6 The current legal framework
The right to claim asylum is protected by international law, but as you have seen, the process for claiming asylum is governed by a complex range of statutory sources, guidance and rules that are frequently subject to change. The main sources of law are summarised in Box 3.
Box 3 Key sources of law on asylum
International instruments
Article 14 Universal Declaration of Human Rights 1948 (UDHR) states:
- Everyone has the right to seek and to enjoy in other countries asylum from persecution.
- This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
The UK is a signatory of the UDHR, but this only has the status of an international treaty in law and is not legally binding treaty obligation in the UK.
A much more comprehensive statement of the right to asylum is provided in the Refugee Convention, which prohibits the return of people persecuted on grounds of race, religion, nationality, membership of a particular social group or their political opinion. (The Refugee Convention was incorporated into domestic law by s2 Asylum and Immigration Appeals Act 1993.)
The UN Convention on the Rights of the Child 1989 states that ‘the best interests of the child shall be the primary consideration’.
UK domestic legislation
The policy of the UK government is to reduce net migration to the UK. There are tensions between the Scottish and UK governments in relation to asylum and immigration.
The Immigration and Asylum Act 1999, as amended, outlines the process for asylum applications and appeals. It removed remaining benefit entitlements and set up the separate system of economic support and dispersal.
The Nationality Immigration and Asylum Act 2002 tightened the surveillance and control of asylum seekers with the introduction of accommodation and induction centres, asylum registration cards and measures to further restrict the availability of welfare support.
The Asylum and Immigration (Treatment of Claimants etc.) Act 2004 contains the power to withdraw financial support and accommodation from families who ‘fail to take reasonable steps’ to leave the UK after asylum refusal and exhaustion of appeal rights. It introduced a new criminal offence of arriving without documents and made some types of case support conditional on undertaking ‘community activities’.
The Immigration, Asylum and Nationality Act 2006 replaced backdated welfare entitlements for those granted refugee status with integration loans, amended end-of-line support, and specifically excludes terrorists from the protection of the Refugee Convention.
The UK Borders Act 2007 was part of a package of measures to tackle illegal working in the UK, and introduced new powers to, for example, enforce border controls, allow automatic deportation of some foreign nationals.
The Borders, Citizen and Immigration Act 2009 established a ‘path to citizenship’ for refugees, imposing additional probationary periods after ‘leave to remain’ is granted, sometimes described as ‘earned citizenship’. Section 55 introduced a duty for UK Visas and Immigration: to safeguard the welfare of children in line with the UK’s obligations under the UN Convention on the Rights of the Child 1989.
The Immigration Act 2016 and the Nationality and Borders Act 2022 have built on the government intent to make the immigration environment more hostile. For example, the Nationality and Borders Act has established the process to remove people seeking asylum to a ‘safe third country’ (at the time of writing, the Government plan is to remove people to Rwanda).