| 2 Web JCLI|
Senior Lecturer in Law
London Metropolitan University
This paper presents a critical analysis of the policies aimed at deterring economic migrants on the international legal right to seek asylum enshrined in Article 14 of the Universal Declaration of Human Rights 1948 and the obligation of non-refoulement contained in Article 33 of the Convention on the Status of Refugees 1951.
A dramatic increase in the number of people entering the UK to seek asylum in the 1990’s coupled with the media frenzy which continues to drive anti-refugee rhetoric, has led successive government’s to change the focus of immigration policy from ending primary immigration to deterring asylum seekers. The international legal right to seek asylum has been substantially eroded by these initiatives. Under Article 14 of the UDHR 1948:
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
It will be shown that in attempting to deter illegitimate asylum seekers or ‘economic migrants’ the current policy is failing to protect those most at risk. It is now almost impossible for those fleeing persecution to find safe and legal means of travel. Across Europe there has been a convergence of approach based on preventing entry and restricting welfare provisions (Schuster, 2000). Right wing policies with xenophobia and racism on the agenda are fuelled by reference to influxes of bogus asylum seekers (Gearty, 1999). The harmonization of asylum policies, with the focus on deterrence, is almost complete. The international law on refugee protection is largely governed by one document, the 1951 Convention on the Status of Refugees, but, as we shall see, the interpretation of these legal provisions varies widely between signatory states. In recent years, the British Government has discussed the possibility of repealing the international framework, which forms a minimum level of protection. In such a discussion it is often suggested that the Convention obligations place too great a financial burden on the affluent states of the West. This debate ignores the evidence that the vast majority of refugees live in countries outside Europe and the burden of supporting them rests on a handful of African and Asian states (UNHCR, 2002).. This is a burden which will become heavier still with EU attempts at constructing refugee- proof borders. The UK is actually ranked 8th in Europe when considering comparative host population sizes, UNHCR Population Data Unit, March 2003. Countries bordering civil wars and states of unrest tend to have far larger refugee populations. Border guards at the frontiers of Europe will be instrumental in the prevention of refugee movements. This was recently made very apparent by the shooting of six migrants by Moroccan border guards. The incident prompted the European Commission to offer significant financial incentive to the Moroccan authorities and to negotiate a readmission treaty (ECRE, 2005).
The right to ‘seek’ and ‘enjoy’ asylum is guaranteed by Article 14 of the Universal Declaration on Human Rights 1948. This right is the starting point for the development of international asylum and refugee law. The United Nations ExCOM Conclusion No 82 “reaffirms that the institution of asylum …derives directly from the right to seek and enjoy asylum set out in Article 14(1)” (EXCOM, 1997). The UN Declaration on Territorial Asylum 1967 clarifies this right:
No person shall be subjected to such measures as rejection at the frontier or if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution. (Article 3(1)
It should be immediately apparent that there is no international obligation on states to provide asylum. The word ‘receive’ was removed from the original text of Article 14 (Stevens, 2004 p136). The 1967 Declaration also diluted Article 14 by deferring to state sovereignty and allowing states the discretion on how to apply this right. National security risks were excluded from its application. So on the surface at least, Article 14 looks like a Hohfeldian privilege rather than a claim right. Nevertheless, there are several pertinent observations that can be made which suggest that Article 14 must be held in greater regard.
Asylum and refugee law must be seen as part of the wider debate on human rights. The inclusion of Article 14 in the founding document of the United Nations human rights regime supports this approach. As Edwards contends:
The inclusion of the ‘right to seek and enjoy asylum from persecution’; in Article 14 of the UDHR alongside unanimously agreed human rights and fundamental freedoms squarely places IRL [international refugee law] within the human rights paradigm (Edwards, 2005 p 297).
Indeed, once a person manages to enter a state to seek sanctuary, human rights law supplements this weak right to provide greater protection (Harvey, 2004 p 23). However, any right to ‘enter’ per se has been fiercely resisted by states that tend to perceive it as an unwelcome interference with state sovereignty. The term ‘enjoy’ indicates that such a right it entirely based on state acceptance (Harvey, 2000 p 50). Nevertheless, when Article 14 is coupled with Article 33 of the International Convention on the Status of Refugees (hereafter ‘Geneva Convention’) 1951 as well as international human rights provisions, the right has more depth than initial analysis reveals. Recently, the UN Sub-commission on Human Rights affirmed the significance of this right and highlighted concern that state policies, particularly detention, could be incompatible with international human rights and refugee law (UNHCR 2000a). It is thus apparent that Article 14 must be read together with international refugee law and human rights law.
As far as international refugee law is concerned, the Geneva Convention 1951 requires examination. The cornerstone of refugee protection is the obligation of non-refoulement contained in Art 33, whereby states affirm that they will not return a person to a territory where their life or freedom is under threat. There is a strong argument that the non-refoulement obligation is part of customary international law or jus cogens (Goodwin-Gill, 1996 p 167; Lauterpacht and Bethlehem 2001; Hathway, 2005). Rodger has examined whether state practice in the case of mass influx supports this argument. She observes several breaches of the principle that did not result in international censure. However, her study concludes that such breaches do not undermine the status of non-refoulement itself; rather they reveal uncertainty over the parameters of the principle:
The increasing violations of non-refoulement, and the unclear nature of the rule, undermine its claim to be a peremptory norm. However, this does not necessarily mean that there is no customary principle of non-refoulement. It is simply evidence of the fact that the parameters of the rule need clarification (Rodger, 2001 p 56).
