by Kathryn Allinson, University of Bristol, and Clara Della Croce, School of Oriental and African Studies (SOAS).
Introduction
The UK has adopted the Marrakesh Compact and agreed to implement the objectives which it sets out (see paragraph 41 of the Marrakesh Compact). The UK Government has repeatedly claimed that national policy is not in conflict with the Marrakesh Compact. Alistair Burt’s, Minister for the Middle East, written statement to Parliament on 10 December 2018 acknowledges that the UK is bound by existing human rights obligations, that these rights are owed specifically to migrants and that UK polices are in line with them. More recently, the UK’s 2020 report to the European Regional Review of the Marrakesh Compact, outlined that ‘the GCM is fully integrated into the UK policy architecture… GCM principles are reflected in wider UK migration policy and maintains senior official/ministerial focus on the GCM.’ The UK government consistently claims that UK policy is in line with the obligations in the Marrakesh Compact and that these are in accordance with international legal obligations owed to migrants.
The UK’s practice and statements do not conform with its commitments. This blog critically analyses the claims made within the UK review against the backdrop of UK’s practice over the last two years and in light of the Immigration Act 2020, the ‘New Plan for Immigration’ and now the Nationality and Borders Bill introduced to Parliament in July 2021. It will draw out four key fallacies in the UK’s report. Firstly, that the new points-based system is non-discriminatory and in line with the goals of the Marrakesh Compact. Secondly, that the UK’s use of immigration detention is as a ‘last resort’. Thirdly, that they are effectively and fairly addressing irregular migration. Finally, that the proposed changes to UK policy and laws will tackle human trafficking and smuggling.
In so doing, we will highlight that the UK’s implementation of the Marrakesh Compact is inherently discriminatory and undermines equality among migrants, contrary to claims by the UK’s report (p.9 ‘…it will treat people from every part of the world equally…’). Focussing on ‘legal’ movement and casting those that move irregularly as ‘illegal’ as well as designating some migrants as desirable whilst others are branded as ‘criminals’ creates an inherently discriminatory system. Despite the clear commitment in Objective 7 of the Marrakesh Compact to address and reduce vulnerabilities in migration, the new Nationality and Borders Bill treats vulnerable migrants, who would otherwise be recognised as refugees under the current rules in the UK, as criminals due to the means by which they enter the UK. Clause 10 of the Bill allows for ‘differential treatment of refugees’ depending on their mode of arrival. This has been criticised by UNHCR and others as the right to seek asylum does not discriminate based on mode of arrival.
Non-discrimination is a guiding principle of the Compact (see para 15: ‘The Global Compact is based on international human rights law and up[holds the principles of non-regression and non-discrimination…’ and objective 17). This policy capitalising on the unclear definition of the term ‘migrant’, frequently found in public debate which conflates ‘migrants’ as a broad term with, for instance, ethnic or religious minorities and with asylum seekers (See Anderson et al 2019). Therefore, these policies are contrary to the commitments the UK government made in the Compacts. However, given the UK’s preoccupation with ‘ensuring the integrity of [it’s] national sovereignty’ (p.2 of UK report and p.2 of the New Plan for Immigration) it is unsurprising that the government is utilising migration policy as a bastion to preserve that sovereignty and exercise utmost immigration control (see Dauvergne, p.588).
The new points-based immigration system ‘improving regular pathways’
The Marrakesh Compact in Objective 5 looks to ‘enhance the availability and flexibility of pathways for regular migration’ with ‘a view to expanding and diversifying availability of pathways for safe, orderly and regular migration.’ Central to this objective is ensuring rights based and diverse pathways for migrant mobility. In response to this the UK, in its report, highlights that its ‘new points-based immigration system will provide significantly greater flexibility for skilled workers wishing to come to the UK (page 9).’ It will do this through suspending the cap on skilled workers and lowering the requisite salary thresholds and skill levels for employing skilled migrants. There is much here that is problematic and veils the truth behind this policy.
