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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
Safe routes (2)
If you are fleeing persecution in your own country and you want to apply for asylum in the UK, how do you do it safely? During a House of Commons debate on Channel crossings (see link below), Home Secretary Priti Patel gave the following assurance: the Nationality and Borders Bill, she declared, “does create safe and legal routes.”
It didn’t. And nor does the final Act.
In the same debate, the Conservative MP for Hertford and Stortford, Julie Marson, went further: safe and legal routes, she said, “are central and integral” to the Bill (ibid.).
They aren’t.
The debate took place on 5 November 2021. Home Office officials and ministers may have been surprised at Patel’s assertion — as it was certainly news to them. Still, they are pretty resourceful at the Home Office: by 5 April this year, junior minister Tom Pursglove was able to tell the charity MSF UK that safe and legal routes “do not form part of the Bill” (https://www.theguardian.com/uk-news/2022/apr/17/fury-as-patels-borders-bill-found-misleading-on-safe-routes-for-migrants?CMP=Share_iOSApp_Other).
And so it turned out.
Mind you, that didn’t stop the Home Office from publishing a “factsheet” with the title Nationality and Borders Bill: Factsheet. Safe and Legal Routes. It’s still on the Home Office website (see link below).
Misleading? Of course. That’s the Home Office.
In my previous blog, I tried to show a few of the problems associated with the various government schemes and their accessibility (https://bobmouncerblog.wordpress.com/2022/08/28/safe-routes-1/). Looking now at the government schemes described in the “factsheet”, it’s clear that many of the same problems raise their heads again. Top of the list is something called a “UK Resettlement Scheme”, which is described as a “global scheme” offering “safe and legal routes” to “the most vulnerable refugees around the world”. There is, however, a limitation on it which we’ve met before (ibid.): according to the government’s Policy Guidance to its resettlement schemes (see link below), the UK “will only resettle those determined by UNHCR to be refugees” (p. 3). We’ve seen that UNHCR referral comes in three forms: self-referral, internal referral and NGO referral, and we’ve also seen some of the obstacles to engaging with this process.
The “factsheet” gives another warning:
The number of refugees we resettle every year depends on a variety of factors including local authorities’ capacity for supporting refugees and the number of community groups willing to take part.
This seems to raise a question about the effectiveness of the next item on the “factsheet’s” list, the Community Sponsorship Scheme. This scheme claims to “enable communities to welcome and support people resettled to the UK through their eligibility for the Afghan Citizens Resettlement Scheme”. Yet the “factsheet” warning suggests that such “enabling” does not include increasing the resources of local authorities to do the job or give any similar encouragement to community groups. Such groups should, it seems, already have increased their own resources:
Community sponsor groups need to demonstrate that they have suitable plans and resources in place to support a refugee or family.
The positive note in this second scheme is also undermined in that “eligibility” must surely be dependent, as in the first scheme, on UNHCR referral.
There are several other schemes in the “factsheet” of varying relevance and one (the route for British National (Overseas) status holders (BN (O)) has no relevance at all here. It may be that some schemes work for some people. But beware — a pattern has emerged which we would be foolish to ignore: a more detailed look may reveal that they have also been undermined in some way, like the first two. We may have reason to come back to them but, for now, they needn’t detain us any further.
So in terms of practicalities, what’s the situation on the ground? If, for example, you are a member of a minority ethnic group, about whom the government claims to be “particularly concerned”? Like the Hazaras. The Hazaras faced discrimination and violence in Afghanistan long before the Taliban came on the scene and, as DUP MP Jim Shannon told MPs in a debate on 6 January 2022, when the Taliban ruled the first time Hazaras “faced targeted violence, and many fled as refugees … in search of safety” (see link below). But the Taliban returned to power in August 2021 and, by the time of the debate, Shannon’s concern was that
There has been a resurgence of attacks on the Hazara community since the Taliban took control of Afghanistan. Hazara schools and religious sites have been bombed, medical clinics have been targeted, and Hazara civilians have been murdered by the Taliban and ISIS-K (ibid.).
These concerns were shared by Labour MP Fleur Anderson, who worried that Hazaras in the UK
have no way of knowing whether their family members are in the system … It is very unclear whether these people are going to be safe despite the fact that they are in hiding and in fear of their lives” (ibid.).