This was clearly evidenced through the cautious international response to the Australian use of military force to prevent the entry of 435 passengers, one-quarter of them children, confined on The Tampa ship in 2001 (Crock 2003 pp 47-89). Despite much international condemnation of the Australian stance, the UN was unwilling to accept that a legal obligation had been breached (Rodger, 2001 p 56). The pacta sunt servanda principle found in Article 26 of the Vienna Convention on the Law of Treaties,
every treaty in force is binding upon the parties to it and must be performed by them in good faith (Article 26 Vienna Convention on the Law of Treaties 1969 and Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 1986)
requires states to interpret and apply international legal provisions in good faith. However, the degree of uncertainty surrounding the limits of non-refoulement, threaten to undermine its effectiveness. It is widely accepted that the obligation extends to those not formally recognised as refugees, including those that entered unlawfully (EXCOM, 1977). However, there is more debate concerning rejection at the frontiers of the state. The obligation has recently been reviewed in great detail by Lauterpacht and Bethlehem who, having examined the evidence, opined that the obligation must extend to rejection at the frontiers:
The phrase ‘in any manner whatsoever’ leaves no room for doubt that the concept of non-refoulement must be construed expansively and without limitation (Lauterpacht and Bethlehem, 2001).
However, it is argued by some, that any non-refoulement obligation only arises once an asylum seeker has been granted temporary admission. The importance of this claim cannot be ignored if one is to argue that deterrence strategies undermine this right. It is my view that without an extensive interpretation of the right to non-refoulement, in keeping with the good faith obligations under the Vienna Law of Treaties, the right to seek asylum would be redundant. Druke argues that a restrictive interpretation is incompatible with the purposes of the 1951 Convention and the intentions of the General Assembly to provide a universal mandate for refugee protection irrespective of territorial limitations (Druke, 1995). The UNHCR clearly support a more generous interpretation of Article 33. Executive Committee Conclusion No 22 (1981) states unequivocally “[i]n all cases the fundamental principle of non-refoulement, including- non rejection at the frontier - must be scrupulously observed”. When Article 33 is read together with Article 14 UDHR, it can be persuasively argued that, as a bare minimum, asylum seekers should have their case examined (Hathaway, 2005 p54). In order for this to be possible they must be given some form of temporary admission, even if this amounts to detention. Such an approach is supported by the Vienna Convention which, in cases of uncertainty or ambiguity, requires an interpretation which reflects the spirit and the object of the Convention as a whole. To this end, Lauterpacht and Bethlehem’s study suggests that the obligation should be given the broadest possible interpretation to reflect the humanitarian objectives of the Convention (Lauterpacht and Bethlehem, 2001 p26).
In addition to Article 33, the principle of non-refoulement is reflected in Article 3 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, which establishes, inter alia, that no state shall return a person where there are substantial grounds for believing that s/he would be in danger of being subjected to torture (Gorlick, 1999 p 479). The Committee Against Torture has received some individual complaints on this issue and has established that the non-refoulement obligation is wider than that afforded to those formally defined as ‘refugees’ under the 1951 convention, such as those who are fleeing clan violence (Elmi v Australia  INLR 341). Article 3 would also apply in circumstances where a person would otherwise be excluded from protection under the 1951 Convention, such as those suspected of terrorist activities. The UN Committee Against Torture has issued a General Comment on Article 3 in which it states that:
The author must establish that he/she would be in danger of being tortured and that the grounds for so believing are substantial in the way described, and that such danger is personal and present (Office of High Commission on Human Rights, 1997).
The 1984 Convention has received widespread ratification but few states have felt motivated to ratify the Optional Protocol which would enable greater scrutiny of state practice by the UN Sub-Commission on Torture. Even fewer states have assented to the right to individual petition under Article 22. Of more, contemporary significance therefore, is the obligation contained in Article 3 of the European Convention on Human Rights and Fundamental Freedoms incorporated into the English legal system by the Human Rights Act 1998.
Signatories to the European Convention on Human Rights 1950 have found it difficult to remove a foreign national in situations where Article 3, the prohibition on torture and inhuman and degrading treatment, may be engaged. The latter is an absolute right (i.e. it permits no restrictions or limitations by the state) and applies to everyone irrespective of nationality. It is possibly the most useful tool in improving the treatment of those claiming asylum across Europe and recent case law across Europe has indicated that it may be deployed in cases ranging from detention to expulsion and the withdrawal of state support (Billings and Edwards, 2004 pp 83-111). Indeed, the fact that Article 3 is being commonly raised by asylum seekers in legal argument is indicative of the severity of treatment that many experience when trying to access sanctuary.
The European Convention itself does not provide for refugee based rights. There is no specific provision preventing expulsion or removal. However, Article 3 has been used to prevent removal in any circumstances where there is a risk of torture or inhuman and degrading treatment or punishment on return. This can be seen clearly in the case of Soering v UK (1989) 11 EHRR 439 in which the ECHR held that the removal of a German national threatened with extradition to the US to face trial for murder would breach Article 3. The same decision had been reached in the case of a failed asylum seeker where the court had recognised that the risk of such ill-treatment was not substantial (Cruz Varas v Sweden (1991) 14 EHRR 1).
The difference between the obligations contained in Article 33 GenevaConvention and Article 3 of the ECHR can be seen clearly with reference to the British case of Chahal v UK (1997) 23 EHRR 413. Mr Chahal was an Indian national and Sikh activist with indefinite leave to remain in the UK. He was detained in 1990 and the Home Secretary attempted to deport him on national security grounds on the basis that his presence was not conducive to the public good. Article 33(2) contains an exception to the non-refoulement principle in national security cases, providing that the non-refoulement provision cannot benefit a refugee where there are reasonable grounds to suspect s/he is a danger to national security or where s/he has committed a particularly serious crime and constitutes a danger to the community. It thus it offered no protection in Chahal’s case. However, the ECHR in noting that Article 3 was an absolute right, stated:
The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases…the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Article 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (para 79,80).
The application of rights under Article 3 is not contingent upon state acquiescence in the persecutory treatment. Here it is also broader than the Geneva Convention in that the latter lays down a requirement that in cases of persecution by non-state agents, the state must be shown to be unable or unwilling to provide protection. In D v UK (1997) 24 EHRR 423 the European Court of Human Rights held that removal of a seriously ill man to a country where the health care was inadequate would engage Article 3.
