Memorandum by Asylum Aid
PHYSICAL CONTROLS AT UK PORTS OF ENTRY
1. We understand that the Home Affairs Committee
proposes to examine the 1951 United Nations Convention Relating
to the Status of Refugees as part of its enquiry on the physical
controls at UK ports of entry.
2. In our view, it would be highly inappropriate
to place the 1951 Refugee Convention under examination during
this committee enquiry and we strongly urge the committee to reconsider
3. The Refugee Convention is an important
international treaty ratified by over 100 states including the
UK. Developed in the aftermath of the Second World War when it
became apparent that millions had died in the Holocaust having
failed to secure refugee abroad, the Convention offers protection
to refugees fleeing persecution and other human rights violations.
4. Its place in international law is underlined
by the fact that the right to seek and enjoy asylum from persecution
is a fundamental human right, enshrined by the 1948 Universal
Declaration of Human Rights. The Refugee Convention defines who
is to be considered a refugee; puts in place measures recognising
the special circumstances of those fleeing oppression; and details
the rights that refugees should enjoy.
5. We are alarmed therefore that such an
important international legal instrument should be examined as
a side issue to an enquiry focusing on another matter. It is clear
that the Refugee Convention merits far greater consideration than
the committee will be able to provide since its attention will
principally be turned towards the issue of border controls.
6. Given the serious limitations of examining
the Refugee Convention fully during the committee's enquiry, we
would also draw the committee's attention to the danger of examining
aspects of the Convention in isolation. It is important to consider
the Refugee Convention as a whole. Individual articles of the
Convention have little significance when examined outside the
context of the Convention's approach to offering protection to
refugees fleeing persecution.
7. We are also concerned that it would be
inappropriate to link discussion of the UK's border controls which
is principally related to controlling immigration with an examination
of the Refugee Convention whose fundamental concern is the protection
of refugees. These are two entirely separate issues and therefore
do not warrant consideration together.
8. We are aware that the committee is concerned
by the unlawful entry of persons into the UK. However, given the
circumstances under which refugees are forced to flee their countries,
the illegal entry of those seeking asylum from persecution forms
a case apart from the usual considerations of border controls.
As Article 31 of the 1951 Convention Relation to the Status of
"The Contracting States shall not impose penalties,
on account of their illegal entry or presence, on refugees who,
coming directly from a territory where their life or freedom was
threatened in the sense of Article 1, enter or are present in
their territory without authorisation."
9. This provision is of great importance.
Refugees who fear persecution from the authorities of their own
country may not be able to approach these very same authorities
for a passport in order to leave the country and seek refuge.
Many are therefore forced to obtain false passports and travel
documents in order to escape their oppressors.
10. The situation faced by those trying
to escape danger is worsened by the fact that those most at risk
of persecution are likely to be the same people who require visas
before travelling to the UK. The UK imposes visa restrictions
on countries when it becomes apparent that human rights are worsening
in the country. For example, visa regimes were imposed on Turkish
nationals in 1989 when the Turkish military stepped up its activities
against Kurds in South-East Turkey; visa requirements were imposed
on most former Yugoslavian states at the height of the Balkan
conflict in 1992; and more recently on Colombia in 1997 when human
rights abuses escalated:
"Hundreds of people were killed by the security
forces and paramilitary groups acting with their support or acquiescence.
Many of the victims were tortured before being killed. Human rights
activists were repeatedly threatened and attacked; at least 10
were killed. At least 140 people `disappeared'." (Amnesty
International Annual Report 1998, p133)
11. As embassies, consulates and High Commissions
will not issue a visa to any person revealing or suspected of
having an intention to seek asylum, Colombian refugees unable
to obtain a visa using deception would have had no choice but
to use false travel documents to escape such persecution and enter
the UK unlawfully.
12. The use of pre-entry controls such as
the Immigration (Carriers' Liability) Act 1987 and the employment
of Airline Liaison Officers to prevent undocumented passengers
from boarding planes and reaching the UK also prevents those who
are attempting to escape danger and legitimately seek asylum from
doing so. The situation is likely to worsen following the implementation
of the new Immigration and Asylum Act 1999 which places even greater
emphasis on pre-entry controls, by increasing the numbers of Airline
Liaison Officers and extending Carriers' Liability Act to fine
lorry drivers, the last remaining route to the UK.
13. Inevitably, therefore, there is a direct
correlation between the enforcement of pre-entry controls on refugees
and the increased incidence in unlawful entry. This is noted in
the government's White Paper on Immigration and Asylum:
"The introduction of carriers' liability legislation
and greater vigilance by airline staff at ports of embarkation
has seen a resurgence in clandestine traffic, largely moribund
throughout the 1980s." (p11)
14. It is impossible to see how those fleeing
torture and persecution can reach the safety of the UK by anything
but unlawful means. This view has been held by the UK courts.
Lord Justice Simon Brown stated in Adimi,
"The combined effect of visa requirements and
carrier's liability has made it well nigh impossible for refugees
to travel to countries of refuge without false documents."
15. Indeed by shutting off all legal means
by which refugees can reach the UK, the government is feeding
the illegal trafficking of refugees and other criminal activities.
The increased numbers of asylum-seekers forced to enter the UK
unlawfully can be seen as a direct result of government policy
which imposes visa regimes on nationals from refugee-producing
countries and has introduced legislation fining carriers which
transport undocumented passengers to the UK, preventing victims
of persecution from reaching the UK.
16. The government has publicly stated however
that it is committed to protecting refugees. In its White Paper
on Immigration and Asylum, it states:
"The UK has a long-standing tradition of giving
shelter to those fleeing persecution in other parts of the world,
and refugees in turn have contributed much to our society and
culture. The government is determined to uphold that tradition.
We will continue to observe with meticulous fairness our obligations
under the 1951 Convention Relation to the Status of Refugees."
17. We find it difficult to believe that
the government would wish to discontinue its obligations under
the Refugee Convention. However this is the effect of its policies
strengthening pre-entry controls. If the government is to be truly
serious about preventing clandestine traffic, and upholding its
commitment to human rights and refugees, then it needs to put
in place mechanisms to enable those in fear of persecution to
reach the safety of the UK. Without such mechanisms, those in
fear of their lives will continue to be forced into the hands
of traffickers and racketeers.
12 April 2000
14 R v Uxbridge Magistrates Court & another ex
parte Adimi, R v CPS and R v SSHD ex parte Sorani, R v SSHD &
another ex parte Kaziu, CO/2533/98, CO/3007/98, CO/2472/98, CO/1167/99,
QBD 29.7.99. Back