Resources Reports Humanitarian Visa Briefing (Report Stage, Nationality & Borders Bill) Download this briefing Humanitarian Visa Briefing - JCWI & Detention Action (Report Stage, Nationality & Borders Bill) - December 2021 New clauses 10 & 11 tabled to the Nationality & Borders Bill ahead of Report Stage in the House of Commons would create a targeted and workable Humanitarian Visa for asylum seekers resident in France seeking to come to the UK to make a substantive asylum or protection claim. The amendments have been tabled by a cross-party group of MPs including Neil Coyle, Tim Farron, Joanna Cherry, Caroline Lucas, Helen Hayes & Stephen Farry. Why a Humanitarian Visa is urgently needed The mass loss of 27 lives in the Channel on the 24th November 2021 – which included men, women, pregnant women and children – starkly demonstrates how the UK’s failure to provide safe routes to the UK for those seeking protection has driven people to make riskier and riskier journeys that inevitably end in tragedy. Hundreds of others have also lost their lives on the UK-France border over the past twenty years. To apply for asylum in the UK, one must be in the UK. But there is currently no visa for the specific purpose of claiming asylum. Instead, safe routes to the UK for refugees have been closed down. The Syrian scheme has closed. The Dubs scheme for unaccompanied asylum seeking children in Europe has been closed. The UK’s involvement in the family reunion aspect of the EU’s Dublin system ended with the end of the Brexit transition in 2020. The Afghan resettlement scheme is yet to open, despite being a centrepiece of the Government’s response to the Taliban takeover of Afghanistan. Currently there are only three routes to protection in the UK (1) ARAP which offers support to a quota of current and former employees of the UK forces in Afghanistan (2) the UK Resettlement Scheme which resettled only 1, 171 people in the year to September 2021 (46% fewer than in the previous year) and (3) Family Reunification which offers a potential route to the UK for only the spouse or children of a refugee, someone with 5 years humanitarian protection or settlement on protection grounds. These routes are narrow and the number of people offered protection through these routes is miniscule in relative terms. The UK, as a bastion of human rights with a low number of asylum seekers in comparison to other European countries, is well-placed to become a global leader in providing new routes to protection, in line with the 1951 Refugee Convention. This would set an important worldwide precedent in reducing loss of life as a result of dangerous migration journeys, weakening the business model of exploitative smuggling and trafficking networks, and resolving the ongoing political embarrassment at the UK’s border with France. Destitution, Desperation & Death on our Border Juxtaposed controls have existed between France and the UK since the 1990s, with the UK border being offshored to French soil. Everywhere else on the UK border it is possible to make a claim for asylum, but the Northern France border is an anomaly which offers no such opportunity. A standing population of prospective asylum seekers now live in destitution, over time in more or less formalised camps, always lacking in basic hygiene, shelter and necessities, subjected to abuse and degradation from the authorities, and at high risk of being trafficked. In October 2021, Human Rights Watch published a report documenting the degrading treatment of adults and children in the encampments by the French authorities. A total of 2000 people, including 300 unaccompanied children are believed to reside there at the moment. The Government repeats that it wants people to travel to the UK using safe legal routes. Yet the only routes that exist are those referred to at paragraph 5 above and which are insufficient. There are no other schemes which offer a safe or formal route to the UK for someone fleeing persecution. Every time the Home Secretary talks about people smugglers, she omits to mention the lack of safe routes and alternative options available to those fleeing persecution. The people smugglers in turn have seen their profits rise and their trade increase due to the closure of safe routes to the UK and the increasing desperation of those affected. A humanitarian visa would undermine the business model of the people smugglers. Asylum applications in comparative and historical context Contrary to Government rhetoric of an asylum system overwhelmed and in crisis, the overall numbers of people seeking safety in the UK are significantly lower compared to elsewhere in Europe, and the world. In the year to June 2021 there were 37,235 asylum claims made in the UK in comparison to 87,180 in France and 113,625 in Germany. The UK has only the 17th largest intake of asylum applications in the EU when measured by per head of the population. The UK’s 2021 asylum intake was less than half of the number of applications in 2002 which was 84,132. Meanwhile, over 70% of the world’s displaced people remain hosted by countries neighbouring places of origin, with Turkey hosting 3.6 million and Pakistan 1.4 million. The Home Secretary has consistently framed small boat arrivals as an issue of “illegal immigration” But almost all channel crossers claim asylum once they arrive in the UK, which makes their arrival and presence in the UK while their claim is being processed entirely lawful. 