Little seems to have improved since then. It is still the case that if you are a UK citizen anxious to bring close family relatives to safety in the UK in the current Afghanistan crisis, you could be forgiven for abandoning hope. The Afghan Pro Bono Initiative (a partnership of NGOs and law firms which offers free legal support in such cases) gives the following advice:
[T]he routes to the UK are incredibly limited. The route for bringing adult dependent relatives to the UK is extremely difficult and unlikely to be successful — there is a very high fee for the applications and the applicants have to prove they need care from the family member that they cannot obtain elsewhere (Pro Bono Initiative advice to a prospective client).
The “high fee” for the application will go to the Home Office which, in more ordinary circumstances, charges high fees at every stage of a family reunification procedure. What we have here, though, are not ordinary circumstances and the Home Office, rather than rising to the humanitarian occasion, has instead seized this new opportunity to cash in on human distress and desperation. There is also an additional obstacle: your family members must have some special need (unspecified, for flexible refusal purposes) before they stand any chance of being accepted. So much for the “right to family life” (European Convention on Human Rights, Art. 8; this is signed by all 47 members of the European Commission (including the UK), so is not confined to EU members and is unaffected by Brexit). Moreover, when it comes to particularly vulnerable people, nine expert groups on Afghanistan, in a parliamentary briefing in early August,
criticised the British government’s resettlement schemes as “unjustifiably restrictive”. They said it was deeply concerning that the government was currently not offering a safe route for many Afghan women and girls or to oppressed minority groups (The Guardian, 15/8/2022: https://www.theguardian.com/uk-news/2022/aug/15/uk-treatment-of-afghan-refugees-continues-to-be-source-of-shame?CMP=Share_iOSApp_Other
It also seems that only the simplest possible case stands a snowflake’s chance of success. Pro Bono told one enquirer (a Hazara) that “unfortunately we are not able to assist because … the nature of your case is very complex.” It involved just four close family members. As to urgency, one of them was a child, a girl.
Look out next for Ukrainian refugees.
References
Channel crossings debate
Commons Hansard, 25/11/2021: https://hansard.parliament.uk/commons/2021-11-25/debates/68AB08E2-DD41-4674-B7B1-602A7375524F/EnglishChannelSmallBoatsIncident#contribution-16AA51EB-AB65-4EE2-BA5D-F60E081717B6)
Policy guidance to resettlement schemes
Factsheet
Jim Shannon Debate
Safe routes (1)
I ended the previous blog by noting that the alternative to dangerous journeys (safe routes to protection) were few and far between. The Refugee Council has identified 2 main routes (what the government calls “safe and legal” routes) for people seeking asylum in the UK: they are the family reunion and the resettlement routes. The Refugee Council also calls for the creation of humanitarian visas such as those used by the EU states (Safe routes save futures, Refugee Council: https://www.refugeecouncil.org.uk/get-involved/campaign-with-us/safe-routes-save-futures/).
Family reunion. For the 5 years prior to the Nationality & Borders Act (NBA), around 29,000 people were reunited with their families through family reunion schemes. 90% of them were women and children. However, the Act now denies the right to family reunion for Group 2 refugees, who are only given temporary refugee status (arguably illegally). The Office of the High Commissioner for Refugees (UNHCR) made the following point before the Bill became an Act:
With the possibility of applying for family reunion foreclosed, moreover, more women and children are likely to attempt dangerous journeys, either at the same time as the men who might previously have sponsored them under current rules, or to join them afterwards. This risk has been recognized by the Council of Europe, among others, and has been borne out in Australia, where the abolition of family reunion rights for holders of “Temporary Protection Visas” was followed by a threefold increase in the percentage of refugees trying to reach Australia who were women and children (UNHCR Observations on the Nationality & Borders Bill, para 20, p. 7: https://www.unhcr.org/uk/615ff04d4.pdf).
Patel often holds up the Australian government as an example to follow in its asylum policy. However, the result of doing so in this case means that her declared objective (to reduce deaths and dangerous journeys) is likely to be defeated.
Refugee resettlement schemes. According to the Refugee Council:
Europe generally accepts very few refugees for resettlement. Between 2004 – February 2021, the UK has been resettling around 750 refugees annually, from all over the world, through the Gateway Protection Programme. This was in addition to the 20,000 refugees from Syria who were resettled to the UK by February 2021 (https://refugeecouncil.org.uk/information/refugee-asylum-facts/refugee-resettlement-facts/).
