Asylum and immigration are prominent on the political agenda in the UK. Many NGOs and pressure groups have been critical of government policy, which appears to be restricting the rights of refugees, and redefining the UK's obligations under the Convention. We will look at two main issues: the Immigration, Asylum and Nationality Act (which received Royal assent on 30 March 2006) and the UK’s proposals for a reformed asylum system.
First we need to think about the relationship between refugee law and the law of immigration. Whilst the definition of refugee status may be determined by the Convention, as the Convention puts in place an individual application process, the different ways in which national legal systems have dealt with applications by refugees means that refugee law is intimately bound up with national law. In the UK, the responsibility for overseeing this area of law rests with the Home Office, which also deals with immigration. This has led to immigration and refugee law becoming bound up together at both the level of legal doctrine and institution. Thus, the Aliens Act 1905 allowed the courts to determine whether or not an individual's claim to asylum would provide grounds to prevent deportation.
When this Act was replaced with the Aliens Restriction Acts of 1914 and 1919, the determination of refugee status was given to the Secretary of State. It was not until the Asylum and Immigration Appeals Act of 1993 that a claim for asylum was presented as consistent with the UK’s obligations under the Convention: '[t]his refers to the non-refoulement obligation under Article 33, and gave a statutory meaning to an asylum claim' (349).
In domestic politics, the issue of refugee rights has long been open to critical scrutiny. The Prime Minister has been quoted as saying that it was time to 'stand back and consider its [the Convention’s] applications in today'’ world’.
So, what reforms are currently being made to the asylum and immigration system?
The Immigration, Asylum and Nationality Bill
First, we will consider the Immigration, Asylum and Nationality Act 2006. The Act creates a single tier Asylum and Immigration Tribunal.
This body considers appeals against immigration and asylum decisions.
Only in limited cases can the Tribunal’s decision be reviewed by the High Court on the grounds that the Tribunal made an error of law.
Amongst other measures are: the removal of rights of appeal against refusal of entry or leave to enter for students (s.4) and limited rights of appeal for family visitors. It also aims to streamline post-entry rights of appeal. Section 15 creates civil penalties for employers of illegal workers and s.21 makes it a criminal offence to knowingly employ an illegal worker.
How has this Act, and the policy behind it been presented by the government? We will consider the following extract:
The purpose of the [Bill and the government's immigration] strategy is to make migration work for Britain. It includes measures to make our immigration system simpler, clearer and more robust. The reformed system will explain publicly and clearly who we will admit to the UK and why, and who we will allow to stay in the UK and why. It will also show that we enforce the rules rigorously in every respect. The UK needs economic migration. We welcome people who migrate here to work and study -they are an essential part of our society and economy.
Anyone who looks back over the recent years and decades will be able to give testimony to the major contribution that they have made to the life of this country. We need migration to fill the gaps in our labour market that cannot be filled from the domestic workforce. Of course, the government will continue to welcome people who are genuinely fleeing persecution. However, as we do so we will not- and cannot-tolerate abuse of the system. That explains why the five. year strategy contains four major work streams, in each of which we work with a range of other countries to improve the effectiveness of our system.’ (Charles Clarke, former Horne Secretary, introducing the Immigration, Asylum and Nationality Bill to Parliament)
This defence of the Act suggests that it will strike a balance between the need for economic migrants, and the need to police immigration. Indeed, asylum seekers seem to be primarily considered, at least in the speech above, as economic migrants, rather than those for whom the UK has responsibilities under international law. However, many NGOs and pressure groups have been very critical of the Act. Critics have pointed out that the limitations on the right to appeal are against the rule of law, and that the Act effectively criminalises refugees and removes state support from them. It has to be seen in the context of other initiatives to reform UK asylum and immigration law.
The Immigration, Asylum and Nationality Act must be seen in the context of an ongoing drive to push through far-reaching reforms of the international obligations that the UK has entered into under the Convention. To get a sense of the direction of these reforms, we will
the European Commission in the paper: 'Towards a more accessible, equitable and managed asylum system'.
Proposed Asylum Reforms
The reforms proposed are essentially focused on creating transit centres either in Europe, at its border, or in nations outside of Europe. These 'transit processing centres’ would deal with the claims of asylum seekers who were intending to enter the UK; once the claims had been processed outside the UK, some would be permitted to enter. These centres would allow a 'more equitable management' of the 'irregular migrants' who want to enter Europe. A system of regional centres also includes a proposal for 'regional protection areas' where those asylum seekers who have failed to be accepted can be accommodated instead of being returned to the countries from which they have fled.
There are various factors driving these reforms. The government has cited one compelling reason to be the costs of running the present asylum system. Human Rights Watch have criticised this argument and have accused the government of ignoring other ways of reducing the costs of the system. For instance, costs of detention centres, and the practice of detaining asylum seekers, could be decreased by allowing asylum seekers to work. The government had withdrawn the 'work concession' arrangement whereby asylum seekers were issued with work permits after a certain period. This means that asylum seekers are entirely dependent on government funding. Figures were cited that showed that the cost of detention had risen from £362 to £1,620 per week (Hansard, House of Commons Debates, 25 October 2001, C 333 W). This is backed up by information from the UNHCR which shows that the UK detains more asylum seekers than any other European nation (UNHCR, 2000).
Proposals for regional centres and transit processing centres have also been encouraged by arguments about the scale of the illegal entry of asylum seekers to the UK. However, this is not a reasonable approach to the problem, as the very fact that an asylum seeker is fleeing persecution may mean that an illegal entry is his or her only option (how can one enter a country legally if one is deprived of a passport, for instance?).
Moreover, such arguments also contradict the Convention which states that those arriving illegally should not be penalised. A similar analysis can be made of other government arguments. The government has alleged that the number of failed asylum seekers show that most make bogus applications. However, this cannot be used as a reliable index of the status of asylum seekers; it reflects equally on the failings of those who are making the decision on status and the procedures they are applying.
Human Rights Watch cite as evidence a recent report that shows that in procedures applied in 60 per cent of claims in the Netherlands, applicants were deprived of fundamental human rights. The high court itself has held that depriving asylum seekers of basic social support amounted to a breach of the European Convention. Evidence for the weakness of the government’s arguments is also suggested by the fact that ‘approximately one-quarter of those asylum seekers who appeal their rejection in the UK are successfully granted asylum' (Immigration and Nationality Directorate, 2002).
The UK's obligations under international law must also be taken into account. Human Rights Watch argue that these proposals are contrary to the spirit and the letter of the Convention that ‘calls upon state parties to engage in international co-operation to ameliorate the plight of the world's refugees’. The proposals effectively shift the burden of asylum to countries that do not have the economic resources of the UK.
Furthermore, the proposals come close to both threatening the right to asylum in the Declaration and the fundamental principle of non-refoulement. Human Rights Watch have also argued that there is a potential breach of Article 31, which states that refugees should only be detained in exceptional cases; the removal and detention of those who arrive illegally in the UK to transit centres outside the UK arguably breaches this right. There is also the risk that the proposals are discriminatory. The plans for the construction of regional centres suggest that these might be geographically proximal to areas which produce large numbers of refugees. If those in the regional centres enjoyed fewer rights than those in the UK, then Article 3 of the Convention is also violated.
SELF ASSESSMENT EXERCISE 8
Reforms in immigration and asylum law in the UK show an increasing disregard for the rights of refugees. Discuss.
Summary
Refugee law, and the rights of refugees, are bound up with national law.
We have examined how reforms in the UK immigration system are driven by a need to streamline a means of policing refugees and ensuring that the number of refugees entering the UK is kept to a minimum.