14th December 2022
Earlier today, 71 Members of Parliament supported a Bill that would allow the government to send asylum seekers back to the countries from where they had most immediately come from, regardless of international law.
The Asylum Seekers (Return to Safe Countries) Bill is here.
You will see in the Bill there is this clause one:
It is not a well-drafted Bill.
Look at that clause one again, and see if you can spot the term “asylum seeker”.
You will not find it in the substantive and operative text, but only in the title of the clause.
Nonetheless, clause four of the Bill defines “asylum seeker” as follows:
(This is therefore a shoddy bit of legislative drafting: defining a term and then not actually using it in the substantive and operative provision is a howler.)
But let us pretend that the drafter of the Bill had got it right and included the defined term in the substantive and operative provision, rather than just in a title of a clause.
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As it stands, my understanding is that whether an asylum seeker has come from a “safe country” may affect the credibility of an asylum application:
This means it is a factor that goes to the exercise of the discretion of the decision maker on the asylum application.
But.
The Bill presented today goes beyond such issues of credibility, and requires that provisions be made for the asylum seeker’s immediate removal if they have arrived from a “safe country” – even if that is not where from where they are ultimately fleeing.
If you look at the scheduled list of “safe countries” you will see that it is unlikely for any asylum seeker to have arrived here – at least by boat – without coming from one of those listed:
Ireland, Spain, Portugal, France, Belgium, the Netherlands, Germany, Norway, Iceland – and all other geographically close countries – are “safe countries”.
And so if today’s Bill was passed into law, then any asylum seeker – even if they were fleeing from Afghanistan, Iraq or elsewhere – would be returned to the “safe country” from which they had most immediately left to get to the United Kingdom, regardless of the United Kingdom’s obligations under the Convention Relating to the Status of Refugees.
The United Kingdom’s obligations under the Convention Relating to the Status of Refugees apply regardless to the route by which the asylum seeker has reached our shores.
Even the current law sets out that a route here via “safe countries” only goes to credibility.
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Some may want to dismiss today’s vote – perhaps even scoff at it.
But it is significant.
I remember back in October 2011 the scoffing at the 111 Members of Parliament who voted against the government for a referendum on the European Union.
We are not scoffing now.
Similarly, 71 is not a trivial number of Members of Parliament.
And despite the government not supporting today’s Bill, the 71 Members of Parliament voted so as to enable the government to break international law anyway.
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There is something worrying with the readiness of Members of Parliament to support legislation that expressly enables the government to break its international legal obligations, whether it is the Northern Irish Protocol Bill or today’s Asylum Seekers (Removal to Safe Countries) Bill.
Yes, the Bill’s supporters lost – today.
But as in 2011, such a rebellion is perhaps a sign of things to come.
Today’s vote is not a good sign.
Brace, brace.
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What is the legal way of relinquishing the UK’s obligations created by the Convention Relating to the Status of Refugees? Surely there is some exit clause in it? Why wouldn’t that be used instead of creating law that explicitly breaks the UK’s obligations?
Neil, here is the text of the 1951 Convention (and its 1967 Protocol): https://www.unhcr.org/uk/3b66c2aa10
Article 44 of the Convention (and Article IX of the Protocol) provides for “denunciation” on one year’s notice to the Secretary General of the UN.
There are now 149 state parties to the Convention or the Protocol (or both), and as far as I am aware, no state has ever denounced either. But I suppose that should not stop the UK government if they are determined to make us more of an international pariah.
We might also have to resile from the Universal Declaration of Human Rights, as its Article 14(1) says: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
Perhaps we could replace the UDHR with a “British Declaration of Human Rights” which enshrines the quintessentially British aspects of our mature and modern democracy, and also protects those valuable rights from (ab)use. Like the tradition of concentrating together desperate people seeking asylum here in abandoned military bases and holiday camps across the UK.
As with the ECHR, the argument appears to be that rights are fine in principle, as high-sounding and well-meaning words on a page, but not when they are applied in practice to make a real difference to people’s lives. Which is extraordinary, given the Refugee Convention (like other human rights conventions) was negotiated and came into force in the immediate aftermath of the Second World War, when there were literally millions of refugees all over Europe.
I wonder what the so-called “safe countries” say about the prospect of many asylum seekers being deported from the UK and deposited back there. Have we actually asked the French? I doubt they would feel obliged to accept them back. Perhaps some of the 71 largely male, pale and stale Tory MPs (plus Priti Patel) who voted for this illiberal measure should ask them first. Or perhaps the plan is to fly tens of thousands of people to Rwanda. Out of sight, out of mind. Nothing to do with us.
