2) of the Refugee Convention.
381. Subsection 2 amends the wording in section 72(1) to clarify that a person would not be denied status under the Refugee Convention, but rather would lose their immunity from return to their country of nationality or removal from the UK.
382. Subsections 3 to 5 amend sections 72(2), (3) and (4).
383. The rebuttable presumption, as currently drafted, has been construed as having two limbs: to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom. This section amends the wording in these subsections of section 72, so that the rebuttable presumption applies only to the fact that someone who has committed a particularly serious crime, constitutes a danger to the community
384. These subsections also amend what is considered to be a particularly serious crime. Crimes attracting a 12-month sentence or more are to be considered particularly serious crimes, rather than crimes attracting a prison sentence of at least two years.
385. Subsection 6 creates new subsection 5A, which serves to clarify that those convicted of a particularly serious crime are to be considered a danger to the community. This is not rebuttable.
386. Subsections 7 to 11 make consequential amendments to reflect new subsection 5A.
387. Subsection 12 amends wording to reflect the reduced threshold from two years to 12 months.
388. Subsection 13 stipulates that the amendments made by this section apply only in relation to a person convicted on or after the date on which this section comes into force.

Chapter 9: Interpretation

Section 39: Interpretation of Part 2

389. This section provides definitions for terms used in this Part.