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Measuring up? Evaluating the UK’s performance against the promises of the 1951 Refugee Convention - #RefugeeWeek2020

Monday 15 June 2020

Today marks the start of Refugee Week, ahead of World Refugee Day on Saturday 20 June 2020. The year’s theme for Refugee Week is ‘Imagine’, calling on us all to re-imagine how to do things differently, and to do things better.

Just because we cannot be together physically right now does not mean we cannot collectively come together, and show our solidarity with the refugee community, both here in the UK and internationally. To celebrate, the Garden Court Immigration Team will be hosting two days of free legal webinars, on 17 June and 18 June 2020. We will also be posting comment pieces here on our website, and on social media.

In this blog, Ubah Dirie and Emma Fitzsimons evaluate the UK’s commitment to its Convention obligations, and consider how we can better live up to the promises owed to those in need of international protection.

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The urgent context of international protection today

In its 2019 Annual Report delivered to the UN, the UNCHR identified the scale and the shape of the protection crisis facing the global community.

Key themes identified during the reporting period for 2018-2019 included:

  • High levels of displacement – by the end of 2018, some 70.8 million people[i] had been forced to flee their homes as a result of persecution, conflict and violence. Staggeringly, that amounts to some 37,000 fleeing their homes for safety every single day.
  • Concurrent refugee crises across the world including in Bangladesh, the Central Africa Republic, the Democratic Republic of Congo, Burkina Faso, Cameroon, Yemen, and Venezuela. Complex movements across both the Mediterranean and in Central America presented further challenges, resulting in the loss of live at sea, or forced return back to risk and instability;
  • Divisive and politicised discourse about refugees and migrants was recognised in many regions as contributing to growing protection risks. This is all too familiar to us here in the UK. The dangerous, insidious trope[ii] that asylum-seekers are a drain on resources fails to acknowledge the fact that in relation to 2018-2019, around 84% of the world’s refugees were hosted by developing countries. Similarly, that many are bringing “bogus” claims is simply not borne out by the evidence: asylum statistics for 2019 show that more than half of asylum applicants (52%) were granted asylum outright by the Home Office[iii], with many going on to succeed on appeal before the Tribunal.

Are we measuring up to the vision of the 1951 Convention?

The vision of the 1951 Convention was very much shaped by the immediate memories of the Second World War. It built directly on the foundation of Article 14 of the Universal Declaration of Human Rights 1948, and the recognition of the right to seek asylum. The 1951 Convention was originally limited in its territorial and temporal scope, to persons fleeing events occurring before 1 January 1951 and within Europe. The 1967 Protocol removed these limitations and thus gave the Convention universal coverage. Next year, the Convention will be 70 years old, and yet its three foundational principles – non refoulement, non-penalisation and non-discrimination– remain as pertinent as ever.

There have been significant positive developments in the time since the Convention was ratified. The 1967 Protocol itself was transformational in opening up the protections of the Convention. There are now 154 States Parties to the Convention. In 2001, States Parties acknowledged that the principle of non-refoulement is part of customary international law. Regional protection mechanisms have been established, including the OAU Convention governing the specific aspects of refugee problems in Africa (1969), and the EU Qualification Directive (first 2004, recast 2011). In December 2018, the General Assembly affirmed the Global Compact on Refugees, a framework for more predictable and equitable responsibility-sharing, recognising that a sustainable solution to refugee situations cannot be achieved without international cooperation.

It acknowledges that:

“…Despite the tremendous generosity of host countries and donors, including unprecedented levels of humanitarian funding, the gap between needs and humanitarian funding has also widened. There is an urgent need for more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees, while taking account of existing contributions and the differing capacities and resources among States. Refugees and host communities should not be left behind.”

There is much more that needs to be done to realise the universal protection of refugees. Now, more than ever, people need protection and safety. Within the scope of this piece, we reflected as asylum practitioners on common issues that we consistently see in practice.

