50.50: Analysis

The UK’s Nationality and Borders Act penalises women. Here’s how

Kidnapped, imprisoned and raped – but new legislation means this asylum seeker fears she could be deported

Lauren Crosby Medlicott
1 August 2022, 1.15pm

Graphic: Inge Snip

Women asylum seekers and refugees fear that their asylum claims will be rejected and they may be deported under the UK’s new immigration legislation.

The regulations introduce a two-tier asylum system and harsh penalties for delayed claims or evidence that is submitted late.

The Nationality and Borders Act was officially enshrined into UK law at the end of April, despite strong resistance from charities working with refugees, and a large contingency of the British public. Key elements of the act, including the two-tier system, are already in force.

The home secretary, Priti Patel, who introduced the bill to Parliament in July 2021, applauded her own victory. “This is a huge milestone in our commitment to our promise to the British public – a fair but firm immigration system,” she said when the bill passed. She described the new law as “the first step in overhauling our decades-old, broken asylum system”.

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The act may have been touted as an accomplishment by the Conservative government, but a range of voices disagree – arguing that the new legislation will not only not rectify a “broken asylum system” but actually make it worse. 

There are several ways that women seeking asylum in the UK – the overwhelming majority of whom have experienced gender-based violence – will be further traumatised as a result of the act, say experts. 

Naomi’s story: abducted, imprisoned, raped

Naomi (not her real name) travelled to the UK from Kenya in 2011 on a visitor’s visa to attend a conference. She left her three young children with her mother in Kenya until she returned. Before her visit to the UK, Naomi had been threatened by her husband’s family with female genital mutilation (FGM) after the birth of her youngest child.

At Heathrow airport, Naomi searched for a minicab to transport her to her hotel. It was to be the beginning of an unimaginable ordeal.

Instead of taking her where she had asked, the driver stopped at a petrol station and got out of the car, where a different man took over, driving her to a house where Naomi was locked in the basement.

“I was scared and confused because it was someone I didn’t know and not the place I was meant to be,” she remembered. “He just left me there, locked the door and walked out.”

Every day, Naomi was raped by her abductor. She wasn’t allowed to leave the basement, and depended on the man to bring her water and food. After a year, she became pregnant and gave birth to a daughter – in the basement. Her abductor took the baby away immediately after birth. Whenever she asked where the child was, he threatened to kill Naomi. 

“My baby was taken and I didn’t know if she was killed or still living,” Naomi recalled. 

A woman who frequented the house saw Naomi in the basement one day. “She was obviously horrified,” Naomi said. Later the same day, the woman returned and brought Naomi upstairs, where Naomi could see her kidnapper was sleeping, possibly drugged. 

The two women left the house in the man’s car; Naomi remembers the woman was “terrified while she was driving”. When the car was nearly out of petrol, the woman dropped Naomi by a church and said she would come back for her. She never did. 

The security guard at the church allowed Naomi to stay there overnight. In the morning, she met members of the congregation, but was careful not to tell anyone about what had happened to her. “I was too embarrassed to speak to anyone about what I had been through,” she said. 

Naomi quickly discovered it had been four years since her arrival in the UK. For the next six years, she lodged with different members of the church, being paid to work as a childminder and domestic worker. 

It wasn’t until November 2021, when Naomi met a member of the All African Women’s Group, a self-help group of women asylum seekers, that she disclosed all she had endured. “It brought back all the bad memories,” she said. She is now receiving the support she has never previously had.

“I am hoping to seek asylum here,” Naomi said. She is in regular contact with her children, who are now grown, but there is no way she can go back to Kenya: “I don’t have a life back in Kenya now.” 

Naomi wants to stay in the UK to avoid FGM, but she has never claimed asylum and fears that, if she does so, the Nationality and Borders Act will impact her case. 

“It’s scary, isn’t it?” she said. “Anything can happen.”

Two-tier system, punished for delays

“Most women we work with do not know what it means to claim asylum,” said Cristel Amiss from the Global Women Against Deportations coalition. “[Even when] they know that rape and domestic violence can be grounds for claiming asylum, they have a minefield to navigate and the obstacles are immense. 

“This act will put off women from claiming.”

If Naomi does now attempt to claim asylum in the UK, she will be penalised under the new legislation for having delayed her application: the act says such evidence supporting an asylum claim should be given to the Home Office by a set date.

