Select Committee on Home Affairs Written Evidence


22.  Third supplementary memorandum submitted by the Immigration Advisory Committee

IAS RESPONSE TO WRITTEN EVIDENCE SUBMITTED BY RT HON OLIVER LETWIN MP

  1.  The proposals are not new. Similar proposals are already the subject of negotiation between the UK and UNHCR. A quota system for refugee resettlement is implicit in the Zones of Protection concept the Government is developing. Similar proposals were also included in the 2002 White Paper, Secure Borders, Safe Haven: Integration with Diversity in Modern Britain at paragraphs 4.16 to 4.19, although no place was found for them in the Nationality, Asylum and Immigration Act 2002.

  2.  We welcome any proposal to participate in the UNHCR refugee resettlement system[41], providing it does not replace an effective domestic asylum determination process for those who arrive in the UK spontaneously from countries in which persecution and human rights abuses are rife. To send the victims of persecution to an off-shore processing centre is to compound their misery, to deny them an early opportunity to move on and build a new life for themselves, to prolong their sense of insecurity and isolation and, no matter what Government assurances are given, to deny them the specialist medical and rehabilitative care so desperately needed by victims of torture and trauma. We understand that Mr Letwin will travel to Australia to observe the system and IAS has met with the Australian Immigration Minister Mr Philip Ruddock. Australia changed its own refugee law considerably in legislation in September 2001 and we understand now takes some 12,000 refugees by way of resettlement every year. We understand, also, that the cost of deterring spontaneous arrivals has escalated to A$300,000 per person[42]and we question if that is a wise use of public money. The Minister explained during his visit that their Offshore Humanitarian Entrants programme is the largest in the world per capita—including paid fares to Australia and accommodation for the settling in period. There is an independent merits review that he accepted can be time-consuming and expensive and that A$50,000 is spent on every offshore asylum seeker. Despite all efforts to minimise spontaneous arrivals from countries of origin and the detention of all non-authorised entrants as well as unauthorised entrants not being allowed to access the regular immigration process, 36% of asylum seekers still enter this way. Perhaps this is a lesson for the UK.

  3.  The existing refugee resettlement scheme, in which the UK does not yet participate, operates on a quota system. Participant states agree with UNHCR to accept a given number of refugees. UNHCR takes responsibility for identifying refugees within the meaning of the 1951 UN Convention Relating to the Status of Refugees (the Refugee Convention) in UNHCR-administered "refugee camps". The quotation marks are used for a reason—many "refugees" living in what are commonly called refugee camps would not qualify for refugee status under the Refugee Convention because they would not meet the necessary legal criteria. Victims of civil war or famine or other natural disasters cannot qualify for refugee status. Only a person who fears future persecution because of his or her political opinion, religion, race or ethnicity, nationality or membership of a particular social group can be recognised as a refugee under the Refugee Convention.

  4.  It is also common under the resettlement scheme for the receiving state to exercise some choice over which refugees are accepted for resettlement.

  5.  It is unclear from Mr Letwin's proposals whether his quota would be for refugees within the meaning of the Refugee Convention or for victims of civil war or natural disaster. In the climate created by rising numbers of asylum seekers, the media and the Government, popular sympathy may well rest with the latter group rather than the former. In our view, to follow a course of resettling non-refugees at the expense of refugees would be disastrous. Assuming the system is implemented and establishes a new norm for the refugee determination process, genuine refugees would have nowhere to seek refuge. Instead, those normally classified, usually derogatively, as economic migrants would fill the quotas. The irony of such a situation should be obvious.

