Blog post by David Cantor. It is the first in a four-part series providing commentary on the Illegal Migration Bill and possible alternatives. This piece was originally published on Free Movement blog on 3 April.
Will the Illegal Migration Bill breach the 1951 Refugee Convention, a global treaty to which the UK is party? The key point of contention is the Bill’s imposition of a blanket duty on the Home Office to remove to a “safe third country” non-nationals who have “entered or arrived in the UK illegally” after 7 March 2023 if they have not travelled directly from a country in which they feared persecution. The Bill also requires the Home Office to decline to determine their claims for refugee status.
Whether this measure will deter irregular arrivals, and whether the UK will actually be able to remove so many refugees, are both open to question. A vast increase in detention places is implied because thousands of new arrivals each year will be detained pending a removal that may never happen, which is a significant burden to the public purse. Those who are released from detention pending removal will not have access to status or work. This makes inevitable an increase in the use of asylum hotels hated by the taxpayer, local communities and the refugees themselves or, according to recent announcements, in the use of converted military bases and other sites which have also attracted significant local protests.
But even if the duty to remove were implementable, does it comply with the Refugee Convention?
To answer this question, we have to understand that the Convention was created by governments no less self-interested than those today in order to deal pragmatically with the reality that, while persecution and war exist, refugees will be a fact of life. In a chaotic world, the Convention is a highly practical tool for resolving the challenges posed by refugees. It provides a collective yardstick by which the world’s governments can decide hard-headedly which irregular arrivals truly need sanctuary. It also establishes guarantees for these refugees so they do not end up living illegally on the margins of society, a situation of risk for governments, communities and refugees themselves.
Even to the no-nonsense Refugee Convention drafters, the idea that a country might decline to determine refugee status, and instead detain and remove those claiming its protection, was likely unthinkable. The whole idea of the treaty is to give governments a way to deal pragmatically with refugees, such that not applying it would be completely counterproductive. The treaty may not stipulate that a government must determine refugee status, but only because that is so utterly self-evident. This pragmatic approach to refugees and illegal entry underpins the entire Convention.
First, it underwrites the established legal principle that refugee status is ‘declaratory’. A country determining an asylum claim does not confer refugee status on a person but merely recognises a status which that person already possesses. If this were not so, governments could ignore their obligations towards refugees simply by declining to carry out the determination of refugee status. The Convention would serve no purpose.
Legally, this principle means that governments must treat all claimants for refugee status as if they were refugees until it determines objectively that they are not refugees. The UK thus remains bound by several Convention obligations towards any refugee in its territory until it determines their status, even if they have arrived irregularly and are not yet “lawfully staying”. They include duties not to penalise illegal entry by certain refugees and to facilitate the assimilation and naturalisation of refugees.
Secondly, this declaratory principle implies a duty to determine refugee status that is derived from the legal principle of effectiveness and from specific Convention provisions. In practice, if a country like the UK routinely declined to determine status, then Refugee Convention rights would accrue indefinitely to any and all non-nationals who claim asylum there and not just to refugees. Thus, any irregular migrant claiming asylum would have to be treated by the government as a putative refugee and accorded the rights due to refugees physically or lawfully present (which would also make it impossible to repatriate any such irregular migrants). This would defeat the pragmatic purpose of the treaty, which helps governments to distinguish refugees from other non-nationals.
Thirdly, the Convention pragmatically recognises that refugees fleeing persecution or war will often be unable to enter another country by regular means. Acknowledging that this can bring refugees into conflict with national laws criminalising illegal entry or presence, a non-penalisation provision creates a partial exemption for some refugees. But nowhere does the Convention suggest that countries can refuse to determine refugee status on this ground. That is not a penalty for illegal entry; it is the dereliction of the core Convention obligation to determine status.
Fourthly, the Convention acknowledges the reality that refugees go where they perceive sanctuary to exist. Its integrity thus rests on the implicit duty of a country to receive refugees, determine their claims and fulfil its Convention obligations to them in its own territory. This may not result in a fair sharing of the world’s refugees between countries. But it is a pragmatic response to the reality of refugee problems and avoids countries playing beggar-my-neighbour. Indeed, if the treaty only prevented the removal of refugees to a country where they feared persecution (as this government claims), every country in the world could spend all its time trying to ship its refugees to other countries. This would make the Convention meaningless and leave refugees in indefinite stasis.
Finally, the territorial nature of asylum (i.e. the principle of granting asylum in the territory of the country where it is sought) is well-established as a pragmatic institution of international law. As such, the provision of territorial asylum to those eligible to receive it (in this case under the Refugee Convention) is a foundational duty under wider international law, which is potentially breached by the new Bill. All other parties to the Convention that regularly receive refugees operate procedures to determine refugee status (although they may vary in form) out of the conviction of legal necessity. This shows that a corresponding rule of international custom requires States to determine refugee status.
These legal problems are not gainsaid by the fact that some countries already operate schemes to send refugee claimants to a safe third country, rather than determining their status. But such schemes cannot invert the essential rule that countries must fulfil their obligations towards refugees where they are present. To do so would be to make the Refugee Convention practically redundant, as countries would be free to engage in constantly seeking to remove all refugees to other ‘safe’ countries. The limited exceptions to this general rule are not engaged by the UK Illegal Migration Bill.
The pragmatic rationale of the Refugee Convention and the duty it imposes to deal with refugees where they arrive explains why these clauses of the Bill are likely to be unlawful as well as impractical. The UK already receives far fewer refugees than most comparable countries in the world. By unravelling the threads of the Refugee Convention, the UK not only risks contravening the treaty but puts at risk the integrity of the collective global structure for dealing with refugees. It is paradoxical that a world in which the Refugee Convention is no longer observed is likely to be one in which the UK receives many more illegal arrivals, as protection options for refugees in other parts of the world would also dry up. The UK should reject this plank of the proposed Illegal Migration Bill.
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.