Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum by Asylum Aid


  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 this approach.

  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 Refugees states,

"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[14],

"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." (p35)

  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

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