The importance of the Article 3 provision should not be understated. In the UK, recent terrorist attacks have provoked a great deal of debate with Tony Blair indicating that the Human Rights Act may need to be reformed in order to enable enforced removal of such persons in violation of the non-refoulement obligation (Tempest, 2005). It is not clear how the Government could make these changes to the Human Rights Act without contravening the Convention which does not permit any derogation from Article 3. Furthermore, no consideration appears to have been given to the UN Convention Against Torture, discussed above, whereby states are not permitted to use exceptional circumstances as a justification for permitting torture, including the actions of agents in other states (Article 2(2). Indeed, the UK’s actions in allowing removal of persons in circumstances where there is a possibility of torture could amount to complicity in contravention of the Convention (Article 4(1).
The issue of immigration and asylum has gradually moved up the European agenda and cooperation between European states has developed dramatically since the Treaty of Amsterdam 1997. The developments provided a welcome opportunity to establish a minimum level or protection and to encourage a more equitable response to large-scale refugee movements. The Treaty of Amsterdam 1997 (hereafter TEU) placed asylum in the First Pillar of the Union. Article 6 TEU stipulates that fundamental rights, as guaranteed by ECHR, and constitutional traditions in the member states, should be respected as “general principles of community law”. Indeed the EU Charter on Fundamental Rights refers specifically to the obligations enshrined in the 1951 convention. The Tampere Conclusion set out the objectives for this common European asylum system and reaffirmed the importance of the right to seek asylum and the 1951 convention obligations (ECRE, 2001). It is evident that the application of human rights norms in addition to specific refugee rights is essential to protecting the interests of refugees within the European integration process and, to this end, domestic policies aimed at excluding asylum seekers from accessing protection should be viewed with extreme suspicion (Blake, 2001 p 116).
The Dublin Convention 1990 required that asylum seekers’ applications were processed and determined in the first European state of arrival. Application of the Convention was haphazard and subject to severe delays such that it was eventually replaced with Council Regulation 343/2003 specifying the mechanism by which a person could be removed. Third country nationals will not be permitted to make an application elsewhere unless there are significant family ties. In practice, this means that those seeking refugee status in Europe will be returned to the first European state of arrival, typically following a period of detention whilst their removal is facilitated. The time limits for the transfer of applicants has been reduced so that the third country mist be contacted by the host state within three months of arrival and once they agree to the transfer the applicant will be removed within six months.
The effects of the Dublin Convention are problematic. The designation of an EU member state as ‘safe’ is not always as straightforward as it may seem with some countries offering very different approaches to convention criteria. This issue was discussed in the Court of Appeal decision of Adan, Subaskaran and Aitsegur  3 WLR 1274 in relation to persecution which was perpetrated by non-state agents. The applicants were threatened with removal to Germany and France on safe third country grounds. Neither France nor Germany recognised that persecution by non-state agents could give rise to a well-founded fear. The CA made reference to the good faith obligations in the Vienna Convention and rejected the approach of the EU Joint Position of 1966 which allowed a range of interpretations on this issue. The Secretary of State when designating a country as ‘safe’ had an obligation to ensure they applied the true rules of interpretation under the Geneva Convention. The approach was upheld by the HL in Adan  INLR 325. However, Parliament attempted to nullify the benefits of this decision with the enactment of the now repealed s 11 and s 12 Immigration and Asylum Act 1999 to prevent such judicial interference. Under the amended provisions, which reflect the Dublin convention criteria, the Secretary of State only has to ensure that the member state accepts responsibility for the asylum determination and that the claimant is not a national or citizen of that state. There will be no substantive consideration of the merits of the case unless it can be challenged on human rights grounds. As Stevens contends, and Adan demonstrates, this presumption of safety is arguably misplaced (Stevens, 2002 p 181). To some extent, these concerns were recognised by the ECHR in the case of TI v UK  INLR 211 concerning a Dublin Convention removal of a Sri Lankan Tamil to Germany. The Court was not persuaded that TI would be removed without consideration of his case. However, they also ruled that such removals did not dilute the responsibility of the returning state to ensure that Article 3 would not be violated as a result of the decision to expel.
The Dublin Convention and burden sharing have received much criticism from both practical and humanitarian perspectives. It obviously places a disproportionate burden on the poorer countries of southern Europe and may mean that applicants spend a great deal of time in transit. The focus is not on the vulnerable claimant but rather on removing obstacles to shifting numbers (Blake, 2001 p 107). There is an underlying presumption that applicants that do not claim asylum at the first port of entry in the EU are bogus. There is no consideration of the legitimate reasons that may prompt an asylum seeker to choose a particular destination – reasons of commonality such as language and family ties. As Blake argues, it is clearly wrong to assume that self-selection of country of destination indicates that an asylum seeker is an economic migrant. The definition of a refugee does not engage this issue and therefore it is entirely irrelevant (Blake, 2001 p 100).
In cases where there is a risk of persecution that does not fall neatly within the Geneva Convention criteria, for example instances of civil war or mass influx, burden sharing agreements allow for the transfer of asylum seekers between member states. When coupled with temporary admission the cost to host states is limited and the burden is spread more equitably between European states (Noll and Hansen 2001, p 195). Again, such initiatives are designed for the benefits of states rather than asylum seekers who may find themselves the target of a quota system which rations the ‘right’ to enter and limits the correlative duty to accept.
The phrase “manifestly” or “clearly unfounded” commonly refers to cases that are fast tracked, principally when they do not engage Convention rights or when there is a safe third country to which the claimant can be directed. “Safe third country” extends to any country that the member state deems “safe” i.e. where there is no generalised risk of persecution. In the UK there is a list of supposedly safe third countries in s 94(4) of the Nationality Immigration and Asylum Act 2002 including Sri Lanka, Albania, Serbia and Montenegro and Ukraine. In 1992 the immigration ministers of the EC adopted the London Resolution on Manifestly Unfounded Applications for Asylum which provides that minimum standards can be diluted in cases where the application has no substance or was based on deliberate misuse of procedures; or where the applicant had previously visited a safe third country. The 1995 Minimum Guarantees Resolution allows for the abolition of the right to appeal in such cases if an independent body has made a negative determination (para 19). Non-suspensive appeals are envisaged in cases involving safe third countries and deception or abuse of the procedures (paras 21,22). Furthermore, the right to enter the territory to claim asylum is severely restricted and may be abolished if the case is deemed to fall into any of the manifestly unfounded categories (para 24).