  6.  Mr Letwin's suggestion that the relevant domestic and international law might need to be revisited and reshaped is both worrying and, in our view, naïve. If this is a reference to an opt-out from certain provisions of the Refugee Convention and/or Article 3 of the European Convention on Human Rights (which prohibits exposure to torture or inhuman or degrading treatment) then it ignores the fact that opt-out is legally impossible without withdrawing effectively entirely from the two treaties. Every stable democracy in Europe is signatory to those treaties and Europe encourages other countries around the world to respect the rights of refugees and refrain from torture and inhuman and degrading treatment. Opt-out would be an enormous setback for the development of an international culture of human rights. It is no exaggeration to say that it would become impossible to criticise the abuse of human rights in countries such as Zimbabwe or Myanmar without facing justified charges of hypocrisy. Certain provisions of the Refugee Convention are considered so fundamental that no reservations may be made to them. These include the definition of the term "refugee," and the so-called principle of non-refoulement, ie that no Contracting State shall expel or return ("refouler") a refugee, against his or her will, in any manner whatsoever, to a territory where he or she fears persecution. Part Two of the UNHCR Handbook deals with Procedures for the Determination of Refugee Status and states, inter alia, "In view of this situation and of the unlikelihood that all States bound by the 1951 Convention and the 1967 Protocol could establish identical procedures, the Executive Committee of the High Commissioner's Programme, at its twenty-eighth session in October 1977, recommended that procedures should satisfy certain basic requirements. These basic requirements, which reflect the special situation of the applicant for refugee status, to which reference has been made above, and which would ensure that the applicant is provided with certain essential guarantees . . ."

  7.  To summarise, the proposed "recasting of all relevant legislation" would involve withdrawing from the Refugee Convention (unless the UK accepted the responsibility to make decisions on individual cases with the consequent administrative and financial implications) and would cast doubt over the commitment to ECHR—adherence to which is a requirement of all countries wishing to be members of the European Union.

  8.  The history of quotas in UK immigration history is an infelicitous one. At the time the 1968 Commonwealth Immigrants Act was passed the Government announced the creation of the special quota voucher scheme to admit a small number of those British nationals who were under pressure to leave the countries where they were living. The European Commission of Human Rights found the UK guilty of "inhuman and degrading treatment" of its own nationals. Queues in India for the issue of a voucher reached eight years in the mid-1980s. Space here does not admit of a full explanation of the problems that we could provide should the Committee wish.

  9.  The suggestion appears to be that the decision-making process will be handed over to UNHCR with British officials taking no part in it (other than perhaps the choice of whom to accept in the UK among those already granted refugee status). The official position of UNHCR is that while they are prepared to undertake this task for those countries which are not signatories to the 1951 Convention on the Status of Refugees ("the Refugee Convention") they do not see their role as doing this for countries, which have accepted their international obligations under the Refugee Convention, part of which is to process asylum applications. Our understanding is that UNHCR would expect immigration officers of the participating states to undertake the initial assessment of refugee status and only become involved at any appeal stage. The difficulty with civil servants of different participating states making assessments in the same centre is that, still, the EU states apply the Convention differently (Germany still does not accept non-state agents of persecution). This would mean different standards of decision within the same centre. There is no appeal system against a refusal of refugee status operated by UNHCR akin to that in the UK—this would mean a significant departure from established practice and jurisprudence. These may be reasons why UNHCR so far has been reluctant to participate.[43]

  10.  If the emphasis were to be on providing protection to those who need it then large numbers of those presently given temporary protection ("humanitarian protection" as exceptional leave to remain was known before April 2003) would be excluded. This is because UNHCR has no remit for applying the European Convention on Human Rights (ECHR). Consistently, more than double those granted full refugee status (indefinite leave to remain) are given exceptional leave to remain (now humanitarian protection) because to remove them to their country of origin would be in breach of the UK's obligations under ECHR. According to the official statistics the percentages in 2001 were 9% and 17% and in 2002 10% and 24% respectively. In the first quarter of this calendar year it was 7% and 14%. On an annual basis, for 2002, these categories numerically were 8,100 (plus 13,875 whose appeals were allowed) and 19,965 making a total of 41,940 allowed to remain lawfully. This is many more than the proposed 20,000 of Mr Letwin who would be allowed in on a quota. It does not even accommodate all those given refugee status (indefinite leave to remain) on initial decision and appeal let alone those granted humanitarian protection. We do not understand the provenance of the figure of 8,000 referred to by Mr Letwin. Our concern at mention of this figure may indicate that Mr Letwin is concerned to offer resettlement only to those given refugee status and not those granted humanitarian protection. In the past many of this latter category have obtained indefinite leave to remain after many years of it remaining unsafe to return them to their countries of origin.

  11.  The reference to the IMO throughout the document must be a typographical error for the IOM (International Organisation for Migration)—although many agencies have become involved the International maritime Organisation has not yet done so to our knowledge! There is a fundamental difference between UNHCR and IOM in that the first is an international organisation of the UN whereas the second was established in 1951 as an intergovernmental organisation to resettle European displaced persons, refugees and migrants.