Countries can leave by simply giving one year’s notice of denunciation to the UN Secretary-General, under article 44 of the 1951 refugee convention and article IX of its 1967 Protocol: https://www.unhcr.org/3b66c2aa10
So it is puzzling why so many states, even oppressive ones, remain party to one or both of those treaties despite the inevitable political and economic tensions arising from uncapped obligations alongside increased global mobility and the conflation of humanitarian and economic migration.
There seems to be no prominent national let alone international campaign to update or legally withdraw from those treaties.
Admittedly, the UK has explicit and implicit human rights obligations, notably to the EU and the ECHR’s Council of Europe, if our country is to continue to benefit from trade and data protection agreements as well as from broader good will. Only pariah states have ever withdrawn from the ECHR.
But what keeps liberal destination states from uniting to press for the convention to be updated – as the ECHR has been several times – and what keeps non-European destination states in the refugee convention’s orbit at all?
Why indeed does the convention, unamended now for 55 years, endure?
I hope and believe that widespread public recognition of the appalling failure of Brexit means that the most painful loonies in Parliament have had their day for the time being and that another 2 years or so should see them disemboweled for at least a generation.
Does the bill explain how these people would be returned to these safe countries?
OK, so the Government didn’t support it – well, not openly but part of me thinks that it would have approved this dog whistle.
The Government is very weak in polls, so saying they are sorting out “illegal migrants” (or whatever term they use to appeal to people who may be persuaded to vote Conservative) might win some of them over.
Looking at who voted for it, there were very few surprises (but a few). It basically seems to include a list of people I’d cross the country to avoid.
Maybe I missed it BUT R4’s coverage of this topic (in PM) didn’t seem to mention our international obligations or anything about the laws covering asylum-seeking. Amongst the mainstream press, the “Guardian” does cover what the law says – but I rather suspect most other newspapers won’t.
How are the general public to be kept informed of the legal issues and obligations which should influence policy decisions if the mainstream media don’t cover them?
Does “must” in Clause 1 go further than enabling the govt to breach international obligations and actually require it to do so?
It occurs to me that, if such a law were introduced and asylum seekers were returned to (e.g.) France in spite of any International legal obligations, the French might introduce their own law sending them back here again! – the poor asylum seekers spending the rest of their days going back & forth across the Channel.
I hope this doesn’t break the ‘irksome’ rule… but I do think it should be noted that 69 of those 71 MPs were members of the Conservative Party, and one of the other two is a Conservative who lost the whip. We should be rightly concerned about our politicians disregard for the rule of law, and the casual attitude to other people’s human rights. But the fact that this phenomenon manifests in only one party is highly relevant. There is a way for the British people to excise this malaise.
Absolutely – the “male , pale and stale” will eventually fail and who knows some might end up in jail?
How does this compare to the EU Dublin agreement, which allowed asylum seekers to be returned to their first safe country in the EU?
The bill seems to be a realisation that “taking back our borders” has consequences.
Perhaps it is posturing and vote-seeking. Perhaps, as with Brexit, these MPs should be careful what they wish for. Many in the Conservative Party postured and sought acclaim by advocating Brexit. But now the Conservative Party has to deliver Brexit, it has almost destroyed the Party.
Unfortunately the time lags between foolish decisions and their consequences can be many years.
DAG is right to flag this up. Too many MPs chasing cheap votes, without any scruples. If they think that is what they are there for, the Tories will become a party of whores. They are already several stages down that road and have already purged their more principalled colleagues.
And while most whores rent out their bodies in order to live, how low are those who choose to sell their principles for profit?
Repudiate them.
It is a mistake to worry about the law in this area. The problem is that we should do the right thing regardless of the law and deporting people who need asylum is wrong. Complaining that deporting people would be illegal merely suggests that it would be ok if we changed the law.
Is it time to revisit the quotation attributed to Tony Benn?
“The way a government treats refugees is very instructive because it shows you how they would treat the rest of us if they thought they could get away with it.”
Were any of those 71 MPs members of the legal profession? If so, could they be disciplined for acting contrary to professional standards, particularly in relation to upholding the rule of law? Sadly, most MPs tend to come from less regulated professions.
Time for parliaments in neighbouring countries to mandate sanctions on legislators who repudiate human rights? Completely removing their freedom to visit or do business, say. Sequestering assets held abroad, why not?
The only way that Humanitarian Visas will be acceptable to the general voter and the only way it will work is by making it clear that there will be a zero tolerance to small boat crossings and anybody who comes over by small boat will be detained, will not be allowed to claim asylum and will be deported, no exceptions.
Otherwise it will not reduce the amount of crossings by 1 person as anybody who is refused a Humanitarian Visa or feels they won’t be eligible will just go in a small boat.
There must be stick as well as the Carrot.