Comprehensive research by the Danish Refugee Council cited by Peers examined evidence from refugee groups across Europe and suggested divergent state practice on this issue (Danish Refugee Council, 1997; Peers, 1998 p9-20). For example, in Belgium and Greece there was a right of appeal in all asylum cases whether or not manifestly unfounded. Whereas, French and German legislation provided for “substantial exceptions from the right to stay during an appeal” (Peers, 1998 p 12). There were also substantial differences in relation to the communication of decisions with some countries providing detailed reasons for refusals and others providing only the final decision (Peers, 1998 p 15). Similarly, some countries (notably Netherlands and Denmark) routinely translated decisions into the claimant’s language whereas others adopted a far less helpful approach. As Peers observes:
The effect of the divergent practice is that asylum seekers in the different Member States will sometimes have full written reasons in their own language; sometimes a detailed oral translation; and sometimes a summary oral translation (Peers, 1998 p 15).
There is also some divergence of approach in non-compliance cases. It has been persuasively argued that accelerated procedures should only be used when an application is clearly abusive or not related to the definition of the refugee. This argument is supported by UN soft law which establishes that applicants should not be declared inadmissible simply because the applicant fails to submit the request within a specified time or in compliance with other formal requirements (EXCOM, 1979). In the UK such cases are often regarded as clearly unfounded and subjected to the accelerated removals procedure but, as Van der Klaauw contends, manifestly unfounded presupposes a consideration of the substance of the application, and this should involve access to the procedure. The new EU directives have failed to take up the opportunity to limit admissibility refusals to situations where there is a third country willing to take the applicant or where the applicant may have found protection in a country of first asylum (Van der Klaauw 2001, p 179). Indeed most issues affecting admissibility and appeals are left to national legislatures.
The non-suspensive appeal poses a real threat to the non-refoulement principle. International standards such as EXCOM Conclusion No 8 On the Determination of Refugee Status and No 30 On the Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum, provide for the lifting of the suspensive effect in very narrowly defined circumstances, for example where there has been an abuse of process or a clear absence of relevance to the Convention criteria.
The UK has signed up to the EU directive 2003/9/EC establishing minimum standards for the reception of asylum seekers. The directive includes a variety of significant principles, including access to education and health care as well as recognition of the specific needs of vulnerable groups. However, member states retain a wide margin of discretion as to the way they administer asylum control. As its name suggests, the new directive is concerned with the most basic level or protection. Article 4 does allow states to apply more favourable conditions and treatment. However, it seems rather unlikely, given the apparent unwillingness to apply a broad, inclusive approach to the Geneva Convention, that states will do more than the bare minimum required in the directive. Van der Klaauw argues the need for asylum applicants to have access to legal advice at all stages of the procedure (2001, p 74). The obligation falls short of this obligation by requiring member states to inform applicants of organisations able to provide legal assistance and advice under Article 5. There is certainly no guarantee that the applicant will receive appropriate advice and representation. An absence of legal advice will not raise issues under Article 6 of the ECHR as the asylum application process does not engage the criminal process. More positively, the directive addresses the need for the education of children. Education is clearly essential to maximizing the child’s potential and improving their integration into the host society. However, in Article 10 the directive also approves the policy of education in accommodation centres; a policy which was specifically rejected by teachers groups, refugee groups and ultimately the House of Lords when postulated by the British Government in 2001 as being exclusionary, isolationist and stigmatizing (HL debates Oct 9th 2002 Col 352).
The proposed new Directive 14203/04, “On Minimum Standards for Granting and Withdrawing Refugee Status”, legitimises the safe third country approach whereby certain groups of asylum seekers are not given full access to the refugee convention protection. A list of safe third countries where “there is generally and consistently no persecution” will be common to all member states. This list raises significant issues in relation to the Geneva Convention whereby each case should be decided according to its individual merits. The new directive does not give an opportunity for the applicant to rebut the presumption of safety and does not provide sufficient guarantees of non-refoulement. Removal under Article 27 is not predicated on agreement with the third country. In the case of applicants traveling via other European states there will be a non-rebuttable presumption of safety and no guarantees ensuring that the third country will process the claim (Article 35A). There are some welcome safeguards included for unaccompanied minors. However, the preoccupation with ‘minimum’ is again problematic. The best interests of the child are a primary, but notably not the paramount consideration in Article 17(6). Once the child reaches sixteen there is a highly questionable presumption found in Article 17(1) that they could be treated as an adult and denied the assistance of a specialist legal representative. Despite the recognition that the Directive offers “minimum” standards, it recognizes that states may wish to prioritise national policies and may wish to have more extensive lists of safe third countries (Article 30(1). Thus there is no real minimum standard. The definition of manifestly unfounded cases in Article 23(4) includes both safe third countries and cases where the applicant has submitted a fraudulent applicant or has no identification documentation. It is more extensive than recommended by UN soft law. The directive does not address the specific need for training for border personnel and safeguards concerning the use of third country removals. Inadequate attention is given to specific safeguards which could ensure that the application is properly examined by the third country.
European immigration and asylum policy evidently suffers from a double standard. For those who are citizens of the ever-enlarging union there has been a dismantling of borders and greater opportunities for economic opportunity. In this picture, freedom of movement is gradually evolving as a human right (Guild, 2001). However, for those who do not have access to the land of opportunity, there are ever-greater restrictions. This is most notable and most disturbing when applied to the asylum seeker who is fleeing persecution and seeking sanctuary. Crowley observes that European identity is being forged through the denial of internal difference and contrast with the “foreigner” or “other” (Crowley, 2001 p 31). Cooperation on asylum represented a unique opportunity; an opportunity to raise the minimum standards and haphazard approaches of member states. This opportunity has been missed to the detriment of asylum seekers and human rights. A lowest common denominator approach can be seen clearly with reference to the denial of benefits to asylum seekers that do not make their claim immediately upon arrival. The UK introduced this controversial initiative, despite a history of academic and judicial criticism (Blake, 2001 p 112; R v SS Social Security ex p JCWI and ex p B  1 WLR 275), in s 55 of the Nationality, Immigration and Asylum Act 2002. The effects of s 55 are discussed below but at this point it is interesting to note that lobbying by the UK led to the same provision being included in Article 16(1) of the EU directive “On Minimum Standards for the Reception of Asylum Seekers”. The European Council on Refugees and Exiles has recently published a detailed report on the new European initiatives which concludes that European asylum policy after Amsterdam has been a missed opportunity (ECRE, 2004). The point is endorsed by Blake:
The point about a harmonised procedure is that safe country decisions are not merely an exercise of national sovereignty to dump unwanted claimants on whatever other territory can be persuaded to accept them, but a constructive effort in international protection, to ensure proper and adequate respect for the rights of asylum seekers…No such legitimacy can presently be afforded to EU asylum and immigration policies because they do not ensure the protection of those who ought to be protected (Blake, 2001 p 120).
