Blog post by Natalia Brkic, a Final year LLB student at the Kaldor Centre for International Refugee Law, Faculty of Law & Justice, UNSW Sydney*
The Nationality and Borders Bill 2021 has entered its Committee stage in the House of Commons, and consideration of its parallels with Australian asylum policy has already begun. At its third sitting on 23 September 2021, the Committee heard from the Hon George Brandis QC, High Commissioner for Australia to the United Kingdom, about two particularly controversial aspects of Australian practice: offshore processing and boat pushbacks. In this blog series, Maria O’Sullivan has clearly explained why the first of these practices – offshore processing – is not a sustainable, long-term solution for the UK. Other aspects of the Bill with equivalent Australian provisions have also attracted criticism for undermining the fundamental principles of non-refoulement and non-discrimination under Articles 31 and 33 respectively of the 1951 Refugee Convention.
But other parts of the Bill, which propose a reinterpretation of the definition of a ‘refugee’, also warrant careful consideration. Clause 29 of the Bill proposes raising the standard of proof to determine a ‘well-founded fear’ of persecution. Clause 31 proposes that protection from persecution can be provided by non-State actors, and that in instances where the State offers protection, the mere existence of a legal system is sufficient evidence of the availability of protection.
Comparative experience from Australia illuminates how proposed clauses 29 and 31 risk undermining the definition of a ‘refugee’ set out in Article 1A of the Refugee Convention. In 2014, the Australian government removed most references to the Refugee Convention from the Migration Act 1958 (Cth) and instead created ‘a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention’. The Act that introduced these changes, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), exploited ambiguities in the refugee definition under international law to ‘reinterpret’ the key concepts of protection and persecution.
In Australia, legal scholars, civil society, the Australian Human Rights Commission, international experts – including the UN High Commissioner for Refugees (UNHCR) – and others expressed grave concern at the time the amendments were proposed. Specifically, they criticised changes to the standard of proof required to establish a well-founded fear of persecution. They also questioned whether non-state actors can provide protection and whether a legal and/or criminal system is sufficient to amount to State protection. Many of these criticisms are applicable to the proposals now being examined by the House of Commons Committee, and put the UK at risk of departing from ‘widely accepted international approaches to interpreting the refugee definition’.
A) Well-founded fear of persecution – raising the standard of proof
The term ‘refugee’ is a legal term of art established by international law. Under Article 1A of the Refugee Convention, a ‘refugee’ is a person outside their country of nationality or habitual residence who has a ‘well-founded fear of being persecuted’ for one of five listed grounds (race, religion, nationality, membership of a particular social group or political opinion, often referred to in the collective as ‘Convention grounds’), and is unable or, because of that fear, unwilling to avail themselves of the protection of that country.
The Refugee Convention is silent on the standard of proof required to determine whether an asylum seeker has a ‘well-founded fear of persecution’. In Australia, the standard applied is a ‘real chance’ of being persecuted – as established by the High Court of Australia in Chan in 1989, and reaffirmed in recent case law. Surprisingly, this was one of the few aspects of the ‘well-founded fear’ test that was not amended by the 2014 Migration Act amendments.
In the UK, the standard of proof established in Sivakumaran is ‘reasonable likelihood’ and has been upheld for 34 years. However, clause 29 of the UK Bill proposes to amend this standard of proof by introducing a two-limb test. Under clause 29(2), a decision-maker must determine, on the balance of probabilities, whether the asylum seeker fears ‘such persecution’ as a result of one of the five Convention grounds set out above. The second limb, introduced under clause 29(4), is that the decision-maker must determine whether there is a ‘reasonable likelihood’ that the asylum seeker would be persecuted and not protected if returned to their country of nationality. Practically, it is difficult to envisage how the first limb will be assessed against a higher standard of proof than the second limb.
The UK government has justified raising the standard of proof because the Refugee Convention ‘does not elaborate on the definition of a ‘well-founded fear’. Richard Warren, however, argues that the UK’s proposal to raise the standard of proof will result in more asylum claims being unsuccessful, not because individuals do not meet the refugee definition established by international law (and agreed to by the UK), but ‘because they cannot prove their case to a higher legal standard’ – placing the UK ‘in breach of the Convention’.
The Scottish Refugee Council regards the ‘clearer and higher standard’ as running counter to the object of improving government decision-making. Furthermore, they argue that the proposed standard adopts a ‘unilateral’ approach to the refugee definition, which is concerning because the definition is the core of the international refugee regime. This centrality is reflected in Article 42(1) of the Refugee Convention, which prevents States parties from making reservations with respect to the definition in Article 1A. The Immigration Law Practitioners’ Association also argues that the proposed new standard is ‘inimical to the purposive intention and humanitarian objectives of the Refugee Convention.’ In their response to the Consultation on the New Plan for Immigration, the UK government did not address these concerns that the higher standard of proof contravenes international law.
