Response to Home Office's Offshore Asylum Policy

The issue at hand
It is reported that in 2020, 7,000 asylum seekers have arrived in the UK by boat, braving the 50 or so mile crossing between northern France and south-east England. In 2018, 585 asylum seekers made the same journey, and the number increased to 1,800 in 2019. There has therefore been an increase of around 5,000 people in 2020, which is less than 2% of the total population of the borough of Newham, where RAMFEL is based.

To put into perspective, the UK received 35,566 asylum claims in 2019, of which some of the aforementioned 1,800 arrivals by boat will likely be included. As a result of Covid, and the restrictions on international travel, it is likely this number will fall in 2020 and it seems safe to assume that the UK will not ultimately see the number of total asylum claims rise dramatically this year.

On a global scale, the UK is recognised as having provided sanctuary to less than 0.5% of the world’s estimated 26 million refugees. Jordan, a far poorer country, hosts over 10% of the world’s refugee population. Lebanon, a country one twentieth the size of the UK, hosts around 6-7%.

In view of the miniscule numbers of people actually involved, why have the boat crossings in 2020 so gripped the nation and seen the UK government reportedly considering a new offshore processing system in places as far flung as Papua New Guinea and St Helena?

Offshore processing
At first glance, St Helena, Moldova, Morocco and Papua New Guinea probably do not have a huge amount in common. These though are the four places that the government is believed to be considering, alongside floating vessels, as possibilities for detaining those arriving by boat to seek asylum in the UK.

There’s a chance some people have not even heard of some of these places, but one, St Helena, is a British overseas territory in the middle of the Atlantic Ocean and the other three are sovereign countries in east Europe, north Africa and the south-western Pacific respectively. Whilst possibly obvious why the UK would consider its own remaining last bastions of empire for housing refugees, it is not immediately clear why the other three countries are viewed as viable.

Morocco, perhaps, was picked because the EU has long viewed it as a prospective partner in stemming migration flows. As Morocco falls outside of the reach of the European Convention on Human Rights (ECHR), far more heavy handed approaches can be employed by Moroccan officials, with the acquiescence of EU states, to prevent people reaching ECHR territory. This includes the Spanish enclaves of Melilla and Cueta that sit within Morocco.
Moldova appears the most random of the three countries proposed, but would be subject to ECHR jurisdiction, thereby preventing on paper the outsourcing of conduct that would not be permitted in the UK.

Papua New Guinea is the most contentious of the three countries mooted, and not least because it is over 8,500 miles away from the UK and no direct flight route presently exists. The country has already housed asylum seekers in similar circumstances; these asylum seekers were though seeking to reach Australia.

In 2013, then Prime Minister Tony Abbott promised to “stop the boats”, by ensuring that asylum seekers travelling to Australia by boat would never reach the country. The policy, which has also seen asylum seekers detained in Nauru, is hugely controversial and stories of abuse at the detention centres is rife. Reports of suicidal tendencies amongst detainees have been a near constant, and in February 2020 the International Criminal Court (ICC) not only described the offshore detention centres as reaching the threshold of “cruel, inhuman, or degrading treatment”, thereby rendering it unlawful under international law, but also said it formed the basis of a crime against humanity.

This though seems to be the example the UK wishes to follow.

Legality
Whether exiling asylum seekers to countries with questionable human rights records is legal is certainly debatable. As is whether it is even beneficial, if ultimately those whose claims are successful will be allowed to settle in the UK anyway.

A key difference legally between what the UK is considering and what Australia does is that Australia’s policy is designed precisely because it does not want these asylum seekers reaching Australian land and being protected by Australian laws. That is a crucial distinction, as for UK boat arrivals, the key word is just that: arrival. These people have made it to the UK and are covered by UK law and by the ECHR. Additionally, even if the boats did not make it to the UK as they were intercepted en route, the asylum seekers would still be in ECHR territory so would be afforded the basic rights covered by this regional human rights treaty.

The ECHR is the strongest regional human rights treaty that exists and member states of the Council of Europe (all European countries, excluding Belarus) overwhelmingly comply with decisions reached by the European Court of Human Rights, even if those decisions are not always popular. The ECHR requires states to respect, protect and fulfil a number of human rights obligations, including not to inflict torture, cruel or inhuman and degrading treatment or punishment. This obligation extends to not deporting asylum seekers to countries where they face such a fate, the principle of non-refoulement.

The prohibition on torture is in fact recognized as customary international law, and the right to be free from such mistreatment is absolute, meaning there are no instances where a state can justify its use. Sending asylum seekers to Morocco, where state brutality especially against political dissidents remains routine, should immediately raise alarm bells about how asylum seekers would be treated upon reception.

The appalling treatment of asylum seekers in Papua New Guinea is already documented extensively too, and, as detailed already, the ICC have recognized Australia’s offshore detention centres as constituting cruel, inhuman or degrading treatment. Without serious changes in practice and significant and meaningful assurances from the Papua New Guinea authorities, the UK would have its work cut out to convince both courts in the UK, let alone in Strasbourg where the European Court sits, that sending asylum seekers here was permissible under the ECHR.

Additionally, asylum seekers in the UK are afforded a right of appeal if the Home Office initially refuses their claim. The success rates at appeal are relatively high, with the Refugee Council finding that in the final quarter of 2019, there was a 41% success rate on appeal. This means that in four out of ten cases, the UK immigration courts (the IAC) determined that the Home Office had been wrong to refuse the appellant’s asylum claim. These figures suggest that the Home Office certainly cannot be trusted to get these life or death decisions right in the vast majority of cases.

