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Out of sight, out of mind: the fate planned for refugees
Discreet talks with the government in Tirana to establish an asylum centre are under way. After a series of frustrations in talks with other countries to host migrants, cabinet hopes of a deal with Albania are growing (The Times, “Migrants to be held in Albania”, 18 November 2021).
CHANGING THE ASYLUM SYSTEM: HOW NOT TO “SUPPORT THE MOST VULNERABLE”
Home Secretary Priti Patel has announced an overhaul of the UK asylum system, which she says is “broken”. She says that when she’s finished her review the system will be “faster and fairer”. She is not the first Secretary of State to announce such a reform of the system and not the first to use that kind of language. In 1999, Labour’s Jack Straw announced that after his review the system would be “fairer, faster, firmer”.[1] Before him, Social Security Secretary Peter Lilley told the Tory Party Conference in 1995:
“Genuine political refugees are few. The trouble is our system almost invites people to claim asylum to gain British benefits. That can‘t be right – and I‘m going to stop it. Britain should be a safe haven, not a soft touch.”[2]
In 2006, Labour Home Secretary John Reid described the immigration system as “unfit for purpose”, “dysfunctional” and probably needing “wholesale transformation”.[3] Now, after more than a decade of Tory government, Patel is at it again. And as she does it, we will see that she shares the hostility to asylum seekers shown by Lilley, which he in turn shared with Tory Home secretary Michael Howard, who declared in 1995 that the UK
“is seen as a very attractive destination because of the ease with which people can get access to jobs and to benefits. And while, for instance, the number of asylum seekers for the rest of Europe are falling the number in this country are increasing [and] only a tiny proportion of them are genuine refugees.”[4]
To cite her predecessors is to suggest that her proposals are not particularly new. Yet their post-Brexit context has given them extra traction. The referendum campaigns to leave the EU (both the official campaign, Vote Leave, and the unofficial campaign, Leave.EU) argued their case on the basis of democracy. Boris Johnson claimed that the EU had become “ever more centralizing, interfering and anti-democratic … The independence of this country is being seriously compromised. It is this fundamental democratic problem – this erosion of democracy – that brings me into this fight.”[5] Thus we would be able to “take back control” of several aspects of our affairs, e.g. our laws, our justice system, our waters – but notably our borders. Both campaigns wanted to control migrants from the EU, but Leave.EU in particular (which was fronted by UKIP’s Nigel Farage) quickly extended this demand to all immigration, and Leave.EU’s “Breaking Point” poster, which depicted refugees from the Middle East in a vast queue at Europe’s borders, made the point with the slogan displayed on the poster: “We must break free of the EU and take back control”. Migrants were depicted (wherever they came from) as an economic threat to the working class and a security threat (through terrorism) to the country as a whole.[6] Perhaps not surprisingly, in the four weeks following the referendum result, there were 6,000 racist hate crimes recorded by the police. And in cases of verbal abuse there was evidence of how Brexit was thought by some to mean getting rid of all immigrants:
“A Sikh radiographer recounted how a patient asked, “Shouldn’t you be on a plane back to Pakistan? We voted you out.” In 51 per cent of the incidents, perpetrators referred specifically to the referendum in their abuse, with the most commonly involved phrases including ‘Go home’ (74 stories), ‘Leave’ (80 stories), ‘Fuck off’ (45 stories). These were followed up by statements such as ‘We voted you out’, ‘We’re out of the EU now, we can get rid of your lot’, ‘When are you going home?’ ‘Shouldn’t you be packing your bags?’ And then, in August 2016, six teenage boys were arrested in Harlow, Essex, for a brutal street attack on an Eastern European migrant after he was heard speaking Polish in the street. The man subsequently died. What is striking about this wave of racist violence was the way its perpetrators made little attempt to distinguish between black and brown citizens and white European migrants – in their eyes, they were all outsiders.”[7]
Back in Westminster, once the government of Boris Johnson had “got Brexit done”, it began to focus on “taking back control of our borders”.
How did you get here?
One of Patel’s key proposals is that people seeking protection as refugees will have their claims assessed based on how they arrived in the UK. According to the Home Office, the question of whether asylum seekers enter the UK via another safe country such as France will, “for the first time”, “have an impact” on how their claims are dealt with. However, such a measure could find itself in breach of the Refugee Convention signed by the UK. According to the Convention, an asylum claim should be assessed on the basis that the asylum seeker is someone who,
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[8]
There’s nothing there about how you arrive or the route you take. You just need to have been persecuted or be living in fear of persecution. On the face of it, Patel’s proposal looks like a breach of the Refugee Convention. But then it always did. For this is not “the first time” that such a regulation has been applied.
Dublin Convention 1990
The Dublin Convention specified that an asylum application must be made in the first EU country of arrival. If you applied in the UK, for example, but you had passed through France, your asylum claim could be refused or you could be sent back to France to be dealt with. It was no defence to explain that you were in the hands of a courier and had no control over your destination; that you had friends or relatives in the UK but did not know anybody in France; that you had some knowledge of English but not of French. Further, under the Dublin Convention, if your application was refused in one EU country it would automatically be refused in all others. This, however, goes against the usual interpretation of the Refugee Convention, i.e. that it requires every signatory state to consider all applications for asylum made on its territory.[9]
But this is all in the past for the UK: now we’ve left the EU, we can no longer use the Dublin Convention to get rid of unwanted asylum seekers. Hence the new proposal, and Patel claims the UK is negotiating new arrangements to overcome this inconvenience. But no agreement has so far been reached. In any case, Patel’s new proposal, like the Dublin Convention rules themselves, sits awkwardly with the Refugee Convention’s Article 1.2, quoted above, and also seems questionable on other legal grounds. The Convention, in Article 31.1, prescribes limits on what governments can do:
“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 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.”
