Examination of Witnesses (Questions 278
- 299)
THURSDAY 20 JULY 2000
PROFESSOR GUY
GOODWIN-GILL
AND MS
HOPE HANLAN
Chairman
278. Good afternoon and welcome to this evidence
session of the Home Affairs Committee. As you know, we are inquiring
into physical controls at United Kingdom ports of entry and indeed
elsewhere in the European Union as well as looking at the provisions
of the 1951 Convention on Refugees. You will be familiar with
the Home Secretary's speech in Lisbon on 16 June when he said
there was a fundamental contradiction at the heart of the operation
of the 1951 Convention in that it gave us an obligation to consider
any claims made within our territory but no obligation to facilitate
the arrival on our territory of those who wished to make a claim
here. Do you think the Home Secretary has got this right in this
regard?
(Ms Hanlan) We do not see that there
is a fundamental contradiction at the heart of the Convention.
We see that there is a contradiction in the manner in which states
operate the Convention, and I think that is a very different thing.
The Convention was never designed to be a migration tool and we
feel that asylum should be dealt with using asylum tools and migration
should be dealt with using migration tools.
279. I think what the Home Secretary was getting
at was if somebody was in fear of their lives, say, in Afghanistan
and gets into Pakistan, why is not the asylum application made
in Pakistan for asylum in Pakistan or asylum in the United Kingdom,
say, because of family connections instead of people getting themselves
half way across the world to land here to make the claim?
(Ms Hanlan) The UNHCR would not have a problem in
refugee status determination being undertaken in a third country
provided—and that is a very big proviso—provided that
there is competence in the people who are managing the status
determination, and that has not been proven in the countries where
this has been experienced.
280. Professor Goodwin-Gill, what do you make
of what the Home Secretary said?
(Professor Goodwin-Gill) I think it is important not
to see the Convention as the sole answer to refugee problems.
It is part of a broader international regime, but if you think
about how refugee problems have been handled in the past where
there have been massive inflows into particular regions, Indo-China,
Central America and so forth, then there have emerged programmes
for re-settlement of refugees in other parts of the world. What
we do see having emerged as a problem in latter years is a de-prioritisation
of that sort of international commitment to help other countries
by lightening their burden, by taking numbers of refugees from
them. I think to see the Convention in isolation is erroneous.
You have to see it as part of a regime that incorporates other
states—after all there are 138 other states who are parties—the
UNHCR and states' members of the Executive Committee of the UNHCR
and the sorts of expectations and indeed responses and sense of
obligation, if not legal obligation, which states bring to the
resolution of refuge problems when they are working out at their
best.
281. It is not for me to defend the Home Secretary,
he can do it himself, but I must say I thought that speech was
not on the narrow point. I understand what you are saying. It
is not narrowly on the asylum issue but more widely in the context
of the need for the EU itself to better develop policies for dealing
both with migration, with assistance to developing countries,
and also with the issue of asylum, especially this issue where
in a sense—coming back to the narrow point that I mentioned—in
many instances it is inevitable that people are going to be forced
into the hands of people traffickers in order to cross countries
and get to the country where they want to make that asylum application,
in this case the United Kingdom.
(Professor Goodwin-Gill) There are many things the
Convention does not say. It says nothing about international responsibility
sharing. It says nothing about solutions to refugee problems.
It says nothing about anticipated refugee flows. It is important
to remember that and not to read in contradictions which, quite
frankly, I do not think are there any more than they are in the
Human Rights Convention, for example.
Mr Howarth
282. Can I follow that up because what the Professor
has just said does not, as far as I can see, square with the Protocol
which was signed on 22 April 1954 where it says: "Considering
that the grant of asylum may place unduly heavy burdens on certain
countries, a satisfactory solution of the problem, of which the
United Nations has recognised its international scope and nature,
cannot therefore be achieved without international co-operation."
(Professor Goodwin-Gill) That is a preambular reference
and in fact that refers back to the 1946 resolution by the General
Assembly when it met for the first time here in London, and recognised
that the resolution of the refugee problem is an international
one and that states will have to co-operate. It is a big step
from making preambular reference to the ideal of international
co-operation to establishing anything in the way of mechanisms
of obligation, and I see that as one of the major challenges we
face today. We can talk about the duty of states to co-operate
but when you come to try to translate into action then you run
up with the petty sovereignties that we meet today.
