Blog post by Maja Grundler, Queen Mary, University of London, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
The foreword to UK government’s “New Plan on Immigration” proclaims that ‘[a]t the heart of our New Plan for Immigration is a simple principle: fairness,’ and goes on to state that ‘[a]ccess to the UK’s asylum system should be based on need.’ Yet, the New Plan proposes sweeping changes to the UK’s refugee status determination (RSD) process, which are anything but fair and, indeed, make access to the UK’s asylum system dependent not on need, but on the individual asylum seeker’s mode of arrival.
The proposed changes to the RSD process are addressed in Chapter 4 of the New Plan, and essentially centre around two separate, though interconnected measures. Firstly, a differentiation between “deserving” or “admissible” refugees, who arrive in the UK regularly, having waited their turn for a resettlement place, and “undeserving” or “inadmissible” refugees, who arrive in the UK irregularly. The second change to the RSD process foreseen in the New Plan is establishing a ‘more rigorous standard’ for determining whether an individual applicant is at risk of being persecuted if returned to her country of origin.
In this blog post, I will analyse only the first measure on inadmissibility. The proposed differentiation between admissible and inadmissible refugees is premised on the notion of “first country of asylum” or “safe third country”, which is morally and legally problematic. The following analysis draws on international refugee law and the Global Compact on Refugees (Refugee Compact) to point out a number of flaws and dangers inherent in the New Plan’s proposal of introducing a differentiated approach to asylum claims, though it cannot address all issues raised by the relevant section of the policy proposal. The second measure mentioned above, on circumscribing who is at risk of persecution, will be discussed in a separate post.
Inadmissible claims and the nexus to migration decisions
The New Plan proposes that certain asylum claims will simply be treated as ‘inadmissible.’ Inadmissible asylum seekers will be those who arrive in the UK irregularly, through what the New Plan describes as ‘parallel routes.’ ‘The existence of these parallel routes’ – the New Plan asserts – ‘is deeply unfair as it advantages those with the means to pay traffickers over vulnerable people who cannot.’
The cynicism of this statement cannot be emphasised enough. Aside from the fact that the reference to paying traffickers betrays an astonishing ignorance of the legal distinction between traffickers (who are not normally paid by victims, but intend to exploit them for financial gain) and smugglers (who are normally paid for their services), it conveniently ignores the realities of both refugee resettlement and the global visa regime.
The New Plan states that the UK has resettled 25,000 refugees from 2015 to 2019. The main beneficiaries of this were Syrians displaced as a result of the ongoing conflict in Syria. Yet, “the Covid-19 pandemic interrupted the UK’s refugee resettlement activities and led to uncertainty over its future resettlement plans,” which illustrates that past resettlement activities are no guarantee of future resettlement commitments of the UK. In addition, internationally, resettlement is at an all-time low, not least as the result of the US slashing resettlement numbers under the Trump administration, although the new administration has committed to re-opening its resettlement programme. A look at UNHCR’s resettlement data reveals that over the past four years, an average of around 50,000 people were resettled globally each year. These numbers are a drop in the ocean compared with UNHCR’s projected resettlement needs for 2021, standing at 1.4 million people. While resettlement remains an important avenue to refugee protection, it cannot be an alternative to spontaneous arrivals’ access to fair procedures.
Against this background, it is important to note that migration law and policy must remain grounded in facts and evidence. In addition to a lack of resettlement places, irregular arrivals are also the consequence of a lack of safe and legal migration routes. By requiring nationals of refugee-producing countries to hold a visa when travelling to countries in the global North, and by making the requisite entry requirements impossible for refugees to meet, states in the global North, including the UK, create the demand for smugglers and other facilitators of irregular migration.
In this context, it must be recognised that refugees are human beings who exercise agency, choosing not to wait around in a refugee camp in a third country for the remote possibility of resettlement. While the 1951 Convention relating to the Status of Refugees (Refugee Convention) does contain a number of exclusion clauses, exercising agency and making migration decisions is not among the reasons for exclusion from refugee status. Indeed, human rights law goes further, confirming that an applicant’s conduct is irrelevant to their protection claim: in Chahal v UK, the European Court of Human Rights held that where there is a risk that an applicant will experience harm on return to her country of origin, ‘the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.’