According to the BBC’s Home and Legal correspondent Dominic Casciani, “Official sources say Ms Patel’s restrictions would be legally possible because asylum seekers are not allowed to go ‘shopping’ for the best destination.”[10] We will come to shopping expeditions later, but Article 31.1 does seem to provide a basis for a legal challenge.
“Illegality”
In spite of this, Patel defends her proposal with the language of law and order, of “illegal” and “legal” travel. The Home Office says that “asylum seekers fleeing persecution or violence and coming to the UK via the ‘legal resettlement’ route from countries such as Syria and Iran would straightaway get permission to remain in the UK indefinitely.”[11] Apart from this limited group, everyone else is apparently “illegal”. But most asylum seekers are not handpicked by the UK government; they flee from many different countries, for many different and complex reasons, sometimes planning their flight, sometimes on the spur of the moment. They may or may not have passports, they may have obtained false passports. They may use ordinary means of transport or they may, in desperation, seek the help of people smugglers. In the case of the smugglers, Patel rightly regards them as illegal, but she then extends that illegality to the asylum seekers they exploit: under the new plans, anyone who pays criminal gangs to bring them to the UK would “only ever receive temporary permission to remain and would be regularly assessed for removal from the UK.”[12] This unjust punishment of the victims of illegal traffickers, however, might be a breach of Article 31.2 of the Refugee Convention:
“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. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”
The idea of a “legal settlement scheme” is not new either. When such a scheme was proposed for the EU in 2001 by the UK’s Labour Home Secretary Jack Straw, it caused worries. Human Rights Watch argued that “to set quotas of refugees that European countries would accept from specific trouble spots, while insisting that the rest find protection in the region from which they come”, would “seriously compromise the security of refugees”, many of whom “are simply not able to find safety in neighbouring countries in their region of origin”. Such a scheme would exclude people who fled when they had to, often precipitately, most without choice, and many without knowledge of their destination.[13] And so it has proved.
Choice bugs Ms Patel. Having defined “illegality” and “legality” to suit herself, she declares:
“If you illegally enter the UK via a safe country in which you could have claimed asylum, you are not seeking refuge from imminent peril, as is the intended purpose of the asylum system, but are picking the UK as a preferred destination over others.”
As we saw earlier, there are several reasons why a refugee might want to go to a particular country. They may have relatives or friends only in that country; they may have knowledge of its language but not the language of another country (English rather than French, for example, or the other way round); some will have heard much about countries that are democratic countries and may want one of them to be their destination for that reason. A young Kurd celebrating the Kurdish new year in north London told me, “I come here because England democracy country.” All these are valid reasons to try to reach a particular country, and should not be ridiculed as “asylum shopping”. But asylum seekers who are smuggled often don’t know their destination, and simply go where the lorry or the boat is taking them. They should not be stigmatised as criminals.
Agenda of Disbelief
The assumption, without evidence and before any questions have been asked, that an asylum seeker is, in Patel’s words, “not seeking refuge from imminent peril” is part of what has been called an “agenda of disbelief” about refugees that has been adopted by governments for decades.[14] It has often been included in Acts of Parliament. So the Asylum and Immigration (Treatment of Claimants) Act 2004 gave the green light for asylum caseworkers to raise what were called “credibility” issues. These included:
- failure to produce a valid passport (s. 8 (3) (a));
- production of an invalid passport as if it were valid (s. 8 (3) (b));
- destruction or disposal of a passport (s. 8 (3) (c));
- “failure … to answer a question asked by a deciding authority” (s. 8 (3) (e)), e.g. a caseworker;
- failure to claim asylum when passing through a “safe” country (s.8 (4)).[15]
Yet raising these issues as problems of credibility might breach Article 31.1 of the Refugee Convention. We’ve discussed the “failure” to claim asylum in a safe country. Patel’s proposals imply that caseworkers will continue to raise the other “credibility” issues despite their questionable legality under the Refugee Convention. We will look at the “failure” to produce a valid passport” together with the “destruction or disposal of a passport”.