Cessation clauses need to be applied restrictively

To start with the fundamental principle of non-refoulement, all too often Home Office decision letters invoke the cessation clause (Article 1C) to justify the revocation of refugee status, so as to permit the deportation of refugees who have committed criminal offences which would not meet the threshold for ‘serious crime’ under section 72 of the Nationality, Immigration and Asylum Act 2002, or where an asylum applicant can show a good case for arguing that in spite of a 2 year sentence, they do not pose a threat to the community. In our experience, the Home Office has invoked cessation clauses, in the context of recognised refugees from Afghanistan, Iraq and Somalia.

Asylum practitioners will be well aware that for all three of these countries of origin, country guidance determinations are not straightforward; armed conflict continues to take place, and situations on the ground can be fast moving. For example, to take only the very recent developments in the last few months, for these particular countries of origin, we have seen:

  • The promulgation of new, detailed country guidance on Afghanistan, AS (Safety of Kabul) [2020] UKUT 00130 (IAC) demonstrating the highly individualised, fact sensitive inquiry directed at the prospect of safe relocation to Kabul;
  • In respect of Iraq, the country guidance case, SMO, KSP & IM (Article 15(c); identity documents) CG [2019] UKUT 400 (IAC), was published on 23 December 2019. Yet, events swiftly overtook the evidence before the Tribunal, when in January 2020 Iraq became a theatre for yet more conflict between Iraq, Iran and the USA with the airstrikes and killing of Major General Soleimani, bringing further destabilisation to the region;
  • Somalia has been the continued subject of judicial comment, most recently by Advocate General Hogan in C-255/19 SSHD v OA in his opinion to the CJEU, presently seized of a preliminary reference from the Upper Tribunal on the precise meaning of ‘protection’ for the purposes of cessation of refugee status under Article 11(1)(e) of the Qualification Directive 2004. Should the Advocate General’s opinion persuade the CJEU, it could have a significant impact on the findings made by the Upper Tribunal in MOJ and Others (return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) in relation to the availability and scope of clan support.

These examples show, by their sheer complexity, the dangers in assuming that a change in circumstance is of the character required to cease protection. The UNCHR Handbook is unambiguous: cessation clauses should be restrictively interpreted and applied, given the severity of their consequences. Yet, Home Office policy states:

“Criminality does not amount to a change of personal circumstances under Paragraphs 339A (i-iv), but it is possible that a review may highlight that protection is no longer needed.”

Frequently in such appeals, UNCHR’s representations will identify that i) the criminality appears to have prompted the review; ii) the state has not discharged the burden of proof required to justify cessation and iii) an assessment of country evidence does not establish a significant and long-lasting change. Better quality first instance decisions from the Home Office that applied the cessation clauses in the restrictive manner for which they were intended would protect the guarantee against refoulement.

Non-penalisation means ending detention and criminalisation, and understanding asylum seeker’s real-life trajectories when assessing credibility

Another core principle of the Convention is that of non-penalisation, reflected in Article 31. States are obliged not to impose penalties on refugees for illegal entry or presence. Yet, in practice, asylum-seekers continued to:

  • Be liable to detention in detention centres and the prison estate, where they are subject to harsh, and even discriminatory conditions[iv], with poor access to medical care, and even poorer mental health outcomes. The Home Affairs Select Committee its 2019 report said it was not confident in the Home Office’s information was correct that it only detained where there were public protection reasons and “too many asylum seekers are being detained who may not need to be, and that inappropriate decisions are being taken to lock people up.”[v]
  • Be criminalised for identity document offences, even when there is a statutory defence[vi];
  • Be disbelieved on the basis of conduct covered by section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, without any rigorous assessment of the real-life circumstances affecting asylum seekers fleeing persecution, often making precarious journeys across Europe[vii].

Ending the Hostile Environment – improving asylum support accommodation and access to work

Despite being an early signatory of the 1951 Convention, it may come as a surprise to many that the UK remained without specific asylum legislation for almost four decades.

Prior to the enactment of the Asylum and Immigration Appeals Act 1993, which incorporated the 1951 Convention, the process of granting asylum was regulated by a series of Immigration Rules. These Rules were silent on the procedure of establishing whether a person was a refugee or not, but did allow those seeking asylum alongside those who had been recognised as refugees access and entitlement to social security benefits, local authority housing, income support, education and healthcare at the same level as British citizens.

