In 2020, the government of the United Kingdom is facing the electoral defeat of its main transatlantic ally, a possible no-deal Brexit and an unprecedented worldwide pandemic. Yet the Home Office is primarily concerned about another (perceived) critical threat: few thousands migrants crossing the Channel yearly to seek asylum on the island.
Over the past months a wide range of rather creative solutions were suggested to deal with the issue. The Home Office revitalised the ‘good old days’ idea behind the penal colonies of the great White Australia policy and decided that that ‘out of sight, out of mind’ is a valid policy principle after all. In October 2020, externalising asylum processing centres on remote British territories in the Atlantic Ocean was suggested. The Home Office envisioned transferring migrants to Ascension Island – an island 4,000 miles away, barely inhabited and rather inhospitable to human life. Further leaks identified other possible territories being considered for extraterritorial processing, including Moldova, Morocco and Papua New Guinea – which, apparently, were entirely in the dark about the idea. Weeks before, the proposed solution was buying retired ferries and converting them into floating asylum-processing centres. More recently, British people heard about pushing dinghies back to France with a wave machine or fishing asylum seekers with big nets.
Credit is certainly owed to the limitless imagination of content creators within the Home Office. Nonetheless, these fantasy ideas triggered a surge of outraged reactions, particularly from those who have been defined by the Home Secretary Priti Patel as ‘do-gooders’ and ‘lefty lawyers’. Notably, rights advocates and practicing lawyers dared to point out that the brilliant ideas proposed are likely to violate a broad range of national and international laws and human rights norms.
The Home Office derived the idea behind extraterritorial processing centres from the Australian practice of sending asylum seekers to offshore facilities on the islands of Nauru, Manus and Christmas Island. If it works in Australia, they thought, why can’t it work for the UK?
Following the Australian example is not actually a particularly astute strategy. To start with, Australian externalised asylum facilities are notorious for being causing considerable moral, political and legal controversy. The ‘Australian strategy’ has been defined by the Prosecutor of the International Criminal Court (ICC) as a breach of international law amounting to ‘cruel, inhuman, or degrading treatment,’ and the United Nations Special Rapporteur on Torture confirmed that Australia’s external detention procedures violate the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The United Nations Refugee Agency (UNHCR) has repeatedly stressed that various aspects of Australia’s offshore processing policies are ‘harmful practices’ contrary to international refugee law and warned against the humanitarian crises caused by offshore detention, including in Papua New Guinea. Offshore detention of asylum seekers and refugees on Manus Island has also been declared unconstitutional by the Supreme Court of Justice of Papua New Guinea.
International law imposes precise standards to be respected regarding asylum seekers reception. Most of these standards are part of jus cogens norms which are non-derogable under any circumstances There should be no principled reason for treating the UK with more indulgence than Australia.
The UK seems also oblivious of something that characteristically distinguishes it from Australia: notwithstanding decades of Euroscepticism, the fact remains that the UK continues to be a European state. This ‘makes the UK subject to a whole set of legal norms that are not applicable to Australia. For example, in 1951 the UK ratified the European Convention on Human Rights (ECHR). Thus, the UK is not only bound by general international law, but also by the regional human rights rules enshrined in the ECHR.
International human rights law establishes the absolute prohibition of arbitrary detention for everyone and of migrants in particular. This prohibition is a peremptory norm of international law enshrined in Article 9 of the Universal Declaration of Human Rights, Article 9 of the International Covenant on Civil and Political Rights (ICCPR), Article 5 of the ECHR, Article 37 in the Convention on the Rights of the Child, Articles 16 and 20 of the International Convention on the Protection of the Rights of All Migrant Workers and other international and regional instruments. In accordance with the international principle of non-penalisation, unauthorised arrivals should never be equated to a criminal offence and asylum seekers should not be subject to penalties, including administrative deprivation of liberty. The jurisprudence of the European Court of Human Rights (ECtHR) developed a range of limitations to the possible resort to custody, particularly in relation to migrants: it must be reasonable, necessary, proportionate; compliant with the principle of legality; not automatic nor collective; exceptional, i.e. of last resort, and alternative, non-custodial measures should be preferred. The list is long and detailed, but arguably the ‘Ascension Island confinement’ and the ‘floating ferry’ ideas would fail the test at the very first criterion (reasonableness) without further investigation. In other words, even ‘the man in the street’ would see that these ideas are unreasonable.
