Blog post by Professor David Cantor, Director of the Refugee Law Initiative

The 2023 Illegal Migration Bill introduced in the British Parliament last week takes a rather curious approach to the Refugee Convention, an international treaty to which the United Kingdom is party. In particular, clauses 2-10 of the Bill require the Secretary of State to decline to determine the claims for refugee status of most people who arrive in the country by irregular means, with a view to summarily detaining and removing them to a ‘safe third country’.

Many commentators claim this will breach the UK’s legal obligations under the Refugee Convention. In response, the British Secretary of State for the Home Department argued in Parliament that:

Claims that the Bill will breach our refugee convention obligations are simply fatuous. The convention obliges parties to provide protection to those seeking refuge. It does not require that this protection be in the UK. Illegal arrivals requiring protection will receive it in a safe third country such as Rwanda. Moreover, article 31 of the convention is clear that individuals may be removed if they do not come “directly” from the territory where their freedom is threatened. Denying those arriving illegally from France, or any other safe country in which they could have claimed asylum, access to the UK’s asylum system is, therefore, entirely consistent with the spirit and letter of the convention.

There is certainly, then, a question over whether, or how, the Bill breaches international refugee law. But this is not merely a technical matter. Rather, as this short briefing explains, clauses 2-10 of the Bill risk not only violating the Refugee Convention but also undermining the wider global refugee system that it creates. This is to the detriment of all governments, as well as refugees.

1. The Refugee Convention: a pragmatic response to the reality of war, persecution and refugees

Sometimes, when governments speak about the UN Refugee Convention, they give the impression that this international treaty has been imposed upon them. Of course, legally-speaking, this is quite untrue: a country can only be bound by the international law rules to which it has consented. In this regard, the British government was not only one of the original drafters of the Refugee Convention – it was also one of the countries that pushed the line for applying this treaty to refugee situations globally and not just to those in Europe after the Second World War. But still governments pretend at times that this international regime is one that they are forced, reluctantly, to follow. They imply that its apparently high-minded ideals are ones they wish to disown.

This is a surprising claim. The Refugee Convention may reflect humanitarian ideals, but it was made by governments no less self-interested then those today. It is intended to deal pragmatically with a reality which they recognised no country can escape, i.e. whilst persecution and war exist, refugees will be a fact of life. Of course, the UK receives far fewer refugees than most comparable countries. But these refugees will keep arriving, regardless of whether they are able to do so legally or not. So, in our chaotic and uncertain world, what the Refugee Convention does is create a tool for resolving the challenges that refugees pose. Firstly, it provides a collective yardstick by which the world’s governments can decide hard-headedly which irregular arrivals do truly need sanctuary. Secondly, it offers a way for ‘deserving’ refugees to be assimilated and not live illegally on the margins of society with all the risks which that brings for governments, communities and the refugees themselves.

It is likely that the idea that a country might decide not to determine refugee status, but rather detain and remove those claiming its protection, was simply unthinkable, even to the no-nonsense Refugee Convention drafters. Such a move would have been entirely counterproductive. The whole idea of the Refugee Convention is to give governments a way to deal pragmatically with refugees. What is the point of not applying it? The Refugee Convention does not stipulate that a government must determine refugee status only because that is so self-evident. It underpins the whole scheme. Likewise, the fact that the Convention does not spell out the specific procedures for refugee status determination merely reflects deference to the variety of national institutional arrangements in existence in different countries at that time. But, here again, why would States not use whatever mechanisms were available in their countries in order to properly determine refugee status? The whole point of the treaty is to help work out which non-nationals can properly be given sanctuary.

This pragmatic approach to the reality that many if not most refugees will enter or be present illegally underpins the entire Refugee Convention, colouring the scope of many individual provisions and their interpretation. That rationale, and subsequent practice by countries all over the world, clearly shows that the proposal in the Illegal Migration Bill to decline to determine refugee status for irregular arrivals runs counter to the international law rules that bind the UK and other States parties to the Refugee Convention. As such, the pertinent provisions of the Bill may well place the UK not only in breach of international law but in conflict with its own self-interest over the longer term. In explaining where and how this happens, the analysis that follows emphasises the sensible approach that these rules embody for the collective and individual benefit of countries like the UK.

