The Right to Asylum, the “Migrant Crisis” & the Inadequacy of the UK’s Response.

EU leaders are currently meeting in Malta to discuss how to respond to the immense humanitarian catastrophe on Europes shores & borders. The two-day Valletta summit is a lavish event, bringing together more than 60 European and African leaders. The crisis has evolved so quickly this year that  leaders have been struggling to keep up and, unfortunately, as winter approaches, formulate any coherent policies to deal with the crisis. In terms of the United Kingdom, the Conservative governments response has been ‘piecemeal‘ at best. The UK is behind is behind Bulgaria, Finland and Luxembourg for the number of asylum seekers it accepts, when compared to its own population. The Refugee Council notes that Asylum applications to the UK remain low: in 2014, just 24,914 applications were received. Amnesty International has stated that the UK must do more. In terms of refugees fleeing the Syrian civil war, Britain had, at one point, only allowed 24 Syrians to move to the UK under a special relocation programme for vulnerable refugees. The UK government has not acted to adequately fulfil its duties under international law.

According to the United Nations High Commissioner for Refugees (UNHCR), the number of forcibly displaced people worldwide reached 59.5 million at the end of 2014, the highest level since World War II, with a 40% increase taking place since 2011. Of this 19.5 million were refugees and 1.8 million were asylum-seekers. The rest were persons displaced within their own countries (internally displaced persons). Syrian refugees became the largest refugee group in 2014 (3.9 million, 1.55 million more than the previous year), overtaking Afghan refugees (2.6 million), who had been the largest refugee group for three decades.

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As of August 2015, the UNHRC estimates more than 300,000 refugees & migrants have crossed the dangerous sea route across the Mediterranean so far this year with almost 200,000 of them landing in Greece and a further 110,000 in Italy. Some 2,500 refugees and migrants are estimated to have died or gone missing in 2015 trying to reach Europe. With winter approaching this number is estimate to continue to grow. The UK opted out of any plans for an EU wide quota system and, according to Home Office figures, has accepted 216 Syrian refugees under the Vulnerable Persons Relocation scheme since it began in January 2014.

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Following mounting public pressure, the UKs Conservative government announced it would ‘live up to its moral responsibility’ and take up to 20,000 refugees over 5 years. Green MP, Caroline Lucas, dismissed this offer as unacceptable, saying it represented only 12 refugees a day over the course of this parliament, adding that ‘20,000 sounded less impressive given the long timescale’. David Milliband (CEO of the International Rescue Committe) called this wholly inadequate. The UK should commit to take in a greater number of refugees & those seeking asylum. First it is important to define clearly asylum is different from refugee status, as the former constitutes the institution for protection while the latter refers to one of the categories of individuals –among others- who benefit from such protection.

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International Law & Asylum

Asylum is ‘the protection that a State grants on its territory or in some other place under the control of certain of its organs to a person who comes to seek it’, is a well-known institution in international law. The practice of asylum pre-dates the existence of the international regime for the protection of refugees and the international regime for the protection of human rights. Asylum constitutes the protection that a state grants to an individual in its territory (territorial asylum) or in some other place under the control of certain of its organs.

The Universal Declaration of Human Rights (UDHR) provides in Article 14(1) inter alia the right of each individual to ‘enjoy in other countries asylum from persecution’. The Declaration on Territorial Asylum adopted by the General Assembly of the United Nations in 1967 provides in Article 1(1) that:

[a]sylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke Article 14 of the Universal Declaration of Human Rights … shall be respected by all other States

Individuals hold the right to seek asylum, it is the right of an individual to leave his/her country of residence in pursuit of asylum. Article 13(2) of the Universal Declaration of Human Rights proclaims that, ‘[e]veryone has the right to leave any country, including his own’. Article 12(2) of the International Covenant on Civil and Political Rights, contains the right of an individual to leave his country, binding on the states parties to the Covenant. This right is also recognized in binding regional instruments. For example, Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms proclaims that, ‘[e]veryone shall be free to leave any country, including his own’.

International Law & Refugee Status:

Article 1(a)(2) of the 1951 Convention relating to the Status of Refugees

The definition of the term “refugee” set out in the 1951 Refugee Convention:

  1. a) a person outside his country of origin or residence
  2. b) for what reason may a person find himself outside his country of origin or residence: due to a well-founded fear of persecution
  3. c) what types of persecution: for reasons of race, religion, nationality, membership of a particular social group or political opinion
  4. d) thus owing to such fear he is unable or unwilling to return.

The basic principle of refugee law, non-refoulement refers to the obligation of States not to refoule, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

This definition is applicable to those having a nationality, as well as to those without a nationality. Due to the rapid emergence of new refugee situations, many people could not satisfy the required criteria to receive protection under this Convention. Therefore, its application was expanded to all the refugees around the world, by the 1967 Protocol relating to the status of refugees that ‘shall be applied by the States Parties hereto without any geographic limitation’ (Article 1 (3) of the Protocol relating to the Status of Refugees, United Nations, Treaty Series, vol.606, p.270).17499-3ysvn

A person may become a refugee, outside the country of nationality or habitual residence in two situations:

  • either he abandoned his home because he himself suffered a well-founded fear of persecution,
  • or was already outside his country, as a student, traveller etc. when an event happened that made him fear persecution, torture or inhumane treatment, if he were to return to his home country.