“If you don’t provide that evidence in time, your credibility could be damaged and the evidence could be given minimal weight by the decision-maker looking at your claim,” explained Priscilla Dudhia from the support group Women for Refugee Women.

“This is going to have a real impact on women who have survived rape and other SGBV [sexual- and gender-based violence]. There are lots of reasons why these women may not be able to disclose everything on demand, whether that's because of shame, stigma or fear of reprisals. These barriers are, in fact, acknowledged in the Home Office's own policy. So what we have seen is the Home Office going against its own guidance on the barriers to disclosure. 

“Supporting evidence can also be incredibly difficult to gather where the persecution has happened in the community or by family members. This sort of violence is by nature, hidden, so the claim might require expert research, which takes time.”

Naomi’s abuse was committed in secret, with little evidence to prove her case. Under the new act, her lack of timely evidence could affect her perceived credibility as a victim, minimise the weight of any evidence provided, and damage her asylum case.

In their most recent research, Women for Refugee Women found that around 80% of women refugees and asylum seekers had escaped some form of sexual and gender-based violence (SGBV). “With that violence comes incredible trauma and severe barriers to disclosure,” said Dudhia.

Even if they are successful, the delay in submitting evidence is likely to push women like Naomi into what is called ‘Group 2’ under the new two-tier asylum system. Group 1 refugees, who are eligible for the most rights, are described as people who present themselves ‘without delay’ to the authorities. Group 2 refugees, on the other hand, are given “a very limited, precarious form of leave to remain, with restricted family reunion rights and severely limited access to public funds,” explained Dudhia.

“The secretary of state or immigration officer can attach a ‘no recourse to public funds’ condition to a Group 2 refugee's leave. This condition prevents access to most benefits, including homelessness assistance and social housing.”

Additionally, Group 2 asylum seekers will be given only temporary leave to remain, normally 30 months, before they have to once again apply for further permission to stay. If the person is unsuccessful, they could be removed as they no longer have leave to remain in the UK.

Risk of detention and deportation

“Thousands of women will be at grave risk of detention and deportation if they come forward to make an asylum claim under an act that criminalises them from the start,” warned Amiss. 

“Many will instead be forced to depend on exploitative and often abusive relationships with men or as domestic servants. Those who do claim asylum and manage to win the downgraded Group 2 status that will be all they are entitled to, will be forced to wait a further ten years [under existing immigration policy] before they can get settlement.

“During this time, they and their children will have no access to housing or benefits, or to family reunion with children they were forced to leave behind.”

Modern slavery is not an immigration issue

Naomi is a victim of rape and modern slavery. Yet under the Nationality and Borders Act, her case would be dealt with under immigration law.

It’s a step backwards, says Jamie Fookes of campaigning group Anti-Slavery International.

“Over the past decade, NGOs, survivors of modern slavery and the British government itself have sought, rightly, to separate modern slavery from immigration,” he said.

The Nationality and Borders Act goes against that, “conflating immigration enforcement with trafficking prevention and victim support,“ added Fookes. “Modern slavery is not an immigration issue – it is a crime committed against an individual.”

Similar to evidence deadlines, the act introduces trauma deadlines for victims of modern slavery by putting a time limit on when survivors must disclose their experiences. If they don’t do so in time, their credibility is damaged. This is a change from prior legislation and supposedly targets 'false' claims. “The act specifies that in determining whether to believe the information, providing the information later than the specified date can damage the credibility of the applicant,” explains Fookes. There is not any precedent in the guidance to suggest a time-frame as yet.

“We live in fear of what this country has become,” Nadine Tunasi, a refugee and coordinator for Survivors Speak OUT, part of the charity Freedom from Torture. “This government’s hostile environment has been felt ever more keenly since the Nationality and Borders Act. It has been hard enough dealing with a system that fails vulnerable people who need safety and protection in this country, but to have this cruel law passed, introducing yet more policies to make their lives more difficult, takes their pain to another level.”

At Global Women Against Deportations, Amiss is working tirelessly to help women understand their own asylum cases and their rights under the UN’s Refugee Convention. “We are determined to continue with this life-saving work, so that women have support and are able to win the right to safety and protection. 

“Defending the rights of asylum seekers, refugees and migrants to move country freely, for whatever reason, is paramount. None of us will be safe or free if governments can get away with threatening to destroy our people’s lives.”

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