2. What issues does the Illegal Migration Bill raise for international refugee law?

Clauses 2-10 of the Illegal Migration Bill raise problematic questions from a legal standpoint. They seek to impose a blanket duty on the Secretary of State for the Home Department to remove people who have ‘entered or arrived in the UK illegally’ after 7 March 2023 and have not travelled directly from a country in which they feared persecution for a Refugee Convention reason. The UK will thus not determine the refugee claims of such people on the assumption that it will instead remove them to a ‘safe third country’. The comments that follow offer a preliminary non-exhaustive explanation of why these clauses may well conflict with key obligations and principles incumbent on the UK as a result of the Refugee Convention and international refugee law more generally (separate issues arising under human rights law have been addressed by other commentators). Moreover, as other commentators have noted, alongside legal issues, practical impediments mean that the removal of large numbers of refugee claimants to one or more safe third countries is unlikely to materialise.

2.1 Declaratory nature of refugee status

It is an established principle of refugee law that refugee status is ‘declaratory’. In other words, a person is a refugee because they objectively meet the refugee definition in the Convention and not because a government says that they do. Thus, refugee status determination by a government does not make a person a refugee, it merely recognises or ‘declares’ what is an objective fact, i.e. the person’s circumstances meet the refugee definition. As a consequence, a refugee carries around their refugee status with them like an inherent attribute. Any government coming into contact with the refugee is obliged to treat the refugee in accordance with its obligations under the Convention. Moreover, State parties to the Convention are required to treat as a refugee any person advancing a claim for refugee status until they determine that s/he does not in fact meet the refugee definition.

This principle has a pragmatic rationale. The Refugee Convention is designed to promote a common approach to the refugee problem. If refugee status were not declaratory, the Convention would serve no purpose for governments. Rather, all governments, instead of taking a common approach to the issue, could simply ignore their obligations towards refugees (and even remove them to persecution) simply by declining to carry out the determination of refugee status. Clearly, in those circumstances, the Convention would be of no value whatsoever to governments or anyone. In short, the declaratory nature of refugee status means that deciding not to determine refugee status does not release a State party from its obligations in the Convention towards refugees. Quite the contrary: it must treat all asylum-seekers as if they were refugees until it determines they are not.

The upshot is that, regardless of its proposal to treat claims to refugee status as ‘inadmissible’ if the asylum seeker arrived irregularly, the UK remains bound to observe its minimum obligations towards refugees under the Convention even if it has not determined their refugee status. Certainly, until the person is recognised as a refugee ‘lawfully staying’ in the UK, they will not have the full wider range of guarantees under the Convention. Nonetheless, the range of legal obligations under the Convention that do accrue for refugees who are physically present but not yet deemed to meet the ‘lawfully staying’ criterion remains relatively extensive. They include legal rules around:

  • Non-discrimination (art 3)
  • Religion (art 4)
  • Rights granted apart from the Convention (art 5)
  • Exemption from reciprocity (art 7) and exceptional measures (art 8)
  • Personal status (art 12)
  • Movable and immovable property (art 13)
  • Artistic rights and individual property (art 14)
  • Free access to the courts of law (art 16.1)
  • Rationing (art 20)
  • Public education (art 22)
  • Identity papers (art 27)
  • Fiscal charges (art 29)
  • Transfer of assets (art 30)
  • Non-penalisation for illegal entry or presence (art 31)
  • Non-refoulement (art 33)
  • Facilitate assimilation and naturalisation of refugees (art 34)

Several of these Convention guarantees have still further relevance to assessing the compatibility of the UK proposal to decline to determine the status of people arriving irregularly as asylum-seekers.

2.2 Duty to determine refugee status

The declaratory nature of refugee status certainly implies a duty on States parties to determine a refugee’s status for the reasons outlined above. This duty can also be articulated from the principle of effectiveness, i.e. that the effective fulfilment of obligations under the Convention requires at the outset a determination about whether or not a person has refugee status to be undertaken. On pragmatic grounds, this is clearly required for two further reasons. Firstly, if States do not routinely determine refugee status, then the benefits of the Convention would accrue indefinitely to all non-nationals, irregularly arriving or not, who lay claim to asylum. In this scenario, the Convention would have little meaning, since all such aliens would have to be assumed to benefit from its guarantees. Secondly, if all States parties to the Convention followed suit and refused to determine refugee status (especially if they also sought instead to remove people elsewhere), then the system of collective responsibility that the Convention creates for addressing refugee arrivals would fall to bits. The current system is one in which the UK receives relatively few refugees compared with other countries globally, suggesting that the UK acts against its own pragmatic interests here too.