  12.  Mr Letwin articulates what appears now to be a common political view, namely that it is a lottery as to which asylum seekers are able to get past all the border controls and other deterrent measures which are applied to all persons, whether genuine or not. This has had the effect of forcing desperate and determined people to pay smugglers to bring them into the country. Often, this process is self-selecting in bringing a preponderance of young, single males (some 80% of asylum seekers fall into this category with some 20% being families or women and children whereas the profile of refugees worldwide is the opposite percentages). The predominance of young males may reflect the physical hardships and barriers through which they must now pass in order to enter the UK.

  13.  There remains the incentive to economic migrants to enter the UK clandestinely: this consists of the knowledge that work is available and the absence of proper lawful routes of entry. The first is a function of the economy. As to the second IAS has urged the creation of a new immigration category of a provisional work permit holder (see IAS' previous written evidence to the Committee) for which individuals in their own right could apply (unlike at present only through an employer) to come to the UK in search of work for six months. This would encourage economic migrants to choose a lawful route of entry and would subject labour migration to immigration control - including, if desired, quotas on particular skills or professions such as nursing or teachers and numbers from particular countries.

  14.  Quotas, already operating as described above, may have a part to play in an overall asylum policy but do not provide a comprehensive system. Some twenty-five years ago the Vietnamese refugees were distributed to willing countries for resettlement as a result of the Geneva meeting and those countries were able to choose whom to take. This left Hong Kong with a large number of ethnic Vietnamese (as against Chinese) field labourers who had few skills or aptitude or knowledge of other language and who, ultimately, had to be assimilated into Hong Kong society. In any quota system in which countries may choose whom to take there is a danger that persons who are in great need of protection will not be acceptable to quota countries and will be left without resettlement.

  15.  Mr Letwin accepts the need to process spontaneous arrivals in the UK who might arrive other than as part of the quota. We remain concerned, however, at the lack of definition of what "should be immediately transferred for processing to an offshore place" means. If this were to be to a Council of Europe country in which ECHR applies then humanitarian protection would be applied. Conversely, of course, if it were to a country outside the Council of Europe then such protection would be absent. Under Article 3 ECHR it would be impossible for the UK to send asylum seekers already in the UK to a country in which adequate protection was not available (ie to face inhuman or degrading treatment). There is no evidence to suggest that it would be any easier to return failed asylum seekers to countries of origin from such offshore places than from the UK—unless, of course, the offshore place was outside the ambit of ECHR but even then it would be difficult to see how UK officials could or would wish to be complicit in returning failed asylum seekers in breach of Article 3.

  16.  The danger of such a system, which cannot have escaped the attention of Mr Letwin, is that there would be no incentive after arrival in the UK to claim asylum instead of remaining clandestine. Indeed, such proposed measures could have a disincentive effect on claiming asylum. It is the same problem we attribute to s55 Nationality, Immigration & Asylum Act 2002 and the way in which it is being applied. There is no incentive to claim asylum if there is no advantage in doing so as against hoping to remain undiscovered as a clandestine entrant. We are concerned that the recent reduction in the number of asylum claims is at the expense of undisclosed illegal immigration so that the true numbers have not greatly changed. There can be no advantage to the Government or anyone else wishing to see public confidence in the system to allow this to happen.

  17.  IAS shares Mr Letwin's concern at the ability of civil servants to undertake the processing in a transparently disinterested way free from political influence after the last ten years of Government policy in this field. To that end, as the Committee will be aware, IAS has advocated a body separate from Government undertaking the processing while acknowledging the right and, indeed in a democratic society, the duty of the Government to set the policy. This should be done, however, by an independent body (perhaps in UK terms even a non-departmental government agency) and not by a UN organisation reluctant to undertake it (UNHCR) or an intergovernmental organisation ill equipped to undertake it (IOM). Essentially, we advocate the Canadian system (the officials are on civil servant terms and conditions but are separate from Government): this results in the acceptance of claims which is broadly similar to that in the UK but achieved on first decision without the added expense and misery of it happening at the end of a complicated appeals process. It is also less politically tendentious.