The offence of entering the UK without a passport was introduced by the 2004 Act, after a period of hostile talk from the government about asylum seekers, led by Labour Home Secretary David Blunkett, and taken up by the tabloid press. One of the most common – and true – explanations for the absence of a passport is that the agent who supplied it demanded the passport back before the end of the journey, typically in the case of a regular flight, before landing. Traffickers take back the passports to avoid detection of their routes and methods.[16] Blunkett claimed that this explanation was not true. Asylum seekers “destroy” their passports, he declared, because “traffickers tell them it’s their best chance of staying in the UK – by making fraudulent claims and making it difficult to remove them if their claims fail.” In line with this philosophy, section 2 laid down that asylum seekers who arrive without passports must “prove that they have a reasonable excuse” for not having one (s. 2 (4) (c)) and section 8 specifically requires the caseworker to raise it as a credibility issue. However, obeying the agent‘s instructions is not counted as a “reasonable excuse” for destroying the passport unless you can show that “in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice” (s. 2 (7) (b)). The official Home Office guidance (the Asylum Policy Instructions (API)) on credibility[17] stipulates that this “excuse” will be counted as reasonable only in “exceptional situations”, such as in the case of “unaccompanied minors, the very elderly or … people with mental disabilities”, or if “a document was destroyed or disposed of as a direct result of force, threats or intimidation, e.g. where an individual was forced at knife-point to give a document to someone else.” [18] When doing my PhD research on the treatment of asylum seekers, I never met anyone who offered such an extreme explanation: everyone I talked to who travelled with a false passport on a regular flight in the company of their agent felt obliged to give them up when the agent demanded it. One came with his family from Eritrea. His wife told her caseworker: “The passport I had was Sudanese but the agent took it away.” The agent of another took her passport before the plane landed and then he disappeared. Yet another’s agent took her passport during the flight, disembarked when the plane landed at Rome and left her to travel on to Heathrow alone. There is, in fact, no need for “knife-point” threats: asylum seekers hand their passports back because, dependent as they are on their agents, they feel they have no choice but to obey.
Temptation to abuse
The pressure on caseworkers to raise these questions may lead to misrepresentation (deliberate or accidental) or to abuse. This happened in Ervin’s case.[19] His application for asylum was refused and his caseworker set out his reasons in the refusal letter:
“In your statement you claim that you travelled to Turkey then to the United Kingdom concealed in the back of a lorry. You would therefore have travelled through a number of European countries which are signatories to the 1951 United Nations Convention, and are therefore safe countries that are obliged to consider any asylum applications made upon their territory. There is no reason to believe that these countries would not fulfil their [Convention] obligations … The fact that you failed to claim asylum [in one of these countries] therefore further reduces your credibility.”
Unfortunately, the “fact” on which this conclusion is based is no fact at all. Ervin and his wife did not “travel to Turkey then to the United Kingdom concealed in the back of a lorry”. They arrived by plane. In his witness statement (read by the caseworker), Ervin said:
“We entered the plane with passports provided by the agent. The passports were taken away from us by the agent’s representative at the Transit Hall of Stansted Airport, in the United Kingdom.”
The caseworker knew that Ervin had arrived by plane, not only from his witness statement and the record of his screening interview but also from his main asylum interview conducted by the caseworker himself. At best the caseworker’s accusation arose from a careless disregard for the details of Ervin’s account. At worst, it derived from an eagerness to push “credibility” issues as hard as possible under pressure from his managers and his legal obligation under the 2004 Act to raise them. Nevertheless, in this case the caseworker seemed intent on fitting up Ervin for refusal. A major part of Ervin’s claim for asylum was based on his experience of detention and torture in Iran. His caseworker relentlessly set about demolishing that claim:
“You say that whilst in detention, you were beaten, kicked, and “a crazy person” burnt you with a cigarette. It is unclear whether the crazy person was a member of the security forces, or another detainee.”
It is perfectly clear in Ervin’s account that the “crazy person” was a member of the security forces. Ervin is telling a story of abuse by the authorities in the detention centre. It is clear that when he claimed that he had been “beaten up, kicked” and that “my face was swollen, with blood pouring out of my nose” he was accusing the staff at the centre. When he claimed that he heard “the cry of others who were being tortured in other rooms” and that he “could hear the cry and begging of other prisoners” he meant they were being tortured by the guards. When he said, “At the end a crazy person came and put his cigarette out on my hand” the culprit was clearly a guard, not “another detainee”.
Secondly, the caseworker writes:
“When I asked you how often you were beaten (Q36) [Question 36], initially you were unable to say, then you responded “4-5 hours”, during which you sustained a bloody nose, and eye.”
The impression given is of a man who was uncertain of the story he wanted to tell, finally inventing an implausible four- to five-hour beating, from which he emerged with no more than “a bloody nose, and eye”. However, virtually none of the interviewer’s account is true. Ervin was perfectly able to answer Question 36, and he did so immediately and appropriately – but it was not the question the caseworker claimed it to be:
“Q36: Could you tell me how you were beaten?
A: Some of them punched me and some kicked me. My nose was bleeding and my eye. At the end a crazy person came and put his cigarette out on my hand …”
Ervin then replied immediately to Question 37, which did ask how often he had been beaten. However, he did not claim to have been beaten for four or five hours but to have been beaten four or five times:
“Q37: Could you tell me how often you were beaten?
A: I did not know from the day to the night. I would say about four or five times but I don‘t know if it was day or night.”
This can be read as a misrepresentation of Ervin’s account of his detention or as the product of the interviewer’s poor memory and his misreading of the interview record. But Ervin’s claim to have been tortured was an important part of his claim for asylum and should have been considered carefully, at length and in detail. Instead, his experience was discounted in a mish-mash of inaccuracies and unsustainable accusations.