The duty to determine refugee status clearly underpins the Convention as a whole. At the time of drafting, the advantages of being able to determine refugee status made it unthinkable that a State party would decline to do so. Nonetheless, there are a number of provisions that clearly speak to the assumed duty to determine refugee status on any good faith interpretation of the Convention ‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’, as required by treaty law. Firstly, the Convention provides detailed refugee definitions in art 1, encompassing inclusion, exclusion and cessation, which take the form of legal tests. The provisions would not need to take that form if the determination of refugee status were discretionary rather than required. Secondly, art 9 suggests that a State might delay determining a particular individual’s refugee status only when taking provisional measures essential to national security ‘in time of war or other grave and exceptional circumstances’. Even there, the determination of refugee status remains merely ‘pending’ and must still be undertaken. Thirdly, in art 34 of the Convention, States remain under a duty ‘as far as possible [to] facilitate the assimilation and naturalization of refugees’. This obligation is limited by circumstances, but a refusal to determine refugee status clearly contravenes the underlying obligation to facilitate such processes.

Moreover, under international law, obligations and rights can be created not only by treaties but also by international custom, as evidenced by ‘a general practice accepted as law’. For those States parties to the Convention that regularly receive refugees, the consistent practice is to establish procedures to determine the status of refugees. Those procedures may vary considerably in terms of how they are set up and function under national arrangements in each country, most are highly formalised although some are quite ad hoc, most involve determination by the government but some still outsource this function to UNHCR on their territory, sometimes this involves determination on an individual basis and at other times on a group or prima facie basis. Crucially, this practice of refugee status determination and the sense that they are legally required to do so by the Convention is strong evidence for an independent rule of international custom that requires States parties to the Refugee Convention to determine claims for refugee status. These status determination processes also provide compelling evidence of ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.

Finally, the duty to determine refugee status is not diminished by the fact that temporary protection is sometimes granted to those seeking asylum. As this usually provides entitlements similar to those of the Refugee Convention, determination of refugee status might arguably be lawfully delayed. The international law duty to determine refugee status is also not undermined by the fact that some States operate limited ‘safe third country’ schemes. Certainly, the legality of some schemes is open to question. Moreover, to the extent that schemes such as the EU’s Dublin arrangement might be lawful, it would appear to be on the basis that EU Member States are effectively treating the EU as one single territory for the purposes of asylum, with safe third country removals really a form of internal transfer within a single supranational territory which is widely recognised as such for a range of other purposes and which is delimited by all States applying the same harmonised intra-community rules on refugee protection. Moreover, the scheme rests on the assumptions that the Common European Asylum System harmonises asylum standards within EU countries so that they are essentially identical and that judicial protections are available to allow the lawfulness of any individual transfer to be challenged and rebutted where this presumption does not hold true.

Nonetheless, even in the EU context, it is well-recognised that such transfers of refugees to a third country require an explicit acknowledgement by the receiving State that it has some form of responsibility for determining the claim, due to some past form of connection with the applicant, and is willing to assume that responsibility by taking back the refugee claimant. As a result, in practice, the numbers transferred pursuant to such schemes have often been a minority of arrivals, rather than inverting the rationale to make this the predominant approach in law. Ultimately, in the case of the UK, the point is largely moot in practice since, despite many years of efforts, the UK does not currently have any safe third country agreements with other countries to which putative refugees might be transferred, aside from the questionable and limited Rwanda scheme (for which the connection requirement is not satisfied). Moreover, even if international law and other countries were theoretically to accept that third country schemes could be so widely applied, it would make the practical aim of the Refugee Convention redundant, as other countries would be free likewise to engage in the practice of constantly seeking to remove refugees to other ‘safe’ countries. Moreover, those countries would certainly be less and not more likely to take refugees removed from the UK.

2.3 Illegal entry of presence is not a ground for refusing to determine refugee status

Art 31 of the Refugee Convention acknowledges the fact that many refugees will arrive by irregular routes. The terms of this non-penalisation provision reflect the practical recognition that people fleeing persecution or war will often, due to those circumstances, lack the usual documents required to leave their own country and/or enter another regularly. Art 31 thus recognises the interest of States in prosecuting or penalising illegal entry or presence by non-nationals and provides a specific exemption for refugees in view of their particular situation (and subject to certain conditions). But it does not anywhere suggest that illegal entry or presence is a ground on which contracting States can legitimately refuse to determine refugee status. That is not imposing a penalty; it is a dereliction of the core duty to determine refugee status. If refugees have travelled illegally, then the usual remedy for States is to consider whatever penal sanction its national law would normally impose. But the Convention cannot be read as permitting a refugee’s illegal entry or presence to function as a bar to determining a person’s refugee status. If that were so, art 31 would have no meaning. Also, the Convention would then be largely inapplicable to the reality of refugee movements that – the drafters recognised – often must be by irregular means. This reading would also make it impossible to know whether the individual refugee could be prosecuted, since art 31 imposes among the conditions for exemption from penalisation for illegal entry the requirement for States to determine if the person fulfils the criteria for refugee status in art 1 of the Refugee Convention.

