Not sliced bread
In my previous blogs I have mentioned and quoted several times from the 1951 Refugee Convention. One hundred and forty-nine states have signed the Convention and/or its 1967 Protocol. Between them, these two documents “define the term ‘refugee’ and outline the rights of refugees, as well as the legal obligations of States to protect them” (see link below). The office of the United Nations High Commissioner for Refugees (UNHCR) describes itself as the “guardian” of the Convention and its Protocol:
According to the legislation, States are expected to cooperate with us in ensuring that the rights of refugees are respected and protected.
The references to “legal obligations” and “legislation” suggest that refugees should be able to have full confidence in the Convention and its signatory states to protect them. However, we should note that states are only “expected to cooperate” with UNHCR in its efforts to protect refugees. This is less than a “legal obligation” and suggests that “legislation” amounts to a law that need not be kept. Am I being too critical here or worrying too much? The truth is I have been wondering since the first blog in this series why UNHCR, after repeatedly criticising many of the provisions of the UK’s Nationality & Borders Act 2022 (NBA) and questioning their standing in international law, seems to have done nothing to make the UK accountable for its non-cooperation and apparent lawbreaking. The UK has been taken to court over the policy to send asylum seekers to Rwanda, but not by UNHCR. The case was launched by several charities and other organisations concerned about the consequences for refugees of this policy. This has added to doubts I have had about the Convention for more than a decade. I wrote what follows in 2010. Though much has changed during that time, I think my overall assessment still holds water.
Although, in principle, the Convention seems to establish the primacy of refugee protection, it has proved to be ambiguous and open to a variety of interpretations. So although UNHCR “advocates that governments adopt a rapid, flexible and liberal process” when dealing with asylum applicants because it recognises “how difficult it often is to document persecution” (Protecting Refugees – Questions and Answers (2003), p. 3; http://www.unhcr.ch), its interpretation of the Convention contradicts this stance. In its definition of a refugee, the Convention’s reference to persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion” (Convention & Protocol relating to the Status of Refugees (1996), p. 16: UNHCR, Geneva) suggests the possibility of group persecution and a collective refugee experience. But, when interpreted by UNHCR, the definition turns out to be based on a concept of persecution in which the burden of proof falls on the individual asylum seeker. Thus people “who apply for refugee status normally need to establish individually that their fear of persecution is well-founded” (ibid.), i.e. they must provide evidence that it is not just their social group, members of their political party or people who share their religion or ethnicity who are in danger but themselves as individuals. A “flexible and liberal process” becomes less likely as governments demand this rigorous standard of proof.
Discussions about whether to adopt a collective or an individual definition of persecution had taken place before the Convention was drafted. Concerns were expressed that a broad or collective definition would end up “multiplying the number of refugees ad infinitum” (Vernant (1953), The Refugee in the Post-War World, pp.6-7: Allen & Unwin, London). State officials at the time were resisting Sir John Hope Simpson’s 1939 definition of a refugee as someone who “has left his former territory because of political events there …” (cited, Zolberg et al. (1989), Escape from Violence Conflict and the Refugee Crisis in the Developing World, p. 21: Oxford University Press, New York).
This remained a live issue: the author of a UNHCR-sponsored study in 1953 pointed out that “the mere fact that a man has left his country solely because political events there were not to his liking does not suffice to confer on him the status of refugee” (Vernant, op cit. p. 6).
The solution was to stipulate “persecution” as the key criterion and put the burden of proof on the shoulders of the asylum seeker: “the political events which in the country of origin led to his departure must be accompanied by persecution or the threat of persecution against himself or at least against a section of the population with which he identifies himself” (ibid., p. 7). But in the end, the Refugee Convention, as interpreted by UNHCR, put the burden of proof on the individual asylum seeker.