Over the last three decades, immigration and asylum policy has undeniably been one of the most politically contentious issues in this country; it has resulted in a cascade of ever-changing legislation and a torrent of caselaw. The higher courts have lamented on numerous occasions that the law in this field has become ‘an impenetrable jungle of intertwined statutory provisions and judicial decisions’ and that the ‘structure of both primary and secondary legislation in this field has reached such a degree of complexity that there is an urgent need to make the law and procedure clear and comprehensible’.

However, what has remained consistent in the period following incorporation of the 1951 Convention into British Law, is the degradation of rights and reception conditions awaiting asylum seekers and creation of a deterrent ‘hostile environment’.

This systemic reduction in rights coupled with the current global health crisis have brought into sharp focus the extreme difficulties faced by those with pending asylum claims. Many of those seeking asylum do not have the right to work despite delays in the determination of their claims. Without permission to work they have no option but to rely on financial support via the National Asylum Support Service (NASS). The rates of support are very low where those eligible receive just £37.75 per week (just under £5 per day). Following a review of support rates in light of Covid-19, the government decided that from 15 June 2020 that the weekly rate would be increased to £39.60 per week – an extremely meagre increase of 26 pence daily.

The creation of this enforced destitution and provision of sub-standard accommodation is it is at odds with the spirit of the Convention which recognised the importance of securing dignity by allowing asylum seekers and refugees access to the labour marker as a means of facilitating integration into host communities and re-building of lives.  

Lift the Ban Coalition in their seminal report, ‘Why people seeking asylum should have the right to work’ provide compelling evidence supporting reform of current governmental policy on the right to work for those seeking asylum. It is notable that the government itself recognises that ‘worklessness damages lives’ and that it not only reduces a family’s income but can also damage their resilience, health and stability, and thus undermine child development.

The reasons used over the last 3 decades to support restriction on asylum seekers have been comprehensively debunked and an overhaul of the asylum support and right to work policies is necessary.

Bring families together by reducing times for refugee reunion

The 1951 Convention does not provide a right to family reunion for refugees, although the Final Act of the Conference that adopted the 1951 Convention recommended that signatory states “… take the necessary measures for the protection of the refugee’s family, especially with a view to… ensuring that the unity of the refugee’s family is maintained…”, because family unity was considered to be an ‘‘essential right of the refugee’.

The Chief Inspector of Borders and Immigration undertook an inspection of family reunion applications between January and May 2016. The Chief Inspector found that the Home Office was too ready to refuse applications.

In all, ten recommendations for change were made and accepted by the Home Office. They were intended to help the Home Office “to reassure applicants, stakeholders and others that it recognises the particular challenges surrounding Family Reunion applicants, and that it manages applications not just efficiently and effectively, but thoughtfully and with compassion.’’

A substantive follow-up report was published in September 2018 – ‘A re-inspection of the family reunion process, focusing on applications received at the Amman Entry Clearance Decision Making Centre November 2017 – April 2018’. The Independent Chief Inspector classified eight of the ten recommendations in the 2016 report as still outstanding, deeming that “the pace at which the Home Office is moving is far too slow given the profound impact on the lives of families seeking to be reunited”.

Unfortunately, it is highly likely that the global health crisis will have a detrimental impact on and further delay, the government’s ability to process refugee family reunion applications.

Improve outcomes for child refugees

A child is foremost a child before she or he is a refugee. Refugee and asylum-seeking children are among the most vulnerable children in the world. Despite the fact that our legal and policy frameworks clearly embed the ‘best interests’ principle, the reality is for many children, their best interests are often failed by the asylum-seeking process. In November 2019, the UNCHR recommended that the UK Government could take:

“a number of concrete steps to ensure unaccompanied or separated child refugees and asylum seekers arriving in the UK can more quickly recover from trauma and find lasting solutions to their plight.”

Their recommendation came as a result of three EU-Commission funded reports, all aimed at improving the understanding for children’s journeys to the UK, improve the asylum system for children and help their integration prospects.

