Blog post by Ashleigh Guest, University of Bristol, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
The Home Office’s New Plan for Immigration includes extensive provisions on illegal immigration and what should be done about it. In this blog, I examine the legal issues in respect of one of the proposed actions: preventing people who may be seeking international protection from arriving on the territory of a potential host state: the UK.
The consultation question which I will address here is the following:
Q 33: Illegal immigration can cause significant harm and can endanger the lives of those undertaking dangerous journeys. It can also endanger those emergency service workers and Border Force officers who respond to illegal journeys such as those made by small boat. The Government is determined to introduce tough new measures to deter illegal migration by strengthening the protection of the UK’s borders. In your view, how effective, if at all, will each of the following intended reforms be in helping to meet this aim:
[…] Giving additional powers to Border Force including searching freight containers for immigration purposes, seize and dispose of any vessels and the ability to stop and redirect vessels from the UK where persons being conveyed are suspected of seeking to enter the UK illegally. […]
In Chapter 7 of its New Plan for Immigration, the Home Office states its intention to give additional powers to the Border Force, including the ability to “[s]top and redirect vessels and those on board away from the UK where persons are suspected of seeking to enter the UK illegally”. If implemented, this practice would likely amount to a pushback, defined by the United Nations Special Rapporteur on the Rights of Migrants (“UN Special Rapporteur”), Felipe González Morales, as:
“various measures taken by States which result in migrants, including asylum seekers, being summarily forced back to the country from where they attempted to cross or have crossed an international border without access to international protection or asylum procedures or denied of any individual assessment on their protection needs which may lead to a violation of the principle of non-refoulement”.
The Home Office is planning to grant the Border Force powers to “stop and redirect vessels out of the UK territorial seas that they suspect are being used to facilitate illegal entry to the UK”. This practice would likely amount to a pushback under the above definition.
There are a number of serious human rights violations which result from pushback practices. It is important to note that States owe human rights obligations wherever they exercise control or jurisdiction. According to Articles 2 and 3 of the United Nations Convention on the Law of the Sea (1982) (“UNCLOS”), the UK’s jurisdiction extends to its territorial waters: 12 nautical miles from its coastlines. People within the UK’s territorial waters are, therefore, within its jurisdiction for the purposes of human rights. Further, those beyond the 12 nautical mile limit are owed human rights obligations by the UK if they are within the UK’s “effective power and control”, as is the case if they are detained or arrested by Border Force (Hirsi v Italy; Sharifi and Others v Italy and Greece; Fatou Sonko v Spain; JHA v Spain).
Stopping and redirecting migrant boats risks violating the principle of non-refoulement. This principle prohibits States from transferring anyone, whether directly or indirectly, to a place where they would have a well-founded fear of persecution or would face a real risk of other serious human rights violations or abuses. Relevant risks also include economic and psychosocial risks, as well as insecurity and threats. This prohibition is found both in international refugee law and in various international human rights treaties, all of which the UK has ratified and thus has obligations to uphold (United Nations Convention relating to the Status of Refugees (28 July 1951) (“1951 Refugee Convention”), article 33; United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984), article 3; United Nations International Convention for the Protection of All Persons from Enforced Disappearance (2006), article 16; International Covenant on Civil and Political Rights (1976) (“ICCPR”), articles 6 and 7; European Convention on Human Rights (“ECHR”), article 3; international customary law).
In order to ensure that individuals claiming protection from persecution do not run the risk of being refouled, the UK is obliged to assess any claim for asylum on an individual basis. Procedurally, it is also obliged to give the individuals concerned an effective opportunity to challenge the transfer. Rejecting individuals at the border or in territorial seas summarily, without allowing for a claim to be lodged and assessed, runs the risk of violating the principle of non-refoulement. It is fundamental that the UK puts in place appropriate administrative and legislative mechanisms to assess individual cases thoroughly and properly, and to grant legal status to migrants who cannot be removed on grounds relating to the principle of non-refoulement. It is unclear how the UK intends to ensure these safeguards are in place and are respected when boats are turned away at sea.