The Syria resettlement scheme ended in March 2021. Two resettlement schemes were set up to cover Afghanistan. The first was the Afghan Relocation and Assistance Policy (ARAP) — https://www.gov.uk/government/publications/afghan-relocations-and-assistance-policy/afghan-relocations-and-assistance-policy-information-and-guidance. The scheme, set up in December 2020, was restricted to “employees of Her Majesty’s Government”. There were four categories of eligibility in the scheme. However, there was a further restriction built into it, found in the words “directly employed”. This meant that if you applied for the job through an agency you were not eligible to be included in the scheme, whether your job was to support the armed forces or with the government in general, whether you were a bodyguard or an interpreter. This angered, and left stranded, a large number of people.
The second scheme was the Afghan Citizens Resettlement Scheme (ACRS) — https://www.gov.uk/guidance/afghan-citizens-resettlement-scheme. It was a half-hearted affair from the start: it was announced in August 2021 but wasn’t launched for another 5 months and seemed at first to be restricted to those who had already come to the UK during the chaotic evacuation following the Taliban’s takeover and the USA’s and the UK’s withdrawal from the country (https://www.refugeecouncil.org.uk/get-involved/campaign-with-us/safe-routes-save-futures/). It was eventually divided into three pathways. The first was, as mentioned, for the people already here. The second pathway was through UNHCR referrals. This is for people who have fled Afghanistan to a neighbouring country (e.g. Pakistan) and who may want, for example, to join relatives in the UK. The third pathway is for “those at risk who supported the UK and international community effort in Afghanistan”, plus particularly vulnerable” people such as women and girls and ethnic minority groups (like, say, the Hazaras). Unfortunately, this pathway is no longer available. There is no indication why this is so (it may be because the first year’s quota has been reached, but the ACRS page doesn’t say so and it doesn’t say if or when the pathway will reopen).
It’s difficult in fact to know what is available. Supposing you have managed to get out of Afghanistan? The official government Guidance tells you the following:
If you have fled from Afghanistan to another country looking for humanitarian support, and are seeking resettlement to the UK, you should not make a visa application (“Support for British and non-British nationals in Afghanistan”, Guidance: https://www.gov.uk/guidance/support-for-british-and-non-british-nationals-in-afghanistan).
The Guidance then directs you to the ACRS page, where Pathway 2 tells you about being referred for resettlement by UNHCR — not that the Guidance (being skimpy) has mentioned UNHCR, but you may just notice it on the ACRS page. How does UNHCR referral work? Well, if you are in touch with UNHCR yourself a “self-referral” may be possible, or an “internal referral” by a staff member; if you are in touch with a non-governmental organisation (an NGO), you may be able to get an “NGO referral” to the UNHCR. But if you have limited contacts in the country to which you have fled, arranging this may be difficult. There are no links in the government Guidance to these UNHCR procedures. They might be found elsewhere, but my experience didn’t suggest they were easy to get to. I googled a simple question: “I am an Afghan refugee in Pakistan, how do I contact UNHCR?” The result was two invitations to donate to help refugees (one from UNHCR and the other from the Red Cross), next came a UNHCR plea for “support” followed by an appeal to donate to help women in Afghanistan, and then came information, from “UNHCR Pakistan” (https://help.unhcr.org/pakistan/), aimed at people travelling in the opposite direction, that is who want to be resettled back in Afghanistan under UNHCR’s “facilitated voluntary repatriation programme” — the opposite of what I (or, indeed, any Afghan refugee escaping the Taliban) might be looking for. If the government were serious about protecting refugees it would put clear information in one obvious and easily accessible place. Did I say the scheme was half-hearted? It is. Incidentally, the UNHCR Pakistan page did, if you scrolled past the “voluntary repatriation” section, provide a link to further information for new arrivals. The link didn’t work when I tried it.
Supposing you haven’t left Afghanistan? The UK government offers the following guidance under the heading “Support for British and non-British nationals in Afghanistan”, with the assurance that “We continue to work at pace to assist people facing serious risk in Afghanistan”. So here you are, a “non-British national” (i.e. an Afghan) facing serious risk:
Afghan nationals need to apply for a visa to come to the UK to study, work, visit or join family … There is currently no Visa Application Centre (VAC) operating in Afghanistan. If you are in Afghanistan and wish to make a UK visa application, you will normally have to submit your biometric information (fingerprints and photograph) in a VAC in a third country to complete your application (https://www.gov.uk/guidance/support-for-british-and-non-british-nationals-in-afghanistan).
