Select Committee on Home Affairs First Report


125.  At the start of this inquiry, one of our key questions was : what is the case for the UK seeking amendment to the 1951 UN convention on refugees? Nearly a year later, a more pertinent question is : what is the scope for the UK to cooperate with its EU partners in agreeing a common approach to asylum applicants? We have examined:

  • the 1951 UN Convention

  • the Dublin Convention

  • how these international obligations work in practice

  • proposals for reform

  • EU action.


126.  Decisions on the grant or refusal of asylum in the UK are determined with reference to the provisions of the 1951 Convention and the 1967 Protocol, which oblige the UK to consider all applications made within the UK or at a port of entry.[95] The Convention was concerned with the refugee problems arising from the Second World War, and its scope was limited to those events which predated 1 January 1951: the 1967 Protocol subsequently provided for the scope of the Convention to be extended to events occurring both outside Europe and after 1 January 1951.[96]

127.  The Immigration Rules define an asylum applicant as "a person who claims that it would be contrary to the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees for him to be removed from or required to leave the United Kingdom".[97] To receive asylum, a claimant must:

  • be in the UK or have arrived at a UK port of entry

  • be a refugee within the meaning of the 1951 Convention, i.e. have a well-founded fear of persecution on grounds of race, religion, nationality, political opinion or membership of a particular social group

  • be able to demonstrate that if the claim were refused, he or she would suffer refoulement (i.e. return) to the country of origin contrary to the provisions of article 33 of the Convention.[98]

128.  The Convention does not deal with all the present-day issues arising from the movements of displaced persons and the ways in which asylum procedures are now used (and abused). There is now an overall body of international law to deal with asylum and protection, including the UN Convention against Torture and the European Convention on Human Rights. The Home Office told us : "there has been growing abuse of the institution of asylum by unfounded applicants and by the traffickers in human beings who exploit them".[99]

"there is a logical contradiction inherent in the asylum system, which is that every signature to the 1951 Convention says "We will give asylum to those with well-founded fear of persecution". At the same time every country says we are entitled to maintain our border controls. Usually the only way anybody can claim asylum is at some stage in their journey to have broken the immigration controls of one or other of the countries through which they have travelled. " Home Secretary Q 422

129.  Ms Hope Hanlan, representative in the UK of the United Nations High Commissioner for Refugees, stressed that "the Convention was never designed to be a migration tool . . . we feel that asylum should be dealt with using asylum tools and migration should be dealt with using migration tools".[100]

"Any request for an amendment to the 1951 Convention would need to be put to the UN Secretary-General. It would then fall to the General Assembly, not just the states party to the Convention, to recommend what action, if any, would need to be taken. Any revision of the 1951 Convention itself would be a huge and time-consuming task in which the many different perspectives of signatories and potential signatories would come into play. The Government does not believe that embarking on such a process at this stage would be the most effective way to modernise the approach to protection and asylum issues internationally". Home Office evidence, Appendix 1 para 16.5

130.  The Immigration Service Union submitted that the 1951 Convention was in need of re-examination and amendment:

    "The Convention requires major attention to deal with issues such as safe third countries, multiple and repeat claimants, what constitutes an asylum claim and the responsibilities of States that have refused applications to make effective arrangements to return people to their home countries".[101]


131.  In 1951 it may have been expected that someone fleeing persecution in their own country would seek refuge in the first safe country in which he arrived. The 1951 Convention does recognise that people may travel to more distant countries, perhaps on the grounds of family links, before seeking asylum. It is open to a country to return an asylum seeker to a safe country through which they have travelled. The Convention only protects people from prosecution for illegal entry if they have come directly from their country of origin - so illegal entry from a safe country is not protected. Charts J to M show the origins and destinations of asylum applicants in Europe in 1999 (after paragraphs 138 and 140).

132.  The Government's interpretation of the 1951 Convention's provisions have been subject to legal challenges. In the cases of Adan and Aitseguer, the decision to return asylum applicants respectively to Germany and to France was successfully challenged in the Court of Appeal, which ruled that the interpretation of the Convention in those countries was such that the applicants might subsequently be returned to their countries of origin.[102] The Government contends that the individuals have been given absolute protection from return to their country (known as "refoulement") under another instrument, article 3 of the European Convention on Human Rights. The House of Lords upheld the decision of the Court of Appeal on 19 December 2000.[103] These cases related to events before the enactment of the Immigration and Asylum Act 1999.

