Challenging Conventions

The Case for a Firm yet Humane Asylum System: Part Two

Our Obligations

What of so-called ‘international law’? Firstly we should point out that international law is not necessarily binding. The United Nations, for instance, has no power to enforce anything on nation states. Member countries vote on resolutions, and if an individual nation breaks these, the UN can raise concerns and vote on intervention by other members, such as military action or sanctions. What is a lot more binding is the European Convention on Human Rights, the central basis of the European Court of Human Rights (ECHR), which is the legal body of the Council of Europe. The Council, not to be confused with the European Council (part of the EU), is a union of 46 nations inside and outside of Europe dedicated to upholding human rights and civil liberties. It was formed in the aftermath of the Second World War, to try and avoid situations like the Holocaust from happening again. The Convention was ratified by its members in 1953.

Prior to this, in 1951 the UN had passed the Convention Relating to the Status of Refugees. It came into effect in 1954, and applied to anyone who had become a refugee in Europe before January 1^st 1951. The UN convention expanded on Article 14 of its earlier document, the Universal Declaration, which outlined human rights. Article 14 detailed the right of people to go to another country and claim asylum from persecution (except for when someone had been convicted of non-political crimes or if they had committed offences such as war crimes). In 1967 the UN convention was updated to include refugees from the whole world, and anyone who’d been made a refugee after Jan 1^st 1951.

The European convention outlined fundamental human rights which its signatories had to observe in domestic policy. It drew on both UN documents. It did not specifically mention asylum, but it applied - and continues to apply - those ‘universal’ rights to asylum cases. When the ECHR pronounces judgement on whether a country can deport an asylum seeker, or an illegal immigrant or foreign criminal, it ascertains whether those human rights will be infringed on. If it finds in the affirmative it will prevent the deportation.  

There are, it must be pointed out, vague aspects to the UN Convention which underpins the current international framework. Our government have recently been challenging these through its domestic legislation as it seeks to tackle the asylum crisis. The Nationality and Borders Act last year, and the newly unveiled Illegal Migration Bill have sought to do this.

There are numerous misunderstandings you hear about the Convention from both sides on the asylum debate. Here is a key clause of the document, from Article 31 (paragraph 1):

The Contracting States shall not impose penalties on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened… enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

So the document does specify that a ‘refugee’ can break the law in order to access a country, and signatories ‘shall not impose penalties on them’. This rebukes something our side often says – namely that by breaking into the country, the asylum seekers are automatically criminals and can be deported. However, as you can see, it does include caveats. The first is that they should be ‘coming directly’ from a territory where they are at risk. The second is that should ‘present themselves without delay’ to the authorities. These caveats contradict the common assertion that we have to take in asylum claimants no matter what.   

There is much discussion of the ‘coming directly’ rule. Many on the pro-asylum seeker side interpret this as allowing brief stops on the journey. Thus to them, short stops in Greece, Italy or France on the journey to Britain do not count. Britain is the country the individual wants to get to – and that is the place they were ‘directly travelling’ to. Within this, of course, are all sorts of potential problems. How long can they stop somewhere before ‘carrying on’ their journey? What is to stop them simply moving from place to place at their own convenience? How can you prove what they’ve done anyway, if they’ve not been processed? There are similar issues in ‘without delay’. How long is too long? Is there a time limit on the danger someone purports to be escaping?

A charitable interpretation of the ‘coming directly’ rule would be that any stop-off in a safe country must be within a certain time threshold without good reason (24 hours perhaps). The same could go for ‘without delay’ – perhaps 24 hours would also suffice. Additionally if the individual can prove that the place they first claimed asylum in has become dangerous for them, it would be fair to grant them asylum here. Other than that, it would be farcical to be more lenient.

However, what the British authorities – or reasonable bloggers – think about this is of course irrelevant. If we refuse entry and a foreign judge interprets the rules in another way, we have to let an individual in regardless. On top of this if we want to deport them, but we can’t deport them to the country they came from, we won’t be able to send them to any European country because those countries won’t want them. All that is left is to send them to a third country, which is another part of government policy we’ll discuss later. Again, when our side logically says ‘they’re coming from France’, it seemingly has no bearing on the outcome, which is overwhelmingly in the asylum claimant’s favour.

The Conservatives have noticed these provisions within the UN Convention and, quite reasonably, tried to use them. The Nationality and Borders Act 2022 reasserts that anyone entering the country illegally (and ‘unsafely’), without the extenuating circumstances that would necessitate asylum, can be prosecuted and deported. It reiterates what the Convention itself says, that they should ‘come directly’ from the country persecuting them and announce themselves ‘without delay’. If individuals don’t do these things, then by the very terms of the Convention, they can technically be refused leave to remain and be deported to a third country. This is the same official position as Germany. Proper deportation to the country they came from is too risky for the government because if someone is deported and then is killed, as has happened, it is bad publicity.