So you have to go abroad, scramble out to a third country, with your children, and all your biometric information if you’re lucky, and find a VAC! Are VACs part of UNHCR? Don’t know. Keep looking, Afghan national. But if you lose heart and decide to make your own way here to join your relatives, you could end up in Rwanda.
More on safe routes in the next blog.
Criminals, crime and business models
Let’s see what makes you a criminal in Patel’s universe. We saw in the first blog of this series that travelling to the UK without a valid travel document and then applying for asylum is now a punishable offence, despite the Refugee Convention saying that signatory states “shall not impose penalties” for such an act. However, in Patel’s new universe, according to the law she has spawned, you may be tried in a magistrates’ court or the Crown Court and, while the punishments are different, punished you will be. This is true whether you have arrived in a small boat provided by smugglers or you have managed, say, to hide in a lorry to get across the Channel. Migrants coming to the UK illegally, says Patel, should be “appropriately penalised” for breaking the law, especially when they “originate” from safe European countries (Policy Statement, p. 36). In fact, of course, they don’t originate from safe European countries: they originate from the home countries they had to flee. The most they may have done is to pass through a European country. But that has now also become a crime.
Others will be punished too. The Nationality & Borders Act (NBA) increases the powers of Border Force guards to search vehicles. If you are a lorry driver you will be punished if your vehicle has not, in the opinion of the Border Force guards, been secured against “unauthorised access” (NBA, Schedule 5 (1), (a)). Moreover, this will happen whether or not a refugee is found in your vehicle: “A penalty may be imposed … regardless of whether any person has obtained unauthorised access to the vehicle” (Schedule 5 (3)). All this comes under the heading “Failure to secure goods vehicle, etc”. But the factors which constitute such “failure” are only vaguely identified in the Act. They include “checking”, “reporting”, and “keeping records”. It is left to the Secretary of State to specify details through regulations, which presumably she and her successors will do from time to time. But all this places an uneasy burden on drivers. Carriers (owners of ships, aircraft and other means of transport) will also be punished. If you have travelled on a ship or aircraft without a valid travel document and you are caught by an immigration officer, the carrier will be fined £2,000 (NBA, s. 76 (2)).
Penalties abound. In one example, where Patel seems determined to dot every “i”, cross every “t” and nail everyone in sight, Schedule 5 (12) of the Act stipulates:
Where a penalty is imposed … on a person who is the driver of a goods vehicle pursuant to a contract … with … the vehicle owner or hirer … the driver and [the owner] are jointly and severally liable for the penalty imposed on the driver (whether or not a penalty is also imposed on [the owner]).
The definition of “travel document” seems to be expanding. In her Policy Statement, Patel declares (p. 39): “[W]e will legislate to establish and enforce Electronic Travel Authorisations (ETAs)”. To get your ETA you will have to declare any criminal record you may have (or presumably declare that you have no criminal record). Apparently, everyone coming to the UK will need one — as well as a passport. “This will”, says Patel, “give the UK more control of our borders, improve our capability to count people in and out and ensure we can do more to prevent criminals from travelling to the UK” (ibid.). This desperate insistence on closing the gates and pulling up the drawbridge reflects an unreasonable fear of outsiders, an exaggerated xenophobia. If that is denied, I want to ask why criminality checks should take place for people travelling from Berlin to London but not for people travelling from Manchester to Devon. The only possible answer must be our fear of foreigners. And that is xenophobia.
But for all the penalties and punishments imposed on drivers, hauliers, ship owners and train operators, there are few clues as to what will happen to the smugglers themselves. Patel seems to believe that, because of these punishments, the criminal networks will be disrupted and their business model broken. But is this credible? Research published by the Migration Policy Centre suggests that “policy interventions aimed at disrupting smuggling networks may make smuggling more lucrative and increase incentives for criminals to enter this market” (https://globalinitiative.net/wp-content/uploads/2018/01/EUI-What-Does-It-Mean-to-Disrupt-the-Business-Models-of-People-Smugglers_.pdf, p. 3). In other words the smugglers will become richer and there will be more of them. As one refugee, “Fernando”, told Refugee Action:
On the news [the govenment] were saying that “we are doing this so smugglers don’t get money” … [but] what you will do is make them richer as they will find out how to get in the country and they will charge more … People pay! Because they need to save their lives (“All Punishment No Protection: Why the Anti-Refugee Bill Should be Scrapped”, p. 8: https://www.refugee-action.org.uk/wp-content/uploads/2021/11/All-Punishment-No-Protection-Report.pdf).