Indeed, even the UNHCR have expressed deep reservations over the safe third country policy. A recent press release criticises the new Procedures Directive for permitting
a number of other restrictive and highly controversial practices that are currently only contained in one or two member states national legislation…[to] be inserted in the legislation of all 25 EU States" (UNHCR Press release 2004).
The deterrence agenda is flawed both from a humanitarian perspective, in that it exacerbates the trauma and deprivation of many genuine refugees, and practically, as it does not succeed in the stated objective of preventing bogus applications. The only people benefiting from entry restrictions are traffickers. The number of asylum applications has certainly fallen dramatically since Tony Blair’s 2003 promise to half the number: from 22,030 in the Autumn of 2002, to just 7,015 in Spring 2005 (excluding any accompanying spouses and children). The Government claims that the reduction in numbers was caused by its policy of deterring those making “abusive” applications (Kundnani, 2003). However, the Home Office’s own research has found no evidence that can conclusively demonstrate this link (Zetter et al, 2003).
A statement attached to the latest legislation on the HO website makes it clear that those who arrive in the UK without correct documentation may not expect favourable treatment:
Those claiming to be escaping death and torture must be honest with us - if they cannot explain how they got here without travel documents they should not expect to benefit from our protection and will face criminal prosecution if they deliberately seek to mislead the authorities by disposing of or destroying their documents before making their claim. <http://www.ind.homeoffice.gov.uk/ind/en/home/laws_policy/legislation/main_provisions.html>
Under s 24(1)a of the Immigration Act 1971 a person who enters the UK without leave has committed a criminal offence. Under s 24A if a person enters using deception to secure leave or to avoid enforcement action they may be liable to up to two years imprisonment. The House of Lords in Khawaja v SSHD  1 All ER 765 established that the standard of proof is a high balance of probabilities. The deception offence is broadly worded to encompass destroying travel documents, possession of false documents and entering under false pretences. There is also an offence committed under s 25(1) Immigration Act 1971 by anyone who assists the unlawful entry of an asylum seeker. The applicant has the opportunity to rebut the presumption of guilt by demonstrating reasonable excuse.
On the surface there is an incompatibility with Article 31 Geneva Convention whereby the Contracting States shall not impose penalties on refugees who have entered unlawfully (Hathaway, 1991 p50-54). Indeed the case of R v Uxbridge Magistrates Court ex p Adimi (1999) INLR 490 demonstrated the importance of providing a voice for the asylum seeker who had no alternative but to resort to unlawful methods of entry including possession of false documentation. According to Simon Brown LJ the obligation extends to the genuine asylum seeker who is claiming in good faith. Since the decision in Adimi, the law allows the asylum seeker a defence of reasonable excuse but it can be argued that placing the burden on the Applicant is unreasonable in the circumstances.
More recently, s 2 Asylum (Treatment of Claimants) Act 2004 raises significant issues regarding Article 31. The new provision provides that it is a criminal offence if an applicant either at a port of entry or an interview does not have a valid passport. Again, a provision is included aimed at satisfying Article 31 which allows a reasonable excuse defence. However, such a defence will not apply where the document has been deliberately destroyed or disposed of unless for a reasonable cause or where the destruction or disposal was beyond the control of the person charged. Under s 2(7)b(iii) reasonable cause will not normally cover situations in which the applicant has been advised by a third party, including a trafficker, to destroy/damage the documents. In addition to being subjected to the criminal process the applicant will also have their chances of claiming refugee status damaged by the adverse credibility provision in s8 of the Asylum (Treatment of Claimants) Act 2004.
These provisions fail to recognise the inevitability of illegal entry. The purpose of Article 31 is being frustrated. According to the UNHCR:
The intent behind Article 31 of the 1951 Convention is to ensure that persons seeking international protection are not penalized for their illegal entry or presence, provided that they come directly from a territory where their life or freedom was threatened, present themselves without delay to the authorities and show good cause for their illegal entry or presence. In granting this protection from penalization, Article 31 recognizes, inter alia, that departure and entry into host countries by irregular means may be methods used by refugees fleeing persecution to reach safety (UNHCR, 2003)http://www.ilpa.org.uk/briefings/ILPA2ndreadingbriefoffencesclause2.html - _ftn3#_ftn3.
http://www.ilpa.org.uk/briefings/ILPA2ndreadingbriefoffencesclause2.html - _ftn3#_ftn3http://www.ilpa.org.uk/briefings/ILPA2ndreadingbriefoffencesclause2.html - _ftn3#_ftn3There is no doubt that it is almost impossible for an asylum seeker to board an airplane and apply for entry legally in this capacity. If they come from a visa national country, as most do; the consequence of applying for a visa as an asylum seeker would, at best, lead to a refusal, and at worst, lead to imprisonment and possibly torture or death. This provision has nothing to do with protecting the interests of legitimate claimants. Rather it is entirely focussed on prevention and deterrence that does not discriminate between the deserving and the undeserving applicant.