Ambiguities between text and interpretation should not come as a surprise: UNHCR is the creation of the UN member states and continually finds itself under pressure from these states, especially the most powerful and the largest donors. Loescher reminds us that there has “hardly ever been a time in the UNHCR’s history when governments’ foreign policies or strategic interests did not affect their stance towards the Office [of the High Commissioner]” (Loescher (2001), The UNHCR and World Politics: A Perilous Path, p. 6: Oxford University Press, Oxford). During the Cold War, “American leaders considered refugee policy too important to permit the United Nations to control it” (ibid., p. 7). Today’s pressures are different, but they are just as strong. During the last decade and a half, under pressure from states, UNHCR has shifted its attention from local integration projects, educational programmes and the promotion of refugee participation to an emphasis on repatriation as the preferred solution to the refugee problem. It does, of course, say that repatriation should be “wholly voluntary”, that it should take place “in conditions of safety and dignity” and that UNHCR is against “repatriation under duress” (The State of the World’s Refugees: A Humanitarian Agenda (1997), p. 147: Oxford University Press, Oxford). Nevertheless “governments everywhere were also becoming more restrictionist and were exerting pressure on the UNHCR to encourage and promote the return of refugees to their home countries as quickly as possible” (Loescher, op cit., p. 17). This pressure was successful.
Loescher cites the return of refugees from Bangladesh to Burma, and from Tanzania and former Zaire to Rwanda and Burundi, as “illustrations of situations in which the UNHCR cooperated with host governments to return refugees home before conditions had become safe” (ibid., p. 17). UNHCR cooperation with the UK government in the repatriation of Albanian Kosovans after the 1999 Kosovo war is another example. This repatriation was against the advice of all the relief agencies in the area, a House of Commons committee and the Refugee Council in the UK (Mouncer, Bob (2000), Dealt with on their Merits? The Treatment of Asylum Seekers in the UK and France, p. 58: see link below).
The evidence is that, although UNHCR has managed, at different times in its history, to achieve some autonomy, it has little political authority of its own. But, as Loescher points out, it does have “considerable moral authority and legitimacy” and there is “no other UN agency where values and principled ideas are so central to the mandate and raison d’être of the institution or where some committed staff members are willing to place their lives in danger to defend the proposition that persecuted individuals need protection” (Loescher, op cit., p. 1). In other words, they are seriously committed to the human rights principles referred to in the preamble to the Convention.
However, the question remains whether, in the wake of the Nationality & Borders Act 2022, and with threats of legislation to come which will punish asylum seekers even more severely, UNHCR will do anything to hold the UK to account for its breaches of the Convention and, as many are arguing, of international law.
References
Refugee Convention
Dealt with on their Merits? The Treatment of Asylum Seekers in the UK and France:
Ukrainian refugees
Following on from my previous blog, in fact all my previous blogs, isn’t it possible to be a bit more optimistic about asylum policy? After all, didn’t we step up to the plate after the start of the war between Russia and Ukraine, when we welcomed Ukrainian refugees? This is certainly how the media generally depicted the UK’s response and the arrival of Ukrainian families (the majority were women and children, since most of the men had stayed behind in Ukraine to fight the war). And it was true we saw relieved Ukrainians given a warm welcome by British families, as well as by charities and other sponsors. This was surely how a humanitarian rescue scheme should work, and it looked like it had. But there are problems looking at the Ukrainian refugees’ experience solely through this lens, and one story will illustrate what I mean.
The government promised support for Ukrainian refugees wanting to join their families or link up with sponsors and come to the UK. As part of that support it said there would be a British “surge team” in Calais to meet them and presumably guide them through the necessary procedures.
There wasn’t.
Instead, said a BBC report on 9 March 2022 (see link below), “almost 300 Ukrainian refugees trying to reach the UK have already been turned back at the French border by British Border Force officials”. A BBC reporting team had followed the experience of one Ukrainian family. They found that the “support” amounted to “three men at a trestle table in a deserted departure hall at the port, with bags of ready salted crisps and KitKats.” If the family had thought, “We’ve reached France, we’re nearly there,” they were quickly disappointed. They were told to make an appointment for 15 March in Paris –– 200 miles away. That, apparently, was the nearest Visa Application Centre (VAC) available.