Here, too the practice of States across the globe points to the likely existence of a rule of customary international law to the effect that, whilst individual refugees may or may not be prosecuted for illegal entry or presence depending on their particular circumstances, this is not used or seen as a basis for barring irregular entrants from refugee status determination. On all these grounds, the UK’s proposal to decline to determine refugee status on precisely this ground is contrary to the scheme of the Refugee Convention as a whole and art 31 in particular. The whole tenor of the Convention is to recognise that refugees often have legitimate reasons for entering or being present in a country contrary to its immigration rules. Regardless of whether or not the non-penalisation provision in art 31 applies to prevent an individual refugee’s prosecution, their illegal entry or presence is not a justifiable legal basis for the country in which they are present to decline to implement the procedures to determine their refugee status.

2.4 States must fulfil obligations towards refugees where they are present

An impoverished, short-term and incorrect view of refugee law reduces its role merely to stopping refugees from being refouled, i.e. sent to a country where they may face persecution. On this reading, refugee law adds nothing to the protection that human rights law affords to all human beings. As human beings, refugees should enjoy most human rights in the country in which they find themselves and human rights standards have been interpreted to prevent refoulement to torture, inhuman and degrading treatment or punishment. There is no doubt that non-refoulement is an important pillar of international refugee law, or that human rights law offers its own kinds of human rights protection to refugees in countries where it is observed. Accordingly, the idea has taken hold in some quarters that refugees who are not yet ‘lawfully staying’ in a country can be removed at the drop of a hat from the territory of that State party. This is rooted in the notion that the only limitation imposed by the Convention is the non-refoulement rule in art 33.1, meaning only that the refugee cannot be sent to a country where s/he fears persecution (except if the art 33.2 exception based on the danger posed by the individual refugee to society applies).

But this approach ignores the purpose, principles and rationale of the Refugee Convention. The Convention has lately been criticised for not including a ‘burden-sharing’ mechanism, i.e. so that a third countries are obliged to resettle refugees from an overwhelmed country of first asylum. The practicalities of such a scheme at the global scale seem formidable. It is certainly the case that the self-interested and hard-headed drafters of the Convention, and most powerful States subsequently, have shown no real appetite for an obligatory scheme of this kind, as the negotiations around the 2016 New York Declaration process and the relatively limited scale of third country resettlement schemes operated by UNHCR demonstrate. Instead, it is clear that the Convention has its own distinct rationale. This is the principle that, with narrow exceptions, a State should engage with refugees as and when it finds them on its own territory, receiving them, determining their status and granting appropriate rights to those whom it fairly recognises as entitled to the guarantees in the Convention. Fanciful schemes of sending the world’s refugees between countries aside, the reality is that refugees flee their countries and arrive where they perceive sanctuary to exist. This may not result in ‘fair’ burdens between different States but it is a realistic way of addressing refugee problems. The arrival of refugees is a fact; the Convention requires States to deal with them in situ.

In essence, the Convention thus seeks to avoid a beggar-my-neighbour approach by States parties. If it were limited to being merely a tool to prevent refoulement to the country of origin, States could spend all their time trying to ship refugee arrivals to other countries around the world. This would defeat the object and purpose of the treaty and the obligations that it imposes on States towards refugees. The integrity of the Convention as a whole rests on the implicit duty on States parties to receive refugees, determine their claims and grant them appropriate rights under the Convention in their own territories. The exceptions are limited. Firstly, art 33.2 of the Convention allows States to expel and even refoule a refugee who poses a serious danger to the community. Secondly, art 32.1 allows even refugees ‘lawfully staying’ in the country to be expelled where they pose a threat to ‘national security or public order’, but it also sets out extensive due process guarantees for such processes and requires the expelling State to give the refugee a reasonable period to seek legal admission to another country. Even in these extreme cases, refugee choice must be respected to some degree. Thirdly, voluntary third country resettlement of refugees through UNHCR’s good offices is obviously permitted. Lastly, States have created international agreements (such as Dublin) allocating responsibility between themselves for determining refugee status on the basis of links with one or other country. However, such agreements should not go so far as to undermine the essential rule that States must fulfil obligations towards refugees where they are present.