It is common practice for the Home Office to introduce visa requirements for people travelling from countries which generate a high number of asylum claims. This trend began in 1985 when the Home Secretary introduced a visa requirement for all Sri Lankans after a consistent rise in the number of Tamils applying for asylum in the UK. It has since been instituted against Turkey (1989), Uganda (1991), the former Yugoslavia (1992), Sierra Leone and Ivory coast (1994), Kenya (1996), Slovakia (1998) and Zimbabwe and Algeria (2003). An example of this can be clearly seen in the instance of Zimbabwe. The number of applicants from Zimbabwe fell by three-quarters in the year following introduction of visas (Johnston and Breslin 2004). The number has continued to fall despite the British Government’s continued opposition and criticism of the Mugabe regime for widespread human rights abuses. Recently, the Immigration and Asylum Appeal Tribunal have ruled that the removal of an asylum seeker to Zimbabwe would be contrary to the Geneva Convention. The tribunal ruling criticised a recent Home Office fact-finding mission:
The way in which the investigation was conducted, and the way in which the results were presented to us, gives rise to the possibility - we say no more than that - that the investigators may have had existing policy in mind rather more than the discovery of new facts. (Barrett, 2005).
The use of such fact-finding missions has been the basis for declaring certain countries as safe and the partiality of this particular mission gives real cause for concern.
Although, the Zimbabwean example suggests that there is a deterrent effect following the imposition of visa regimes, it is doubtful whether this effect would be more than short-term. As the European Council on Refugees and Exiles have argued,
EU visa policy not only acts as a deterrent and barrier to potential asylum seekers, but leads to an increasing reliance on illegal entry. Desperate people who have no legal means of reaching sanctuary will, inevitably, look for other ways (ECRE, 2001 p16).
Carrier’s liability provisions were first introduced in the UK in 1987 and combine with visa restrictions to prevent asylum seekers from gaining access to the West (see Schiemann J’s comments in Yassine v SSHD  Imm AR 354). The powers to fine boat, rail and aeroplane operators as well as owners of passenger vehicles who carry clandestine passengers are now contained in Part II of the Immigration and Asylum Act 1999 as amended. The possibility of fines of up to £2,000 imposed on transporters including drivers, owners and hirers, mean that carriers are highly unlikely to take a risk and transport an individual in the absence of correct documentation. A defence is provided if the carrier acted under duress or can demonstrate that s/he could not reasonably have known that a clandestine entrant was concealed in the transporter and that there was an effective and operational system in place for preventing the carriage of clandestine entrants (s34 IAA 1999). A separate penalty can be incurred by s40 which also empowers the Secretary of State to fine air and sea transporters for carrying persons without correct travel documents or a visa. The sanctions are such that drivers as well as plane, rail and boat operators act as immigration police, preventing the passage of anyone without correct documentation. Similar measures have been introduced across Europe in an effort to prevent illegal entry (ECRE, 1999). However, the introduction of these measures has not coincided with a reduction in the numbers of asylum applicants. Rather, as Amnesty International have noted, there has been a corresponding increase in the number of people traffickers and illegal smuggling rings (Amnesty International 1997; Nathwani, 2003 p 42). In addition, immigration officials have been stationed at overseas ports to prevent people who may be intending to claim asylum from travelling to the UK (O’Nions, 2002). This is a highly dubious practice which appears to undermine the international right to “seek” asylum.
In 2004 the actions of British immigration officials at Prague airport in preventing Roma travellers from boarding aeroplanes bound for the UK came before the House of Lords in R v IO at Prague Airport and Another ex p ERRC  UKHL 55. Their final decision highlighted the subjective and discriminatory nature of this process. The government had issued an exception to the Race Relations Amendment Act 2000 to enable immigration officers to subject certain ethnic groups to more rigorous examination than others (Race Relations (Immigration and Asylum) (No. 2) Authorisation 2001). However, in the case of the Roma passengers the Government argued that their actions were not discriminatory and they did not seek to rely on the authorisation as a defence. As the Home Office had not maintained records of the number of passengers stopped, the only evidence came from one of the appellants who had observed the process and noted that an individual Roma was 400 times more likely to be rejected than a non-Roma. The House of Lords therefore held that the actions of the Home Office amounted to direct racial discrimination contrary to s1(1)a Race Relations Act 1976. It is arguable that had the Government had sought to reply on the authorisation they would have been immune from such a challenge. Although questions may have been raised regarding non-discrimination provisions in Article 14 of the European Convention of Human Rights 1950 and Article 6 of the Treaty of the European Union 1997.
The Home Office operates a safe country list, which was originally confined to EU members and accession states. The presumption is that people who come from countries on this list are unlikely to be legitimate asylum seekers. The safe country list has recently been extended to include countries such as Jamaica, Ukraine, Albania and Sri Lanka (Home Office, 2003). Home Office instructions indicate that most asylum seekers from these countries will be presumed to be “clearly unfounded” and will thus be detained at Oakington reception centre pending removal. The broad interpretation of the term “manifestly unfounded” (the predecessor of “clearly unfounded”) as evidenced in the London Resolution 1992 and the proposed new Procedures Directive has been criticised. Van der Klaauw points out that it can exclude a variety of people from the admission process including those deemed lacking in credibility and those where there in an internal flight alternative available (2001, p 180). In terms of the applicant’s credibility, a finding that there is a degree of inconsistency or incorrect documentation may result in an applicant being returned without having the allegation of persecution examined. This approach does not attempt to understand the conditions under which an asylum seeker may flee and the reasons why they may not have the correct documentation.
The proposed EU directive does not address these problems and there is clearly inconsistency between the European approach and the UNHCR’s soft law on this issue. The UNHCR resolution on “The problem of manifestly unfounded or abusive applications for refugee status or asylum” No 3 (XXXIV) 1983 defines such as applications as those which are clear abusive or have no reference to the 1951 criteria. Once defined as such by an official competent to adjudicate on an asylum decision the applicant is entitled to have a review of this decision. However, the Directive defines cases which raise no question of refugee status within the terms of the 1951 Convention, to include cases which lack credibility, internal flight cases and safe countries. It also allows the expedited procedure to be used, inter alia, in cases where the application is based on forged, counterfeited documents; false representations or destroyed documents if the applicant is unable to provide a reasonable excuse. Under the expedited procedure, the definition of reasonable excuse is likely to be contestable only through judicial review. It is broadly framed so that the courts will only examine the process by which the decision has been made rather than the substance of the decision itself unless there is an allegation of Wednesbury unreasonableness.