Readers of one of my earlier blogs (Safe routes (1)) will remember the difficulties Afghans faced when trying to get visas. There were no VACS in Afghanistan and they had to find one after leaving the country. Now the Ukrainians were having similar problems: the VAC in Lviv in Ukraine was closed and they had to search abroad. An obvious solution would have been to put a VAC in Calais. However, Home Secretary Priti Patel had other things on her mind. She had decided not to set up a VAC in Calais because, reported the BBC, she feared that refugees might be exploited by people traffickers and encouraged to cross the Channel in small boats. The Ukrainians, however, weren’t thinking of small boats. They were thinking of visas, and a simple ferry crossing, or a seat on a train. A “surge team” and a VAC centre would have protected them from criminal gangs. But they were nowhere in sight.
This was hardly a good start. The government’s current guidance is on its page entitled “UK Visa Support for Ukrainian Nationals” (see link below). It tells you how it will support you if you have family in the UK and also if you don’t have family here; it tells you about the UK sponsorship scheme (Homes for Ukraine):
The scheme enables people and organisations in the UK (sponsors) to bring Ukrainians and their family members to the UK under the Homes for Ukraine scheme.
It tells you about “Other visas you can apply for”. It tells you how to do it: “You’ll need to complete your online application form”, and then you’ll be able to “book an appointment at a visa application centre to have your fingerprints and photograph taken.” The next sentence, however, may cause you to panic, since, still, and not surprisingly, “Visa application centres in Ukraine are currently closed.” Your panic attack won’t be helped when you remember the warning flagged at the top of the page:
You must not travel to the UK before you have a visa or a letter from the Home Office giving you permission to enter.
But not to worry:
Visa application centres are currently operating throughout Europe including:
Find the opening times, address and contact details for UK visa application centres near you.
Check with your local visa application centre if there are restrictions because of coronavirus (COVID-19). Some visa application centres might be closed until further notice.
Click on Next and you will be told:
You can contact UK Visas and Immigration (UKVI) from inside or outside the UK.
Contact centre staff cannot give you advice about your personal circumstances.
I gave up at this point. But do try it.
The good news is that 100,000 people have been welcomed by hosts in the UK. The arrangement with hosts was for a period of 6 months, and hosts were paid £350 per month. The government’s plan was that when the 6-month period was over the Ukrainians should rent their own houses or “rematch” with another host. For many people, this is not working. Hosts are deciding not to rematch and many who had expressed willingness to help have changed their minds. In one Leicestershire area, only 10% of people who had offered to help now want to continue. (see Guardian link below). There are several reasons for this: rising energy bills and rising inflation generally, as well as higher interest rates, which affect, for example, mortgage repayments. Local councils are finding it difficult to solve the problems and by the end of October 1,915 Ukrainians have registered as homeless. By Christmas it is increasingly clear that there will be no room at the inn.
So what am I saying? That nobody is treated well, or that nobody gets to safety from Ukraine or Afghanistan, or from all the other places that people flee from? Of course not — because they clearly do. And when it comes to the hospitality of local communities, we have all seen the TV pictures of the warm welcome given by host families to their guests, and the Ukrainians telling how host families have left no stone unturned to ensure that their guests have access to all the help they need.
Yet wherever you flee from, including Ukraine, the UK government deliberately litters your path with obstacles to discourage you. Often only the most desperate and determined are likely to succeed. And if, in your desperation, you do find your way on to a small boat from Calais to Dover, and survive the journey, you may end up in Rwanda, or some other country where you have no friends or relatives, or you may end up in a British jail, because the Nationality and Borders Act and the other Acts and Regulations now being prepared say you are illegal, inadmissible, or just a plain criminal.
Why? Ask them. Ask your MP. Use some of the material in these blogs and ask some difficult questions. What are they going to do about these cruel, inhuman policies? And see what they say. And make some suggestions. And join an asylum and refugee support group in your area.
References
UK visa support for Ukrainian nationals
Sponsorship scheme
https://www.gov.uk/guidance/apply-for-a-visa-under-the-ukraine-sponsorship-scheme
BBC News
https://www.bbc.co.uk/news/uk-60659786
The Guardian
Bob Mouncer's blog 