With the proposed Illegal Migration Bill, the government have more explicitly stated the contents of the previous Act, and allowed further measures to be taken against adults breaking its terms. These include detaining them until they can be sent to a third country, a future ban from the country and preventing them from ever getting citizenship. Another measure is that a claim the individual has been trafficked for modern day slavery will not prevent these actions from being carried out. This controversial aspect is a change from both the 2015 Modern Slavery Act and the 2022 Act. I would argue that ‘slavery’ is a factor that should be considered, and perhaps this part of the Bill could be dropped. However, neither should such a claim be an automatic guarantee of asylum.

You could argue these new UK laws, based on literal interpretations of UN Convention clauses, are hard to enforce in practice, but they certainly apply in principle. You could argue there are nuances around them - and there are, which individual cases and appeals will continue to navigate.

What we’re dealing in here is theory, stemming from a vague international framework. Much of the practice of law is interpretation, even when there are hard facts in a criminal trial. There is no definitive proof that our government is breaking international law. Neither is there definitive proof to the contrary. Lawyers and judges will argue those points, with every new case that comes along. All our government proposes is obeying the current, literal terms of the UN Convention, but doing so in a way that is a lot more robust and sticks up for the UK’s position. The situation is unprecedented and dangerous, the numbers are so vast, and a large section of the British public want our borders enforced as much as they can be. Nobody wants cruelty or abuses to occur, but they do want security and not to be taken for fools. They want the greater good to be considered, and if that means dropping certain niceties and toughening up, then so be it.

What happens when the real world meets theory, however, is another question. It remains to be seen how the government’s approach will hold together when (or indeed if) they attempt to enact it. The Nationality and Borders Act has yet to be seriously tested and the Illegal Migration Bill is yet to be fully passed by Parliament. During that process it will be subject to amendments in the Lords and possible squeamishness from Conservative ministers and backbenchers. Then there is likely bias in the Civil Service which will see stalling and leaks to the media to try and force the government’s hand. When the policy finally does make contact with the ECHR, we know from previous experience that the court is reluctant to let the UK properly defend its borders. Any legal appeal to a decision is already vulnerable to possible bias within the court. All it takes is for a few cases to be lost, and the new legislation would be rendered toothless – national law in all but name.

We should not be doom-mongers, or too cynical, about the government’s new approach. Some on our side, especially those in alternative political parties, are keen to pour cold water on it from the start. We should remain cautiously hopeful, even though the deck seems stacked against us. You cannot expect anything to be easy, though, and if you never fight for anything it won’t happen. You have to buy a ticket to win the raffle.

To examine the UN Convention some more, let’s take its very title to task. It does not differentiate very effectively between ‘asylum seeker’ and ‘refugee’, when clearly there is a big distinction. It explains refugee status cannot apply to people if they don’t meet a certain criteria or follow certain procedures, but from the off there is an implication that they are in need of refuge and not pretending. Some might say this prejudices the provisions. Of course, it was written following the biggest war in history, so the authors probably didn’t fully consider how much individuals would cheat the rules and take advantage of the noble endeavour. The records of the negotiation show furious discussion from delegates about the implications of particular words and clauses, and what has resulted is a compromise full of ambiguity.

Article 31 (paragraph 2) deals with the notion of restricting the movement of asylum seekers, which could include detaining them – as the government have recently proposed.

The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country.

As we can see it makes clear that detention of asylum claimants is allowed ‘until their status in the country is regularized’, in other words while their claim is investigated and processed.  Article 9 allows for asylum seekers to be held during ‘exceptional circumstances’ such as war and emergencies, until the authorities can determine if they ‘are in fact a refugee’. You could argue the current crisis is an exceptional circumstance, especially as there is a major European war occurring and indeed an ongoing conflict with Islamic extremists.

Articles 32 and 33 of the Convention deal with expulsion of asylum seekers or the return to the country which they left.

[Article 32, paragraph 1 and 2] The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order… The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law.

[Article 33, paragraph 1 and 2] No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened…The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

In other words, expulsion is allowed, but only if that individual poses a risk to national security or public order, or has committed a serious crime that puts the public at risk. There also must be proper legal process and the chance for refugees to defend themselves. The ECHR supports this point in Protocol No 7 (1984). This puts the lie to the claim that we can’t deport asylum seekers - as with the other rules, there are caveats. Also note there is nothing ruling out sending them to a safe third country. This is backed up in the EU’s Dublin Agreement, and our own Asylum and Immigration Act 1996. Thus the offshoring plans of the government, depending on the particular destinations, are perfectly legitimate.