Firstly, the new points-based system focusses on ‘skilled workers’ limiting who can apply to enter the UK to work and provides no avenue for those who do not meet this threshold (see further commentary here). Given that Objective 5 of the Compact is intended to respond to the needs of migrants in situations of vulnerability and diverse pathways, not limit them to a specific and highly skilled group of people. This focus on the ‘best and brightest’ migrants as desirable is exclusionary to those that do not fall into this bracket and is a means for the UK to exercise its sovereignty over migration (see Dauvergne, pp 602-605). Despite the suspension of the cap on skilled workers, the government repeatedly commits to reduce overall migration numbers (see page 3 UK report).
Secondly, the focus on skilled workers is discriminatory. It does not consider vulnerability and drivers of migration, nor its often forced nature. It fails to consider the entry into the UK of people seeking asylum or who may need protection but do not reach the refugee definition threshold. The UK report and New Plan for Immigration highlight that part of this system will be a new ‘Permission to travel’ requirement intended to facilitate passage of legitimate travellers and ‘keep away’ threats (page 10 UK report). The focus on productive migration will only increase irregular migration and push people into seeking smugglers to aid their entry. This is deeply problematic for irregular and vulnerable migrants, and those that will not fulfil the highly skilled tests. Rather than increasing pathways this is cutting off access to the UK, pushing people into increasingly covert means of entering.
The new displaced talent mobility scheme offering sanctuary to highly skilled refugees living in humanitarian camps in Jordan and Lebanon is an example of this. Home Secretary, Priti Patel, announced a new five-year visa for refugees fleeing war, reserved for those who can show proof they have the skills to fill jobs in UK labour market sectors that are suffering a shortage of workers. People who have fled conflict in Syria, Gaza and Iraq will be eligible for the pilot scheme, which will initially cover 100 refugees and their families, granting them a skilled work visa that allows sanctuary in the UK for up to five years (see here and here). Although this scheme can be seen as a step forward equating to a complementary pathway, it could also work the other way, i.e. as a hindrance to displaced people and a discriminatory practice due to its rigorous requirements and dependence on employers’ demand for sponsorship. As a result, rather than increasing pathways, this will reduce them for many migrants.
Finally, the points-based system preserves the hostile environment making access to basic rights reliant on fulfilling the governments criteria for being a desirable migrant (see JCWI report, page 5 for further details). Objective 15 of the Marrakesh Compact commits to provide access to basic services for migrants and on page 9 of the UK’s report, it claims to provide this to all migrants. However, when one reads on to page 10 and into the details of the New Plan for Immigration, and now the new Nationality and Borders Bill, it is clear that this access is reserved for regularly moving migrants who have fulfilled the highly skilled requirements. Access to emergency care will be available to irregular migrants but this is only until they are returned as they have no right to remain (page 4). Those without specific documentation are denied access to housing, healthcare, employment benefits and bank accounts. Access to basic services is predicated on fulfilling a discriminatory standard.
Immigration detention as a ‘last resort’
Objective 13 of the Marrakesh Compact commits to use immigration detention as a last resort and to work towards alternatives. Its use is to be non-arbitrary, based on law, necessity, proportionality and individual assessments (para 29) and in line with existing human rights law (see commentary here and here). The UK report’s fails to cover the steps the government is taking in pursuit of these objectives, rather, the only mention of immigration detention is made in relation to strengthening border security and addressing irregular migration. The report implies that detention is utilised to facilitate the return of those without a right to remain in line with the commitments under Objective 13 (see pages 10-11). This belies the truth of the UK immigration system which utilises immigration detention as standard, not as a last resort. The New Plan for Immigration provided a more transparent picture where, in Chapter 4, the government set out plans to introduce new asylum reception centres. The Nationality and Borders Bill focuses expressly on asylum accommodation centres which are currently remote, inadequate prison-like facilities, such as the Napier barracks in Kent. Accommodating asylum seekers in army barracks has been condemned by independent inspectors and by the High Court. Moreover, despite widespread criticism and inconsistency with Marrakesh and Global Compact on Refugees commitments (see pages 17-19), the option of offshore asylum processing still features in the new Bill allowing for asylum seekers to be removed from the UK whilst their claims are being processed. This UK practice goes contra to the right to human dignity, the sanctuary of asylum and the cherished notion of integration of refugees into the UK community.
