The legal opinion of Stephanie Harrison QC and barristers Ubah Dirie, Emma Fitzsimons and Hannah Lynes of Garden Court Chambers is that the Nationality and Borders Bill will “disproportionately adversely disadvantage women and girls”. In advice prepared for the charity Women for Refugee Women and published today, the barristers state that a number of measures within the Bill are incompatible with Home Office policy, UK case law and international standards on refugee protection and human rights, and therefore open to legal challenge.

Their legal opinion concludes: “It is clear that the Bill will have multiple adverse impacts and create additional obstacles to women and girls seeking international protection in the UK. These measures individually and cumulatively increase the risk of claims being wrongly rejected and the UK acting in breach of the Refugee and/or Human Rights Convention.”

Particular concerns over how the Bill will disproportionately harm women raised within the legal opinion and by charities supporting survivors of abuse include but are not limited to the following:

  • Clause 11 enables the Home Office to offer different levels of protection to refugees based on how they traveled to the UK and when they claimed asylum. This Clause flies in the face of long-standing evidence about how difficult it is for women to disclose histories of violence and trauma, as recognised in existing Home Office policy.
    • Stephanie Harrison QC states that this Clause is “highly legally controversial” and “raises stark issues in terms of the freedom from discrimination”.
  • Clause 32 changes how ‘particular social group’ is interpreted within the Refugee Convention. As gender is not listed as a reason for persecution in the definition, many survivors of gender-based violence rely on the ‘particular social group’ ground in their asylum claims. The change will mean that more women are wrongly refused asylum and forced into further danger.
    • Stephanie Harrison QC states that this Clause is “an unexplained regressive step which will disproportionately impact women and girls seeking asylum on the basis of specific forms of gender persecution.”
  • Clause 31 introduces a heightened and confusing test for establishing whether a person seeking asylum has a  well-founded fear of persecution, and therefore requires protection in the UK. 
    • Stephanie Harrison QC states that, together with Clause 32, “[T]hese changes reverse longstanding principles and are a clear attempt to reinstate approaches which have been repeatedly and roundly rejected by the courts. This change will, in our view, significantly worsen asylum decision-making, and will have a disproportionate impact on asylum-seeking women and girls.”
  • Clause 26 will reintroduce a ‘fast-track’ asylum appeals process for people in detention, meaning that the complexities of appeals are not adequately considered. The previous process like this, ‘Detained Fast Track’, was ruled unlawful and abolished by the government. It will increase the number of women seeking asylum who are wrongly refused asylum and returned to countries where they face persecution.
    • Stephanie Harrison QC states that this Clause is “deeply retrograde step” and that “these accelerated procedures will be operated in breach of [the European Convention on Human Rights] as far as women subject to it are concerned.”

Stephanie Harrison QC of Garden Court Chambers says:

‘‘There is no doubt that the wide ranging measures contained in this Bill will fundamentally undermine the UK’s obligations under international refugee and human rights law. Reversing long established principles of law and protection for those fleeing war, conflict and persecution will not fix the broken system. It will dismantle it – leaving many facing return to death, torture and ill-treatment as well as protracted delays and uncertainty as the Courts try to grapple with the implications of these draconian and discriminatory measures. Many of those most at risk will be highly vulnerable women and girls escaping gender and sexual violence, and human trafficking. 

It beggars belief that the government should be so intent on removing legal protections for women and girls seeking asylum in the UK at a time when the world looks on in horror at the return of systemic persecution and exclusion of women and girls in Afghanistan and human trafficking including for sexual exploitation and slavery remains a major international concern.’’   

‘Anna’, who sought asylum in the UK after fleeing persecution on the basis of her sexuality in Cameroon (where homosexuality is illegal), says:

“I came to the UK because I was raped, beaten and locked up in my country because of my sexuality. When I arrived, I didn’t know where to go or what to do and I had never heard of asylum. I thought I was coming to a country where I would be accepted for who I am but that was not the case.

Being a refugee in a new country, you don’t trust people easily, especially if you have been through so much hatred, so much abuse. It took me a while to trust people who told me about the asylum process. When I applied, it was a very long journey of stress and struggle. The Home Office said they didn’t believe my story and refused my asylum claim. I was depressed and had nowhere to go for support. I had to sleep on the bus and the only way to survive was to have sex to get food. It was traumatic and degrading.

Eventually though, after all this needless suffering, I submitted a fresh asylum claim and this time they believed me. Now I have refugee status, I can choose what I want to do. I have started an online business and I’m studying to become a psychologist.

With this Bill, the Home Office might as well be ending the asylum process altogether. Women like me will be punished and won’t get the support they need. Priti Patel is making a system that is already so traumatic for women even worse.”

Alphonsine Kabagabo, director of Women for Refugee Women, says:

“I know how it feels to have to leave your home to save your life and to start again in an unfamiliar country. When I had to flee the genocide in Rwanda with my baby daughter, we were supported to be in charge of our own destinies like any other human beings, and that is the kind of welcome I want refugees arriving today to receive.

Instead, the Nationality and Borders Bill is a deliberate attempt by Priti Patel to punish people who are seeking safety. It will discriminate against women seeking asylum who have survived rape, FGM, trafficking into sexual exploitation, domestic abuse and other gendered violence. Ultimately, this cruel Bill will force survivors of violence into further danger.

I ask myself daily, where is this government’s humanity and compassion? I want to live in a society where all women are treated equally and can thrive. I urge the Government to scrap this dangerous Bill and listen to women who have been forced to the margins in order to build a better, kinder approach to refugee protection.” 

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