Chairman
283. We are just back from Germany. I have forgotten
the numbers but there were quite substantial numbers of refugees
from Kosovo, many if not most of whom have now returned or are
now returning. That was under a special one-off arrangement, as
it were, because of the emergency there. The other thing we discovered—and
I would like your help on this one—is we were told in Spain
for example and between Germany and the Czech Republic that they
have agreements across those borders they will not entertain asylum
claims from Czech nationals coming across that border. Ditto from
Morocco into, say, Algeciras. There is an agreement to send them
straight back. These are nationals of the Czech Republic or Morocco.
How does that work in the context of the international obligations
under the Convention?
(Ms Hanlan) Not all states that sign the Convention
strictly respect the Convention and not all states that have not
signed it do not respect it. In other words, if you take Mexico,
Mexico has received over many years lots of Guatemalan refugees
and has treated them exactly as one would wish according to the
principles of the Convention but they have never signed the Convention.
It is not a guarantee. It is not a guarantee because states implement
procedures which we do not openly criticise as UNHCR but which
we do not necessarily condone. I would like to refer to the previous
question concerning what is UNHCR's reaction especially with regard
to international co-operation. We had the honour of having the
Minister for Immigration yesterday in Geneva visiting UNHCR, and
we were pleased to be able to explain to her some consultations
which we plan to undertake.
284. This is Barbara Roche?
(Ms Hanlan) Yes, precisely because we realise in this
very complex debate that there is a need to look at how the 1951
Convention actually operates in today's reality. We identify three
concentric circles. At the very centre would be the core basic
principles which we were happy to see reaffirmed in Tampere last
year and in Amman this year. Consistently the 57 Member States
of the Executive Committee of UNHCR have confirmed the continuing
validity of this core. The middle circle of this series of concentric
circles would deal with the issues where states, particularly
within the EU, are not harmonised on in their procedures and practices.
Then the outer circle would contain elements such as family unification,
burden sharing, mass migration, how you treat women and children,
special measures. Those are areas where we recognise and we agree
with the Home Secretary that there are definite gaps. But we do
not think that it is by virtue of identifying gaps that one has
to unravel the central core. Therefore, commencing this month
and until October of this year UNHCR is going to embark on a series
of consultations with senior government officials, NGOs and experts
such as Guy Goodwin-Gill and others. We would aim that out of
these consultations would emerge an agenda and we will be focussing
on those two circles which I have described and the Home Secretary
has also described in certain paragraphs of his speech. We would
aim that by the end of next year, 2001, we would have arrived
at a series of possibly additional Protocols because we do feel
in many respects that the 1951 Convention as it stands does not
respond to the realities of today.
285. Thank you very much for that statement.
You have just anticipated a question I was going to ask.
(Ms Hanlan) I am very happy to know that.
286. I was going to ask your view on the need
to have a look again at the work in that Convention, not to get
away from its core values and obligations and responsibilities,
not for a moment, but in a vastly changed world from when it was
agreed 50 years ago. Would you go along broadly with that, Professor?
(Professor Goodwin-Gill) I think there is a lot that
needs to be done to make the 1951 Convention a continually living
instrument. I think it is a Convention worth preserving. It reflects
our commitment to the individual as someone of dignity and worth
and someone who deserves respect. If we want to make it work we
have to recognise not only that the world has moved on but that
perhaps we have not. I joined the United Nations High Commissioner
for Refugees in 1976 and I initially worked in this country and
my first dealings were with the Home Office, as you might expect,
and the decision-making procedure in place in 1976 was no different
from the decision-making procedure in place today. I find that
somewhat remarkable.
287. Remarkably depressing?
(Professor Goodwin-Gill) Remarkably depressing, Mr
Chairman. I do have experience with procedures in other countries.
If we are going to make this workable and to avoid backlogs—and,
after all, no refugee, no migrant ever caused a backlog, it is
systemic and it is more likely in some systems than others—I
think we need to bring the decision-making procedure to the problem.
That is why I mentioned in my written submission that I thought
the Oakington model represents an initiative that I think should
be studied with care because it might have some of the answers
for us.
288. One of the inferences—I had better
be careful—I drew from that is possibly there should be
some form of initial detention, or was the emphasis much more
on provision, as the Refugee Council and other agencies suggest,
of expert advice to people seeking asylum in order to get the
claim in good order as soon as possible?