Bringing an appeal in the IAC is challenging, even for immigration practitioners. For asylum seekers not speaking English as a first language, often traumatized by abuse both in their home country and en route to the UK, it is nigh on impossible. Consequently, legal representation is often critical to ensure a fair hearing. Mercifully, despite the cuts in 2012, asylum seekers can still secure legal aid to cover their representative’s costs, both in attending their asylum interview and if necessary advocating for them in court. Legal aid can also cover the commission of expert reports, which can be crucial for substantiating the persecution the asylum seeker faces in their home country.

Quite how though a lawyer based in London would be able to effectively represent a client they have never met, who is detained thousands of miles away, is yet to be explained. Assuming lawyers would not be billing the legal aid agency for flights to St Helena or Papua New Guinea, it is unclear how they would be able to communicate with their clients. Likewise, if an asylum claim is refused, and an appeal brought, the asylum seeker appealing would presumably not be flown in for an appeal hearing in Feltham, where one of the major IACs is based.

We are then left with a situation where lawyers will never meet their clients, and those whose are participating in what they consider to be a life or death appeal, are forced to pursue these appeals from thousands of miles away. Whilst further detail will surely be forthcoming if these plans advance, for now it is impossible to imagine that this system would allow an asylum seeker a fair and effective consideration of their case.

The question of out of country appeals was actually addressed by the UK courts in June 2017 in a case considering the now defunct “deport first, appeal later” provisions. Here the Supreme Court determined that this system was unlawful as the two claimants – a Nigerian and a Jamaican national – could not meaningfully participate in their deportation appeals from their home countries. This was due to a number of factors, not least the importance of giving evidence in person and the poor quality facilities within the IACs and the appellants’ home countries to facilitate the giving of evidence by, for example, Skype. It is difficult to imagine a fairer system being implemented for appeals brought by asylum seekers who are detained thousands of miles away from the IAC in sleepy Feltham.
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Why is this being proposed?
Whether the legal ramifications actually matter to the UK government is another point.
Bashing the European Court of Human Rights has long been a favorite past-time of politicians of all stripes. Threatening to leave the ECHR, and thus the jurisdiction of the European Court, has also increasingly crept into political parlance in recent years. Whilst this still seems unlikely at present, it is worth remembering that in the mid-2000s talk of leaving the EU was largely consigned to the fringes of the Conservative party too.

However, even if the UK is not set on a showdown with the Council of Europe over continued membership of the European Court of Human Rights, the apparent legal barrier to offshoring asylum claims perhaps no longer acts as the safeguard it once did. This government’s willingness to breach international treaties has already been demonstrated in their ten months in power, and the relative comfort they expressed after breaching the EU withdrawal agreement was unprecedented. If laws no longer constrain a government when it is considered expedient or advantageous to disregard them, then nothing is really off the table.

Equally, it is not surprising that a government elected on the back of its promise to “get Brexit done” would take a hard line towards immigration, even if when the numbers are actually analysed this does seem like a particularly heavy handed and ultimately unnecessary response.
Certainly too, the sight of asylum seekers literally arriving in the UK is something the British public are not used to. When the US government began caging children in 2018, people were understandably horrified. The thought of migrants descending on mass over the southern US border was though relatively easy to picture as the narrative of Latino, Middle Eastern and African migrants “invading and penetrating” wealthy and predominantly white countries’ borders is a narrative that politicians frequently push. In the UK though, we rarely if ever actually see migrants arrive. As an island, it is simply far easier to travel here by plane than by boat, even if your intention is to seek protection from persecution. Had these additional 5,000 asylum seekers arrived by more traditional migratory routes, i.e. plane, this would not have dominated the news and probably not seen these increasingly radical solutions proposed.

Another concern for the UK, and one that is particularly ironic, is that on 1 January 2021 the UK’s powers and ability to remove asylum seekers to EU countries will massively reduce when the current transition period ends and Brexit truly becomes Brexit. At this point, the UK will also cease being part of the Dublin agreement.

The Dublin agreement essentially is an agreement between EU member states that wherever an asylum seeker registers within the EU is where his or her claim will be processed. If an asylum seeker, for example, enters Europe via Italy after crossing the Mediterranean, avoids registration and travels northward to France and is encountered and claims asylum, France will be responsible for determining their claim. If this asylum seeker thereafter makes it to the UK and claims asylum, the UK government is entitled to remove them to France for their claim to be processed there. It was this agreement that the UK relied upon when recently removing a number of Yemeni and Syrian asylum seekers to Spain, where they were subsequently abandoned outside Madrid airport with no support.

There is a good chance that a large number of the 7,000 boat arrivals this year will have been registered in another EU country, seeing as all of them have at the very least been in France before arrival in the UK. For now, the UK can continue to remove these asylum seekers to other EU states with relatively little fuss, but this will cease in three months unless a new agreement with the EU is reached. Although still extreme hyperbole to suggest that hosting an additional 5,000 asylum seekers constitutes a crisis, if you oppose any form of migration from the global south and the middle east, then losing the ability to swiftly remove such people may cause you sleepless nights.

Maybe though the government’s biggest aim with pursuing these outlandish strategies is simply to distract from their flawed management of the Covid-19 pandemic. As the UK drifts into its second wave, and public confidence in the government’s response has plummeted, being viewed as attempting something radical in response to a so-called crises and at the same time appealing to xenophobic voters is perhaps just an easy win for a government that has been unable to champion many successes of late.

Written by Nick Beales.