This also means that many people will become indebted to smugglers and traffickers, another lucrative aspect of their trade.
There is certainly no sign of a fall in Channel crossings. According to the Commons Home Affairs Committee, this “may be attributed to scaremongering from people traffickers, that because of new regulations coming in across the Channel it will be much harder to access the UK in future, so they had better get on with it” (https://www.bbc.com/news/uk-england-kent-62539789). The people smugglers will doubtless also try other ways, other methods and routes, to persuade refugees to use their “services”. They have even been lowering their prices according to one report “as rival groups tried to achieve dominance in the market” (ibid.). This is a far cry from the destruction of their business model. It should be no surprise, as BBC South East recently reported, that suspected people smugglers
were using TikTok to advertise illegal entry to the UK via the English Channel. Fierce competition between gangs saw various groups boasting they were the “best” operator for successful crossings, and stating “Rwanda has been cancelled” (ibid.).
So punishing refugees for their lack of travel documents and the route they travel doesn’t seem to be dissuading them from making the journey. Nor does the punishment of lorry drivers, hauliers and carriers. And the disruption of anybody’s business model any time soon seems unlikely.
So how to stop the dangerous journeys, the smugglers and the deaths that are the inevitable result not only of their activities but of the steady disappearance of legal routes to safety? On this, Sophie McCann, advocacy officer of MSF UK, makes the point: “There are almost no safe ways for someone fleeing war, persecution or poverty to travel to the UK” (https://www.theguardian.com/uk-news/2022/apr/17/fury-as-patels-borders-bill-found-misleading-on-safe-routes-for-migrants?CMP=Share_iOSApp_Other). I will try to explore some of this in my next blog.
So you want to appeal, do you? (2)
We considered Patel’s first two changes in appeals policy in the previous blog. They were the “good faith” requirement and the “one-stop” process. Her next change unexpectedly sounds positive: “We will … [p]rovide more generous access to advice, including legal advice, to support people to raise these issues …” (Policy Statement, p. 27, see link below). Whether this is good news or not may depend on the meaning you give to “generous”. In the Act, “legal services” (basically, legal aid) for appeals are provided for people who have received Priority Removal Notices (PRNs) and wish to appeal against their deportation. Such legal services may be granted “for up to (but no more than) 7 hours”. It’s not clear why we should see this limit on legal aid as generous. There have been limits before. The ones set in 2004, were five hours for solicitors to make an initial asylum application to the Home Office for their clients and a £1,600 limit on asylum work undertaken for an appeal. When it came to appeals, solicitors had to second-guess the appeal judge and only take cases they thought stood a more than 50% chance of winning. What happened next was that solicitors were often unable to complete the necessary work within the time limit and, not surprisingly, were often unlucky at second-guessing the learned judge. They began to shut down their immigration services. In Hull, by 2006, there were no firms specialising in immigration and asylum. One asylum support centre struck an agreement with a firm in Doncaster (60 miles away) to do weekly surgeries in Hull and a solicitor in Grimsby (30 miles away) took only paying clients (Mouncer, B., Dealt with on their Merits, para. 6.4.1, pp. 140-141: https://hydra.hull.ac.uk/assets/hull:2678a/content). Unsurprisingly, there are fears of a similar outcome this time round, which would leave the most vulnerable people without representation at a crucial stage in their search for protection.
Speed is crucial under the new policy, and Patel quickly makes that clear. The “more generous access to advice” will enable people to “provide evidence as early as possible and avoid last minute claims”. Consider the following scenario: you have been give a PRN (and therefore a cut-off date after which you will be deported); you decide to appeal; you miss the cut-off date. Your appeal will then be certified as “expedited” unless it is decided that there were good reasons why you were late. Who decides whether your reasons are good? If you thought it would be a judge, you would be mistaken. It is the Home Secretary who decides. The very same Home Secretary who refused your asylum claim in the first place. There is no guidance on what constitutes a good reason. The Home Secretary will decide for herself whether she is “satisfied that there were good reasons”, but we are not privy to the workings of her mind. But once her mind has worked on your reasons and she has decided she is unsatisfied with them, she will immediately speed up your appeal: “The Secretary of State must [my italics] certify [the claimant’s] right of appeal [as an expedited appeal]” (Nationality & Borders Act 2022, s. 23 (1) (new insertion 82A (2)).
