13 minute read
T Asylum & Immigration Do Sovereign Island Nations have a Duty to Provide Refuge?
THE SOCIAL CONTEXT OF THE LAW: ASYLUM AND IMMIGRATION:
From a panel discussion held on 13 June 2022, with Master Rehana Popal (33 Bedford Row) and Anthony Vaughan (Doughty Street Chambers), moderated by Master Robert Buckland (Secretary of State for Justice and Lord High Chancellor of Great Britain 2019–2021 and Inner Temple Bencher), and introduced by Master Geoffrey Nice (Gresham Professor of Law 2012–2016)
Introduction by Master Geoffrey Nice:
Master Rehana Popal is a former child refugee, and the first woman of Afghan descent to become a barrister in England and Wales. Her practice from 33 Bedford Row encompasses all aspects of public and civil law, with a significant focus on international protection of human rights, community and education law.
Anthony Vaughan practices from Doughty Street in public law and human rights with focus on cases involving immigration, criminality, national security, deprivation of liberty and human trafficking, with cases of great complexity being his speciality.
The Right Honourable Sir Robert Buckland KC MP, a member of this Inn, and a Welsh Conservative Party politician who served as both Solicitor General and then as Justice Secretary will moderate and contribute to the discussion this evening.
Rehana Popal: What is a refugee? The 1951 Convention is what protects refugees, and it defines a refugee as a person who is “outside his or her country of nationality, or habitual residence, and has a well-founded fear of being persecuted because of his or her race, religion, nationality, member of a particular social group, or political opinion, and” – this is the crucial part – “is unable or unwilling to avail him or herself of the protection of that country or to return there, for fear of persecution” .
What led to the creation of our current refugee system? It first was started in the aftermath of World War One when millions of people fled their homelands in search of refuge. And governments responded at that time by drawing up a set of international agreements to provide travel documents and to allow these people to move between countries. These were effectively the first documented refugees of the 20th century. Their numbers increased dramatically, and for obvious reasons, after World War Two. World War Two saw the secondlargest migration wave in the 20th century, as millions more were forcibly displaced, deported, or resettled. But throughout the 20th century, the international community steadily began to assemble a set of guidelines and laws and conventions to ensure that there was adequate treatment of refugees, and to protect their human rights.
The process first began under the League of Nations in 1921. And then in July 1951, a diplomatic conference was held in Geneva and adopted the Convention Relating to the Status of Refugees which is now referred to as the ‘1951 Convention’. That convention was also later amended by the 1967 Protocol. Together, the 1951 Convention and the 1967 Protocol remain the cornerstone of refugee protection.
One of the key questions that is always asked is: what is the difference between a migrant and a refugee? The terms are used interchangeably, when in fact there is a clearcut difference between the two. Refugees are forced to flee because of a threat of persecution, and because of a lack of protection within their own country. A migrant, in comparison, may leave his or her country for many reasons that are not related to persecution, such as for the purposes of employment, family unification or study. A migrant continues – and this is a key point – to enjoy the protection of his or her own government when they are abroad.
What is not relevant for the purposes of the Refugee Convention, or for the purposes of the definition of who constitutes a refugee, is how they seek to enter the country. And under the 1951 Convention, a person cannot be prosecuted or persecuted on the basis of how they seek to enter.
So, who or what determines whether a person is a refugee? The 1951 Convention does not prescribe a particular procedure for the determination of whether a person is a refugee – an individual assessment is the preferred approach. In other words, it’s up to each nation state to create their own process and how they choose to process refugees and determine their applications.
Any procedure obviously must be fair and efficient. We cannot allow people to be left in limbo for years and years. And the process should also be very transparent so that people are aware of, if they have not been granted asylum, what the reasons are, and to have the mechanisms or the ability to challenge that decision.
And so we come back to the big broad question: does a sovereign island nation have a duty to provide refuge? Now if we were to break up the question of duty into two parts, one is a legal duty and the second is a moral duty. Do sovereign island nations have a legal duty to provide refuge? No, is the very simple short answer. Ultimately, each state is sovereign. It is a matter for its country and its people, for its parliament or its elected representatives, to determine whether or not to be the kind of nation state that provides refuge for people fleeing persecution or needing protection. If parliament wishes tomorrow at the stroke of a pen to decide “We are going to opt out of the Refugee Convention and we are no longer going to be a nation state that provides refuge”, that is entirely within the gift of parliament to do so.
That is very distinctly different from the moral question. Do sovereign nations have a moral duty to provide refuge? Now, on that basis, many of us would argue: “Well, absolutely, yes”. Particularly when the nation state in question is partially responsible for those people who are fleeing.
One of the cornerstones of the 1951 Convention is the principle of non-refoulement that is contained within article 33. And according to this principle, a refugee should not be returned to a country where he or she faces serious threats to his or her life or freedom. The principle of non-refoulement is considered a rule of customary international law. And as such, it is binding on all states, regardless of whether or not they have acceded to the 1951 Convention, or the 1967 Protocol. What they cannot do is essentially send individuals back to countries where they know they will be persecuted, because that would be a breach of international law, separate from the Refugee Convention.
Master Robert Buckland: The question for me isn’t so much a moral one. I take that as a given that we have a moral duty to accept refugees. The question is whether or not we have a legal one. I think that the obligations placed upon us by international convention are very important. Domestic law since that time has been built upon the fact that we are a signatory to Geneva and its 1967 extension.
When it comes to our record, I think that the United Kingdom has a very proud one. But it’s easy and unfair to somehow label the most recent developments as somehow a complete sea change from the past. I think this country does, and will continue to, warmly welcome refugees from whatever part of the world they come from. And it’s important for us not to be seen in any way to discriminate on the basis of where people are from. You know, there isn’t such a thing as a good refugee or a bad refugee.