Certainly, illegal presence or entry is not an adequate rationale for summarily removing a refugee without determining their claim, even if this removal is to a ‘safe third country’, as the UK proposes in the Illegal Migration Bill. As explained above, the structure of obligations in the Convention makes it clear that, whilst the illegal entry or presence of a refugee might be a basis for prosecution for infringing the immigration laws (if the non-penalisation provision does not apply), declining to determine the claim for refugee status is not permitted by the Convention. If this done is with the objective of removing the refugee to a ‘safe third country’, then it further undermines the collective framework of the Convention as a pragmatic response to the reality of refugee situations. This is because most refugees, as explained above, are likely to enter or be present in a country illegally at first. Using illegal entry or presence as the criteria for removing the refugee would thus render most or all refugees subject to removal to another country. If all countries were to interpret the Convention in this way, then the vast majority of the world’s refugees would be in a constant state of transfer between countries. Or, more likely, they would be sitting in stasis indefinitely, waiting for States to argue about responsibility in each individual case. This waste of time and lives is what the Convention’s practical rationale of dealing with refugees where they are present seeks to avoid.

2.5 The right to seek and enjoy asylum

The Refugee Convention is one mechanism through which the art 14.1 ‘right to seek and to enjoy in other countries asylum from persecution’ in the Universal Declaration of Human Rights (UDHR) was implemented in subsequent treaty form. Although the UDHR is not in itself a binding source of international law, it articulates the shared values in respect of human rights of the entire international community of which the UK is a part. In other words, the Refugee Convention reflects the wider principle expressed in the UDHR that persons fleeing persecution have a right to seek and enjoy asylum in other countries. Declining to process claims to refugee status and seeking to remove such putative refugees from the territory of a State party thus potentially infringes the right to seek and to enjoy asylum from persecution for those who qualify as refugees under the terms of the Refugee Convention. There is a good case that the provision of territorial asylum to those eligible to receive it as a matter of law is a foundational obligation of international law. As such, there is a real risk that the UK clauses declining to determine refugee status represent a breach of these binding general principles and international customs that underpin the Refugee Convention.

It is well understood that the right to seek and to enjoy asylum encompasses the institution of ‘territorial’ asylum. In some cases, under regional treaties for example, it may also engage the prospect of diplomatic asylum, i.e. where a person fleeing persecution seeks sanctuary in the diplomatic premises of a foreign State rather than on its own territory. However, even in those cases, relevant rules on political asylum seek to facilitate safe passage of the individual out of their country so that territorial asylum can be granted in the territory of the protecting State. ‘Territorial’ asylum thus underpins the institution of asylum in international law, including the form which the Refugee Convention facilitates. Here too, this reflects a practical approach. States are rarely willing to intervene in the matters of other States but persecuted individuals who can reach the territory of another State are in a quite different legal position and eligible to be considered for sanctuary. This territorial nature of asylum has been a general practice of States, compelled by the recognition that it is legally required, almost since the emergence of nation-States and international law. Under the Refugee Convention, this means that a State cannot decline to determine the claim for refugee status without breaching the obligations that underpin the institution of territorial asylum and, consequently, the right to seek and to enjoy in other countries asylum from persecution.

3. Conclusion: where does this leave the UK… and the world?

Seen from one perspective, that of the States that created the treaty and which implement it, the Refugee Convention represents a pragmatic tool providing governments with a collectively-agreed and principled means for differentiating which irregular arrivals deserve sanctuary due to persecution in their own countries. The Convention is not just comprised of a standalone definition and a prohibition on refoulement. Rather, it is made of an intricate web of obligations that rest upon the rationale of the Convention itself. As such, this workable tool is a key pillar of the refugee response that has developed globally by governments. It allows for a pragmatic response to the reality of refugee arrivals that have been a feature of our history not only in the UK but also in most other countries across the world. This pragmatic rationale and utility of the Convention needs to be properly recognised in interpreting its provisions if we are not to arrive at, in the terms of treaty law, ‘manifestly absurd or unreasonable’ outcomes in practice.

Under this system, the UK currently receives a relatively small proportion of the world’s (or even Europe’s) refugees. By unravelling the threads of the Refugee Convention – declining to determine the claims to refugee status of those who arrive here and seeking instead to remove them to as yet unidentified ‘safe third countries’ – the UK not only risks contravening the Refugee Convention but puts at risk the integrity of this global structure for dealing with refugees. Paradoxically, a world in which the Refugee Convention and its principles are no longer observed would be one in which the UK receives many more illegal arrivals, as options to access refugee protection in other parts of the world dry up too. Moreover, even among States not party to the Convention, many still honour the basic international commitments that it enshrines towards refugees in the places where they arrive. By refusing to do so, the UK is aligning itself with a small minority of pariah States in this field. The UK should reject this plank of the proposed Illegal Migration Bill. There are sensible alternatives to addressing the concerns that recent small boat arrivals pose for the UK.

Professor David Cantor is the founder and Director of the Refugee Law Initiative at the School of Advanced Study, University of London. The opinions expressed here are those of the author alone. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.