On 24 March, Home Secretary Priti Patel announced a new plan, the aim of which is to reform the UK's current immigration scheme, calling it a “firm but fair system”. Its purported objective is
to increase the fairness and efficacy of the UK's system to better protect and support those in genuine need of asylum; to deter illegal entry in the UK, thereby breaking the business model of criminal trafficking networks and protecting the lives of those they endanger; and to remove more easily from the UK those with no right to be here.
On closer inspection, the plan focuses mainly on the asylum system. It creates convoluted distinctions between people seeking asylum based on their mode of entry into the UK, dubbing them either “illegal” or “safe and legal”. Refugees who enter the UK through “illegal” routes - including those who cross the English Channel - are contrasted with those who enter via “safe and legal routes,”, for instance, through a process of direct resettlement from refugee camps under NGO programmes. People arriving in the UK by illegal routes to claim asylum will no longer have the same entitlements as those who arrive through the allegedly proper channels. Those who travel through a safe third country will also be deemed inadmissible with fewer rights. Such persons will be granted only temporary protection, less generous entitlements, and limited family reunion rights.
The plan - which threatens to remove and punish persons seeking asylum in the UK based on how they got here - also adds additional criterion to the definition of a refugee, which is unheard of under international law.
INTERNATIONAL LAW ON REFUGEES
Under international law, anyone has the right to apply for asylum in any country and to remain there until the authorities have assessed the claim. This is a well-established and long-standing principle which applies to all states.
The right of persons to seek asylum from persecution in other countries is grounded in article 14 of the Universal Declaration of Human Rights 1948 (UDHR), to which the UK is a signatory. But the centrepiece of international refugee protection today is the 1951 Refugee Convention (the Convention). Prior to becoming a signatory, the UK also contributed significantly to its drafting. This Convention is underpinned by several fundamental principles, most notably non-discrimination, non-penalisation, and non-refoulment. Priti Patel’s new policy will breach these principles in a number of ways.
First, by scaling back entitlements to those who arrive “illegally”. Second, by granting only “temporary protection,” even if an individual proves their right to refugee status. Lastly, through the proposed planned removal of those who arrive in the UK through another safe country before a determination is made in their case.
NEW REFUGEE DEFINITION?
A refugee is a person who has a well-founded fear of persecution in their own country, and cannot return as the government of the country of origin cannot or will not protect such person from the danger.
To obtain asylum in the UK, the authorities must be satisfied that an individual meets the Convention's set definition. However, the new proposals add a qualifying factor to meeting the established definition; namely, that a person must arrive in the UK directly, and via legal means. This is clearly in contravention of well-established principles of international law.
NON-PENALISATION
Article 31 of the Convention prohibits states from imposing penalties on refugees who enter illegally. The Convention recognises that the reality of the act of seeking of asylum may require refugees to breach immigration rules, and prohibits states from imposing immigration or criminal penalties in response to this. However, the new measures introduced by the UK government undermine this. Instead, they discriminate between the types of people seeking asylum.
Under the new plan, the UK government will essentially penalise persons who enter the UK through “illegal” routes, by deeming them automatically inadmissible and subjecting them to rapid removal. This will deprive them of the right to a family reunion, with no recourse to public funds unless destitute.
The penalties do not end there. The new plan anticipates harsher criminal offences for those attempting to enter the UK illegally, allegedly with the intent to combat human trafficking. To this end, the plan will introduce life sentences for people smugglers. While this would, in theory, be welcomed, it is hard to understand the UK’s inclination to punish those who are more likely to be the victims of those who prey on their vulnerability.
NON-REFOULMENT
The article 33 protection against refoulment is “the cornerstone of international refugee protection”. It is the concept that “no Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened".
The principle of non-refoulment is considered so fundamental that states can make no reservations or derogations to it. It follows that the principle applies not only to recognised refugees but also to those who have not had their status formally declared. Moreover, even states that are not a party to the Convention are bound by the principle, which is considered a norm of customary international law and, as such, is binding on all states.
The new plan will see persons seeking asylum after having illegally travelled through or claimed asylum in a safe third country removed. However, there is nothing in international law to say that the refugees must claim asylum in the first country they reach. Due to the geographic location of the UK, it is hard to see which persons the government would consider to have arrived "directly", aside from the very few who arrive via settlement programmes.
In a post-Brexit world, Priti Patel’s plans to send people back to EU countries might be all plain sailing. Since the UK’s departure from the EU, the government can no longer fall back on the Dublin agreement, under which the UK was permitted to send a person seeking asylum in the UK back to the EU country from which they first entered the bloc. Now, the UK will need to make individual agreements with other countries in order to be able to send people back. Such agreements have not yet been reached. As it stands, the new plan will only push more asylum seekers into the undocumented population and increase delays in the asylum system.
LOOKING FORWARD
The two-tier asylum system encompassed by the new plan will divide individuals into legal and illegal asylum seekers. These distinctions are unknown in international law. This is problematic because no human being is illegal, and branding persons seeking asylum as such prior to an individual determination is wrong, and contravenes relevant international law. Furthermore, by categorising people seeking asylum in such a way, the UK will narrow the definition of who can qualify for refugee protection, diminishing the status of the protection afforded to a refugee.
The UK significantly contributed to the drafting of two fundamental treaties, the UDHR and the Refugee Convention. Today, it needs to step up to the problems posed by the so-called global refugee crisis and face it in line with its international obligations under these treaties.
The government must create an asylum system that is fair, and which safeguard the rights of and grants protection to vulnerable persons seeking asylum. The system should be hard on unscrupulous smugglers who treat humans as highly profitable commodities, and protect fleeing persons at risk from those who prey on their vulnerability. To do this, the UK needs to cooperate and tackle the issue in collaboration with its European neighbours, as opposed to shifting responsibility and shutting its borders.
Anna is focused on becoming a Barrister specialising in Public Law and to this end will be part of the second intake for the BTC at the ICCA in Jan. 2021. She holds a first class honours Bachelor of Laws degree from Middlesex University, and honours Master of Laws in US and Global Legal Studies degree with certificate in Public Law from Case Western Reserve University in Ohio, United States of America. Anna is dedicated to pursuing a legal career focused on promoting democracy, human rights and justice for all, ensuring that elected leaders, as well as all citizens, comply with and are afforded the protections guaranteed by the rule of law.