Blog post written by Linda Kirk, a Senior Lecturer at the ANU College of Law, Australian National University and a current Visiting Fellow at the Refugee Law Initiative. Linda will present the first seminar on the RLI’s 8th International Refugee Law Seminar Series: ‘Refugee Law in the New World Disorder’ on 25 October 2017, on the topic of this blog post  For full Seminar Series details and to book tickets, please visit rli.sas.ac.uk/events.

‘Taking back control’ of immigration

The prevailing interpretation of the result of the 2016 Brexit referendum has been that it was a vote ‘to take back control of immigration’. To date the focus of the negotiations in Brussels about relations between a post-Brexit United Kingdom and the European Union has been on the size of the ‘divorce bill’ rather than the impact on migration policy of the UK’s withdrawal from the EU. Two issues have attracted some attention: access to the single market and freedom of movement between EU member states and the UK. However, there has been less discussion, at least publicly, about what Brexit will mean for asylum-seekers.

The lack of discussion about the impact of Brexit on asylum policy is surprising, given how effectively the ‘Leave’ campaign used the European ‘refugee crisis’ in 2015 to argue for stricter border controls and limiting the entry of ‘illegal immigrants’ to the UK. If the success of the ‘Leave’ campaign can be largely attributed to its focus on restricting access to asylum, what will UK asylum policy look like post-Brexit?

EU Cooperation on Migration and Asylum

The EU has achieved significant cooperation between member states in the fields of asylum and migration, culminating in the creation of the Common European Asylum System (CEAS). Post-Brexit, the UK will no longer formally be part of the CEAS. Some elements of the CEAS, such as the Qualification, Asylum Procedures and Reception Directives can be incorporated into UK law through the proposed European Union (Withdrawal) Bill. However, the EU’s internal asylum elements cannot be replicated, despite the fact that the UK will presumably want some form of cooperation with the EU on asylum policy post-Brexit.

The Refugee Convention

The UK is a signatory to and has ratified both the 1951 Geneva Convention on the Status of Refugees and the 1967 Protocol (the Refugee Convention). These international obligations are unrelated to the UK’s membership of the EU, and will therefore be unaffected by its withdrawal from the EU in March 2019. Accordingly, foreign nationals fleeing persecution will continue to be able to make an application for asylum if they reach British territory, and will have the right to have their application assessed and not be deported before their application is refused and have exhausted all appeal rights.

The CEAS incorporates rules regarding reception conditions for asylum-seekers who are awaiting a decision on their asylum application, and also procedures to ensure the fair assessment of claims. The UK has signed up to some of these rules, though it has opted out of others, and accordingly the withdrawal of the UK from the CEAS could result in the deterioration of the protections currently afforded to asylum-seekers who make an application for refugee protection.

Brexit also presents what may be described as some ‘unintended consequences’ for the UK’s ability to exclude from its territory asylum-seekers seeking international protection. For those who voted ‘Leave’ it will be no doubt be distressing to learn that Brexit may result in the UK becoming a ‘beacon of hope’ for those who are seeking asylum.

The Dublin System

One issue which has received attention from legal experts is the effect of Brexit on the UK’s ability to return asylum-seekers to EU member states. An element of EU co-operation on asylum policy is the Dublin system, which is designed to determine which member state is responsible for examining an individual’s asylum claim. The system uses a number of criteria, including the individual’s existing family members in the EU; whether they were granted a visa or residency by a particular member state; and through which member state they first entered the territory of the EU. The system provides a mechanism for member states to return asylum-seekers to other members states through which they have passed on their asylum journey.

The UK’s geographic location works to its advantage under the Dublin System because, as an island nation off the northwest coast of continental Europe, it is not the first point of entry to the EU for most asylum-seekers. The UK has thus been able to return individuals to states such as France and Italy under the Dublin Regulation. When the UK leaves the EU it will not be able to take part in Dublin transfers unless there is an arrangement made with the EU for ongoing cooperation. In the Brexit negotiations, it may not be in the interests of the remaining EU members to establish a mechanism for continuing ‘Dublin-style’ cooperation with the UK, as this would mean that they would remain responsible for assessing the asylum claims of returnees and the associated costs. The departure of the UK from the Dublin System may advantage asylum applicants, such as those who have travelled via Calais, because it will be much more difficult for the UK to send them back to France. Ironically, despite claims that Brexit will allow the UK to ‘take back control’ of who can enter the country, the lack of a legal mechanism to return asylum-seekers to mainland Europe may be a boon to people smugglers, who take advantage of desperate migrants by assisting their passage through Calais and other ports.

Unless some kind of bilateral agreement or informal arrangement to send asylum-seekers back to EU countries is negotiated for a post-Brexit UK, then a consequence of Brexit may be to increase not decrease the numbers of immigrants to the United Kingdom. If this were to occur, should the UK look to Australia for guidance in relation to the development of its post-Brexit asylum seeker policy?

The Australian model

The ‘Australian model’ for deterring and preventing the entry of asylum-seekers has frequently be cited approvingly over the years by both UK and EU political leaders and commentators as a ‘solution’ for the European ‘refugee crisis’. In a column published in the The Sun in April 2015, journalist Katie Hopkins declared: “It’s time to get Australian. Bring on the gunships, force migrants back to their shores and burn the boats”.