Notably, Australia has previously engaged in a similar practice of intercepting and turning migrant boats back at sea. This received heavy criticism from the United Nations High Commissioner for Refugees (“UNHCR”) on the basis that this practice did not allow for adequate consideration of an individual’s need for protection. The UNHCR has made clear that “actions to intercept and turn back boats carrying asylum-seekers are contrary to the spirit of the 1951 Refugee Convention”.
The Home Office has based its ability to return irregular migrants on the assumption that they originate from “manifestly safe European countries with well-functioning asylum systems, such as France”. However, the European Court of Human Rights (“ECtHR”), in NH and others v France, found that France’s failures in its asylum system resulted in inhuman and degrading living conditions for asylum-seekers, showed a lack of respect for their dignity, and ultimately amounted to a violation of Article 3 of the ECHR. This is important, because the ECtHR previously found in MSS v Belgium and Greece that a return which subjects a person to a risk of degrading living conditions will be prevented under the principle of non-refoulement. To return that person and subject them to this risk would amount to a violation of Article 3 of the ECHR. It is not up to the UK to define an originating State as ‘safe’ for all migrants, without an individual assessment into each individual’s circumstance. “Safe third country agreements” do not permit summarily pushing back irregular arrivals, nor do they circumvent the requirement to individually assess the situation and circumstances of each person upon arrival.
Furthermore, returning a person back to an originating State where they do not have access to proper asylum procedures, such as France, puts them at risk of being pushed back to yet another country (known as ‘chain-refoulement’).
To redirect migrant boats without proper consideration of each person’s claim to asylum also amounts to collective expulsion. This is prohibited by Article 13 of the ICCPR. In its General Comment No 15, the Human Rights Committee has made clear that the purpose of Article 13 is “clearly to prevent arbitrary expulsions”, and thus entitles each alien to a decision in his or her own case. Accordingly, “[A]rticle 13 would not be satisfied with laws or decisions providing for collective or mass expulsions”. A summary expulsion at sea would therefore not be in accordance with due process of law required under Article 13.
Collective expulsions are further prohibited by Article 4 of the ECHR. The ECtHR ruled in Hirsi v Italy that it is a violation of that prohibition to summarily expel multiple migrants travelling irregularly by boat who are interdicted at sea. In Sharifi and Others v Italy and Greece, it held that collective expulsion of migrants who are prevented from requesting asylum is a violation of their right to a remedy, as well as the right to be protected from inhuman and degrading treatment. A number of other ECtHR cases have confirmed that the requirement for comprehensive individual procedural guarantees apply at sea as they do elsewhere, which usually gives rise to a requirement of disembarkation on the receiving State’s territory (Sultani v France; Čonka v Belgium).
Equality and Non-discrimination
Throughout the New Plan for Immigration, the Home Office repeatedly justifies its proposals on the basis that migrants are arriving “illegally”. It uses the term “illegal” 48 times and the term “illegally” 26 times across a 49-page document. It is important to note, however, that whether a person arrives to the UK’s territory, “illegally” or not, they are entitled to have their case considered for asylum. Importantly, in the context of irregular arrivals, the UK has an obligation under Article 31 of the 1951 Refugee Convention to refrain from imposing penalties on account of a person’s “illegal entry or presence”.
It is important to note that the UK has voluntarily entered into the core international human rights treaties, which establish standards negotiated and agreed to by State parties. The UK has thus chosen to bind itself and to uphold those standards through ratification. A fundamental principle under those treaties is that States must ensure human rights are protected equally and without discrimination: a duty which extends to all those in their territory, regardless of their migration status, location, or method of arrival (UDHR, article 2; ICCPR, article 2; International Covenant on Economic, Social and Cultural Rights, article 2). The method by which a migrant has travelled to the UK is therefore irrelevant when it comes to the UK’s human rights obligations towards that individual, nor does it permit the UK to ignore a claim for asylum.
In a similar vein, the Home Office assures us that it is “consistent with the Refugee Convention” to consider those who could have “reasonably claimed asylum in another safe country” as inadmissible to the UK asylum system. However, nowhere in international law does it require a person fleeing persecution to seek asylum in the first ‘safe’ country they arrive in. Nor does it permit the UK to ignore their international obligations to consider that person’s asylum claim. To suggest otherwise is to wildly misinterpret its international obligations.
