The Home Secretary, Yvette Cooper, has announced a planned amendment to the Border Security, Asylum and Immigration Bill which is currently before Parliament, as part of broader changes to UK asylum policy, aiming to exclude convicted sex offenders from international protection, encompassing asylum and humanitarian protection. The amendment, if passed, will exclude convicted sex offenders from international protection (asylum and humanitarian protection).

Criminal offending can already be a reason to exclude an individual from protection. A sentence of at least 12 months – in the UK or before entering the UK – is sufficient to exclude someone from protection. In addition, a person can be excluded if the Home Office believes there are serious reasons to believe the person has instigated or been involved in crimes against humanity – even where they have not been convicted. The threshold for exclusion was lowered in 2022 from sentences of at least 24 months.

The Home Secretary’s statement advances the threshold for exclusion considerably. Although many crimes are serious in nature there is obviously a scale of seriousness which is reflected in the different sentences a person can receive. Many sexual offences receive suspended sentences with community orders, these are non-custodial sentences and indicate a lower degree of seriousness.

The question, therefore, is whether the continued lowering of the exclusion threshold is good or bad. Is this too far, too extreme?

The context of the decision seems important. Labour appear to be jerking every knee available to them. The impression from the outside is that they are scouring immigration laws and policy to see where they can go further than the Conservative government did. It was a Conservative government which lowered the threshold to 12 months and they saw no reason to make a particular rule for sexual offences. Is this really a reasoned policy decision based on evidence and thorough research? It appears to be an attempt to ‘out Tory (or our Reform) the Tories’.

The recent restrictions on citizenship to those who entered illegally or via “dangerous routes” would suggest that this is a politically driven attack on refugees rather than a sensible effort to update policy. The announcement of the use of AI to streamline asylum decision making, without a corresponding increase in funding for the courts to process appeals, would suggest this government is looking to make impactful headlines rather than impactful change.

The obvious next question is what will happen to people excluded from international protection on this basis. The UK government cannot return people to their country of origin if there is a risk they face inhuman or degrading treatment – there is an absolute prohibition against this. These people will still remain in the UK and may receive restricted leave. This is a 6-month grant of leave which may be extended. A person with restricted leave can work and live in the UK but they won’t get indefinite leave to remain. It’s a status designed to make the person feel unwelcome and granted only to those the UK cannot lawfully remove.

However, the government does not appear to be updating other, human rights, application routes to match this new stance on sexual offences. This could lead to most of those excluded under the new threshold receiving limited leave to remain on human rights grounds, or on the basis that that they face “very significant obstacles to their integration” in their home country. This is less favourable than international protection status but individuals can still work, and may access benefits if they can show they are at risk of destitution. Importantly this is, ultimately, a route to indefinite leave to remain.

Obviously criminal offending is bad, and sexual offences have a huge impact on the victim and the community, but the severity of an offence should be reflected in the severity of the sentence. International Protection is a status of last resort, granted to those who are likely to be seriously harmed, persecuted or killed in their home countries. It is not freely given, and it is not easily obtained. The Refugee Convention 1951, to which the UK is a signatory, is clear that exclusion is permitted only in the most serious cases. The UK seems to have got away with reducing the threshold to a sentence of 12 months, but excluding people handed suspended or non-custodial sentences could stretch the UK’s international obligations too far.

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