The imaginative ‘solutions’ envisioned by the Home Office would also potentially breach yet another area of law. Under customary international law of the sea, states have a duty to actively search for and rescue boats in distress at sea and enable them to disembark in a safe place. This ‘duty to rescue’ is also enshrined in major treaties of the law of the sea, all of which have been ratified by the UK, such as the Convention for the Safety of Life at Sea (SOLAS), the Convention on Search And Rescue (SAR) and UN Convention on the Law of the Sea (UNCLOS). The MSC Guidelines on the Treatment of Persons Rescued at Sea clarify that the law of the sea requires states to provide a place of safety for disembarkment as soon as possible. These provisions clearly rule out asylum-processing rusty ferries and waving machines. Further (if ever anyone had considered that feasible), it makes it difficult to explain how ‘prompt and safe disembarkment’ can be understood as involving sending asylum seekers all the way to the midst of the Atlantic Ocean, or Papua New Guinea.
The option of sending refuge-seekers to third countries may fail our human rights compliance test too. The UK seems unbothered about the petty detail that its selected countries have given no consent to the operation, but even if they did give such consent, the fact remains that the UK could be held responsible for the possible human rights violations committed by those states against refuge-seekers. The government would have the duty to verify that these third countries respect human rights to the same degree expected from the UK itself. Under international law, in fact, not only is the state obliged to respect human rights, but must also refrain from sending refugees to places where their rights may be violated. The principle of non-refoulement under the Geneva Convention relating to the Status of Refugees – which, crucially, applies also at the sea – provides that asylum claimers cannot be expelled or returned to territories where their life or freedom would be threatened on account of specific grounds. Similarly, the ECtHR clarified that the prohibition of torture and inhuman or degrading treatment contained in art. 3 ECHR entails the principle of non-refoulement whereas no-one can be sent back to a place where he or she risks being subject to torture or inhuman treatment (‘pre-emptive complicity rule’: for example, Hirsi Jamaa v Italy, Chahal v United Kingdom, Saadi v Italy). The same rule is expressly included in the CAT in the main international human rights instruments, all equally binding upon the UK. More broadly, the International Court of Justice (ICJ) in its Israeli Wall Advisory Opinion clarified that human rights obligations can extend to events happening outside a State’s territory.
This, of course, is not to say that all third countries are less likely to comply with human rights standards than the UK. European Union member states, for example, have little to learn from their former companion and arguably they do ensure decent, although perfectible, levels of human rights diligence. And there is the EU Dublin III Regulation, according to which asylum seekers may be transferred back to the state of first entry in the Union (rule of first entry). Proving that asylum seekers have been in mainland Europe before crossing the Channel is hardly difficult. While this is unlikely to be an attractive proposition for those migrants who end up being transferred, sending them back to France appears a better solution than returning them to their own countries or a third country entirely alien to them. Further, the Dublin III system also admits family reunification across Europe, thus allowing asylum-seekers and unaccompanied minors to be transferred to other member states to join their families.
The application of the Dublin III system (which is currently in place and used by the Home Office) sounded maybe too rational to be listed among the government strategies leaked to the public. And since it is an EU Regulation, it will no longer be applicable after December 31st, unless an agreement is negotiated between the UK and the EU. Thus, Brexit will possibly mean the end of relocations from the UK to the EU. What Brexit will not mean is the end of the UK’s human rights commitments under both international law and its own domestic legal system. All the core international human rights treaties signed by the UK will still be valid and binding, including the ECHR.
Arguably, there is a viable solution that could ensure respect for human rights norms, decrease the financial burden of refugees reception and save UK’s international reputation. First, asylum seekers should be allowed to land in the UK and claim asylum. Their claims should be assessed through the established legal procedure. Second, an agreement should be reached with the EU to ensure cooperation and the continuation of the Dublin system, allowing resettlement of migrant according to family reunification and the ‘country of first entry’ rules. Third, national laws should be amended to give asylum seekers the right to work and maintain themselves (which UK law currently prohibits).
For now, asylum seekers are not legally permitted to work in the UK while their request is being processed and they are offered shared accommodations and a daily allowance. This circumstance has the threefold consequence of aggravating financial costs for the government, creating degrading living conditions for asylum seekers and preventing them from starting any actual process of social integration. One may wonder why the UK refuses to follow the path of many other European countries and allow asylum seekers to find a regular job, support themselves, and pay taxes. The ratio behind this policy decision remains unclear.
Andrea Maria Pelliconi
City Law School