98% of those who arrive in the UK by small boat claim asylum in the UK. In the year to September 2021, 64% of initial asylum and protection decisions were positive and 48% of decisions were overturned on appeal. This – and the nationalities of those making the small boat crossings – people from Iran, Iraq, Syria, Afghanistan – entirely disproves the Home Secretary’s false claim to a House of Lords Committee, that 70% of those arriving by small boat are “economic migrants”. How the Humanitarian Visa will work New Clauses 10 & 11 offer a unique opportunity to urgently address the crisis and introduce a new approach. It has been drafted after detailed consultation with those who have expertise working in this area alongside those who have made the journey to the UK. The Humanitarian Visa provides for a qualifying person in Northern France to be granted entry clearance to allow them to claim asylum in the UK. On arrival, they will be treated as any other asylum claimant and will go through the normal asylum process. A person is qualified for this route if: They are in France; They are not an EU national or a national of Liechtenstein, Norway or Switzerland; They intend to make a protection claim (that is, an asylum, humanitarian protection or Articles 2 and 3 ECHR claim) in the UK; Their protection claim, if they made it in the UK, would have a realistic prospect of success; and There are good reasons why their protection claim should be considered in the UK. The fifth criterion – “good reasons” – is intentionally open-ended. It allows the appropriate decision-maker to make a fact-sensitive evaluation of the merits of the case. In considering whether there are “good reasons” the decision-maker will take into account: The relative strength of their family or other ties to the UK and to France; Their mental and physical health and any particular vulnerabilities; and Any other matter that the decision-maker thinks relevant. To give some practical examples: Applicant X applies for a France asylum visa. She is street-homeless in France due to a shortage of available accommodation. She suffers from post-traumatic stress disorder and depression as a result of having been tortured, and has not been able to seek treatment due to her insecure living situation. She has no family or friends in France, but she has a brother in the UK with whom she has a close relationship and who could support her if she were in the UK. She speaks good English but does not speak any French. There are likely to be “good reasons” for her claim to be dealt with in the UK and so the criterion is likely to be satisfied. Applicant Y applies for a France asylum visa. He is living in hostel accommodation in France. Although his housing is overcrowded, he does not have any particular health problems and there is no evidence that his living situation in France is adversely affecting his health. He does not speak English and does not have any family or other ties to the UK. There are unlikely to be “good reasons” for his claim to be dealt with in the UK and so the criterion is unlikely to be satisfied. These are simply illustrative examples. Decision-makers would make up their minds on the facts of each individual case, having regard to all relevant factors. There will be no fee for the application and legal aid will be available for the appeal process on merit to the First-tier Tribunal. Once a person has satisfied the UK authority that they have a reasonable prospect of success and there are good reasons why their claim should be in the UK rather than in France, they will be brought safely to the UK. Appeals In the interests of fairness and to make the system properly workable in practice a right of appeal will be to the First tier Tribunal. This appeal is against the refusal of a France asylum visa application. This will be a full merits appeal and will not be limited to a review of the original decision-maker’s decision. The Tribunal will decide for itself whether the criteria are met. The appeal utilises the existing machinery of immigration appeals under the Nationality, Immigration and Asylum Act 2002. There will be onward rights of appeal to the Upper Tribunal and Court of Appeal under sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007, as with other types of immigration appeal. Procedure on arrival The successful applicant will be given leave to enter for a period, not less than six months, prescribed by the Secretary of State. The Secretary of State will prescribe the conditions of such leave. Given existing Home Office policy, it is likely that the leave would be granted with conditions prohibiting work and recourse to public funds, but without a condition prohibiting study. The successful applicant will, on arrival, be deemed to have made a protection claim in the UK and will go through the normal asylum process. If their leave to enter expires while their asylum claim is being dealt with, the Secretary of State may choose to grant them further leave or to grant them immigration bail. If their asylum claim succeeds, they will be granted five years’ refugee leave in the usual way.  Research by the Institute of Race Relations has revealed that almost 300 people have died trying to cross the Channel since 1999. In October 2020 a family of Kurdish Iranians, Rasoul Iran-Nejad, 35, Shiva Mohammad Panahi, 35, Anita, nine, Armin, six, and Artin 15 months died during a Channel crossing. Baby Artin’s body was only found when he washed up in Norway in 2021. The family had reportedly tried to board the Eurostar on several occasions but had been turned back due to the UK’s juxtaposed controls.