Measures announced by Home Secretary David Blunkett and Constitutional Minister Lord Falconer on 27 October to reduce further the numbers seeking asylum in Britain have been condemned by refugee groups and human rights lawyers as inhuman, discriminatory and incompatible with the Refugee Convention.
The measures include:
- new criminal offences for those destroying or disposing of travel documents en route to the UK, or refusing to cooperate with acquiring new travel documents for removal;
- removal of a layer of appeal rights;
- denial of all support for families refused asylum who will not leave the country voluntarily.
New criminal offences
Criminal offences of destroying or disposing of travel documents were greeted with concern by the Refugee Council and Amnesty International, who expressed the view that they were incompatible with the provisions of the Refugee Convention. The Convention recognised that refugees fleeing persecution might often need to enter countries of refuge illegally, and might have good reasons for not declaring themselves at the border (such as fear of being returned to the country of persecution). The main problem is the impossibility for refugees of legal travel, created by the imposition of ever stricter visa regimes on refugee-producing countries. Only a fortnight before, the government announced the introduction of transit visas for travellers from Angola, Bangladesh, Cameroon, India, Lebanon and Pakistan. Refugees from these countries cannot obtain visas, and so are driven into the arms of the smugglers.
David Blunkett justified the move by stating that ‘many [asylum seekers] destroy [travel documents] en route because traffickers tell them it’s their best chance of staying in UK – by making fraudulent claims and making it difficult to remove them if their claims fail.’ But the statement appears to confuse smugglers with traffickers, and fraudulent with genuine claims. Evidence from asylum claimants indicates that they destroy documents en route on the instructions of the smugglers, to prevent the smugglers themselves or their routes or methods being identified – and if they also do so to make removal more difficult, it is through a fear of removal which is entirely consistent with a genuine asylum claim.
The announcement of 27 October also included measures to criminalise the refusal to cooperate in the acquisition of travel documents for removal. The Immigration and Asylum Act 1999 already empowers the Home Office to pass on identification details of those to be deported to their embassies – despite evidence that repressive states such as Algeria, Democratic Republic of Congo, Turkey and Iran have greeted returnees with detention, questioning and torture. Sometimes the Home Office seeks this information, or invites embassy officials to visit detained asylum seekers to check their identity – before the appeal process has ended. The new measures may mean for many asylum seekers the choice of prison in the UK or prison at home.
Removing a layer of appeal rights
The merging of two levels of immigration and asylum appeals into one deprives appellants of one level of protection against wrong decisions. Additionally, the government is considering depriving immigrants and asylum seekers of access to the higher courts altogether – something which refugee groups fear would condemn them to a second-class system of justice. They point out that immigrants and asylum seekers are the only group in the country who are routinely disbelieved, meaning that they need more legal protection against injustice, rather than less.
The measures coincide with severe cuts in the amount of legal aid funding allocated to immigration and asylum cases. At present, legal representatives are paid for the amount of work done, up to a ceiling, and if more work is required they apply in advance for an extension of legal aid funding to pay for it. Under the proposed cuts, the amount of time spent on each case is to be rigidly capped. It is feared that the combination of the cuts in legal aid and the removal of a layer of appeal will lead to people being returned more often to torture or other human rights violations. The most vulnerable – rape victims, unaccompanied children and asylum seekers whose experiences have left them mentally unwell – will be worst off; denied decent legal representation, since conscientious preparation of their cases would result in financial losses for legal representatives, and without further recourse after losing a one-tier appeal.
Denial of support
At present, support ends once an appeal is dismissed for childless asylum seekers, but families with children continue to qualify for support (if destitute – and asylum seekers may not work) until removal, or until a failure to cooperate with removal. The proposal to deprive families of support if they refuse to leave voluntarily takes matters a step further. The difficulty is that voluntary return programmes are often premature or misconceived, as is illustrated by the two programmes of ‘Voluntary Returns’ to Afghanistan currently run by the Home Office (on 29 October it announced another). Conditions in Afghanistan are described by Amnesty International in its 2003 report: ‘Grave human rights abuses and armed conflict continued. Hundreds of people were arbitrarily detained and held in poor prison conditions. Impunity remained entrenched and perpetrators of human rights violations largely went unpunished.’ The organisation describes the situation in Afghanistan now as ‘an unsustainable and unstable post-conflict environment’, not conducive to voluntary repatriation. Ethnic violence and factional fighting continues. Recently the President of Afghanistan narrowly escaped an assassination attempt that killed his driver, and the Vice-President, Haj Qadir, was assassinated in Kabul.
The Home Office proposals mean that those who refuse to go ‘voluntarily’ when the Home Office judges that conditions are right are to be deprived of all support – and so are their children. It is true that the fact that they have been refused asylum means that they have been found not to be at risk of persecution. But there are many other fears connected with return home, many of which are well-founded – a destroyed environment, total insecurity, fighting between warlords and starvation among them. Refugee groups fear that many families will be required to make an impossible choice.
Refugee Convention not a tool of migration management
UN High Commissioner for Refugees Ruud Lubbers visited Tony Blair in London on 28 October, after Blair criticised the 1951 Refugee Convention for being outdated in tackling the problems of mass migration. Lubbers pointed out that the Convention, which prohibits the return of refugees to countries of persecution, was not a migration management regime and could not be blamed for failing to address problems it was not designed to address. ‘It is a human rights protection instrument and should be regarded as no more, but certainly no less’, he said, adding that the Convention remains ‘relevant and timeless’.
Extra-territorialising refugee processing
The government’s proposals mark a further step down the road to extra-territorial refugee processing. Tony Blair used the occasion of Lubbers’ visit to announce Britain’s joining of UNHCR’s resettlement programme, under which UNHCR selects and screens refugees and sends them on to western countries. Mr Lubbers expressed the hope that ‘in due course the UK will be willing to increase the current annual quota of 500 refugees’. Such an increase is in fact extremely likely; the government has expressed its wish that refugees are processed close to their countries of origin, rather than coming to the UK for refugee determination. In this, as in the removal of appeal rights, it aims to follow Australia, which developed ‘off-shore asylum processing’ in the wake of the Tampa incident in September 2001, so as to close off the possibility of ‘ad-hoc’ arrival of asylum seekers altogether.