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:
- Will asylum seekers who have made
their way to Europe quietly accept their removal to a regional
processing centre or to a protection area in their region of origin?
- Will it be possible to manage processing centres that contain
a considerable number of very disappointed people from a wide
variety of different countries and cultures?
- Is it really possible to establish areas that are genuinely
safe and secure in areas such as the West Africa or the Horn of
Africa?
- Will governments really be able to transfer funds, which are
currently used for domestic asylum purposes to their overseas
development and humanitarian assistance budget?
- Even if such funding is available, will states agree to the
establishment of regional processing centres and protection areas
on their territory?
- If such centres and areas are established, will it be possible
to exclude human smugglers, seeking new clients from amongst the
mass of people whose dreams of moving to the industrialized states
have been shattered?
- If asylum seekers know that they will be removed to a regional
processing centre, why would they even submit a claim to refugee
status and present themselves to the authorities-would it not
be less risky for them to simply enter and remain in a country
on an illegal basis?
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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