The Refugee Convention does not provide a definition for persecution, nor does it elucidate the standard of proof. However, pre-eminent scholars have clarified that the real chance of persecution cannot be ‘remote, insubstantial or far-fetched’, but that the applicant does not need to show a ‘a clear probability’ that they will be persecuted’. UNHCR has clarified that while various formulations have been used, the standard required is ‘less than the balance of probabilities required for civil litigation matters.’ An applicant’s fear will be considered well-founded if, ‘to a reasonable degree’, the applicant can establish that their stay in the home country is intolerable or would be intolerable if they returned.
UNHCR has also stated that the appropriate standard of proof has been developed in the jurisprudence of common law jurisdictions. From this perspective, the approaches in common law jurisdictions reveal that the UK’s ‘balance of probabilities’ standard would run contrary to international interpretation. The standards of proof for a ‘well-founded fear’ in common law jurisdictions are largely consistent and interchangeable. This includes ‘reasonable possibility’ in the United States, ‘a reasonable likelihood’ of ‘real and substantial danger’ in the UK, ‘serious possibility’ in Canada and ‘real chance’ in Australia and New Zealand. Evidently, the UK’s newly proposed well-founded fear test is contrary to international consensus about what the appropriate standard of proof is.
B) Non-State actors of protection
Under the Refugee Convention, international protection intervenes as a ‘substitute’ in situations where there is ‘no reasonable expectation’ that the asylum seeker’s State of origin will provide national protection of human rights. However, the 2014 amendments in Australia introduced the possibility that ‘protection’ could be provided by non-State actors. Under section 5J(2) of the Migration Act 1958, ‘a person does not have a well-founded fear of persecution if effective protection measures are available to the person’. Under section 5LA(1), this protection can be provided by ‘a party or organisation… that controls the relevant State or a substantial part of the territory of the relevant State’ who is ‘willing and able to offer such protection’. Strikingly, Clause 31(2) of the Nationality and Borders Bill 2021 is almost identical in its wording to the Australian provision. It proposes that protection from persecution can be provided by ‘any party or organisation…controlling the State or a substantial part of the territory of the State’.
In Australia, the Kaldor Centre for International Refugee Law provided an extensive critique of the principled and practical challenges arising from non-State actors as sources of protection. The Kaldor Centre argued that protection by non-State actors in section 5LA(1) is not qualified by a requirement that the protection be stable, effective or durable, which is contrary to UNHCR’s position that protection be ‘effective and of a durable nature’. Evidently, the Australian amendments should, at the very least, have qualified non-State actor protection by mandating that the non-State actor have effective and long-standing control over territory. Such a qualification would have been consistent with the position of UNHCR.
Furthermore, neither the Australian nor UK provisions qualify the kind of non-State actors that are deemed capable of providing protection. The Refugee Council of Australia highlighted that State and non-State actor protection cannot be equated as they entail markedly differing capacities. By way of example, non-State actors cannot confer legal status, grant visas, ensure access to government services and are not bound by international treaties. The ambiguity of who could be a non-State actor that could provide protection means that smaller networks such as clans and families could be regarded by the Australian and UK governments as able to offer protection. This result would be contrary to UNHCR’s position that the authority offering protection be an ‘organised and stable authority’ and exercises ‘full control over the territory and population’.
Under the Refugee Convention, international protection is a remedy to instances where the individual’s home State cannot or will not provide the necessary protection from persecutory harm. Given that the Refugee Convention does not contemplate that protection responsibilities can be delegated to a non-State entity, there is some ambiguity about whether non-State actors can provide protection. The Michigan Guidelines on the Internal Protection Alternative state that protection, for the purposes of the Refugee Convention definition, should ordinarily be provided by the national government of the State of origin. Hathaway and Foster have highlighted the importance of interpreting Article 1A within its context, that is, the repeated references to ‘country of nationality’ in the definition implies that protection should be offered by the ‘country of nationality’.
However, courts in the UK and Australia have departed from this presumption. The United Kingdom Asylum and Immigration Tribunal (UKAIT) recognised that armed forces who perform ‘quasi-governmental’ functions capable of offering protection. In 2008, UKAIT accepted that clans and sub-clans in Somalia could offer protection despite also accepting that the protection they offered was ‘not as effective’ as it had been in the previous decade and that conflicts over scarce resources had made the situation ‘unpredictable’. Similarly, the Federal Court of Australia held that there is ‘no difference’ between protection afforded by States and mercenaries.
The UNHCR maintains that it is inappropriate to equate protection afforded by States with that offered by mercenaries, local clans or militia who may exercise some control over territory on a ‘transitional or temporary basis.’ Clearly, the general presumption is that the primary agents of protection are States. Although the Australian and UK provisions require that the non-State actor controls the State or a substantial part of the territory, they fail to qualify this with the type of control necessary to warrant protection under the international refugee regime – that is, durable and effective control which is not transitional or temporary. Previous case law provides no confidence that the position of UNHCR will be adhered to in the absence of these statutory requirements.