The use of immigration detention for the purposes of removal, or when there is fear of the migrant absconding, is permitted under Article 5(1)(f) of the European Convention on Human Rights and various UK legislation such as the Immigration Act 1971, the Nationality, Immigration and Asylum Act 2002 and the Borders Act 2007. Nevertheless, according to Home Office policy and international law, “Detention must be used sparingly, and for the shortest period necessary” (EIG para. 55.1.3). However, reports demonstrate that rather than it be utilised as a last resort, it is routinely prolonged and arbitrarily failing to recognise the vulnerability of migrants in the UK. For instance, a number of asylum seekers have been immediately detained on arrival in small boats, and their asylum claims processed without giving them a chance to provide evidence and consequently their removals expedited. A few of these migrants would have formerly been treated as Dublin III cases but instead it appears that the government is using the controversial Detained Asylum Casework (DAC) as a procedural alternative to quickly remove asylum seekers. The legality of DAC has been challenged in several court cases, but to date the courts have found that DAC is lawful and different to the now defunct Detained Fast Track (DFT). Nonetheless, there is certainly alarm regarding the speed of the decision making, raising concerns as to the migrants’ vulnerability. Among the detainees are reported to be potential trafficking and torture victims from countries including Vietnam, Afghanistan, and Iraq.
As per the Hardial Singh principles, people must not be placed in immigration detention unless they will be removed within a reasonable period; that means that their removal must be imminent. But people can be detained at different stages in their immigration journey. Some are detained on arrival to the UK or when they claim asylum, when they seek to renew their visa or after having served their custodial sentence, some having lived in the UK for a life-time. Pre-pandemic figures show that around 24,000 people were detained under immigration powers in detention centres, Short Holding Facilities (SHF) and prisons throughout the UK but 60% of these were eventually released. Between October and December 2020, 74% were released back into their community, their detention having served no purpose. Detention is often prolonged varying from days to years, without a prospect of removal because many individuals cannot be returned due to the risks they face in their country of origin. This arbitrariness was vastly exacerbated by the Covid-19 pandemic.
This problematic trend continues with the new Nationality and Borders Bill. It envisages immigration detention as a standard tool of immigration control, not as a last resort measure of immigration enforcement. For example, Clause 45 introduces a new consideration for decision-makers regarding previous ‘failure… to cooperate’ with certain immigration processes when considering whether to grant bail. The decision-maker will have to factor in whether the person has “failed without reasonable excuse to cooperate” with the Home Office in various ways (See freemovement, 2021). This will most likely lead to more people being kept in detention under immigration powers and for longer periods (see BID 2021).
The use of immigration detention is discriminatory and racialised in practice contrary to commitments to non-discrimination found in the Compact. Issues of race and racism are essential to fully understand immigration detention in the UK (Bhui 2016, p.267). The position of race and racialisation clearly informs the understanding of immigration detention as an exercise of state power in the UK (see Turnbull, p. 142). Although not openly racist, UK immigration detention is racialized, gendered, and classed as to its outcomes (see Bowling, 2013, p. 157). Whilst women are detained under immigration powers, the vast majority of those detained in the UK are men, ranging from 81% to 86% (Migration Observatory 2020). The “Hostile Environment” policy further accentuates the bias towards racialized migrants and the dispossessed. The illegalisation of predominantly racialized migrants is a primary feature of the “Hostile Policy” as the policy conflates undocumented and unlawful residents (see Griffins and Yeo, p.15). Even prior to detention, racialized migrants face discrimination, poverty, challenging work conditions and fear of deportation, all of which further increases the likelihood that they will be detained. The racial bias embedded within the ‘Hostile Policy’ prompts the decision on who is to be detained and, unsurprisingly, profiling of those individuals is intrinsically entangled with these policy decisions. The actual lived experiences of immigration detainees reflect notions of inequality, exclusion, and discrimination.