I think this country does, and will continue to, warmly welcome refugees from whatever part of the world they come from … There isn’t such a thing as a good refugee or a bad refugee.
And so we’re left with a rather confused debate at the moment. A debate that, as Rehana said, is often mixed up between migrants and refugees where the terms have become interchangeable, which I agree with her is inappropriate, and where perhaps the scale of the challenge isn’t fully understood, as well. Now the system itself is struggling. It is plagued by delay. It is beset by administrative difficulty, which is just as hard for the refugee as it is for the system. I deal regularly with cases where people have been waiting for years for their status to be resolved. And I think we are missing so many opportunities for them to make a contribution, and a constructive contribution, to our country whilst they have to wait. I think that the prohibition on work is wrong. Taking a leaf out of the Danes’ book, we should be legislating to allow asylum seekers the right to do some productive work whilst they’re here. They want to do it. I know from my own experience, sadly, the prohibition means that many take work of an irregular nature. And that means that they get exploited, and that means that the wages they earn are well below the living wage.
That is, I’m afraid, my lived experience and I think it’s a missed opportunity for refugees and indeed for our country. And that doesn’t mean because they are working that somehow then rights have to be acquired. I think everybody understands that the system of due process should take place and, indeed, the refugee charities that I speak to understand that there will be a need for deportations where due process has been exhausted and where the status of that individual is not one that’s been established to be one of a refugee.
It’s a deeply controversial issue. It’s one that is occupying the minds of many of us whether we’re lawyers or not, but it is one, I think, that any responsible government does have to address even if, at times, the rhetoric that we hear is not up to the occasion and doesn’t actually deal with the reality of the challenges being faced, not just by asylum seekers themselves, but by the system that we have developed.
Anthony Vaughan: “Do sovereign island nations have a duty to provide refuge?” And the unequivocal answer is: “Yes, they do”. They do because of the Refugee Convention. There is also a duty because of section 3 of the Asylum Appeals Act 1996, which retains the duty of the Home Office to act in accordance with the Refugee Convention. But it isn’t just about what parliament says. It is a norm of customary international law that you do not send a person on to a country where they would face real risk of serious harm and persecution. And so at the level of international law, the principle is absolutely sound.
The basis for this debate is that the government accepts the principle of refugee protection. This is a system which is aimed at people who haven’t got any criminal convictions or any concern on the part of the Home Office with respect to absconding or reoffending. This system is directed at people who are claiming asylum. It is not directed at people who are simply being resettled. What this system is doing is essentially taking advantage of existing legal machinery: so, the normal position is that an asylum seeker cannot be removed until their asylum claim is finally determined. Now, there are exceptions to that within the existing domestic framework, in respect, for example, of countries where it’s generally known that human rights would be respected.
In respect of countries like Rwanda, the government is taking advantage of a power which allows the Home Office to certify a given place as generally safe; but in order to use this, the Home Office had to come up with an agreement with Rwanda. There’s a big question which the High Court will ultimately be dealing with in these cases: is that Memorandum of Understanding worth the paper it is written on? At the moment, the indications are that it isn’t. The UNHCR position, before the High Court and Court of Appeal, was that they have very serious concerns about both the asylum processing stage and in relation to ongoing refoulement.
So, it simply isn’t right to say this isn’t about refugee status determination; it expressly is about that. And that is why we have to think very carefully about this scheme, in a country which is governed by the rule of law and due process. Do we want to sanction, as a country, the taking away of important rights for people who fall under the protection of the law? Or do we want to say that this is a flawed attempt to try to get out of the principle of refugee protection, which the government has presumably accepted that it will abide by? It may be that it would be rather absurd to say that we don’t want to abide by that principle, because pretty much every civilised country in the world has committed to that principle. And so, what we have is the Home Office creating a system by meeting the Rwandan authorities on a few occasions, which may look okay on paper, as they present it to us. But even on the Home Office’s own evidence, they’re relying, for example, on the right of appeal to the Rwandan High Court, even though no asylum seeker has ever appealed to it before . So, we have no idea, since it’s entirely untested, whether or not that remedy is in fact a remedy, still less an effective remedy.
Then the issue of legal aid: is the person going to have access a lawyer? I think it’s in the Memorandum of Understanding that legal advice will be provided, but again, who’s paying for it? Is it provided in every case? What about interpreters? It’s all very well giving somebody an application process, but if the person can’t be understood, what’s the point of it? It’s very unclear in what circumstances interpreters are provided. There are lots of serious questions here, and very real access-to-justice concerns about this scheme.
Sir Robert refers to community cohesion as being potentially part of the basis for these policies. But you don’t get community cohesion from sending people back to torture. Also, this government’s response to the recent litigation has played into the “culture war” approach of creating the idea that you have lefty lawyers who are unjustifiably sticking their oar in when, actually, the reality is there is a very real concern that needs to be argued on behalf of affected individuals.
Sir Robert is right that the challenge in addressing small boats crossing the channel is tackling the smuggling gangs; but the reason why the UK can’t return people to France is because the power to do this, via the Dublin Regulation, ended when we left the European Union. The problem of small boats can only be addressed by providing safe and legal routes to claim asylum, without which people will die at sea so long as they are being left out in the cold.
To sum up, we must provide refuge for proper refugee status determination to take place in this country; and only if an asylum claim is properly and lawfully rejected on its merits, should any question of removal arise.
Sir Geoffrey Nice KC The Rt Hon Sir Robert Buckland KBE KC MP Rehana Popal Anthony Vaughan
For the full video recording of this lecture: innertemple.org.uk/asylum