So you may get to a final, speeded-up hearing. But beware: “… cases that do proceed to a final hearing … will be shorter and more focused” (Policy Statement, p.29). Why would that be? Well, cost is still crucial: “This more efficient appeals system will ensure better value for the taxpayer, [and] free up valuable judicial time …” (ibid.). And let’s not forget the theme that permeates this new policy, the need to stop people making dangerous journeys across the Channel in order to make “unmeritorious” claims and, now, to stop them making “unmeritorious appeals that can be a way of preventing removal” (ibid.).
Expedited appeals go to the Upper Tribunal, the last port of call (or the last-chance saloon), not the First-Tier Tribunal (which examines cases in detail and may grant further leave to appeal). Expedited appeals to the Upper Tribunal must be “brought and determined more quickly” than a First-Tier appeal (Nationality & Borders Act 2022 (NBA), s.23 (1) (inserted section 82A (4)). Moreover, although your solicitor can represent you in court and be present during any interview you have with Home Office caseworkers and others, you will have to pay for these services yourself since they are not part of the “more generous” legal advice package. (See NBA, s.25 (1) (inserted section 31ZA (5)).
But even First-Tier Tribunal hearings have been speeded up: they have been “streamlined” and the aim is to “deliver an efficient and transparent service … that is simple, fair and accessible for everyone” (to use the meaningless jargon of the Policy Statement (p. 29)). Appeals will be “progressed online where appropriate” and the issues dealt with will be “narrowed” (ibid.). In the context of this new policy, our fear must be that “narrowed” means “limited”, so that you won’t be able to raise all the issues you think are relevant.
On good reasons for being late:
- we discussed in an earlier blog how experiences of torture and abuse, including sexual abuse, and other experiences in their country of origin, and on their journey to escape it, often result in trauma and mean that people are reluctant to talk about them. It is only in desperation and at the last minute that they decide to do so;
- the asylum system is complex and some delays are no doubt unavoidable. But the House of Commons Home Affairs Committee report of July 2022 also identified some avoidable and long-term problems not yet tackled, including inappropriate software, poor processes, insufficient staff, worry among staff about meeting targets, inadequate “quality assurance” for standards resulting in errors, delays and more appeals. (Committee report, para. 6, pp. 7-8: https://committees.parliament.uk/publications/23102/documents/169178/default/).
- there is sheer incompetence on the part of staff running the system, which goes back a long way. In the early 2000s, I knew a Kosovan asylum seeker who had been in the UK for more than a year but was now detained, awaiting deportation, in the Pembury Hotel in Finsbury Park, North London — the Home Office had taken over the hotel and turned it into a detention centre for these purposes. When she arrived her caseworker at the hotel, Alistair, told her that her files were missing and he had no idea where they could be or what they said about her. They were subsequently traced. They were, he finally told her, in the office in Brixton, South London. What to do? Alistair knew immediately: she must go and pick them up in Brixton and bring them back to him now. And this is what happened. Such shenanigans produce delays;
-
- there is a level of disrespect for asylum seekers amounting to hostility among Home Office staff which also goes back a long way, with consequential errors and delays. One asylum seeker received a refusal letter from his caseworker but he didn’t understand it. So he asked his solicitor to explain it. The solicitor began to read the letter until she suddenly saw the words “With regard to your claim to be a national of Afghanistan, the Secretary of State thinks that this is a pile of pants” (
The Guardian
-
- , 16 December 2000:
- ). It is difficult to see how any asylum claims entrusted into this caseworker’s care were being taken seriously if this was the his approach. Such an approach must certainly cause delays.
- We have discovered that the “more generous” provision of legal services, including legal aid, is nothing of the kind. We have seen how the appeals process is now shortened and speeded up to get you out of the system and out of the country as soon as possible. This is particularly so in the case of expedited appeals. We have noted that, although the Act just about allows that you might have good reasons for missing the PRN cut-off date, it is the same Home Secretary who refused your original asylum claim, not a judge, who must decide whether your reasons are acceptable or should be dismissed. And we have seen how delays on your part are considered unacceptable almost by default while delays caused by the Home Office are ignored.
- This is all for now. More later.
Policy Statement:
Nationality & Borders Act 2022:
WHY THIS ACT HAS TO GO
Home Secretary Priti Patel’s immigration bill has passed through parliament and has received the Royal Assent. It is now law. It’s called the Nationality and Borders Act (NBA) and is bad news for us all, but especially for anyone forced to flee persecution.