(Professor Goodwin-Gill) I would try to avoid the
word, as you might expect, "detention" and think more
in terms of "processing centre" or "facility"
where the asylum seeker can be brought rapidly in contact with
the official who will take an initial decision but in a context
in which he or she receives advice and representation. I think
it is at that moment you are more likely, provided you front-end
load with access to information on countries of origin, interpretation
and so forth, rapidly to get to a defensible decision. What we
see too often these days is, quite frankly, indefensible decisions
which should never have been taken.
289. It might please you to know that I suggested
to Minister Roche she causes a league table to be kept of the
decisions taken at Oakington and decisions taken, say, at Croydon
and see what numbers end up going through the appeal system, and
what the number of decisions in each area is.
(Professor Goodwin-Gill) I think that sort of audit
would be extremely useful.
Mr Howarth
290. I was going to ask the Professor if he
could think through the consequences of his suggestion. If Oakington
were to form the model, we had 70,000 asylum seekers last year,
that would entail making provision for secure accommodation in
one year for a population which would exceed the total prison
population at the present time. We are talking about something
pretty substantial.
(Professor Goodwin-Gill) There you are making a assumption
about the continuing influx of 70,000 persons a year. I think
one has to recognise that the 70,000 persons we had last year
is a function of inefficiency on the part of the present decision-making
procedure. There is no doubt that an ineffective and inefficient
procedure will act as a magnet. There is no doubt in my mind about
that whatsoever.
291. Can you explain that? An inefficient procedure
will act as a magnet because people will think that by coming
to the United Kingdom because the process is so long drawn out
and, you might say, incompetent therefore they stand a better
chance of gaining entry into the United Kingdom. Because it takes
so long to process their claim, by the time it is decided they
will be have been in the country so long so they might as well
be admitted anyway?
(Professor Goodwin-Gill) That is a fact we know from
experience. It gets harder to remove people the longer they are
around for various good and bad reasons. They establish equities,
they integrate, they work, they pay their taxes, they marry, they
have children and their children go to school. Those equities
build up in favour of individuals. Curiously enough, those equities
are also one of the reasons why those who come to enforce policies
decided in Whitehall often find it very difficult because the
decision to remove does not seem to be judged in the light of
personal circumstances which they, the enforcement arm, have to
recognise. We are not thinking about a solution that comes into
operation overnight. I am thinking about a solution that needs
to be integrated as rapidly as possible with a view to dealing
as rapidly as possible with newly arriving asylum seekers. The
backlog is something you have got to deal with in another way.
292. You have been active in this field for
the best part of a quarter of a century and you have come here
to tell us today—
(Professor Goodwin-Gill) To suggest, sir.
293. —to suggest that those who are aspiring
to come to the United Kingdom would be deterred—significantly
deterred perhaps—by a more efficient operation of assessing
their cases in the UK?
(Professor Goodwin-Gill) I have no doubt in my own
mind that those that come without reason or refugee-related reasons
would indeed be deterred by a process that reached defensible
decisions quickly.
294. Is it a part of the internal intelligence
of the network of facilitators, as these crooks who traffic in
human beings are called, that they take into account the bureaucratic
procedures of nation states to decide where is the best place
to land their people?
(Professor Goodwin-Gill) I am sure of it. I also think
that if you are a refugee yourself and you are on the point of
flight, one of the questions you might well ask is where am I
most likely to find protection? So you will also be motivated
by knowledge, for example, that one country is more generous than
another. These are the facts of life. I think that is what experience
tells us.
Mr Linton
295. I want to ask questions on two main subjects,
one is exploring a bit more the 1951 Convention, and particularly
Section 31 and your understanding of that, and the second part
is your reaction to the proposals that the Home Secretary made
in his Lisbon speech. If I can start on the Convention. Clause
31, as I understand it, provides no penalties for illegal immigration
on people coming directly from their country of origin providing
they can show good cause. You quote UNHCR as saying that this
concept of "coming directly" should be a bit more flexible
and include the concept of necessary transit and the difficulties
facing refugees arriving in an ungenerous country. An interesting
concept. And, indeed, the UNHCR in its evidence to us says that
with "coming directly" it is generally accepted that
it also covers a person who transits in an intermediate country.
