Lecture Notes:
The Nationality and Borders Act 2022
- Consolidarity act - brings together everything from everywhere.
- The bill criminalises asylum seekers who come on “unsanctioned” or “irregular” routes to disqualify them from
consideration as refugees
- The act makes it more difficult for refugees.
Section 30 of the NBA 2022.
- HoL decision in Addan - autonomous meaning
- Sub.4 the qualifications directive is gone now - a piece of the EU law which codifies all the Refugee laws.
- Sub.3 cross-references to s.37 - if a refugee has entered/arrived illegally, then you have to look at art 31 of the
refugee convention to see if the penalty is liable.
31 Article 31(A)(2): persecution.
(1)(b) - terrorist groups basically.
- organization could be an international organisation - could be a political party.
- The organization has to control a substantial part
This leads to definitional problems when looking at the law.
- Collapses persecution with protection.
- derogable - right the state cannot take from you
- Article 3 - torture, inhumane punishment.
- (3)(b) - legal measure which is discriminatory - a paradigm case is the treatment of ethnic minorities.
32 Article 1(A)(2): well-founded fear.
- Case of Caron and Caron PW CIV 11.
- Decision makers must take a global look at all the facts and evidence
- Very low threshold - lets refugees rely on all different evidence
- BUT the article now takes the threshold differently - a balance of probabilities - raises the threshold
- 51% you can prove then you are safe BEFORE it was a reasonable degree of likelihood test of Caron and
Caron.
- The test of Caron was a credibility test - reasonable likeliness of likelihood.
- Gives the refugee a standard of doubt.
- The 51% is characteristics attributed to groups that are persecuted + whether the asylum seeker does fear
such persecution in the country of nationality.
- How broadly/narrowly do you define fear?
- Internal relocation - section 35 cannot be outside your country of residence unless you can establish that you can’t
relocate to another area.
The Nationality and Borders Act 2022
- Consolidarity act - brings together everything from everywhere.
- The bill criminalises asylum seekers who come on “unsanctioned” or “irregular” routes to disqualify them from
consideration as refugees
- The act makes it more difficult for refugees.
Section 30 of the NBA 2022.
- HoL decision in Addan - autonomous meaning
- Sub.4 the qualifications directive is gone now - a piece of the EU law which codifies all the Refugee laws.
- Sub.3 cross-references to s.37 - if a refugee has entered/arrived illegally, then you have to look at art 31 of the
refugee convention to see if the penalty is liable.
31 Article 31(A)(2): persecution.
(1)(b) - terrorist groups basically.
- organization could be an international organisation - could be a political party.
- The organization has to control a substantial part
This leads to definitional problems when looking at the law.
- Collapses persecution with protection.
- derogable - right the state cannot take from you
- Article 3 - torture, inhumane punishment.
- (3)(b) - legal measure which is discriminatory - a paradigm case is the treatment of ethnic minorities.
32 Article 1(A)(2): well-founded fear.
- Case of Caron and Caron PW CIV 11.
- Decision makers must take a global look at all the facts and evidence
- Very low threshold - lets refugees rely on all different evidence
- BUT the article now takes the threshold differently - a balance of probabilities - raises the threshold
- 51% you can prove then you are safe BEFORE it was a reasonable degree of likelihood test of Caron and
Caron.
- The test of Caron was a credibility test - reasonable likeliness of likelihood.
- Gives the refugee a standard of doubt.
- The 51% is characteristics attributed to groups that are persecuted + whether the asylum seeker does fear
such persecution in the country of nationality.
- How broadly/narrowly do you define fear?
- Internal relocation - section 35 cannot be outside your country of residence unless you can establish that you can’t
relocate to another area.