The pressure to make a credibility issue stick was also seen in Daryan’s case. He fled from Iraq when Saddam was persecuting the Kurds. During the asylum process he got some dates confused. His caseworker jumped at the opportunity and used this as a reason for refusing his asylum claim:
“You claimed [in your written witness statement] you were arrested on 20 May 1995 … At interview, when you were asked the date you were arrested you stated you were arrested on 20 November 1995, you then corrected this and claimed you were arrested on 20 May 1995 and allege you were released on 10 November 1995. When asked what happened on 20 November 1995, you said you made a mistake, you stated it was the date your brother was killed, but not the year.”
There was nothing to cause suspicion here – Daryan made a mistake about dates, then immediately corrected himself. During his interview with me, he explained:
“I had said the wrong date: “What date your brother die?” Yeah? Because … I been shot with my brother. After three days my brother die in hospital. They ask me “Which day you and your brother been shoot?” And “Which day your brother die?” And “Which day you run?” “Which day you leave your country.” Is too many days, and I don’t remember after four years all these dates.”
These examples show that the UK asylum system, as it has existed over several decades, lends itself to abuse – not by asylum seekers but by Home Secretaries and their officials determined to wrongfoot and criminalise them. Under the new proposals, powered by Brexit, this will only get worse.
Supporting the vulnerable
Setting out the plans to MPs, Patel said the government would introduce a “faster and fairer” system that would “better support the most vulnerable”. This false claim is nothing new. Back in 2001, Jack Straw expressed similar goodwill towards refugees. His aim was to “make it easier for genuine refugees to access the protection regimes of Europe and other Western States, for example by making their journeys less hazardous.”[20] According to Straw’s plan, an agreed number of refugees – and possibly others in need of protection – would be identified in their own regions and brought to the EU for resettlement. It would mean funding UN refugee camps in regions of origin and giving priority to protection in those regions. The result, in the UK, was the Gateway programme. But Straw, like Patel today, only counted the refugees in the camps as “genuine”, and perhaps only some of them. Under the programme, only 1% of the refugee population in the refugee camps concerned were selected. In March/April 2004, 69 people were resettled in Sheffield; in November, 81 people went to Bolton; in 2005, 51 refugees were sent to Sheffield, 84 to Bury and Bolton combined and 115 to Hull and Rochdale.[21] The numbers were low, as Human Rights Watch had feared. The vast majority of refugees, both in the refugee camps and beyond, were unable to access the protection they needed. Similarly, Patel’s tight distinction between “illegal” and “legal” asylum seekers will have the same effect. The handpicked refugees in the “legal resettlement” category will get protection – but inevitably (and by deliberate design) the numbers will be small. Everyone else will be rejected, and Patel uses the same hostile language Straw used. She said the asylum system is clogged up with bogus claims and legal wrangles.[22] In 1997, Straw announced that his aim was to ensure that “there will be less of an incentive for the bogus people to come here.”[23]
Bogus people? There’s a thought.
[1] Fairer, Faster and Firmer – a Modern Approach to Immigration and Asylum (1999), IND, London.
[2] Cited, Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, pp. 96-97: https://hydra.hull.ac.uk/resources/hull:2678
[3] BBC News, “Immigration system unfit – Reid”: http://news.bbc.co.uk/1/hi/uk_politics/5007148.stm”, 23 May 2006.
[4] Cited, Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 96: https://hydra.hull.ac.uk/resources/hull:2678
[5] Cited, Virdee, S. & McGeever, B., “Racism, Crisis, Brexit”, in Ethnic and Racial Studies, August 2017, Routledge, London, p. 3.
[6] Ibid., p. 5.
[7] Ibid., p. 7.
[8]Convention relating to the Status of Refugees, Article 1.2.
[9] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 14: https://hydra.hull.ac.uk/resources/hull:2678
[10] BBC News, “Priti Patel pledges overhaul of asylum seeker rules”, 25 March 2021: https://www.bbc.com/news/uk-politics-56500680
[11] Ibid.
[12] Ibid.
[13] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 280: https://hydra.hull.ac.uk/resources/hull:2678
[14] Ensor, J. (2006), “Credibility under the 2004 Immigration Act” in Headleins, Issue 5 (Nov./Dec. 2006), Electronic Immigration Network.
[15] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 156: https://hydra.hull.ac.uk/resources/hull:2678
[16] Webber, F. (2003), “New Deterrent Measures for Asylum Seekers Condemned”, Independent Race and Refugee News Network, Institute of Race Relations, London, October 2003.
[17] API – Credibility (2006), Assessing Credibility in Asylum and Human Rights Claims, BIA, Home Office, London.
[18]Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 157: https://hydra.hull.ac.uk/resources/hull:2678
[19] Names in this section are not the real names of the people described. Quotations are from official records of witness statements and Home Office caseworker interviews and refusal letters, as well as asylum-seeker interviews conducted by me.
[20] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 278: https://hydra.hull.ac.uk/resources/hull:2678
[21] Ibid., p. 280.