The UK long ago signed the 1951 Refugee Convention but some believe that the passing of this Act is a prelude to the present government withdrawing from it. Others predict that the UK will be forced out for breaching it.
What is so objectionable about the Act?
First, although the Act seems to accept the Refugee Convention’s definition of a refugee — i.e. someone who is outside their home country, has a “well-founded fear” of persecution in that country and is, for that reason, “unwilling” or “unable” to return there (Refugee Convention, Art. 1 (A) (2); NBA s.32 (1)) — it immediately starts to make refugee protection in the UK impossible to achieve for most people who need it. At the heart of the Act is a two-tier system which discriminates between refugees, depending on how they travel to the UK. If you have a passport and you come on a regular flight or cross the Channel on EuroStar, and you apply for asylum soon after you arrive, the Act presents no obstacles at this stage. Likewise, if you travel by some kind of official route — a government resettlement scheme or a family reunion scheme, or a scheme related to a specific crisis in a particular country or region — once again the Act presents no obstacles at this stage. In both these cases, if your asylum claim is accepted, you will be classed as a Group 1 refugee and given Indefinite Leave to Remain (ILR). If you have arrived on a resettlement scheme you may have already been granted refugee status before you set out on your journey. With ILR, you will also have the right to work and to apply for family members to come to join you. If, however, you don’t have a passport, and you’re not travelling by an official route, you will have problems. Unable to get a genuine passport in your own country due to persecution, you may have managed to get a false passport (which, if it isn’t spotted as false in the course of your journey, will probably be identified as false on your arrival in the UK). Or you may simply have travelled the best way you could (by walking, hitch-hiking, or maybe paying an agent to get you through part of your journey across continents or across the Channel. Many refugees fleeing persecution and violence travel in these ways because to do so is their only option and the official schemes and routes are few and limited. But if you do, you will be classed as “unlawful” immediately on arrival. In the words of the Act:
… a person’s entry into or presence in the United Kingdom is unlawful if they require leave to enter or remain and do not have it (NBA s.12 (4).
In similar vein:
A person who (a) requires leave to enter the United Kingdom under this Act, and (b) knowingly enters the United Kingdom without such leave, commits an offence (NBA s. 40 (2) (B1).
It is worth pausing here to look at what the Refugee Convention says about penalties for illegal entry. It says there shouldn’t be any penalties. States that have signed the Convention
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 in the sense of article 1, 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 (Refugee Convention, Art. 31 (1).
So no passport no penalty. It begins to look like the penalty for illegal entry may itself be illegal, and we may expect it to be challenged in the courts. But as things stand, having been defined as “unlawful”, if you now apply for asylum you will be put into an immigration reception centre while you wait for a decision on your claim. On the face of it, this may sound like a reason to be hopeful. But we will see that the system is not as straightforward as that and you shouldn’t be so positive so soon. For one thing, the process is supposed to take up to six months, but may last considerably longer. At the end of it your claim may be refused. In that case, apart from a possible right of appeal, you will be considered ripe for detention pending deportation.
However, even if you are granted asylum at the end of this decision-making process, you will not be given refugee status as it was defined before this Act was passed. You will instead be punished for the way you travelled to the UK: you will be classed as a “Group 2 refugee” (NBA s.12 (5)) with very limited rights. They will be limited because the Home Secretary is specifically empowered by the Act to limit them. Section 12 of the Act allows the Home Secretary to treat Group 2 refugees differently (i.e. less advantageously) in terms of the length of their right to remain, the requirements they must fulfil in order to get ILR, and whether they have access to public funds (i.e. whether they can claim state or other benefits). The Home Secretary has the same powers over the refugee’s family (i.e. whether they would be entitled to enter, or remain in, the UK, what requirements they must fulfil and whether they would have access to public funds (NBA s.12 (5), (6)). Yet UNHCR is clear: it “reiterates that the attempt to create two different classes of recognised refugees is inconsistent with the Refugee Convention and has no basis in international law” (UNHCR Observations on the Nationality and Borders Bill, para 8).
The Act falls foul of the Convention and of international law in another respect. You may also find yourself, as an “unlawful” traveller, in yet another category. Your claim may be “inadmissible” if, on your journey to the UK, you passed through another “safe” country where you might have applied for asylum, but didn’t (NBA ss. 16-17). When the UK was in the EU the rules of the Dublin Convention allowed the government to send asylum seekers back to the first safe country they had passed through. So if you had passed through France, you could be sent back to France to make your claim there. But we have left the EU and the Dublin Convention no longer applies. So shouldn’t your claim, in these circumstances, now be admissible? And can’t it now be considered?