"The basic principle [of the Dublin Convention] is to identify the country which initially admitted those people to the EU area." Home Office Q484

133.  Section 11 of the Immigration and Asylum Act 1999, which entered into force on 2 October 2000, now provides that all other EU Member States are "safe third countries of asylum".[104] Section 11 "does not allow immigration officers at Dover to send people straight back if they have made an asylum claim, but what it does is to say that other EU Member States are safe third countries whose authorities and courts can be trusted to deal with things in a manner that meets our standards here".[105]

"We then have to apply to the country under the Dublin Convention rule with which that relationship arises, be that Italy or France. If that country then says, yes, they accept that Dublin does apply to that person, they can then be sent back to that country. It requires communication with that country, it is not simply putting them back on the ferry." Home Office Q 480

134.  In the case of Adimi, three asylum claimants had been prosecuted for arriving in the UK on false documents even though they had intended to claim asylum. The court ruled that in prosecuting the claimants the Home Secretary and the Crown Prosecution Service had not honoured the UK's obligations under the 1951 Convention.[106] Section 31 of the Immigration and Asylum Act has subsequently enabled asylum claimants to offer a defence against prosecution for use of false documents.

135.  The Home Secretary told us:

    "we have not been helped as a country by differing interpretations of some aspects of the 1951 Convention, not least in the issue of non­state persecution, but there are aspects which do, the inter­relationship between the 1951 Convention obligations and those under the European Convention of Human Rights. This is an area where I am convinced that we would benefit by a greater degree of co­operation with our EU partners and by there being a greater degree of commonality between the approach which each EU partner adopts, because at the moment I think you do get what has been called "asylum shopping", where slightly different interpretation in different countries leads to people being attracted to one country or another".[107]

136.  The proportion of asylum seekers who eventually satisfy the criteria for refugees has varied since 1986 between 4% and 36% but UNHCR figures show that over the past ten years the UK has accepted 12.1% of applicants as genuine refugees - slightly above the rate of 11.1% for all EU countries and below the world rate of 15%.

137.  It is clear to us that other countries do operate their border policy differently from the UK. Illegal entrants into Germany across the border from the Czech Republic are returned there directly without the issue of asylum being raised - they are deemed to have come from a "safe third country" and so have no need to seek asylum in Germany. We saw the same principle applied by Spain in relation to illegal entrants from Morocco. Prior to the Dublin Convention - agreed in 1990 and implemented in 1997 - there was 'a gentleman's agreement' between the UK and France which enabled the UK authorities to return illegal entrants directly to France.[108]

138.  The experience of Kosovo illustrates what can be done to assist refugees. Many European countries accepted refugees temporarily, but the neighbouring state of Macedonia was the principal refuge for most Kosovans. In 1999, former Yugoslavia was the country of origin of by far the most asylum applicants in the EU as a whole. The 1951 Convention would not distinguish between the UK's responsibility for refugees from Kosovo and those from Rwanda. We understand that some other EU countries admitted refugees from Kosovo on the basis that they would not apply for asylum. The Home Secretary told us:

    "The legal advice to England, very strongly, was that if I had sought to do that and some people subsequently made applications for asylum, they would claim that they had given up their right to claim asylum under duress, ie, on leaving the country".[109]

95  Appendix 1, para. 16.3. Back

96  Appendix 1, para. 16.3. The Protocol is a free-standing instrument and may be acceded to by any state irrespective of prior accession to the 1951 Convention. (Guy S. Goodwin-Gill, The Refugee in International Law, 2nd edn (Oxford, 1996), p. 151.) Back

97  Statement of Changes in Immigration Rules (HC (1993-94) 395), para. 327. See also Ian A Macdonald and Nicholas Blake, Immigration Law and Practice in the United Kingdom, 4th edition (London, 1995), para. 12.77 et seq. Back

98  Appendix 1, para. 16.3, and Macdonald and Blake, loc. cit. Back

99  Appendix 1, para. 16.5. Back

100  Q 278. Back

101  Appendix 17. Back

102  CA 1999/6323/4 etc., 23 July 1999 [1999] 3 W.L.R. 1274. Back

103  HC (1998-99) 857-i, Q 84; Appendix 1, para. 16.9. Back

104  Appendix 1, para. 16.10. Back

105  Q 475 (Mr Boys Smith). Back

106  Queen's Bench Division, 29 July 1999. Back

107  Q 442 (Home Secretary). Back

108  Q 445-6 (Home Secretary). Back

109  Q 443 (Home Secretary). Back

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