[22] BBC News, “Priti Patel pledges overhaul of asylum seeker rules”, 25 March 2021: https://www.bbc.com/news/uk-politics-56500680
[23] Mouncer, Bob (2009), Dealt with on their Merits: the treatment of asylum seekers in the UK and France, PhD dissertation, University of Hull, p. 97: https://hydra.hull.ac.uk/resources/hull:2678
Inappropriate behaviour
Further to yesterday’s blog.[1]
In a story this morning (14/2/2018), The Guardian quotes a Commons Home Affairs Committee report saying that “people lawfully in Britain were being caught up in the ‘hostile environment’ [in the Home Office] meant to be aimed at individuals with no right to be here.”[2] The story gives as an example the case of Haruko Tomioka, a Japanese woman lawfully in the UK, who was
given seven days to leave the country, [the report] said. “This followed a two-year period during which time her driving licence had been rescinded, child benefit payments had been stopped (she had also been ordered to repay £5,000), and she was made to report to Becket House immigration office on a regular basis.” It took repeated notifications to the Home Office that she was here legally and that her husband was an EU national in employment before the department finally accepted her rights.
Clearly this involved a great deal of hostility directed towards someone with every right to be here. This can come as no surprise. Home Office hostility is indiscriminate. There is a “culture of hostility” in the Home Office which both allowed Haruko Tomioka to be put through this mill and led to Reza and Maryam’s treatment described in my blog yesterday. Whether a fair policy towards EU citizens is developed or not (and it looks increasingly unlikely), and whether the apparent problem of understaffing in the Home Office (mentioned yesterday) is tackled or not (it’s been used as an excuse for a whole raft of misdemeanours for a very long time and may be too useful for it to be abandoned now), the “hostile environment” towards migrants (especially asylum seekers) is deliberate policy and is set to continue.
Do we want our taxes to pay for a culture of hostility in the Home Office? If you come here seeking asylum or a new life, and if you really do have to be questioned about your reasons and intentions, should that be done in a “hostile environment”? If it is, cases like these will proliferate. The hostility outlined in yesterday’s blog was obviously indiscriminate, directed at people before any decision had been made about their “right to be here”. Home Office officials make assumptions about your motives before a single question has been asked.
Yet you ought to be treated as innocent until proved guilty. That’s not just an idea I woke up with this morning. It’s the basis of our legal system. And it’s laid down in the Refugee Convention Guidelines. So hostility is inappropriate behaviour. That needs to be included in the alleged exemplary training given to Home Office staff and trumpeted by the department yesterday. The Commons Home Affairs Committee should be told the same thing. Its members seem to think hostility is OK if it’s “aimed at individuals with no right to be here”. It isn’t. If officials really need to ask questions, they should just ask them. They don’t need to shake their prejudiced fists as well.
[1] “The Secretary of State [still] doesn’t believe you”: https://bobmouncerblog.wordpress.com/2018/02/12/the-secretary-of-state-still-doesnt-believe-you-2/
[2] “Brexit immigration plan delays are fuelling anxiety, MPs warn”: https://www.theguardian.com/uk-news/2018/feb/14/brexit-immigration-plan-delays-fuelling-anxiety-mps-warn?CMP=Share_iOSApp_Other
On the eve of a referendum …
Several friends have told me that they are voting Remain in the EU referendum – but with a heavy heart.
I’m voting Remain too, in spite of France tear-gassing protesting workers who are resisting their government’s, and the EU’s, plans to ditch their rights (Jeremy, don’t imagine the EU is on your side here) and tear-gassing (again by France) of refugees in Calais (ditto, Jeremy) and its refusal to allow aid through to Calais. I’m voting Remain because I don’t want Johnsonism and Goveism to have the whip hand in government and I also want to save Jeremy from the Blairites and the assorted Gawd-knows-whatites waiting to get rid of him if there’s a No vote. It’s not the right time to vote Leave.
If we get a Labour government committed to rolling back NHS privatisation, rejecting TTIP, bringing the rail network and the energy companies into public ownership, restoring the trade union rights that have been eroded since Thatcher and getting rid, amongst other noxious things, of zero-hour contracts, that would be several major steps forward. A Corbyn-led government could do that, and it could reaffirm the principles of the Refugee Convention rather than bolster the profits of the tear-gas manufacturers. The EU would certainly oppose such a Labour programme, since much of it would break EU rules, laws and protocols. Then we could oppose the EU, and then, if change proves impossible, vote to leave – and defend policies worth defending.
Will any of that happen?
Don’t know.
But if we vote Leave now, we are playing into the hands of the Right, including the very nasty Right.
Conventional wisdom
The Refugee Convention was once a text that all its signatories were supposed to take seriously. States were asked to sign it, ratify it and act on it. Now, in the shadow of the ongoing refugee crisis, the responsibilities and obligations signed up to by those states are being set aside in favour of an incomprehensible, unnecessary tit-for-tat deal with Turkey so that this human-rights-abusing, press-freedom-denying state can slip into the EU with all that inconvenient stuff ignored.
The Refugee Convention is far from perfect. With a bit of deft manoeuvring its founding principles can be (and have often been) sidestepped. But it was created for good, historical reasons and it’s still (just about) with us. Today The Guardian calls it “a hallowed text created in the aftermath of the Holocaust”.[1] This makes it sound religious, “more honoured in the breach than in the observance” maybe, with perhaps a suggestion that it might be out of date too, although The Guardian should know that the Holocaust can never be just another past event, the memory of it should follow us, haunt us, from generation to generation. But the Convention is neither just a hallowed text nor out of date. It is, however, inconvenient to many states and it won’t be long before the cry will go up (again) that it should be repealed and be done with. In fact, instead, it should be strengthened. It will certainly be needed in the foreseeable future, at least until we manage to learn to build a future other than one of perpetual war.