The emphasis of the Procedures Directive is very much centred on removing the bogus applicant. The introduction to the London Resolution leaves no doubt as to the motivation of the member states:
Aware that the rising number of applicants for asylum in the member states are not in genuine need of protection within the Member States within the terms of the Geneva Convention, and concerned that such manifestly unfounded applications overload asylum determination procedures, delay the recognition of refugees in genuine need of protection and jeopardize the integrity of the institution of asylum (EU Resolution 1992).
Again, the presumption of certain countries as “safe” will prevent the substance of a claim being examined. This must be viewed as incompatible with the nature and purpose of the 1951 Convention whereby each case should be decided on its merits by application of the Convention criteria unless expressly excluded (Goodwin-Gill, 1996 pp 346-348). The proposed new Directive allows member states to maintain their own lists of “safe third countries” irrespective of the agreed list in Annex II. The Directive appears to contravene the Geneva Convention criteria and clearly threatens the non-refoulement principle.
The absence of an in-country right of appeal in these cases is problematic given the poor quality of initial decision-making which leads to many refusals, primarily those based on adverse credibility, being overturned on appeal (Amnesty International, 2004; Asylum Aid, 1999). In 2003, Amnesty International examined 170 Home Office refusal letters and identified around 14,000 incorrect asylum decisions, which were subsequently overturned on appeal (Amnesty International, 2004). Furthermore, the presumption that these countries are safe is not borne out by legitimate, detailed research, for example a recent report on the persecution of women by the Refugee Women’s Resource Project documents cases where women from Albania are sold to traffickers and lesbians in Jamaica are persecuted by vigilantes (Refugee Women’s Resource Project, 2004). The notion that any country is safe for all cannot be substantiated and this argument applies to both EU and non-EU states. In 2002, the joint Parliamentary Affairs Committee on Human Rights criticised David Blunkett’s proposals to introduce a white-list of safe countries for all EU accession states:
In view of the well-authenticated threats to human rights which remain in states seeking accession to the EU, we consider that a presumption of safety, even if rebuttable, would present a serious risk that human rights would be inadequately protected...We consider that the presumption of safety is unacceptable on human rights grounds, and we draw this to the attention of both houses (Travis, 2002).
The situation of the Roma in much of Eastern Europe, particularly Slovakia and Romania, remains a significant cause for concern and yet the proposed EU directive is likely to regard these countries as safe. All European Union states will certainly be regarded as safe and applications will be regarded as unfounded despite the fact that there are judicial pronouncements and anecdotal evidence suggesting the contrary (see for example The Court of Appeal decision in Frantisek v SSHD CA 2001 INLR 499 that the Czech Republic’s treatment of a Roma family amounted to persecution under the Convention.)
Since January 2003, “destitute” adult, childless asylum seekers whose claims were not submitted “as soon as reasonably practicable” after arriving in Britain have been denied any kind of housing or subsistence, as a result of s 55 of the Nationality, Immigration and Asylum Act 2002. The humanitarian consequences of s 55 cannot be understated. In 2004, the Refugee Council estimate 9,000 people were refused support for this reason alone, many applied within hours of arrival (Refugee Council, 2004). Their “Hungry and Homeless” study found that three-quarters of the voluntary organisations interviewed had experienced people sleeping rough as a consequence of s 55. Concern that the welfare system was being abused by “bogus” applicants was at the root of s 55. However, the number of in-country applications actually increased in 2003 with those claiming “late” being more likely to be recognised as refugees; 81 per cent of successful claimants in the first three terms of 2003 were in-country applicants (HL debates Col 657-8 26th April 2004 ).
Having lost a high profile legal challenge the Government introduced a concession in December 2003 to enable people to apply for support if they make an application within three days of arrival. A person is exempt from s 55 if denial of such support would breach the prohibition on inhuman and degrading treatment contained in Article 3 of the Human Rights Act 1998 following the Court of Appeal decision in R (on application of Q) v SSHD  EWCA Civ 364. It is clear however, from this case and the Home Office guidance that destitution in itself will not amount to inhuman or degrading treatment and the Courts will look to see whether such support can be gained through alternative means, including charities.
In December 2005, the House of Lords delivered a major blow to the s 55 policy when they upheld a Court of Appeal decision finding a breach of Article 3 where asylum applicants struggled to find basic food and were forced to sleep rough as a consequence of s 55 (R v SSHD ex p Adam, Limbuela and Tesema  UKHL 66).
Those asylum seekers who have managed to access support may be living in conditions of extreme poverty (BBC News, 2005). Support is set at 70 per cent of the national subsistence level provided to those receiving state benefits. In addition, the dispersal system throws up many problems which impact negatively on the health of asylum seekers. There is ample evidence from across Europe of alienation, victimisation and heightened vulnerability as a result of this system, which separates people from their communities and places them in deprived, hostile environments (Save The Children 2000; Institute of Race Relations, 2000).
The minimum standards directive adopted by the EU endorses the UK approach in Article 16(2). This is to be lamented given the evidence, discussed above, which strongly denies a link between late claimants and disingenuous applications.
The practice of detaining asylum seekers can be seen as another example of a restriction aimed at deterrence and it represents one of the greatest threats to their well-being Pourgourides 1998, pp 199-209). Persons may be detained in specialised immigration centres or in the prison system. The provision of specialised detention centres is common throughout Europe with approximately 100,000 asylum seekers detained at any one time (Jesuit Refugee Service, 2004). Several countries, including the UK, Finland and the Netherlands, provide no statutory limit on the period of detention (Goodwin-Gill, 2003).
Since the enactment of s.62 Nationality, Immigration and Asylum Act 2002 a person can be detained in the UK pending removal, deportation or examination. Home Office statistics from March 2005 state that 1,625 asylum seekers were detained under immigration powers; 50 were under 18 years old (Home Office, 2005). Despite constructing many new detention establishments, approximately 10 per cent are placed in mainstream prisons. 20 per cent of detainees have been held in detention for more than four months.
