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Imagine you are a Ukrainian refugee
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Imagine you are a Ukrainian refugee. Imagine you have left your home, your job, and almost all of your possessions behind. Perhaps your husband or son or father — or perhaps all of them — have stayed behind to fight. You head for the nearest border. Maybe that is Poland, maybe Moldova, maybe somewhere else.
You get there safely. You cross the border. Border guards wave you through with smiles. You are greeted by government officials and ordinary people bringing hot food and drink. Some don’t have much but they share what they do have. They help you to move into the interior of the country so that others can cross the border in your footsteps.
You hope and want to return to your home in Ukraine. But in the meantime you need to live. Where will you go? How will you support yourself? Literally hundreds of thousands of other Ukrainians are doing the same as you. The further you go, you think to yourself, the easier it may be to find work and somewhere to stay. You certainly don’t want to end up living in a refugee camp where you would depend on handouts. Perhaps you have seen the images on the news of the vast refugee camps in the Middle East and elsewhere.
You decide to head to the United Kingdom. You speak good English. Perhaps you have previously worked there as a fruit picker. Perhaps you are a software developer and have colleagues in London. Perhaps you visited once and liked it there. Perhaps you have a young child and want a better future for them if you are not able to return to Ukraine. Perhaps you are a teenager separated from your parents during the escape and you know that’s where they were headed. Perhaps you’ve heard there is plenty of work or that the people are friendly and respect human rights or you just want to be a long way away from Russia.
It doesn’t really matter why. Why should you have to stay in Poland or Moldova or one of the countries right next to Ukraine? You’ve already had to leave everything behind you, aren’t you perhaps entitled to choose where and when to stop moving? The drafters of the Refugee Convention thought this. Many had themselves been refugees. They did not include in the convention any requirement to claim asylum in the first safe country.
You assume that the British people and government are at least as generous as other European peoples and governments. You would not know it, but this is a monumental mistake on your part.
To reach the UK you need a visa because, unlike other European countries, the UK requires Ukrainians to have visas before entering. The airlines, ferry companies and Eurostar will not let you board without a visa. They will be fined £2,000 per passenger by the British government if they carry someone to the UK who needs one but did not have it. If you aren’t eligible for a visa and you are set on reaching the UK, you’ll have to sneak in somehow. It is dangerous but you are resourceful and you’ve already dealt with a lot. Others do it and there are established ways and means.
Worse, though, the Nationality and Borders Act 2022 has just been passed. Actually, it hasn’t at the time I write this, but let’s pretend that it has. If you were a Ukrainian refugee, how would you know what laws the British Parliament has or has not passed?
It turns out this law says you should have stayed in Poland, Moldova or somewhere else. Anywhere else. The whole philosophy of the legislation is that refugees should stay in the first safe country they reach. Any who do not and who come to the UK anyway will be punished.
While British politicians regularly regurgitate the line that Britain has a ‘proud history’ of offering asylum, this new law means that any Ukrainian entering without a visa — and there is no asylum visa or asylum queue to join — is committing a criminal offence. The maximum sentence is five years’ imprisonment.
If you are a teenager separated from but hoping to reunite with your parents, the new law enables a “specified scientific method” to be used to estimate your age. Government officials will want to measure your arms and inspect your teeth, or perhaps other parts of your body. If you do get asylum in the UK but your parents didn’t make it across the Channel, they will never be allowed to join you.
Once you have served your sentence, the UK will try to remove you back to Poland or Moldova or any other country you passed through on your way to the UK. They will declare your asylum claim ‘inadmissible’, meaning they won’t even start considering your case. This is despite the fact those countries are already hosting hundreds of thousands of other refugees. They have less money than the UK but they are already doing more.
Failing that, the UK will try to send you to Rwanda for your claim to be decided there. Prior to the Nationality and Borders Act, it was generally unlawful for an asylum seeker to be removed from the United Kingdom while an asylum claim or asylum appeal was being pursued. This safeguard is removed by Schedule 3 of the Act, which enables removal of an asylum seeker to a safe third country while their claim is pending.
If you cannot be removed to Rwanda or some other country, you will be treated worse than a refugee who somehow managed to travel straight from their own country to the UK. That wasn’t an option for you: there were no flights because the airlines had stopped operating and the runways had been destroyed. You may be housed in one of the large new refugee camps the government has planned. ‘Accommodation centres’, they call them.
You will be stuck there for years: the backlog of asylum claims has trebled during Priti Patel’s tenure as Home Secretary. If you win your case, you may be granted a shorter period of asylum than normal, perhaps just a year or two. This is even if the Russians win the war, impose a repressive puppet regime and everyone accepts you cannot go back. You will still have to go through it all over again. You might have additional conditions attached to your stay. If your husband, son or father does survive the invasion, they will not be allowed to join you.
Now imagine you are a Syrian refugee. Or an Afghan refugee. Or any refugee of any nationality. They are no different.
The Nationality and Borders Bill is a bad piece of legislation. It is bad in principle because refugees do not and should not have to stop in the first safe country they reach. The Ukraine crisis surely makes this obvious even to those who could not see it before. If it is wrong to treat Ukrainians in that way it is wrong to treat other refugees in that way.
This article was originally published on 2 March and has been updated in light of the government’s announcement on offshoring to Rwanda.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.