No, it can’t. Because the new law (apparently substituting itself for the now-disappeared Dublin Convention) says that you have a “connection” to that “safe” country and should apply for asylum there, not here (NBA s.16). In the words of the Act itself, you were “previously [i.e. during your journey] present in, and eligible to make a relevant claim to,” that country (NBA s.16 (80C) (4)). However, in its observations on the Bill in 2021, UNHCR made clear that the “first safe country” principle
is not found in the Refugee Convention and there is no such requirement under international law. On the contrary, in international law, the primary responsibility for identifying refugees and affording international protection rests with the State in which an asylum-seeker arrives and seeks that protection (UNHCR Observations, para. 3).
So, once again, the Act could well be in breach of the Refugee Convention and found to be breaking international law.
Moreover, the Act is silent about what should actually happen to you once it has declared your claim to be “inadmissible”. For the government hoped, in the absence of the Dublin Convention, for agreements with other “safe” countries where asylum seekers could be sent. Unfortunately for the government, no state seemed interested, either within the EU or outside it. All the government could say about declarations of “inadmissibility” was that there is no right of appeal against them, on the grounds that appeals are made against refusals of claims after they have been considered and these claims haven’t been considered because they have been declared “inadmissible”. In the words of the Act: “A declaration … that an asylum claim is inadmissible is not a decision to refuse the claim and, accordingly, no right of appeal … arises” (NBA s. 16 (80B) (3)).This tricky, not to say devious, argument left these particular asylum seekers in an impossible position: they were “unlawful”, their claims couldn’t even be examined, and they had nowhere to go.
At least, not until Rwanda came on the scene. The UK government has reached a “Memorandum of Understanding” with Rwanda in which Rwanda
commits to receive asylum seekers from the United Kingdom, to consider their claims for asylum, giving effect to their rights under international law through the Rwanda domestic asylum system and arranging for the settlement in Rwanda of those recognised as refugees or otherwise requiring protection … (Memorandum of Understanding, para. 1.1).
Apparently the asylum seekers chosen for despatch to Rwanda will be the “unlawful” ones “whose claims are not being considered by the United Kingdom”, so they will be, at the very least, the “inadmissible” ones who failed to stop in France, Germany, Spain, Italy, etc., to claim asylum there, but there is no clarity about which asylum seekers will eventually be sent to Rwanda. Whoever they are, Rwanda will “process their claims and settle or remove (as appropriate) individuals after their claim is decided” (Memorandum, para. 2.1). Those granted asylum will not be returned to the the UK. Rwanda will arrange their “settlement” in Rwanda. Some of those whose claims are refused may also be “settled” in Rwanda, but others will be deported (“removed”). It is not clear where they will be sent.
There have been numerous concerns raised about this deal, not least about Rwanda’s own human rights record (Rwandans themselves apply for asylum in the UK) and about the legality of the “Arrangement”. The Memorandum itself states: “This Arrangement will not be binding in international law” (Memorandum, para. 1.6). Advocacy groups have talked of legal challenges but it may be difficult to do so. The Memorandum also declares that
the commitments set out in this Memorandum … do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals (Memorandum, para 2.2).
I will try to deal with some of this in a later blog. For now we can assume that other “Agreements” with other countries are in the pipeline. The British Overseas Territory of Ascension Island has been mooted as a destination for offshoring asylum claims, and with Denmark reportedly interested in doing such deals with Tunisia, Egypt and Ethiopia the UK is unlikely to be far behind.
Secondly, there is another danger faced by anyone who applies for asylum in ways that have now been defined by the Act as “unlawful”: they may find themselves facing a prison sentence. They may be charged and taken to court and, if found guilty, they would be “liable on summary conviction [in a magistrates’ court] to imprisonment for a term not exceeding twelve months or a fine (or both) …” (NBA s.40 (2) (F1A)). Even more seriously, if they are convicted on indictment (in the Crown Court), they may face prison for up to four years, or a fine, or both (NBA s.40 (2) (F1) (d) (ii)). It’s not clear whether this process applies both to refused asylum seekers and Group 2 refugees or to just one of these categories of people. This is quite something when, according to the Refugee Convention, there shouldn’t be any penalties at all.
In the next blog I will look a bit more at what refusal means for the “unlawful”.
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