Whilst the Home Office reassures us that intercepted vessels and those on board will be returned to the country from which they started their journey only with the agreement of that country, it is not clear how they will come to this agreement, nor what will happen should they not receive agreement. In fact a number of EU countries, including France, Belgium, and Germany, have recently made clear that they do not intend to make bilateral returns arrangements with the UK.
It is paramount that the UK ensures that it avoids a situation which may result in a ‘deadlock’, whereby the UK refuses to take in those arriving by boat and the originating country similarly refuses to allow their return. This situation is all too familiar in the European context, with multiple States refusing to take responsibility for migrants on board vessels, resulting in a situation in which migrants are left stranded at sea, often for weeks at a time.
In the event that the UK concludes a readmission agreement with third countries such as France, it is fundamental that it avoids concluding and ratifying any readmission agreement which fails to safeguard and prioritise its international legal obligations. Concluding a returns agreement is no excuse for the UK to fail to take seriously its obligations to protect the human rights of migrants in its territory or effective control. The Home Office’s intention to use these potential returns agreements to “rapidly return inadmissible asylum seekers” is not conducive to the thorough investigation of all asylum claims of those on their territory.
The Duty to Rescue and the Right to Life
The UK has also voluntarily accepted to uphold UNCLOS; article 98 of which puts an obligation on ratifying States to require the master of a ship flying its flag to render assistance to persons or ships in distress anywhere at sea, if found or informed of their need for assistance. Rescue must be provided regardless of the nationality or status of the person in distress or the circumstances in which that person is found. Boats are considered in distress if, like many migrant boats, they are not seaworthy due to overloading or lack of supplies, such that the passengers cannot reach a place of safety without assistance. Intercepting and turning boats back to where they came from does not amount to assistance, and a failure to render assistance would amount to a violation of the UK’s obligations under UNCLOS.
On a similar note, the conduct of the UK Border Force must ensure full respect for the right to life, as guaranteed by Article 6 of the ICCPR and Article 2 of the ECHR. Redirecting unseaworthy vessels and failing to rescue puts migrants’ lives at risk and therefore violates this right. Further, the Home Office states its intention to increase penalties for those who “facilitate illegal entry”. It is unclear whether this will be used to criminalise those who seek to rescue migrants by performing Search and Rescue operations. It is stressed that deliberate intent on the part of the State is not required for a deprivation of life to be deemed arbitrary and that, in deterring lifesaving services through their criminalisation or other measures, States violate their obligation prevent, combat, and eliminate arbitrary killings and the deprivation of life.
The Home Office’s stated intention behind implementing pushback practices is to “break the business model of the people smugglers” and ultimately to “stop the deaths”. Justifying pushback policies on the nobler goals of saving lives, preventing dangerous journeys, and dismantling smuggler networks, is at best naïve, and at worst knowingly deceptive. It is well-known that vulnerable people who flee persecution move in perilous ways when they have no other options. As avenues for safe and legal migration become increasingly limited, irregular migration flows have escalated. Promoting pushback practices as the sole way of “breaking the business model of people smugglers” will not work without reducing the demand for smugglers’ services. This can only be done by increasing avenues for safe and legal migration to the UK and by dramatically increasing resettlement places for refugees.
In a post-Brexit era, the UK is working hard to establish itself as a ‘Global Britain’ in the international arena. To be taken seriously on the international stage, it is necessary to take its international obligations seriously. This includes its obligations under international human rights law, refugee law, and the law of the sea. The Home Office’s proposals under the New Plan for Immigration pose risks under all three of these heads of international law. The proposal to allow the UK Border Force to intercept and redirect migrant boats sits clearly within the UN Special Rapporteur’s definition of pushbacks. As he recently made clear, “[p]ushback practices demonstrate a denial of State’s international obligation to protect the human rights of migrants at international borders”.
To secure the human rights of migrants and to meet its international legal obligations, a paradigm shift is required by the UK to transition away from a focus on abdication of responsibility and criminalisation of migration, and towards providing human rights-based care and reception through due process solutions. It is strongly advised that the Home Office removes all proposals which will allow the UK Border Force to intercept and redirect migrant boats.
