New Scots Refugee Integration Strategy: 2024

Annex B: Historical, legal, and policy context for the third New Scots Strategy

Refugees and people seeking asylum in Scotland: background

Scotland has a long history of welcoming refugees and people seeking asylum from all over the world. Refugees settled in Scotland from Europe during the first and second world wars and later from Vietnam, Bosnia, Kosovo and the Democratic Republic of Congo, among other places.

The Immigration and Asylum Act 1999 began a programme of dispersing people, who had made an application for asylum, across the UK. Until 2022, Glasgow was the only asylum dispersal area in Scotland, but dispersal is now taking place across the country. The majority of refugees living in Scotland are likely to have arrived through the asylum system rather than resettlement programmes.

In recent years, Scotland has welcomed refugees to communities across the country through the UK Government’s Afghan Relocation and Resettlement Schemes, Syrian Vulnerable Persons Resettlement Scheme and Vulnerable Children’s Relocation Scheme, UK Resettlement Scheme and Homes for Ukraine. In 2022, Scotland welcomed displaced people from Ukraine through the Scottish Government’s Super Sponsor Scheme. These programmes are led by local authorities, working together with local statutory and third sector partners. Local authorities have also resettled Unaccompanied Asylum Seeking Children (UASC) through the National Transfer Scheme and continued to support other unaccompanied children who have arrived in Scotland.

International Human Rights Instruments

The human rights of refugees and people seeking asylum are protected by various international human rights instruments. The Universal Declaration of Human Rights (UDHR),^[20] adopted by the United Nations in 1948, proclaims the fundamental human rights to which all people are entitled. The rights were translated into binding obligations in international law through subsequent human rights treaties, including the International Covenant on Civil and Political Rights^[21] and the International Covenant on Economic, Social and Cultural Rights.^[22] These three instruments constitute what is known as the International Bill of Human Rights.

Article 14 of the Universal Declaration on Human Rights states that everybody is entitled to seek and enjoy asylum. International law does not distinguish between refugees and people seeking asylum, although states often do. A person who has not yet received a decision on their application is referred to as an asylum seeker or person seeking asylum.

The United Nations has subsequently adopted further human rights treaties, which address specific human rights challenges, including torture, racial and gender discrimination and the rights of children and disabled people.

The UN Convention on the Rights of the Child includes particular focus on child refugees. Article 22 (1) states:

‘State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by another person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.’

The UK was one of the first states to ratify the European Convention on Human Rights (ECHR)^[23] in 1951. The Convention was given direct effect in domestic law through the Scotland Act 1998 and the Human Rights Act 1998. The Human Rights Act requires every public authority to act compatibly with the Convention rights and enables human rights cases to be taken in domestic courts.

Individuals can bring complaints of human rights violations to the European Court of Human Rights, once all domestic possibilities of appeal have been exhausted.

The Refugee Convention

The criteria for protection under the 1951 Convention are strict. States have recognised that a number of people who do not fall within the scope of the 1951 Convention may nevertheless be in need of protection. This kind of protection is known as ‘complementary protection’. People seeking protection in the UK may also require protection to avoid a breach of their rights under Article 3 and Article 8 of the European Convention on Human Rights and consequently be afforded immigration leave.

While the UK has now left the European Union, this has not changed the UK’s obligation to offer protection to refugees as a signatory to the 1951 Refugee Convention.

Developing UK legislation and policies on refugees

The UK Parliament has passed a series of laws since 1993 that divide refugees into ‘refugees’ and ‘asylum seekers’, and have increasingly limited the rights of refugees. Due to immigration and nationality, including asylum being reserved to the UK Government under the Scotland Act 1998, these laws establish a framework for how refugees are recognised in the UK and conditions associated with their status, including applying restrictions.

The Immigration and Asylum Act 1999^[24] sets out the ability for the Home Secretary to widen asylum dispersal beyond port of arrival, this saw larger numbers of refugees arrive in Scotland through the asylum system. Glasgow was the first, and for over 20 years the only, asylum dispersal area in Scotland. Subsequent legislation has included: the Nationality, Immigration and Asylum Act 2002;^[25] the Immigration, Asylum and Nationality Act 2006;^[26] the Immigration Acts of 2014^[27] and 2016,^[28] and the Nationality and Borders Act 2022^[29] which established the policy of maximum deterrence.