To recap, then, nothing the government have so far proposed technically goes against the UN Convention, and thus not the ECHR’s Convention either. Delivery of these policies might in practice go against them, or be otherwise impractical. If it is the case that they do break ‘international law’, then that is regrettable. However, Australia’s asylum policies have been said to go against the UN Convention, but Australia has not been expelled from the UN as a result. Breaking the terms of the ECHR, meanwhile, would be more serious. Nobody wants to have to breach international conventions needlessly, and doing so might jeopardise or even void our membership – which is not necessarily a desirable thing. The question is: are we now at a point where we can’t worry about such things, and the safety of our country must take precedence?

It should be pointed out also that the ECHR does not only make decisions on asylum seekers or deportation – it acts as a failsafe to government overreach across all areas of human rights. As an old fashioned liberal that concerns me. Simply leaving it may be throwing the baby out with the bathwater. However, if we cannot secure our borders and the very security of the UK while remaining part of it - or no reforms to their asylum rulings can be negotiated - it might have to be done.

Of course leaving does not mean that we would suddenly stop protecting human rights. We are a civilised, liberal and fairly stable country with a free press. We have institutions providing checks and balances, and two chambers scrutinising the government and the laws it tries to pass. Some of our faith in these notions has been tested by the draconian Covid 19 measures, of course – but the fact remains. The same is true of Australia, and many other countries which are not in the Council of Europe. Australia’s successful tackling of their former asylum crises shows what is possible outside of the Council. The USA, another country not in it, has historically had a more robust approach to border enforcement, although Biden has seemingly done his best to undermine that.

What leaving could mean is that current bilateral agreements, such as extradition treaties, might be put at risk. It might also make other countries less inclined to give asylum to British people, which at present would only affect individuals. In the future, however, in the unlikely scenario of a catastrophic event befalling our country, it might mean our refugees would find things difficult. These would be key considerations in such a decision. Don’t lose sleep over this, though, because it is highly unlikely any British government would do it. Sunak has already announced he would not. The political class, global and domestic, will not allow a prominent country to jeopardise such an institution. As with leaving the EU, if one nation decides to go, they might all decide to.

Let’s look at our obligations in a moral sense. We are asked to accept that an asylum claimant can make their claim wherever they like. We are asked to accept that many want to choose the UK over anywhere else.  The reason cited for this is ‘they can speak English’ (despite the fact many can’t) or ‘they have family and friends over here’. We’re expected to say ‘oh fair enough, then’ and hold open the door. This is not a travel agency, though, and these are not consumers making a choice of holiday destination. They are meant to be in fear of their lives and desperate – so why are they picky about what country they go to?

Do we even have a moral duty to take in people who are genuinely in danger? You could argue we do. However, so do other countries. Why must it always be us, or always be Northern European welfare states? Morals and reality do often conflict. The reality of the nation state is that governments are responsible for their citizens; not just because the world is constructed that way, but because in democracies the citizens take part in the elections that vote those governments in. The reality of the welfare state is that there are only enough resources for those citizens, most of whom have funded the system through their taxes. If you let hundreds of thousands of new people in each year, without the necessary extra infrastructure, the welfare state cannot be sustained. If you let in thousands of people who did not even ask permission, who possibly used lies to gain access, it adds insult to injury. If we were not a welfare state, they would not be interested.

Those who have been given access and are in our care, we have a definite moral duty to treat humanely and keep safe while their claims are decided. People who are truly in need of protection and are currently displaced, we have a limited moral duty to – because we have to weigh it up with the duty to our own people. Those who are not in need, we have no moral duty to whatsoever.  

Consider, also, the morality of allowing asylum seekers to come in. What that does is encourage the people smuggling that got many of the migrants to our coast. It encourages the dangerous crossings, both for those who are smuggled and those acting independently. In faraway lands, people are sold a lie – that prosperity awaits and is only a few thousand pounds and a few weeks’ travel away.  If they don’t come to harm on route, and they don’t drown in the sea, or are not put into servitude by a criminal gang, the entry to the country is indeed smooth. They do get a hotel room and some spending money. Perhaps they are chuffed with this for a while, but then month after month of listless inertia and legal limbo unfold. They can’t go home, but neither can they live properly. If they do get residency, they will realise that Britain is not the Dick Whittington vision of streets paved with gold. It’s a tough life here if you’re poor and don’t speak the language. It might be relatively better than a slum in the developed world, but it cannot be much of an existence.

Another thing we are encouraging is people to leave their homelands, and to not develop their own societies, to not fight for political reform or rights, or be entrepreneurial. We’re even encouraging them to abandon their families, which is also morally troubling. If they really need asylum of course they must leave – if there is truly no way of making money for their families they have to seek work elsewhere. However, this likely is not the case for many of them, and their journey to our country  - their preference for our country in particular – is not justified. We are under no moral obligation to allow them.

Continued tomorrow, when we examine What Can We Do?