In delivering the second Margaret Thatcher Lecture in London in October 2015, former Australian Prime Minister, Tony Abbott urged the adoption of Australia’s successful border protection policies:

The only way you can stop the deaths is to stop the people smuggling trade. The only way you can stop the deaths is in fact to stop the boats … That’s why it is so urgent that the countries of Europe adopt very strong policies that will end the people smuggling trade across the Mediterranean.

Abbott claimed that this ‘is the only way to prevent a tide of humanity surging through Europe and quite possibly changing it forever.’

What is the ‘Australian model’? What have been the ‘costs’ of Australia’s ‘successful’ asylum-seeker policies, and what are the ‘perils’ of this Australian exceptionalism?

Outsourcing and Offshoring Human Rights

Australia ‘leads’ the world in outsourcing and offshoring its human rights obligations. It is the only nation that mandatorily detains those who arrive without a valid visa, and sends those who come to Australia by boat to third countries where they are detained and their claims for international protection are processed.

In response to a rising number of asylum-seekers arriving by boat in 2001, the Australian Government under then Prime Minister Howard, commenced discussions with a number of Pacific nations about the potential establishment of offshore processing centres. Kiribati, Fiji and Palau all refused. Only Nauru and Papua New Guinea (PNG) agreed – in return for a significant increase in foreign aid.

‘Stopping the boats’

During the 2013 election campaign the Opposition, led by Tony Abbott, pledged to ‘Stop the Boats’. Following its election in September 2013, the Abbott Government implemented ‘Operation Sovereign Borders’. The policy includes three key pillars:

• Turning or towing back boats of asylum-seekers in international waters (where possible) to the country of embarkation, generally Indonesia (‘turn-backs’);
• Transferring intercepted asylum-seekers to Nauru or PNG where they are detained while their claims are processed (transfers to offshore processing centres);
• Guaranteeing that asylum-seekers who seek to reach Australia by boat will never be resettled in Australia (the ‘no advantage’ test).

The Australian Government claims that this policy has been a great success. Since its introduction, fewer than 20 boats have been intercepted by Australian authorities. In 2013, the Australian Government reported that 300 boats with approximately 20,000 people on board arrived to Australian shores; in 2014, there were zero.

We do not know however how many boats carrying asylum-seekers have tried to enter Australian waters since the policy was implemented. The Government claims that the objective of the policy is to ‘end the people smuggling trade’ and therefore this requires adherence to the ‘on-water matters’ secrecy rule which prevents disclosure of the extent of the operations, including the numbers of turn-backs. As Abbott explained:

We are in a fierce contest with these people smugglers. And if we were at war, we wouldn’t be giving out information that is of use to the enemy just because we might have an idle curiosity about it ourselves.

We have been told that the policy has dramatically reduced the number of drownings of asylum-seekers in Australian waters. From December 2007 to September 2013, approximately 1,100 asylum-seekers drowned en route to Australia. From September to December 2013 there were 39 deaths. Since January 2014 no asylum-seeker has died on their way to Australia.

Supporters of the policy argue that stopping boat arrivals has allowed Australia to accept more refugees through official channels. With a population of 24 million, Australia admits some 200,000 permanent migrants per year. Historically, between 12,000 to 14,000 of those have been refugees, though in September 2015 Australia agreed to settle a one-off additional 12,000 in response to the Syrian crisis, and the Government pledged in September 2016 to permanently increase the annual refugee intake from 13,750 in 2015-16 to 18,750 in 2018–19.

The costs of the Australian model

A 2014 report by The Guardian estimated that the Australian Government may have spent as much as A$10 billion (approximately £7 billion) on its detention policies since mid-2007 and keeping each person in offshore detention costs Australia as much as A$440,000 (approximately £260,000). To put these figures into context, instead of sending asylum seekers to its offshore processing facilities, Australia could buy them each a home outright in much of the United Kingdom, or pay for a twelve month stay at The Ritz in London.

In additional to the financial burden, the human cost of the policy has been enormous. Asylum-seekers transferred by Australia to offshore processing facilities have been placed in conditions where they are vulnerable to abuse, including sexual and physical assault. In August 2016, The Guardian published ‘the Nauru files’, a cache of 2,000 leaked incident reports detailing assaults, sexual assaults and self-harm, including a report of a guard swapping sexual favours for shower privileges. The abuse and mistreatment of asylum seekers is not limited to the Nauru centre. The New York Times columnist Roger Cohen reporting on his visit to Manus Island in Papua New Guinea, wrote in December 2016 ‘the world’s refugee crisis knows no more sinister exercise in cruelty than Australia’s island prisons’.

Lessons for The UK

In March 2016, it was reported that then British Prime Minister, David Cameron, urged EU leaders to begin turning-back boats carrying refugees as soon as possible after they set off from Libya on the journey across the Mediterranean. It was later reported that Australia had briefed the UK on its policies prior to Cameron’s proposal to the EU. As Foreign Minister, the newly elected Austrian Chancellor, Sebastian Kurz, told Die Presse in June 2016 “[t]he Australian model of course cannot be completely replicated but its principles can be applied in Europe.”

Looking to Australian policies as a potential model for off-shore processing in Europe is useful more as a warning rather than as a guide to the way forward. Post-Brexit, the UK should avoid the perils of Australian exceptionalism and take a different path.

Acknowledgements:

Photograph: ©Wikimedia.org

The views expressed in this article belong to the author and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.