I want to ask you, first of all, generally accepted by whom? Bearing
in mind that we have been looking at the situation on the German/Czech
border and the Spanish/Moroccan border where this is a very key
issue and, clearly, more than half of the clandestine immigration
seems to be coming over by sea or Channel Tunnel across the Channel.
So this issue about whether you can transit through other countries
on the way to claiming asylum here is an absolutely vital part
of it. I would like to know what your views are respectively on
this issue.
(Professor Goodwin-Gill) I drew very much on the practice
of states and the course of `travaux préparatoires' (preparatory
works). By way of caveat let me say first of all that this provision,
Article 31, applies to refugees not to migrants as such. There
is no justification and no excuse for illegal immigration. It
was introduced in particular because it was recognised that to
escape very often you had to break the law, either of your own
country or the country in which you sought refuge. "Directly"
is, of course, a term which a lawyer like myself would be happy
to argue about.
296. It seems to have one meaning to me.
(Professor Goodwin-Gill) But if I suggest to you,
for example, that your refugee initially came through a country
in which he or she could not find asylum for whatever reason,
perhaps that country had geographical limitations on its obligations,
or perhaps that country did not happen to like refugees of his
or her ethnic origin, or perhaps that country was not a party
to the 1951 Convention, you can see how the idea of "directly"
might need to expand. It is interesting that the first High Commissioner,
Dr Van Heuven Goedhart, a Dutchman, drew on his own experience
when he fled the Nazis. He had fled from Holland into Belgium
and he had to flee to France and Spain and finally made his way
to the United Kingdom. He used that experience to telling effect
at the 1951 Conference to persuade states that they would need
to adopt some measure of flexibility in how they interpreted "directly".
297. I understand the legal definition is a
country of origin from which they are fleeing persecution or a
country that could not be relied upon not to return them to that
country. That would clearly apply to Holland or Belgium in 1940,
but it does not apply to any EU countries now.
(Professor Goodwin-Gill) I do not think the issue
arises with respect to EU countries. There was some litigation
last year, with which you may be familiar, in which many of those
who had arrived in the United Kingdom who had been found to be
in illegal possession of passports had been jailed without being
asked to make their case for refugee status, and the court held
that this was unlawful. One of the cases which I happened to be
involved in involved an Albanian who had escaped via Greece. By
reason of the political circumstances prevailing in Greece it
was reasonable to suppose that he could not have expected to find
protection there. That was not an unreasonable position to adopt
even though Greece is a member of the European Union.
Mr Howarth
298. Surely it is absurd that a fellow member
of the European Union should not be deemed to be a safe haven
and that we should end up as being responsible for looking after
them? That is why people in this country are so concerned about
this asylum issue. We are almost unique in the EU. Apparently
France is not suitable and is not a safe haven according to the
High Court in the United Kingdom. Now you are telling us that
Greece is not. It beggars belief that the United Kingdom is the
only safe haven.
(Professor Goodwin-Gill) With respect, sir, I have
been in many countries all of which thought they were the preferred
country for every refugee in the world. I think we are a preferred
destination in many respects, and rightly so. If the problem is
as you describe it, then effort should be made with respect to
our EU partners. Equally, I would say it was absurd that the German
courts should interpret the definition of a refugee so as to exclude
"persecution by non-state agents". Rightly, in my view,
the court found that Germany was not safe for a refugee from Somalia
who would not by virtue of that interpretation be recognised.
299. The question is, why should the British
people who we represent and for whom this is a serious problem—it
is not an academic legal problem -be imposed upon in this fashion
uniquely to be such a beacon of excellence that even our European
partners, nations which are respected throughout the world, should
be deemed to be inferior and lacking in morality?
(Professor Goodwin-Gill) Perhaps I can put this into
context and mention that the numbers of individuals involved are
very few and that decisions that have been taken have been on
the facts of particular cases. There is no general rule applicable
in this country that refugees are safer here than they are in
Germany or in France. There are individual cases in which it has
been established that this refugee, by reason of his or her circumstances,
would not find protection. I think it is also wrong to imagine
that we are being imposed upon by refugees. We are being imposed
upon and we are suffering the consequences of an absence of a
coherent or harmonised interpretation of the refugee criteria
within the European Union. It does seem to me that if we have
concerns about the way in which this is interpreted by our EU
partners we should direct our efforts to them and we should persuade
them, for example, in the case of Germany, to come into line with
the rest of the European Union, because they are a minority.
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