Despite the UK’s undertakings at the Marrakesh Compact, what we see is a situation where immigration detention is rarely utilised to facilitate imminent removals. Even though at times, the UK is not able to effectively deport people within a reasonable time due to variety of reasons, it continues to detain migrants for prolonged and arbitrary lengths of time without due process. We see also that racism is an entrenched tool of border control and enforcement, it is essentially, “racism [that] makes borders” (see Tyler, 2018, p.1786) and immigration detention is the core practice that is unequally applied to migrants on the basis of race. This racialisation is an inherent reflection of the legacies of British colonialism and imperialism.
Tackling irregular migration, criminalising movement
The Nationality and Borders Bill promises to “break the business model of the gangs that facilitate dangerous and illegal journeys to the UK while speeding up the removal of those with no right to be here,” (see Home Secretary Opening Speech on the Bill, 2021). This promise not only means criminalising smugglers, but also means potential criminalisation of vulnerable migrants as well as denial of safety for them. This is in stark contrast to the commitments made in the Marrakesh Compact to ‘enhance the availability and flexibility of pathways for regular migration’ (Objective 5, see commentary here).
The New Plan for Immigration punishes those who enter the UK illegally (i.e. without leave under Section 24 of the Immigration Act 1971). The Plan sets outs that individuals who enter illegally will be punished in their asylum claims (if they are successful, they will only gain a temporary status, not a right to settle, despite being recognised as refugees), will suffer an increased penalty for entering illegally and may be sentenced up to 14 years imprisonment (see page 3-4, 36-37 New Immigration Plan). Further, migrants who enter the UK illegally will be subject to these same penalties and will be removed (see pages 17-20). The underlying tenant of the plan appears to be that those who enter illegally should not be seen as refugees in need of international protection (see pages 8-9) and ignores the concept of forced migration or vulnerable migrants as understood in the Marrakesh Compact (see objective 7: address and reduce vulnerabilities of migrants).
The Bill reinforces the proposals in the Plan. It proposes to criminalise people who are desperate enough to cross the Channel in a dinghy, with a penalty which can include a criminal sentence of 4 or 5 years. This is out of sync with the UK obligations under international refugee law. Moreover, discriminating against refugees obliged to arrive spontaneously in the UK will not prevent desperate people from making dangerous journeys (See JRS 2021). Provisions in the Bill aim at incentivising people to claim asylum in the first safe country they reach. This has been criticised by UNHCR and others. According to UNHCR “asylum should not be refused solely on the ground that it could be sought from another State”. This breaches the spirit of solidarity embedded in the Compact. Further measures provide for deterring ‘irregular’ travel to the UK and, more importantly, confining the scope of Article 31(1) of the Refugee Convention on ‘non-penalisation’. Clause 34 of the Nationality and Borders Bill specifies how Article 31 is to be interpreted. It defines the terms “coming directly” and “present themselves without delay” used in Article 31(1). It sets out the circumstances in which a refugee is immune from penalties for illegal entry or presence. The UK government has sent alarm bells that it is primarily concerned about asylum ‘abuse’. However, international refugee law prohibits penalisation of irregular entry (see Parliament 2021 l). The UK, by criminalising migrants for entering “illegally” in the country, is preventing vulnerable migrants, including potential victims of trafficking from securing protection.
Punishing trafficking and smuggling
Objectives 9 and 10 of the Marrakesh Compact address smuggling (Objective 9) and trafficking (Objective 10). Importantly, Objective 9 clarifies that migrants shall not become liable for criminal prosecution for having been the object of smuggling (see also Article 5 of the Protocol against the Smuggling of Migrants) and Objective 10 highlights the need to support victims of trafficking (para e and h), as well as ensure definitions of smuggling and trafficking are consistent with international law (para f). In their report, the UK government claim that they are addressing irregular migration and tackling trafficking (see page 11) focussing on ending slavery and this important aspect of protection of migrants.