Practical steps that would meaningfully change children’s lives include:

  • Improving UK reception support for spontaneous arrivals;
  • Improving and strengthening training and procedures for both Local Authorities and Home Office in respect of unaccompanied asylum-seeking children;
  • Using independent guardians to help children and young people advocate for themselves. Many suffer from trauma, acute stress, lack of family support and inadequate mental health provision. Building relationships of trust with appropriately trained advocates can assist children in better communicating with the Local Authority and the Home Office;
  • Prioritisation of high-quality foster care, which can provide good integration prospects;
  • Increasing funding for Local Authorities’ services – all three studies recognised that funding was inadequate;
  • Improving access to mental health and specialist support;
  • Improving the levels of refugee and asylum-seeking children engaged in full mainstream education;
  • Shorten delays in asylum decision making;
  • Set up a child-friendly participatory mechanism to feed back on the asylum process and improve training on approaching and identifying children.

An upsetting finding from these reports is that few of these children had made British friends. For many children, being in care and awaiting an asylum outcome is exceptionally isolating. Local Authorities have duties to befriend the young people in their care. Many charitable organisations work exceptionally hard at helping children and young people overcome the challenges of social isolation, but this is a civic obligation that should fall on all our shoulders. COVID-19 has tentatively suggested that communities are better understanding the issues of isolation and loneliness, particularly for those who are elderly and vulnerable, and who have had to shield during lockdown. That experience is often magnified for children, far away from home and far away from family.

Staying with the topic of child refugees, it is deeply concerning that on 19 May 2020, the UK Government published draft text for refugee reunion for unaccompanied asylum-seeking children for after the end of the transition period, in December 2020. Under Article 8 of the Dublin III Regulation, this was expressed in mandatory terms. However, the position under the Draft UK Negotiating Position would be entirely discretionary[viii]. Children’s refugee charities, like Safe Passage, have already expressed their concerns at the watering down of children’s rights. A petition is online and has already reached over 300,000 signatures. If you do one thing this Refugee Week, it could be as simple as signing here.

Concluding thoughts

When we imagine how better to protect and support refugee communities, we reflected back on the text of the 1951 Convention. At the beginning of the document, the Conference expressed a number of unanimous recommendations including: 

“….the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.” 

It reminds us that the 1951 Convention was intended to be a floor, and not a ceiling.

It also reminds us that in the relatively short span of 16 years, the territorial and temporal scope of the Convention changed completely with the adoption of the 1967 Protocol. The 1960s was of course a decade during which there was much civil rights activism and renewed political energy in the faces of established ideas and cynicism. Now, in 2020, painfully mindful of a further renewed commitment to anti-racist activism, and the impending end of the Brexit transition period, we hope that this Refugee Week provides the space and time to honestly and boldly discuss how we can improve our system of international protection.

[i] Including 25.9 million refugees, and 41.3 million internally displaced people (IDPs).

[ii] For the facts on refugees, see the Refugee Council at: https://www.refugeecouncil.org.uk/information/refugee-asylum-facts/the-truth-about-asylum/

[iii] https://www.gov.uk/government/publications/immigration-statistics-year-ending-december-2019/how-many-people-do-we-grant-asylum-or-protection-to

[iv] See, inter alia, VC v SSHD [2018] EWCA CIv 57, MDA and ASK v SSHD [2019] EWCA Civ 1239; Hussein v SSHD [2018] EWHC 213 (Admin).

[v] Home Affairs Select Committee, Immigration Detention, (HC 914, 21 March 2019) at §59.

[vi] See Idahosa v Regina [2019] EWCA Crim 1952.

[vii] As in the case of KA (Afghanistan) v SSHD [2019] EWCA CIv 914, where both the Home Office and the Tribunal below had dismissed the child’s asylum claim on the basis that he had claimed asylum previously in the first EU country he had landed in. On appeal, the Court found in the Appellant’s favour, holding that an unaccompanied minor with no family connection in the EU was entitled to make an asylum claim in any EU country without risk of being returned to the one in which they first landed or made their first asylum claim. Failure to make an earlier asylum claim should attract less adverse weight in the case of an unaccompanied minor than in the case of an adult.

[viii] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/886020/DRAFT_Agreement_on_the_transfer_of_unaccompanied_asylum-seeking_children.pdf

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