In 2009 I wrote a bit about the history of the Refugee Convention. You can find it here in Chapter 1 of Dealt with on their Merits? (pp 7-20):
https://www.academia.edu/3981192/Treatment_of_asylum_seekers
[1] http://www.theguardian.com/world/2016/mar/18/eu-deal-turkey-migrants-refugees-q-and-a
On responsibility
David Cameron clearly can’t break the habit of a lifetime: he’s going to play the race card again. He seems to have set in motion a nice little scare story. An agreement made some years ago between the UK and France allows UK border control officials to police the borders between France and the UK on the French side in order to stop asylum seekers from ever arriving on British soil. This is a local version of the wider system of Airport Liaison Officers (ALOs) who since the 1990s have been sent to a number of what are called “refugee-producing countries” – that is, persecuting countries – in order to help them stop their terrified citizens from fleeing their borders and applying for asylum here.
Now Cameron is suggesting that if the EU referendum results in the UK leaving the EU France may renege on that agreement, resulting in uncontrolled migration to our shores and migrant camps on the beach at Dover instead of Calais. So the message is vote to stay in the EU and we’ll keep the barbarians out.
Well, I haven’t decided how I’m going to vote. But however I vote it won’t be based on some imagined need to keep refugees out. This refugee crisis, perhaps more than any other, is of our own making. “Jaw-jaw is better than war-war”, said Churchill (of all people!). But the US chose war in Afghanistan as revenge for the Twin Towers and to get rid of the Taliban and al-Quaida. It failed and, with our help, left the country in a mess with the Taliban still alive and kicking today; we chose war in Iraq to get rid of weapons of mass destruction which we knew it didn’t have, left it hopelessly divided and paved the way for the rise of ISIS. We intervened in Libya to save it from Gaddafi and, yes, you’ve guessed it, left it in a mess – arguably, as in the case of Iraq, in a worse mess than it was in under the regime we were so eager to get rid of. Now we’ve agreed to join the airstrikes in Syria, and there’s talk of further military action in Libya (its “peace talks”, like those on Syria, having broken down). All of these interventions have produced innocent victims and, despite claims of “smart bombs” (not again, please), there will be more innocent victims. All these interventions have produced refugees and will continue to do so.
So I’m for the UK taking responsibility for the refugees it has helped to create, in line with its obligations under the Refugee Convention which it has signed. I’m for peace talks, diplomacy, all sorts of jaw-jaw. Whether we are in the EU or out, I’m against Airport Liaison Officers or anybody else preventing people fleeing unmentionable horrors from finding shelter here. And if the EU states are incapable of finding ways to share responsibility for refugees among themselves, perhaps the club is not worth belonging to after all.
I don’t like ending on what feels like a negative note, but it’s all I can manage tonight. Here’s the Cameron story:
http://www.bbc.co.uk/news/uk-politics-eu-referendum-35519210
A murder, an enquiry, and dashed hopes
Stephen Lawrence and institutional racism
When racists murdered black teenager Stephen Lawrence in London in 1993 his family had to fight hard for an enquiry into the way the police conducted their investigation of the murder. They and their supporters fought for five years until an enquiry was eventually set up in March 1998, chaired by Lord Macpherson. The enquiry report was published in February 1999 and found that the Metropolitan Police had, during its investigation of the murder, shown itself to be “institutionally racist”. This meant, according to Imran Khan (the Lawrence family’s solicitor) that
“we are dealing not with individual prejudice but with power. That power is derived from racist laws, constitutional conventions, judicial precedents, institutional practices – all of which have the sanction of the state and the blessing of our establishment.”[1]
In the wake of the report, the Labour government passed the Race Relations (Amendment) Act 2001, which finally applied race relations law to the police. There was a feeling that a real change had taken place in British race relations, that the Macpherson enquiry, in the words of Imran Khan, was “a kind of truth commission in which official acknowledgment was finally given to the evil of racism which had been perpetrated for years on the black communities of this country.”
Of course, we now know that the truth about the conduct of the case was not fully told at that time. The Macpherson enquiry was no real “truth commission”. Much remained hidden and unacknowledged, much remained covered up: we now know, for example, that the Metropolitan Police concealed suspicions about corruption among the investigating police officers from the Macpherson panel; that the victim’s family and friends were put under surveillance by the police, as if somehow they must be guilty of something; and it was to be 18 years before anyone was convicted of the murder, and even then only two perpetrators were arrested and prosecuted (at their trial the evidence was clear that Stephen was set upon by five or six youths). Nevertheless, in the immediate aftermath of Macpherson, many people felt that real change had taken place.
But it turned out quite quickly that it was not enough. First, in spite of anti-discrimination laws, watchdogs like the Commission for Racial Equality (CRE), numerous councils for community relations and a statutory duty for public authorities “to promote race equality”,[2] racism, discrimination and disadvantage had not been eliminated. According to the CRE in 2005, members of ethnic minorities were still more likely to be stopped, searched and arrested, more likely to be victims of crime (including racial offences), and were disproportionately represented in the prison population;[3] ethnic minorities were more likely to be in poor housing and live in deprived areas;[4] members of ethnic minorities showed higher levels of unemployment, had lower incomes and a worse position in the labour market than whites and this was due, in part, to “substantial levels of racial discrimination”.[5]
Secondly, even as the 2001 Act was being passed and celebrated, new asylum laws were being introduced to deal with a so-called “asylum crisis”. These laws told a different story to that suggested by the Act – a story of racism revived, and aimed at the new asylum seekers.