C) The existence of a criminal and/or legal system as evidence of protection
Under the Nationality and Borders Bill 2021, an asylum seeker avails themselves of protection provided by their State of origin if the State takes reasonable steps to prevent persecution by ‘operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution’. Similarly, under section 5LA(2) of the Migration Act 1958, a State is taken to be able to provide protection if it has ‘an appropriate criminal law, a reasonably effective police force and an impartial judicial system’.
In principle, the Australian and UK provisions are similar as they envisage that protection automatically results from the existence of an effective legal system. However, as a matter of statutory interpretation, the provisions differ in a fundamental way. The UK Bill proposes to set a higher threshold in that the protecting agent must take reasonable steps to prevent the persecution through the operation of the legal system. This wording is consistent with Article 7(2) of the European Union Qualification Directive. By contrast, under the Australian system, the ordinary meaning of the words suggests that the existence of law, a police force and judicial system are sufficient to counter claims of persecution. Despite this difference, the critiques mounted against the Australian provision are relevant to the UK because they challenge the broader assumption that legal systems provide adequate protection.
The Australian National University College of Law highlighted that an appropriate legal system, police force and judicial system are necessary elements of State protection, but their existence alone is insufficient to conclude that protection is available. The Kaldor Centre highlighted that relying upon the existence of a legal system means that an objective criterion replaces an assessment of whether protection is available to an asylum seeker; an assessment which is determined case-by-case. Consequently, imposing an objective criterion of an existing legal system could lead to asylum claims from the same receiving country to be generalised and painted with a broad stroke.
In Horvath, the House of Lords emphasised that assessing the State of origin’s protection is a practical standard – one which cannot eliminate all risk and guarantee protection. It requires that there is a system of ‘domestic protection and machinery’ to detect, prosecute and punish persecution. Under international human rights law, this standard is known as ‘due diligence’. This due diligence standard was elucidated by Goodwin-Gill in 1996 and adapted in the Horvath decision. It is evident that the UK has adopted such wording in its provision.
However, this ‘due diligence’ standard has been problematised by scholars such as Hathaway and Foster because it detracts from the central question in refugee status determination by focusing on the domestic institutions and mechanisms in place rather than whether a State is, in fact, able to protect against serious harm. Consequently, the focus becomes the processes within a State to provide protection rather than the results of protection. Evidently, the Australian and UK provisions focus on the process rather than the result by equating the existence of a legal, criminal, or judicial system as evidence of protection.
The presumption is that State protection only becomes relevant if persecution results from non-State actors. As the Kaldor Centre highlighted, section 5J(2) of the Migration Act 1958 requires that applicants should ‘be denied refugee status if the State also has a reasonably adequate criminal justice system’. Although UNHCR understood that such amendments relate only to non-State entities, the Australian provision does not provide clarification. Similarly, the UK provision does not clarify whether – in instances of State agent persecution – the existence of a legal system coordinated by the State is sufficient to refute a claim of persecution. Overall, these provisions undermine international consensus in two ways: through its formal standard that the existence of a criminal, legal system amounts to State protection, and in conflating international understanding that the question of State protection only arises in instances of non-State actor persecution.
Concluding remarks – lessons for the UK
The UK appears to be following Australia’s lead in exploiting the margin of appreciation left to States in interpreting the concepts of ‘persecution’ and ‘protection’ in the refugee definition in Article 1A of the Refugee Convention. The 2014 amendments to the Australian Migration Act 1958 and the UK’s Nationality and Borders Bill 2021 run contrary to international practice, as well as the position of UNHCR. The UK Bill in particular seeks to raise the standard of proof for a well-founded fear of persecution to a ‘balance of probabilities’, equate non-State actor protection with State protection, and conflate the mere existence of a criminal legal system with effective State protection.
The strength of the international refugee law regime relies upon a common and consistent understanding of its key elements, including – most fundamentally – the definition of a refugee. What Australia enacted in 2014 – and what the UK is proposing to do now – are contrary to the shared understanding of the Refugee Convention and other international practice.
Whether the Nationality and Borders Bill 2021 passes the third reading of the House of Commons is an outstanding issue. However, the Public Bill Committee is preparing to do their line-by-line examination of the Bill, and at this critical stage – in this gap between proposal and implementation – these lessons from Australia should inform the UK about how it moves forward in (re)interpreting its international legal obligations under the Refugee Convention.
* With sincere thanks to Madeline Gleeson, Senior Research Fellow at the Kaldor Centre for International Refugee Law, for her suggestions, guidance, and feedback on this blog piece.
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