However, the UK ‘hostile environment’ policy and practice drives irregular migrants to a state of ‘perpetual ‘illegality’ as it takes away their ability to challenge exploitation (See Sheona York 2018 and Wu 2021). With the reduction of legal pathways, many individuals with no other option will undertake perilous journeys offered by smugglers, who will soon become traffickers demanding the payment of exorbitant fees. Many victims of trafficking are detained subject to removal once they are found in brothels, nail bars and cannabis farms during raids (Detention Action, 2017). As a result, legitimate, vulnerable victims of trafficking are incarcerated in immigration detention centres with no referral to the National Referral Mechanism (NRM). Reports show that in 2019, 1,256 people who went on to be recognised as trafficked were first detained either upon arrival in the UK or following a criminal conviction often for offences relating to their exploitation. Detention makes it even harder for potential victims of trafficking to disclose their experiences; to be correctly identified as victims and given specialist support in the community (Detention Action, 2017). A JRS report has outlined how this is a grave failing in recognising victims of trafficking and ensuring they can access the NRM.
The Nationality and Borders Bill entails some critical provisions which could significantly impact vulnerable migrants. For example, Clause 47 provides that late compliance with slavery or trafficking information is to be considered damaging to the migrant’s credibility. If a potential victim of trafficking provides this information after the specified period, ‘without good reason’, this will be detrimental to their credibility in relation to a ‘reasonable grounds’ or ‘conclusive grounds’ decision from the NRM. However, it is well-documented, including by the UK government, that potential victims of trafficking are often reluctant to come forward with information, they do not initially recognise themselves as having been trafficked or enslaved or may tell their stories with obvious errors due to trauma or fear. Penalising individuals for not disclosing details of their exploitation when required goes against the Home Office’s own guidance on Victims of modern slavery.
Another example of a proposal which raises deep concern regarding the recognition of potential victims of trafficking is Clause 48 which provides for a new ‘reasonable grounds decision’ test. The current test for making a ‘reasonable grounds’ decision has an intentionally low threshold for good reason – identifying a victim of trafficking is a process that takes time, requires the gathering of information, and it is essential that potential victims are safeguarded, supported and not removed from the country while this process is being undertaken (See HBF, 2021). In the New Plan for Immigration, the government states that raising the threshold for a reasonable grounds’ decision is necessary to prevent ‘abuse’ of the NRM. Yet there is no evidence of abuse. What this proposal does is to raise deep concern that this new threshold will make it more difficult for migrants, primarily women, to be recognised as victims of trafficking (See WRW 2021).
These policies bely the inherently discriminatory nature of the New Plan and proposed legislation currently before Parliament. The government argues that this is to tackle smuggling and promote fairness for those unable to pay smugglers who must enter the UK via safe and legal routes (despite the aforementioned permission to travel system preventing entry for undesirable individuals). However, those able to enter the UK via safe and legal routes (i.e. through UNHCR or IOM resettlement schemes and family reunification schemes) will already be those deemed to be desirable and thus already privileged.
Concluding thoughts
We have explored how the UK’s report to the European review of the Marrakesh Compact implementation belies some fundamental commitments regarding its current, and future, immigration plans and their consistency with the commitments made in the Compact. The policies of the current government and its proposed changes are inherently discriminatory reducing legal pathways for migrants, increasingly utilising immigration detention and criminalising irregular movement. In asserting its sovereign right to control borders through restrictive immigration policies, the UK is pushing people into increasingly clandestine methods of movement thus exacerbating existing vulnerabilities. These policies are not only contrary to the commitments made in the Compact but will entrench the ‘illegal’ movement it is seeking to prevent.