The arbitrary use of detention appears to conflict with a variety of international legal provisions which stem principally from human rights law. UNHCR guidelines establish that detention should not be used unless absolutely necessary and specify the exceptional reasons which may justify confinement. The reasons are; to verify identity; to determine the elements on which a claim is based (not indefinitely); in cases where the asylum applicant has acted in bad faith by destroying or fraudulently using documents; or to protect national security and public order (UNHCR, 1999). They also state that unaccompanied minors, pregnant and nursing mothers should not be detained under any circumstances. In the case of unaccompanied elderly persons, those with disabilities or who have experienced torture or trauma, alternatives should be sought and detention should only be considered when medical evidence confirms that there would be no adverse effect to health or well being (UNHCR, 1999).
The Chief Inspector of Prisons recently conducted the most comprehensive report to be issued on the detention of asylum seekers in the UK. Her findings give grave cause for concern. In particular she noted that the psychological well being of detainees worsened over time and that many detainees experienced frustration, abuse and humiliation by centre staff (BBC News, 2003). These findings are supported by several other studies and are clearly hard to reconcile with the UNHCR guidelines (BMA 2002; Dell and Salinsky 2001; McLeish et al 2002; Pourgourides, 1998).
Article 5 1 (f) of the European Convention on Human Rights, now incorporated in the Human Rights Act 1998, establishes that immigration detention can be justified very specifically to prevent unauthorised entry and to detain a person against whom action is being taken with a view to deportation or extradition. In order to comply with the rule of law, one would expect any deprivation of liberty to be clearly enunciated with reference to these two exceptions and to be proportionate to the given need. However, recently the House of Lords have interpreted unauthorised entry to constitute any entry that had not been specifically authorised by the Home Office (R v SSHD ex p Saadi and Others  1 WLR 3131).
The policy on detention has become progressively more restrictive with increasing numbers of people, including families, being detained. The right to an automatic bail hearing, which had been introduced but never implemented in 1999, has now been repealed.
In 2003, Labour proposed a “New Vision for Refugees” which would see refugee claims processed externally (Fekete, 2003). The EU Commission has adopted the UK’s proposals, the effect of which is that migrants will have to make asylum claims as close to their country of origin as possible (European Commission Communication June 04th 2004 COM (2004) 410). The justification for this action is two fold; the assumed increase in applications from economic migrants and the unprecedented rise in the use of human traffickers. As the human rights monitoring group, Statewatch, have argued, these assumptions are not questioned and the EU appears incapable of understanding that human traffickers are a product of exclusionary immigration rules which prevent asylum seekers and migrants alike from getting legitimate access to the West (Statewatch, 2004; Fekete, 2003). The current structure of refugee law is not helpful and is in need of reform. An international monitoring and enforcement mechanism is urgently required. However, history tells us that states are reluctant to surrender their sovereignty unless they can see that the benefits of so doing clearly outweigh the negatives. As presently conceived, refugee law is not benefiting the individual applicant or the state. Whilst the latter attempts to avoid their international obligations, the former resort to increasingly devious methods to access them. In seeking a new paradigm for refugee protection Hathaway argues that the way forward is through temporary protection initiatives:
Non-entrée is an explicable, if reprehensible, response to the breakdown of the social and political conditions that previously led industrialized states to assimilate refugees.
Seeing no need to accept the risks assumed top follow from a generalized temporary protection system, states have taken the more brutal (yet less visible) step of keeping refugees as far away as possible (Hathaway, 1997 p xx).
The debate over the future of refugee protection is discussed elsewhere and is beyond the scope of this article (see for example Castillo and Hathway 1997; Hans and Suhrke 1997). However, it must be acknowledged that an honest debate is urgently needed and a solution will only be effective where the interests of both the refugee and the state can be adequately protected. The reasons for the increasing restrictions in the West cannot simply be attributed to governments satisfying the needs of increasingly xenophobic electorates (Gibney, 2003 p19-45). Gibney argues that the 1980’s saw the “democratisation of asylum policy” with the public, media and opposition parties having increasing influence on the development of policy (Gibney, 2003 p28). Increasingly asylum seekers are perceived as representing a threat to the survival state, whether in terms economic burden, different cultural values or increasingly, in terms of national security. The reasons for restrictionism are complex and certainly include such factors, but they require greater examination in an environment that recognizes the inevitability of the movement of peoples.
In 1997, a twelve-year old Kenyan boy was found crushed to death after stowing in the landing gear of a plane bound for Gatwick (Ayotte and Williamson, 2001 p 54). In December 2004, a Zimbabwean man beaten and tortured by agents of Mugabe’s Zanu PF party had his application for asylum rejected by the Home Office on the basis that he could have expected nothing less given his opposition to the regime (Johnston and Breslin, 2004). International refugee law is failing to protect the vulnerable. As time goes on, Hathaway notes, it serves fewer and fewer people, less and less well (Hathaway, 1997 p xxv). As the numbers of refugees continue to rise and the opportunities for legal travel diminish, the traffickers profit at the expense of the vulnerable. Asylum seekers have no choice but to resort to increasingly dangerous and devious methods of travel. A culture of disbelief pervades home office decision-making as people with traumatic experiences and mental illness are detained pending decisions and removals. The constant change in immigration and asylum law and policy, evidenced by a new piece of legislation every 18 months, demonstrates the climate of confusion and misinformation. It has been shown that the current obsession with deterrence is flawed on many levels. On a humanitarian level, it undermines the right of every person to seek asylum. On a practical level, it leaves people with no option but to resort to clandestine, illicit and dangerous means of travel. As Nathwani argues, deterrence strategies cannot work when the harm refugees fear if much greater than any sanction that can be imposed by the immigration regime (Nathwani, 2003 p 41). Finally, on an economic level, global economists have now recognized that Europe needs controlled immigration in order to stabilise the retirement age. It is sadly an unsurprising paradox that the immigration controls of the West serve the interests of the strong, determined and wealthy whilst working to deprive the vulnerable of the protection they desperately need.
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