Why the Government’s new ‘Nationality and Border’s Bill’ infringes on Equality.
At the end of 2021, the House of Commons passed a controversial ‘Nationality and Border’s’ Bill under their New Immigration Plan, which has three key principles.
To make the asylum system within the UK ‘fairer’ and more supportive of asylum seekers.
To stop illegal entry into the UK and deter the use of people smuggling networks.
Deport individuals who have no right to be in the UK.
(UK Gov, 2022)
Looking at the clauses of this newly agreed upon bill, we can see there is a direct imposition on social equality not just based on the proposed characteristics already within the Equality Act 2010, but also within the Equality Act Review 2021. The breeches can be seen in several clauses of the bill, of which in this report we will focus on Clauses 9 and Clauses 11.
Clause 9 allows the Home Office to strip someone of British Citizenship without informing them of the action in ‘exceptional circumstances’. These circumstances can include, but are not limited to, the Home Office not knowing where an individual is, perhaps due to the individual being in a warzone or by informing the individual the Home Office would be revealing sensitive intelligence. The Home Office’s reasons for removing someone's citizenship again include, but are not limited to, national security threats, war crimes, ‘unacceptable behaviour’ and serious and organised crime. It is clear that the Home Office has the jurisdiction in determining the parameters of what constitutes a threat, a war crime or ‘unacceptable behaviour’, and these may differ for different people in different contexts. Many studies for example have spoken to the fact that subjectivity and cognitive bias are involved in stop and search profiling, and border control questioning, which are more than often based on racialisation of groups of people The Home Office further stipulates that since the right to citizenship is a human right, citizenship will only be removed for those that have dual nationality.
This clause will disproportionately impact the non-naturalised citizen through their immigration status as a result of which they are at a higher risk of having their citizenship removed due to a higher likelihood of retaining dual nationality. This can be further compounded by race and racialisation as it is widely known that ethnic minorities, compared to their white counterparts, are treated differently by the UK justice system when committing the same crime. This shows the potential for a breach of the Equality Act in regards to race and increases the likelihood of such groups being stripped off their citizenship. Decades of sedimented racial narratives have normalised the view that minorities are a greater social threat in the UK, and therefore are more likely to receive harsher criminal sentences. Furthermore, the nature of dual citizenship as a risk factor for citizenship removal, breaches human rights such as the right to a family life, as dual citizenship may enable many citizens the ability to maintain transnational family connections. This further marginalised non-white persons, as persons of colour make up the largest group of migrants in the UK.
The removal of citizenship not only is an act that will be carried out unequally across groups but will also drive inequality between certain population groups within society, as citizenship is tied to voting rights, employment, education and healthcare. Therefore, in cases where the Home Office has neglected to inform an individual of their removal of citizenship, the individual's quality of life will be significantly impacted and social support will also be removed, exposing them to increased vulnerability. This can snowball into further inequalities, such as a socioeconomic inequality through unemployment status or homelessness that the individual may experience as a result of the stripping of their citizenship. This was demonstrated in the recent legal case between the Home Office and ‘D4’, where the UK courts ruled that the removal of citizenship without informing the individual is unconstitutional under current legislation. Henceforth, the immigration status of the non-naturalised individual is leaving them vulnerable to being treated unequally as a result of discriminatory behaviours on behalf of the Home Office. In our recent report “Equality Act 10 Years On”, we argued that the Public Sector Equality Duty should be ratified in law, which would prevent the Home Office from having the power to exercise discrimination in this way.
There is no doubt that Clause 9 shows an inherent breach in not only the Equality Act 2010 on the grounds of race, but also in the proposed changes made in the Equality Act Review 2021. Whilst the right to citizenship is a human right, White persons are far less likely to be targeted by the Home Office as a result of them not being associated with possessing alternative citizenship and being more likely to be favoured in the UK justice system, highlighting the importance of an intersectional approach to equality.
Clause 10 allows for the differentiated treatment of refugees, where the way in which an individual arrives within the UK is a determining factor in whether they are granted asylum. This coincides with the creation of a points-based immigration system and is aimed to act as a deterrent so that refugees claim asylum in the first country that they reach instead of travelling directly to the UK. Those that arrive through ‘safe and legal routes’ will be given priority, compared to those that arrive through ‘illegal routes’ for example through people smuggling routes, or crossing the channel. They will be organised into two groups: 1 and 2, with Group 1 refugees being those that have arrived through a ‘safe and legal route’.
This clause explicitly contradicts the recommendations of our Equality Act Review 2021 on the basis of immigration status, as it constructs two classifications of refugees, those that are ‘worthy’ and those that are ‘unworthy’, which are determined entirely on the context of how they arrive in the UK. This exposes refugees to inequality on the basis of contextual discrimination as they are judged as a result of their migratory journey. Those that the Home Office sees as legal, Group 1 refugees, will be given preferential treatment in their asylum claim, their ability to access public funds and the ability of their family to join them. This denies individuals the right to claim asylum in any country, allowing the UK to shirk its humanitarian duty and puts them at an increased risk of being removed. Not only are refugees treated differently within society compared to the UK national, but this clause will further divide refugees further so that they are themselves treated unequally. This can again, in a similar way to Clause 9, create snowballing socio-economic inequalities within the population, where the competition of being granted asylum has led to more individuals living undocumented and in precarious conditions. The creation of a clause such as Clause 10 shows the inherent lack of awareness that the Home Office has regarding the reality of migration, with many not being given the option of claiming asylum through a ‘safe and legal route’ due to the increasing harshness of the UK’s immigration policies.
It is our argument that the ‘Nationality and Borders’ Bill will exacerbate inequality in a number of areas. Furthermore, the bill not only directly contradicts some of the recommendations made in our Equality Act Review 2021, but also contradicts the original Equality Act 2010 on the grounds of race. This bill opens up for migrants to be treated as secondary citizens when compared to UK nationals and puts them at an increased risk of exposure to exclusion as a result of their status. By making the routes to obtain asylum or refuge within the UK more complex, the UK government is driving individuals to embark upon riskier migrations and social status’ by living as undocumented migrants. In addition, the introduction of legislation that drives social inequality makes it more compelling to review the bill in relation to the Equality Act 2010. If Public Sector Equality Duty were to be ratified, the Home Office would be legally obliged to exercise caution when proposing such bills, as they would have to ensure their policies are not creating inequalities.
Dearden, L. (2022) ‘Home Office loses case over stripping citizenship without challenge after challenge by alleged ISIS member’. Available at: https://www.independent.co.uk/news/uk/home-news/home-office-isis-citizenship-case-b2000956.html
Qureshi, A. and Mort, L. (2021) ‘Nationality and Borders Bill: the proposed reforms will further frustrate an already problematic asylum system’, British Politics and Policy at LSE. Available at: http://eprints.lse.ac.uk/111741/1/politicsandpolicy_nationality_and_borders.pdf
Sivanthasan, N. (2022) ‘Nationality and Borders Bill: Why is it causing protests’. Available at: https://www.bbc.co.uk/news/newsbeat-59651523
UK Government (2022) ‘Nationality and Borders Bill’. Available at: https://bills.parliament.uk/bills/3023
UK Government (2022) ‘Nationality and Borders Bill Explanatory Notes’. Available at: https://bills.parliament.uk/publications/44460/documents/1174
UK Government (2022) ‘Nationality and Borders Bill Factsheet’. Available at: https://www.gov.uk/government/publications/the-nationality-and-borders-bill-factsheet/nationality-and-borders-bill-factsheet