Richard North, 08/07/2021
On the face of it, refugees cannot be penalised for illegal entry into a state, if they come “directly from a territory where their life or freedom was threatened”. That is the thrust of Article 31 of the 1951 Refugee Convention, which survives to this day.
However – to the puzzlement and frustration of many ordinary people and legions of barrack-room lawyers – once real lawyers and academics get the bit between their teeth, the meanings of plain worlds rarely survive intact.
So it is with Article 31, the meaning of which has been modified in England and Wales by the landmark case of R v Uxbridge Magistrates Court (ex parte Adimi) (29 July 1999). In this, Lord Justice Simon Brown held that refugees did not have to claim asylum in countries through which they pass to reach safety in order to be protected by Article 31. He ruled:
… I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s Executive Committee (ExCom), and the writings of well-respected academics and commentators (most notably Professor Guy Goodwin-Gill, Atle Grahl-Madsen, Professor James Hathaway, and Dr Paul Weis), that some element of choice is indeed open to refugees as to where they may properly claim asylum.
Thus, we are informed, protection from prosecution was incorporated into UK law with section 31 of the Immigration and Asylum Act 1999. This provides a defence based on Article 31 against charges based on illegal entry and various documents offences.
Nevertheless, the author of this passage concedes that leading politicians in the UK have long wanted it to be the law that a refugee should be returnable to a safe third country if he or she manages to reach our “furthest flung corner” of Europe.
This is Colin Yeo, an immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London. He remarks that Theresa May made a big and “rather abhorrent speech” about this issue back in 2015 when she was Home Secretary, pledging to reform the UK’s asylum rules.
Spurning participation in a common EU policy, she promised a “new British approach”, which would including tougher treatment for people who had travelled to the UK from other safe countries. These people, she said, who have “spurned the chance to seek protection elsewhere” will not have an automatic right to stay in the UK.
All too predictably, nothing of consequence happened on this front but last year, as we were exposed to the new challenge of migrants crossing the Channel in rubber dinghies, the need for politicians to be seen to be doing something increased in proportion to the adverse headlines.
Thus, in August 2020, Johnson declared that the UK needed to look again at the legal framework “that means that when people do get here, it is very, very difficult to then send them away again even though blatantly they’ve come here illegally”.
On this, Johnson said he wanted to work with France to stop the crossings and ensure that migrants “understand that this isn’t a good idea, this is a very bad and stupid and dangerous and criminal thing to do”. But, in the event, “working with France” and even stuffing the French government’s mouth with gold, hasn’t resolved the problem. The dinghies keep coming.
While in the EU, of course, we were bound by the so-called Dublin Regulations, which – in theory – enabled limited returns of illegal migrants, but these regulations were both complex and ineffective.
So it has come to pass that, with our departure from the EU, the government has come up with a Nationality and Borders Bill which re-writes the rules on illegal entry to the UK.
There was a limited a limited provision in the Immigration Act 1971 (Section 24) to penalise illegal entry, with a fine of not more than £200 or imprisonment for not more than six months, or with.
But, in Clause 37 of the new Bill, the offence is being re-written. Any asylum seeker knowingly arriving without entry clearance or entering the UK without permission (“leave”) to enter ill will be committing an offence. On indictment, a sentence of up to four years can be imposed, in addition to a fine.
Our principled immigration and asylum barrister immediately squawks that this Clause (if passed into law) would be “clearly in violation of the non-penalisation clause at Article 31 of the Refugee Convention” and therefore “in breach of international law”.
The Home Office denies this and, given that, in terms of the UK, this is judge-made law, that we are in breach is a questionable assertion. And, since the provisions of the Refugee Convention (unlike some EU law, before Brexit) do not take direct effect, there is nothing to stop the UK passing new laws which override either statute law or case law which have the effect of implementing the Convention.
There is, though, a more practical issue. The new law – if actually enforced – could result in thousands of asylum-seekers each year being committed to prison, substantially adding to the prison population. Should that occur, one can envisage several new prisons having to be built.
The government itself, which describes the Bill as the “cornerstone” of its “New Plan for Immigration”, sees this provision as a deterrent. But, for it to have any bite, it must be implemented. Yet there are no data on how many migrants you have to commit to prison before they stop coming.
Even then, this only delays implementation of the next step – deporting people with no right to stay. The Bill, therefore, allows the UK to “remove people including criminals to a safe third country and declare as inadmissible those who come here from a country where they could have claimed asylum, so that they can also be removed to another safe country”.
Needless to say, this is easier to promise than implement, as it requires the active agreement of any “safe third country” before our rejects can be despatched there. So far, the government has not concluded any such agreements and, even if we were able so to do, there would undoubtedly be a hefty price tag to add to the £1 billion a year that the asylum system is already costing us.
In an attempt also to tackle to problem at source, Clause 47 attacks “facilitation”, or assisting unlawful immigration, not least by removing a condition for prosecution that helping an asylum-seeker must be “for gain”. This will remove a defence currently relied upon by those prosecuted for piloting small boats across the Channel.
For the rest, though, this Bill doesn’t add a great deal – not that it needs to, to attract the opprobrium of the “progressive” establishment. Tim Naor Hilton, chief executive of Refugee Action, slates the Bill as a “crackdown on traumatised people whose only wish is to build a new life here”, adding, “This extreme and nasty anti-refugee bill has no place in any country that seeks to defend human rights and the rule of law”.
He probably protests too much. More cynical observers might suggest that this government is not going to fill prisons to overflowing with dinghy people, and is certainly not going to spend hundreds of millions building new prisons for them. And this, no doubt, will be quickly conveyed to the dinghy people. Bill or no Bill, they will keep coming.
Also published on Turbulent Times.