The most recent legislation, the Illegal Migration Act 2023,^[30] requires the Home Secretary to make arrangements for the removal of a person from the United Kingdom if they entered the UK in breach of immigration control, if they have travelled through a safe third country en route to the UK, and if they require leave to enter or remain, but do not have it, and enables the Home Secretary to detain all persons scheduled for removal. The UNHCR has stated that this Act is at variance with the UK’s obligations as a signatory to the Refugee Convention and its obligations under international law.^[31]

The programmes through which refugees can legally arrive in Scotland are more fragmented in 2024 than they were when the second New Scots Strategy was published. Programmes for Syrians (the VPRS and VCRS) and the Gateway Protection Programme were discontinued in 2021, and replaced with the UK Resettlement Scheme (UKRS); but in addition to this, two programmes for Afghan refugees (ARAP and ACRS) were established later in 2021. In response to the Russian war against Ukraine, several schemes specifically for Ukrainians were established: the Ukraine Sponsorship Scheme (which includes Homes for Ukraine and Scottish Super Sponsor Scheme), the Ukraine Family Scheme, the Ukraine Extension Scheme and the Ukraine Seasonal Workers Scheme, all of which allow people displaced from Ukraine to live in the UK. Programmes such as the Hong Kong BN(O) Visas schemes have also been introduced to allow people feeling threat of political persecution to settle in the UK, a Welcome Hub^[32] has been developed with COSLA through DLUHC funding.

Unaccompanied Asylum Seeking children and young people can apply for asylum, the majority of which are dispersed throughout the country through the National Transfer Scheme (NTS).^[33] Since November 2021, the NTS has operated as a mandated scheme and requires that all local authorities in the UK accept transfers of children and young people into their care.

In 2022, the Home Office announced a policy of ‘full dispersal’. Until this point, following initial processing, people seeking asylum, who would otherwise be destitute while awaiting a decision on their asylum application, were, after initial processing, housed in a small number of local authorities around the UK. Asylum accommodation was, and continues to be, provided on a no choice basis. Glasgow was the only asylum dispersal area in Scotland up to 2022. This in part accounts for the expertise and maturity of policy in Scotland around supporting refugees and people seeking asylum. Due to a lack of accommodation in existing dispersal areas, and significant pressure on services, the UK Home Office announced that every local authority across the UK would be expected to accept dispersed asylum applicants with a presumption that dispersal asylum accommodation could be procured in any local authority area. In Scotland, all 32 local authorities agreed to receive asylum applicants in a proportional and planned approach.

Since the pandemic, the use of hotels to house people seeking asylum has been commonplace across the UK and, in November 2020, Scotland saw its first hotels outside of Glasgow used for contingency asylum accommodation. The UK Government continues to consider the use of larger sites, including vessels and large sites such as ex-army barracks, to house those seeking asylum. Local authorities, the Scottish Government, and Scottish Refugee Council are opposed to the use of hotels and vessels to house people seeking asylum. The UK Government has also introduced a policy of room sharing in hotels to ’maximise’ the hotel estate. Local authorities, Scottish Government and Scottish Refugee Council have also stated their clear opposition to room sharing in those hotels, as has Public Health Scotland.

Devolved and Reserved Matters – Scotland Act 1998

Under current constitutional arrangements in the UK, certain matters are reserved and are the sole responsibility of the UK Government. The Scottish Government cannot make laws or decisions which relate to those matters, and the New Scots Strategy cannot directly address issues which are outside the scope of the Scottish Government, Scottish local authorities and other Scottish organisations.

Nationality and immigration, including asylum is a matter reserved to the UK Government under Schedule 5 of the Scotland Act 1998.^[34] This includes policy on asylum; the process of considering applications for asylum; the provision of asylum support and accommodation; and the operation of refugee resettlement programmes. The Home Office considers applications for recognition as a refugee and determines whether the 1951 Refugee Convention definition is satisfied.

Many of the services which are essential to supporting refugees and people seeking asylum to settle into communities are devolved and are the responsibility of the Scottish Government and Scottish local authorities. This includes health, education, care and support of children, social care, legal services (including legal aid) and housing (excluding asylum accommodation). However, there can be restrictions placed on accessing some of these services, because of a person’s immigration status.^[35]