SUMMARY

  In their present form we do not consider Mr Letwin's proposals to be workable and we recognise that he acknowledges himself that much more work needs to be done on them. Apart from and including the issues raised above there are fundamental questions to which precise answers need to be given for the public to have any confidence that processing asylum seekers outside the UK's jurisdiction, whether in Regional Protection Zones, Transit Processing Centres or an amalgam of both ideas is a viable alternative to a more efficient and effective processing in the UK. The prospect of enabling asylum seekers to seek and obtain genuine protection and resettlement closer to their countries of origin is laudable but must be planned and executed properly so as not to visit greater injustice than exists under the present system. Politicians must realise that there is no quick fix to this but painstaking work involving closely those who have daily knowledge and expertise in this field.

  These are some of the fundamental questions:

    —  Are such arrangements in accordance with international law and states' obligations under international instruments such as the Refugee Convention, ECHR and Universal Declaration of Human Rights?

    —  How will such centres offer guaranteed protection to those fleeing persecution, avoid the problems of existing large camps in which atrocities, gang intimidation and rape often occur and provide an incentive to asylum seekers to go there rather than seek destinations in traditionally safe countries?

    —  How will issues of humanitarian protection and temporary protection be addressed for those who need it but who are not adjudged to be refugees within the meaning of the Refugee Convention?

    —  Who will make decisions on eligibility for refugee status and secondary humanitarian protection, what process of appeal independent of the decision makers will exist and what access will there be to disinterested legal advice and other assistance?

    —  If it is proposed that spontaneous arrivals claiming asylum will be removed to such centres will this be in accordance with states' international and treaty obligations (as above) and what incentive will there be for clandestine arrivals to claim asylum rather than remain undiscovered for as long as possible if they know that they will be removed to such centres?

    —  What is the assessment of the extra expense of enforcement, curtailment of general civil liberties and loss of public confidence in a system that may encourage illegal clandestine immigration rather than managed migration and processing of asylum applications in an expeditious but fair way?

    —  On what criteria would refugees and/or those with humanitarian protection be chosen for resettlement? Are such centres and quotas meant to apply to both categories? If not, what will happen to those in receipt of humanitarian protection?

    —  What is the assessment of the cost of organising such centres against a more efficient and effective system in countries of reception?

    —  How is it proposed that any form of quota would accurately reflect the degree of disruption causing refugee movement and the needs of asylum seekers at any one time in the world as a whole?

    —  What assessment has been made on the impact felt by other receiving countries if only some countries participate in such a scheme?

June 2003

  Eight governments* currently host the bulk of an estimated 100,000 refugees who are annually resettled in new countries. Finding other states willing to accept vulnerable people and strengthening recently introduced programmes in places like Argentina, Chile, Benin, Burkina Faso, Brazil, Ireland, Iceland and Spain has become a UNHCR priority. In South America, following the implementation of resettlement programs, Argentina, Chile and Brazil received increased numbers of refugees. Chile for the first time accepted people from Azerbaijan and Brazil renewed a commitment to welcome people from Iran, India and Botswana. Ireland agreed in 1999 to formally accept refugees for resettlement and now hosts people from Rwanda, Sudan, Afghanistan, Cameroon, Liberia, Congo, Somalia, Tunisia and Iran. Iceland agreed in 1996 to establish an annual resettlement quota, though it had earlier settled people from as far apart as Poland and Viet Nam. The Ministry of Social Affairs, through the Icelandic Red Cross, is responsible for the selection, admission and integration of refugees in the country who, in recent years, included refugees of several ethnic backgrounds from the Balkan region. Although Spain has no fixed quotas or specific annual resettlement programmes, the government responded to UNHCR appeals and 1,426 Kosovar Albanians arrived in 1999 under UNHCR's Humanitarian Evacuation Programme. In February 2000, a group of 17 Afghans from Uzbekistan were resettled. In Africa, Benin and Burkina Faso have been implementing programmes since 1998. Some 130 refugees from places as diverse as Chad, the Great Lakes region, Equatorial-Guinea, Sudan, Sierra-Leone, and Algeria have resettled in Benin since the start of the project with all school-age children are enrolled in primary or secondary school and some refugees receiving professional and university training. In Burkina Faso, the National Commission for Refugees (CONAREF) manages most refugee services, while UNHCR is charged with education, transportation and other activities. Dozens of refugees, principally from the Great Lakes, but also including Sudan, Eritrea and Somalia, have been resettled in Burkina Faso. Newcomers have integrated into the country's social fabric, with all of the children enrolled in school, and some adults undergoing professional training or already employed.