Asylum legislation and rules
Asylum seekers were not mentioned in the various immigration measures during the post-war period until the Immigration Rules 1980. Under these rules, asylum claims were to be assessed in accordance with the 1951 Refugee Convention. While we might be tempted to see this in a positive light, developments in the mid 1980s suggest the emergence of policymaking based once more on a major contradiction: the UK, while officially recognising its international obligations to refugees, undermined those same obligations by means of regulations, procedures and legislation. So visa restrictions were imposed on nationals of countries producing high numbers of refugees, and by 1996 there were 105 such countries. Moreover, in 1987 the Immigration (Carriers’ Liability) Act imposed fines of £2,000 on airlines and ferry operators for every passenger without valid travel documents. This impacted heavily on refugees, since the urgency of flight, and fear of the authorities in their countries of origin, meant that many refugees lacked such documentation.
The Asylum and Immigration Appeals Act 1993 and the Immigration Rules 1994 follow the same pattern. The Act incorporated the 1951 Refugee Convention into UK law and established certain rights of appeal. Yet this acknowledgement of Refugee Convention obligations and the apparent attempt to establish a fair process for meeting them ran alongside measures which undermined such commitments. First, the rights of appeal were themselves limited by the Act – indeed, the most important limitation was imposed simply on the basis of the home secretary’s opinion: “… if the Secretary of State has certified that, in his opinion, the person’s claim is without foundation” no appeal is available beyond the Special Adjudicator.[6] Special Adjudicators “do not have to be legally qualified”[7] but their judgment is final. They may refer a case back to the home secretary for reconsideration, but if he reaffirms his own opinion there is no further appeal.
After the 1993 Act the balance between meeting obligations and avoiding them shifted towards avoidance. Hayter notes that the Act “was followed by an unprecedented increase in rates of refusal, from 14 per cent in the six months before the Act to 72 per cent after it, while the granting of Exceptional Leave to Remain … fell from 76 per cent to 22 per cent of decisions.”[8] The restrictions and penalties increased under the Asylum and Immigration Act 1996, which extended the grounds for fast-tracking applications, abolished the right of appeal against removal to another EU country, introduced a list of “safe” countries, many of them of doubtful safety (including India, Pakistan, Romania and Nigeria – protests led to the removal of Nigeria). It removed the right to welfare benefits for those seeking asylum after entry and those pursuing an appeal, and it introduced sanctions on employers hiring anyone who did not have permission to work in Britain.
Although the Labour opposition had opposed the 1996 Act when it was introduced, once the party had won the 1997 election the government prepared even more restrictive legislation. Labour’s retreat from opposition to the 1996 Act mirrored its retreat from opposition to the 1962 Act, and happened for the same reason – the fear of losing votes. Hayter argues that the attitude of Labour politicians towards asylum seekers “parallels their attitude to criminals: Labour must demonstrate that it can be tougher towards them than the Tories were, and so remove one of the perceived electoral assets of the Tories.”[9] So the post-1997 legislation, regulations and other measures continued the restrictive trend begun by the Conservatives:
The Immigration and Asylum Act 1999 This Act set the tone for Labour’s asylum policy into the new millennium. It “gave extensive new powers to the home secretary and extended police powers to search, arrest and detain asylum seekers.”[10] It also introduced a duty on registrars to “report suspicious marriages” (s. 24) and a penalty of £2000 on lorry drivers for every passenger without documents (s. 32). The Act separated asylum seekers from mainstream welfare provision, setting their support levels below those of the mainstream and introducing the compulsory “dispersal” of asylum seekers to allocated areas across the country, with accommodation provided on a no-choice basis. This system was to be managed by a new government agency, the National Asylum Support Service (NASS), which took over the direct role previously occupied by local authorities. NASS then subcontracted work both to them and to private housing providers and voluntary agencies. We will see in a later blog how these changes were driven by the primary aims of deterrence and restriction.
The Nationality and Immigration Act 2002 This Act is best known for section 55, under which people who have not managed to apply for asylum within three days of arrival in the UK may be refused all financial support and accommodation and thus left destitute. Although the government claimed that this measure was only aimed at certain illegal categories, increasing numbers of asylum seekers fell foul of it and it is seen by many of them, and by many agencies, as a measure aimed at deterring applications.
The Act as a whole, writes Sales, set out “to segregate asylum seekers further from mainstream society and to promote their speedy removal.”[11] It provided for induction and accommodation centres where asylum applicants would be housed while their claims were being processed (s. 16), and where their children could be educated outside the mainstream education system. Sales noted that the establishment of accommodation centres was prevented by local campaigns against them (Sales 2007:149),[12] but the aim of detaining most asylum applicants remained.