Irregular travel, protection elsewhere, and refugee law
The New Plan points out that the majority of those arriving in the UK irregularly are young males and suggests that this leads to ‘other vulnerable people, including women and children, [being] pushed aside.’ The reality, however, is that gender is one of the many factors influencing migration decisions and choices, and indeed, those migrating irregularly face a lack of choice.
In spite of this, the New Plan foresees punishing those who arrive irregularly: ‘Anyone who arrives into the UK illegally – where they could reasonably have claimed asylum in another safe country – will be considered inadmissible to the asylum system, consistent with the Refugee Convention.’
This statement essentially excludes irregular arrivals from access to asylum, based on the safe-third-country or first country of asylum notion. But does a refugee have to avail herself of the protection of the first country she reaches? The reference to the Refugee Convention is significant here. Nothing in the Convention obliges a refugee to seek protection in the first country she enters. The assertion that refugees must avail themselves of the first opportunity to seek protection has given rise to much litigation in the past, including in the UK, where, for example, Simon Brown LJ has held that “some element of choice is indeed open to refugees as to where they may properly claim asylum” (R v Uxbridge Magistrates Court (ex parte Adimi) ). Thus, contrary to the New Plan’s claim, a denial of access to the asylum procedure based on an alleged failure to seek protection elsewhere is not consistent with the Refugee Convention.
Further, and significantly, Article 31(1) of the Refugee Convention exempts refugees from penalisation for irregular entry, thus explicitly recognising that most refugees have no choice but to travel irregularly. Treating the asylum claim of a refugee who enters irregularly as inadmissible constitutes a penalty.
Besides being incompatible with international refugee law, the New Plan’s proposal on inadmissibility of certain asylum claims also goes against the aims and principles of Refugee Compact. The Compact states that ‘[m]echanisms for the fair and efficient determination of individual international protection claims provide an opportunity for States to duly determine the status of those on their territory in accordance with their applicable international and regional obligations […]’ (para 61; emphasis added). Thus, the Compact foresees RSD for anyone in a state’s territory, rather than limiting it to those arriving via legal routes. In addition, a requirement to seek protection in a first safe country puts a disproportionate responsibility on states in the global South, which already host the majority of the world’s refugees. The Refugee Compact explicitly calls for burden- and responsibility sharing and a policy of returning irregular arrivals to other countries is contrary to these principles.
Limiting the rights of “inadmissible” refugees
In spite of being premised on the safe-third-country notion, the New Plan recognises that an “inadmissible” refugee may not, in fact, be removable to a third country and will be in need of protection. Such protection, however, according to the policy proposal, will only be temporary: ‘Temporary protection status will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution. People granted temporary protection status will be expected to leave the UK as soon as they are able to or as soon as they can be returned or removed.’
If this proposal is realised, two refugees – one of whom has arrived irregularly and the other regularly – who meet the refugee definition based on the same facts will receive different types of protection based solely on their mode of travel. Not only is the temporary protection status foreseen in the New Plan not compatible with the rights accorded to refugees under the 1951 Convention, it is also incompatible with the principle of non-discrimination in the Convention, which includes a prohibition of discrimination between different groups of refugees. The Refugee Compact, too, calls on states to end ‘discrimination of any kind on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, disability, age, or other status’ (para 9), such as immigration status.
Finally, an additional measure proposed in the New Plan, which is particularly dangerous should briefly be mentioned here. The New Plan proposes removing the suspensive effect of asylum claims and appeals, ‘so that it is possible to move asylum seekers from the UK while their asylum claim, or appeal is pending.’ This may breach the core guarantee of refugee protection, the principle of non-refoulement, enshrined in Art 33(1) of the Refugee Convention, with the Refugee Compact emphasising respect for this principle. Even if the refugee in question would not face persecution in the third country she is returned to, the risk of secondary- or “chain-refoulement” remains and can only effectively be countered by allowing an asylum seeker to remain in the UK for the entire duration of RSD, including appeals.
Conclusion: Impermissible aims
The New Plan’s aims of denying refugees who arrive in the UK irregularly access to RSD, to limit the status and rights granted to those who cannot be removed to a third country, and to derogate from the principle of non-refoulement are not compatible with international refugee law or the Refugee Compact. As such, the proposal to introduce inadmissible claims pursues impermissible aims.
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