  *United States, Canada, Australia, Sweden, Norway, Finland, New Zealand, Denmark.



41   New resettlement programmes (from UNHCR website). Back

42   Gregor Noll (June 2003) "Visions of the exceptional: legal and theoretical issues raised by transit processing centres and protection zones" working paper. Back

43   Jeff Crisp, Head, Evaluation and Policy Analysis Unit of UNHCR speech at the official opening of the Refugee Council Archive at the University of East London 21 May 2003: "At one point in the 1990s, governments began to place their faith in "migration information campaigns" so as to counter the unrealistic expectations of potential migrants living in low and middle-income countries. More recently, certain governments began to take an interest in "humanitarian visa" programmes, which would enable people who consider themselves to be at risk to file an immigration or asylum application at a foreign embassy in their country of origin. While such proposals remain on the table, they have to a considerable extent been overshadowed by a newer and more radical approach to the asylum issue-an approach supported by Australia and the UK, and which now seems to have the backing of Denmark and the Netherlands. The key concepts in this new approach are those of "extraterritorial (or regional) processing" and "protection in regions of origin", and they are exemplified by a report prepared jointly by the UK Cabinet Office and Home Office in early 2003. According to the recommendations of this report, the UK should in future not process any asylum applications on British territory, with the possible exception of some special groups, such as children, disabled people and high-profile political dissidents. All other asylum applicants should be removed from the country. Some would be sent to a regional processing centre on the outskirts of the European Union (Albania, Croatia and the Ukraine apparently being some of the locations under consideration) where their applications for refugee status would be examined. Successful applicants would subsequently be resettled in the UK or another EU country. Rejected cases would be returned to their country of origin. According to the report, other asylum seekers would be removed to so-called "protection areas" in their regions of origin, locations where some of the money saved on the UK's domestic asylum procedures would be used to enhance the protection and assistance available to refugees. As a result of these measures, it was suggested in the report, people who faced the threat of persecution and armed conflict in their own country would no longer need to move halfway round the world, spending large amounts of money and taking huge risks in the process, in order to find a safe refuge. Since that report was originally prepared, the UK has modified its proposals a little, while retaining the central concepts of regional processing and protection in regions of origin. At the same time, UNHCR has made its own proposals in relation to the future of asylum in Europe, which would limit regional processing to asylum seekers from countries that do not normally produce refugees, and which would bring any regional processing centre within the boundaries-and the legislation-of the European Union. Inevitably, these new approaches to the asylum issue have met with very mixed opinions. Those who support the notions of regional processing and protection in regions of origin argue that these innovations constitute a genuine attempt to provide protection to bona fide refugees, while simultaneously addressing the issue of illegal and irregular migration, undertaken by people who do not have a valid asylum claim. Others, most notably human rights and refugee organisations, have suggested that these new approaches are simply a new tactic in the assault on asylum, and are designed to ensure that the world's less-developed countries continue to bear primary responsibility for the world's refugees. Whatever the motivation and justification for these recent proposals, it would be naïve to think that new asylum policies, based on the notions of regional processing and protection in regions of origin, will prove easy to implement. As the Refugee Council has pointed out, numerous practical considerations will have to be taken into account:

While such questions remain to be answered, the significance of these recent proposals cannot be disputed. For they represent an important shift in the whole asylum paradigm. Traditionally, the international refugee regime has functioned by responding in a reactive manner to the arrival of refugees and asylum seekers in a potential host country. Now, states and other actors are increasingly talking in terms of "migration management," whereby the movement of people from one part of the world to another assumes a more predictable, orderly and organised form. It is difficult to question the advantages of predictable and orderly population movements-not least for refugees and asylum seekers themselves, who often encounter numerous threats to their security and welfare in the search for a safe haven in another country. But in pursuing the objective of "migration management" two issues must be taken into account. First, migratory movements involving refugees and asylum seekers are inherently chaotic and unpredictable, involving individuals and groups of people with strong fears, emotions and aspirations. While the notion of "migration management" has a reassuringly technocratic ring to it, we can be sure that the reality will prove to be considerably more complex, controversial and costly than this concept implies. Second, and to return to the opening theme of this presentation, the international refugee regime has a long and proud history of providing protection to people whose lives and liberty are at risk. In seeking new approaches to the issue of asylum, the fundamental human rights principles on which that regime is founded must be jealously guarded." Back


 
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