The 2002 Act reflected the aims of the government, set out in its preceding White Paper, to speed up appeals, set target figures for the deportation of refused applicants and facilitate an increased rate of removals.[13] With these ends in mind, the government announced a 40% increase in removal centre capacity.[14] Indeed, detention – including detention of children – was to play a significant role in the UK asylum system in the following years. On 24 September 2005, according to Home Office figures, there were 1,695 asylum detainees in the UK; 75 of them were under 18. A 2005 report by the charity Save the Children estimated that “around 2,000 children are detained with their families every year for the purpose of immigration control”, the length of detention ranging from seven to 268 days.[15]
Asylum and Immigration (Treatment of Claimants) Act 2004 Section 8 of this Act made failure to produce a valid passport an offence. This arguably contravened Article 31 of the Refugee Convention, which lays down that states may not impose penalties on people “who … enter or are present in their territory without authorisation …”[16] Section 8 also raised doubts about the credibility of applicants who fail to claim asylum when passing through a “safe” country or who fail to answer certain questions to the satisfaction of Home Office caseworkers or other officials. Section 9 excluded families with children from benefit if, after their final refusal, they failed to make arrangements to leave or volunteer for the government’s voluntary returns programme. Families would then face destitution and their children could be taken into local authority care. Section 26 of the Act reduced asylum seekers’ rights of appeal and their access to the higher courts.
NAM and the Immigration, Asylum and Nationality Act 2006 In 2005 the government announced a Five Year Strategy for Asylum and Immigration,[17] and this included the New Asylum Model (NAM). New procedures would speed up the asylum process, involving shorter timescales, early “segmentation” of applicants into categories before the details of their cases were fully known, and an even wider use of detention. The Refugee Council was concerned that these changes would have a negative impact on the ability of asylum seekers to recover from trauma and prepare their cases, on their chances of adequate legal representation[18] and on their access to appeal procedures,[19] and it criticised the potentially arbitrary nature of “segmentation”.[20] Moreover, refugee status would no longer be permanent but would now be “granted on a temporary basis to be reviewed after five years in relation to the safety of the country of origin”.[21] The Refugee Council was concerned that people would be placed “in limbo, unable to rebuild their lives for fear of having their refugee status withdrawn”.[22] Much of this did not require new legislation but was implemented by means of Home Office rules and other instruments. Where legislation was needed it was provided in the Immigration, Asylum and Nationality Act 2006.
The UK Borders Act 2007 The bill which was to become the UK Borders Act 2007 was announced to parliament before many of the provisions of the 2006 Act had come into force. It showed the Labour government’s continuing negative approach to immigration and asylum: the Queen’s speech of 15 November 2006 announced that “A bill will be introduced to provide the immigration service with further powers to police the country’s borders, tackle immigration crime, and to make it easier to deport those who break the law.”[23] The press release on the day of the bill’s presentation to the House of Commons explained that these powers would include powers of arrest and detention and, in the context of asylum, powers to “arrest those they believe to have fraudulently been acquiring asylum-support, and to exercise associated powers of entry, search and seizure.”[24] The UK Borders Act made no reference to the UK’s Refugee Convention obligations to give protection within its borders to those who needed it.
Sales concludes that, under both Conservative and Labour governments, asylum policy has continued
“to treat asylum seekers with suspicion, as a risk to society rather than as people themselves at risk. Policy has therefore aimed at excluding them from developing connections with mainstream society in order to remove them as easily and speedily as possible.”[25]
[1] Khan, I. (2003), “Labour’s hypocrisy on race”, The Guardian (22 April), London.
[2] The Race Equality Duty (2005), Commission for Racial Equality, London. (http://www.cre.gov.uk/duty/index)
[3] “Race Equality Impact Assessment – Statistics: Criminal Justice” (2005), in The Race Equality Duty, Commission for Racial Equality, London. (http://www.cre.gov.uk/duty/index)
[4] “Race Equality Impact Assessment – Statistics: Housing” (2005), in The Race Equality Duty, Commission for Racial Equality, London. (http://www.cre.gov.uk/duty/index)
[5]“Race Equality Impact Assessment – Statistics: Labour Market” (2005), in The Race Equality Duty, Commission for Racial Equality, London. (http://www.cre.gov.uk/duty/index)
[6] AIAA (1993), Asylum and Immigration Appeals Act 1993, Sch 2, para 5(1), HMSO, London.
[7] Burgess, H. (2001), Political Asylum from the Inside, WorldView Publishing, Oxford, p. 169.
[8] Hayter, T. (2000), Open Borders: the Case against Immigration Controls, Pluto Press, London, p.76.
[9] Ibid., p. 79.
[10] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 148.
[11] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 149.
[12] Ibid.
[13] Secure Borders, Safe Haven: Integration with Diversity in Modern Britain, HMSO, London, pp. 65-66.
[14] Ibid., p. 66.
[15] Crawley, H. & Lester, T. (2005), No Place for a Child, Save the Children, London, p. viii.
[16] Convention and Protocol Relating to the Status of Refugees, Article 31, UNHCR, Geneva.
[17] Controlling our Borders: Making Migration work for Britain, HMSO, London.
[18] Briefing NAM (2007), New Asylum Model (August 2007), Refugee Council, London, para. 4.2 (i).
[19] Ibid., para. 6.2.
[20] Ibid., para. 4.2 (iii).
[21] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 151.
[22] Briefing IAN (2006), Immigration, Asylum and Nationality Bill: Key Issues and Concerns, Refugee Council, London, p. 3.
[23] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 151.
[24] Home Office press release, 26 January 2007.
[25] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 152.
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