APPENDIX 20
Memorandum by the Refugee Council
PHYSICAL CONTROLS AT UK PORTS OF ENTRY
THE REFUGEE
COUNCIL
1. The Refugee Council is the largest organisation
in the UK working with refugees and asylum seekers. We not only
give help and support, but also work with asylum seekers and refugees
to ensure their needs and concerns are addressed.
2. We are a membership organisation and
we consult regularly with our wide membership base. Refugee community
organisations and other agencies such as Action Aid, Amnesty International
and Oxfam are members of the Refugee Council.
THE RIGHT
TO ASYLUM
3. UNHCR head Sadako Ogata, in 1998, pleaded
that, "the right of asylum be upheld and respected. Without
the institution of asylum, victims of torture and genocide have
nowhere to flee. Increasingly, borders are closed, legal barriers
erected, and asylum-seekers detained preventing them from finding
safety. How can I appeal to countries facing a massive refugee
inflow which pose a heavy burden, when wealthy countries close
their doors to relatively few asylum seekers?" (Talking points—Mrs
Sadako Ogata, Forum "Dialogue on Mainstreaming Human Rights
in the United Nations" Geneva, 16 March 1998.)
4. Few rights are more fundamental than
the right to be free from persecution. The UK is a signatory to
the Universal Declaration of Human Rights 1948. Article 14(1)
of the Declaration declares that "everyone has the right
to seek and to enjoy in other countries asylum from persecution".
The 1951 United Nations Convention Relating to the Status of Refugees
defines a refugee as a person who is outside of his own country
owing to a well-founded fear of persecution for reason of his
race, religion, nationality, membership of a particular social
group or political opinion. The Convention was drawn up as a result
of the persecution of the Jews and other minorities in Europe
in the 1930s when many could not find safe refuge in Europe. Although
the world has changed in the last 50 years the need to protect
those fleeing from persecution has not diminished.
5. Only last year, at the European Council
at Tampere, EU Governments committed themselves to a full and
inclusive application of the 1951 Convention and reaffirmed their
"absolute respect" of the right to seek asylum. In particular,
States agreed to work together to ensure that nobody is sent back
to persecution ie maintaining the principle of non-refoulement.
6. The 1951 Convention is the only international
instrument which defines the duty of states towards those who
fear persecution and which set out minimum standards for their
treatment. This is why a JUSTICE, Immigration Law Practitioners'
Association (ILPA) and Asylum Rights Campaign (ARC) research project
report, Providing Protection, recommended:
The 1951 UN Convention is the cornerstone of a protection
regime. It should be interpreted broadly and purposively to cover
new forms of persecution and to encompass developing international
human rights and humanitarian law standards. If common criteria
are developed at European Union level they should be subject to
proper democratic and judicial control to ensure their conformity
with those standards.
7. In any case, the Refugee Council does
not believe it is appropriate for the Committee to examine whether
this vital piece of human rights legislation now requires revising
through an inquiry on physical controls at UK ports of entry.
BORDER CONTROLS
8. The trafficking of migrants into Europe
has become a major issue for governments and was the subject of
the Refugee Council's The Cost of Survival report. In this
report we expressed our concern for the plight of refugees coming
to the UK. Lost amongst the rhetoric of the trafficking debate
is the reality that forces refugees to flee in the first place,
the reality that leads them to place their lives in the hands
of traffickers in the first place, who abuse them financially
and, sometimes, physically.
9. The report showed how refugees are faced
with little choice when they are forced to escape from persecution.
It examined the experiences of refugees on leaving their countries
of origin, the dangers and exploitation they suffered en route
to the UK and the potential penalties they faced for travelling
illegally.
10. Illegal entry to the UK is a criminal
offence under British law unless the person is found to be a refugee
under the 1951 Convention. Article 31 (1) of the Convention explicitly
recognises that some refugees will have no option but to use illegal
means of entry, and provides that states "shall not impose
penalties" on refugees on this account. Yet, as The Cost
of Survival documented, initiatives against human trafficking
do not discriminate between refugees and other trafficked migrants
and so in effect impose substantial penalties on refugees for
whom trafficking has become the cost of survival. How, for example,
can an Iraqi fleeing Saddam Hussein claim asylum in the UK without
having to resort to some form of subterfuge? Surely, it is accepted
that the UK is not insulated by its geography to collective responsibility?
11. The current perception of those who
arrive in the UK with false documents, or through illegal methods,
and do not present themselves to an Immigration Officer immediately
is that their intentions are fraudulent. The Refugee Council's
experience is that there are many understandable reasons for why
refugees do not present their claim for asylum at the point of
arrival:
— In The Cost of Survival all
those case studies who used clandestine means were treated as
"in-country" asylum claims and therefore denied welfare
benefits. They did not make asylum claims at the port of entry
even though doing so may have been in their best interests. This
would suggest that they were unable, or unaware of the need, to
claim at the port of entry. Many refugees simply do not understand
the full consequences of their actions or that they have the right
to seek asylum at all.
— Clearly, for those entering in sealed
containers, it is not always apparent when you have arrived in
Britain. It is also impossible to leave the lorry to claim asylum
without the assistance of the driver.
— In some cases it is clear that there
is no intention to deceive the British authorities at all. In
fact many refugees entering clandestinely make themselves known
to the police at the first opportunity.
— Other clandestine refugees may wish
to seek family and community advice before approaching officials.
— Finally, many clandestine entrants
are recognised by the Government as refugees. To impair in any
way the right of future clandestine entrants to make an effective
claim for asylum will lead to victims of persecution being denied
the kind of protection this country has traditionally provided.
12. Consequently, those using clandestine
means to enter the UK represent a significant section of asylum
claims. The 1951 Convention obliges the UK to assess all cases
on their merits, and on the mode of entry. Any set of measures
to deter or detect clandestine entry must recognise and honour
the UK's commitment to the right of asylum and accept that many
refugees have to resort to clandestine entry to reach the UK.
The UN High Commissioner for Refugees has warned that the protection
which is owed to refugees under the 1951 Convention may be "rendered
meaningless" if refugees are unable to reach, and then claim
asylum in, States party to the Convention.
X-RAYS
13. The Refugee Council is concerned about
the health and safety implications of using x-ray scanners at
ports of entry. Any procedure which may involve a finite risk
of causing mutagenic damage needs to be carefully considered.
Whilst such scanners may be appropriate for contraband cigarettes,
their effect on humans would clearly need to be investigated before
they are used to maintain control at ports of entry. The Committee
should investigate these health and safety issues as part of its
inquiry.
April 2000
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