- Alpes J and N Sørensen, ‘Post-deportation risks: people face insecurity and threats after forced returns’, Danish Institute for International Studies, Policy Brief (25 November 2016) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874293>.
- HM Government, ‘New Plan for Immigration: Policy Statement’ (March 2021) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/972517/CCS207_CCS0820091708-001_Sovereign_Borders_Web_Accessible.pdf>.
- Parliament of Australia, ‘Boat ‘turnbacks’ in Australia: a quick guide to the statistics since 2001 (20 July 2018) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/Quick_Guides/BoatTurnbacksSince2001>.
- Persaud S, ‘Protecting Refugees and Asylum Seekers under the International Covenant on Civil and Political Rights’ in New Issues in Refugee Research (Research Paper No. 132, November 2006) <https://www.unhcr.org/4552f0d82.pdf>.
- United Kingdom Government Foreign and Commonwealth Office, ‘Global Britain: delivering on our international ambition’ (23 September 2019) <https://www.gov.uk/government/collections/global-britain-delivering-on-our-international-ambition>.
- United Nations High Commissioner for Refugees, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ <https://www.unhcr.org/4d9486929.pdf>.
- United Nations High Commissioner for Refugees, ‘ICS, UNHCR and IOM call on States to end humanitarian crisis onboard ship in the Mediterranean’ (07 September 2020) <https://www.unhcr.org/news/press/2020/9/5f55e7fe4/ics-unhcr-iom-call-states-end-humanitarian-crisis-onboard-ship-mediterranean.html>.
- United Nations High Commissioner for Refugees, ‘UNHCR Position: Interception and turn back of boats carrying asylum-seekers’ (23 July 2015) <https://www.unhcr.org/uk/publications/legal/58117a794/interception-and-turn-back-of-boats-carrying-asylum-seekers.html>.
- United Nations High Commissioner for Refugees, ‘UNHCR seeking details on reports of boats forced back from Australia (10 January 2014) <https://www.unhcr.org/news/briefing/2014/1/52cfe2a0fcf/unhcr-seeking-details-reports-boats-forced-australia.html>.
- United Nations Human Rights Committee, ‘CCPR General Comment No. 15: The Position of Aliens Under the Covenant’ (11 April 1986) <https://www.refworld.org/docid/45139acfc.html>.
- United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, ‘Saving Lives is Not a Crime’ (73rd Session, A/73/314, 7 August 2018) <https://undocs.org/A/73/314>.
- United Nations Special Rapporteur on the Rights of Migrants, ‘Call for inputs for the Special Rapporteur’s report on pushback practices and their impact on the human rights of migrants’ (01 February 2021) <https://www.ohchr.org/EN/Issues/Migration/SRMigrants/Pages/Pushback-practices.aspx>.
- European Convention on Human Rights.
- International Covenant on Civil and Political Rights (1976).
- Universal Declaration of Human Rights (1948).
- United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).
- United Nations Convention on the Law of the Sea (1982).
- United Nations Convention relating to the Status of Refugees (1951).
- United Nations International Convention for the Protection of All Persons from Enforced Disappearance (2006).
International Case Law
- CAT Fatou Sonko v Spain CAT/C/47/D/368/2008 (20 February 2012), Communication No. 368/2008 Relating to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
- CATH.A v Spain CAT/C/41/D/323/2007 (21 November 2008), Communication No. 323/2007 Relating to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
- ECtHR Čonka v Belgium, Appl. no. 51564/99, Judgment of 5 February 2002.
- ECtHR Hirsi Jamaa and others v Italy, Appl. no. 27765/09, Judgment of 23 February 2012.
- ECtHR MSS v Belgium and Greece, Appl. no. 30696/09, Judgment of 21 January 2011.
- ECtHR NH and others v France, Appl. nos. 28820/13, 75547/13 and 13114/15, Judgment of 02 July 2020.
- ECtHR Sharifi and Others v Italy and Greece, Appl. no. 16643/09, Judgment of 21 October 2014.
- ECtHR Sultani v France, Appl. no. 45223/05, Judgment of 20 September 2007.
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