The Nationality and Borders Bill
is quickly on its way to becoming law. Much has been written about its troubling provisions, so I want instead to look at the impact that it will have in Wales. As Public Law Project’s (PLP’s) solicitor in Wales – coupled with my background as an adviser at the Refugee Council – many of these issues are particularly close to my heart.
According to Home Office immigration statistics,2Immigration statistics, year ending December 2021: asylum and resettlement – asylum-seekers in receipt of support, 24 February 2022.
Wales was home to 2,357 asylum-seekers receiving support under Immigration and Asylum Act 1999 s95 on 31 December 2021; a further 1,479 individuals had been resettled in Wales between January 2014 and June 2021.3CBP01403 Annex – Resettlement by local authority, House of Commons Library, 2 March 2022.
These figures don’t include: individuals and families living in Wales who have been granted refugee status outside the resettlement scheme; those who have migrated to Wales and been granted temporary leave to remain; or those who have settled in Wales and become UK citizens. Because immigration is a matter reserved to the UK government, migrants living in Wales are subject to laws in this area made in Westminster, despite the fact that Wales has a unique commitment as a devolved nation to the protection and support of vulnerable migrants.
Migrants in Wales have had first-hand experience of the impact of one particular provision that the bill looks to introduce, the use of accommodation centres to accommodate asylum-seekers. In September 2020, the Home Office used an empty military training camp in Penally, West Wales, to accommodate destitute asylum-seekers pursuant to its duties under Immigration and Asylum Act 1999 Part VI. At its peak, as many as 198 people endured conditions that were described as ‘impoverished, run down and unsuitable for long-term accommodation’.4An inspection of contingency asylum accommodation: HMIP report on Penally Camp and Napier Barracks (November 2020–March 2021), Independent Chief Inspector of Borders and Immigration, July 2021, para 2.32, page 33, and para S11, page 12.
Additional clauses that will restrict access to justice in Wales include: clauses 24 and 25, which severely circumscribe access to removal appeals; clause 29, which removes the right of appeal for cases that are certified as ‘clearly unfounded’; and clause 50, which includes exceptions to the requirement to give notice to a person liable for removal from the UK.
The Welsh government is concerned by the risks these provisions pose to asylum-seekers in Wales, but its ability to mitigate them is limited by the current devolution settlement. If a UK bill makes provision in relation to Wales for any purpose within, or which modifies, the legislative competence of the Senedd, convention requires the UK government to receive the consent of the Senedd before legislating.
The legislative consent process is an important tool for restraining Westminster’s power to make law on matters that are devolved to Wales. On 6 December 2021, a legislative consent memorandum (LCM) was laid by Jane Hutt MS
, recommending that consent be withheld on provisions in the bill that have a direct impact on age assessments of unaccompanied asylum-seeking children, as this falls within the devolved matter of social care. The Senedd voted to withhold consent. However, other clauses in the bill are out of scope for an LCM as they are not deemed to impact the non-reserved areas. This makes substantive opposition to the bill by the Welsh government and members of the Senedd extremely difficult to enact.
Further concerns voiced by Welsh politicians over the bill include Plaid Cymru’s Sioned Williams MS calling on the UK government, in November 2021, to withdraw the Nationality and Borders Bill and work collaboratively to build a more humane asylum system. Despite this plea receiving endorsement from members of Plaid Cymru, Welsh Labour and the Liberal Democrats,5OPIN-2021-0238 Opposing the Nationality and Borders Bill (e), 25 November 2021.
there is little sign the UK government will consider such an approach.
There is the political will in Wales to create a fair and humane immigration system, and, as ever, there is a willingness to adopt a unique and progressive approach. Equally, PLP remains committed to working with and supporting individuals and organisations in Wales working on these issues. However, this bill looks set to present significant hurdles to realising the country’s vision of itself as a ‘nation of sanctuary’.