(UN High Commissioner for Refugees (UNHCR), Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001 )

The ‘Refugee Convention’ does not enshrine a right of asylum or a right of residence. The enjoyment of most of its provisions is conditional on the immigration status of the refugee. Article 34 of ‘The Refugee Convention’ imposes obligations on states parties regarding naturalization:

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings

Ian Martin, the former Secretary General of Amnesty International, observed that:

 Governments… are more often motivated by self-interest than by considerations of humanity, and this provides a further reason for those seeking to combat human rights violations to insist upon the right of asylum

This statement is, sadly, accurately reflects the attitude of national-governments in respect of compliance with norms of international law on human rights. Though governments may assert their commitment to fundamental principles of human dignity i.e. the right to asylum (through ratification of specific treaties) the true influence of international human rights law can only be assessed by looking at state practice. Words & deeds are different things. Oona Hathaway (Professor of International Law at Yale Law School) has engaged in empirical analysis in respect of nation- state compliance with human rights treaties. Hathaway observes that governments of states are rational actors and comply with human rights norms such as the right to asylum when convenient. Hathaway notes how:

 …states and the individuals that guide them are rational self-interested actors that calculate the costs and benefits of alternative courses of action in the international realm and act accordingly

As noted by Andrew Moravisck (Professor of Politics and director of the European Union Program at Princeton University) ‘societal ideas, interests, and institutions influence state behaviour by shaping state preferences, that is, the fundamental social purposes underlying the strategic calculations of governments.’ Further Eric Posner & Jack Goldsmith, who articulate a “rational choice theory”, argue that neither international law nor treaty law have any ‘exogenous influence on State behaviour’. When states act in accordance with international law it is not from a moral obligation but is rooted in self-interest.

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In respect of issues of asylum & the rights of refugees, such theoretical explanations as to the actions of national governments in respect of international law, were evident in the response of the British government to the growing European refugee crisis. Initially the response of the right-wing Conservative party to the growing catastrophe in the Mediterranean & on the borders Europe was simply to ignore it. In October 2014, the government was adamant not to use the resources of the Royal Navy to rescue migrants making the dangerous crossing of the Mediterranean. Foreign Office minister Baroness Anelay stated at the time, such operations encourage more people to attempt to make the dangerous sea crossing to enter Europe.

The British government was content to stand on side-lines. In the view of the Conservatives this nothing to do with Britain (Afghanistan, Iraq, Libya…..) This stance finds its roots in the populist, isolationism & xenophobia of the right which has swept the UK on the back of the success of UKIP. The Conservatives have very willingly pandered to the tune of the small, but very vocal minority who want to pull up the draw-bridge and sing “Jerusalem” with their fingers in their ears.

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This attitude is both fuelled & echoed by the right wing press (The Daily Express,The Sun, The Daily Mail et al) who regularly feature stories & opinion columns demonising refugees & migrants, misconstruing complex issues. This whipping up of anti- immigration, anti-migrant & anti- asylum rhetoric can be epitomised by the vile rants of one, Katie Hopkins. In an “article” (more a treatise on hatred) Hopkins wrote:

Show me pictures of coffins, show me bodies floating in water, play violins and show me skinny people looking sad. I still don’t care.

At the end of July 2015, Prime-Minister David Cameron referred to the thousands of migrants living rough in & around Calais as a “swarm”. Such dehumanising rhetoric was rightly lauded & derided. Public pressure mounted over the summer of 2015. News reports from “The Jungle” near Calais showing the thousands of desperate men and women living rough.  The harrowing photos of a Syrian child, having drowned, lying face-down on a beach thrust the shocking, cruel reality of Europe’s refugee crisis into peoples’ living rooms.  More than 440,000 people signed a petition asking that the government do more .  100 leading British cultural figures signed a statement calling for the UK to take in more refugees. Charities, NGOs, civil society organisations, Trade Unions, & groups of ordinary citizens all lambasted the UK governments’ limited response to the chaos & misery of the migrant crisis.  It is public pressure which will force the government to act; the best way to force the Conservatives to do more is to embarrass them, to show up the paltry, minimal response to this human tragedy for what it is.

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The Conservative governments’ weakness is that it is fickle & populist, creating a climate of pressure is a task that must be continuously mounted as long as this crisis continues in order to force Cameron to act. Simply because the UK has ratified an international human rights treaty, this does not guarantee our government will act fully to fulfil all its obligations. The UK government often will do the bare-minimum, and simply pay lip service. The public & concerned citizens must always raise the profile of important issues, and collectively fight the corner of those lacking a voice when we see injustice.

Jeremy Corbyn MPs first appointment upon being confirmed as leader of the Labour party was to attend a rally in Parliament square in support of refugees. Corbyn, a long time human rights activist, has asserted many times the necessity of Britain to do more, and has repeatedly criticised David Cameron for the inadequate & shameful response:

It is our duty under UN law, but also as human beings, to offer a place of safety, and play a role internationally to share our responsibilities, and to try to end the conflict.

With the Syrian civil- war ramping up, it is a vast continually changing mosaic of differing factions in a whirlwind of chaos & death, and will unlikely end soon.  Russian & American/ “Coalition” bombing is increasing, the terrible atrocities of Daesh (ISIS) in Syria & Iraq happen daily, as well as killing of civilians by the armed forces of President Bashar Al Assad  means more will flee the conflict zones. In Libya, following NATOs assistance of the rebellion against Ghaddafi, the country is the throws of violent partisan/sectarian conflict as differing warlords battle each other & the central government for control. The humanitarian disaster at Europe’s door will not go away any time soon. Britain must do more.

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By Frederick Antonio Gallucci | International Law LLM | @gibblegbble

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