Time for a New Order

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The UK’s so-called ‘New Vision for Refugees’ proves itself woefully inadequate, for it is not about solutions to a problem of international dimensions, so much as a self-regarding and self-interested attempt to minimise this country’s role, at the expense of refugees, asylum seekers, and less well off countries in the developing world.

If the ‘current asylum system requires those fleeing persecution to enter the EU illegally…’ perhaps part of the answer is to ‘de-criminalize’ the asylum seeker.

The old and the not so old

The modern story of the UN and refugees goes back many years. Already in 1921, the plight of some 800,000 Russian refugees adrift in Europe led the President of the International Committee of the Red Cross to appeal for action to the Council of the League of Nations. He found a positive response, with the League appointing its first High Commissioner for Refugees, Dr Fridthof Nansen, that same year. The Russian refugees, of course, were rapidly joined by others: Armenians, Assyrians, Assyro-Chaldeans, refugees from fascism, from Nazism, and from conflict.

The High Commissioner’s task then, and that of the various organisations which have followed, was to provide protection – legal and political protection – while private philanthropic organisations assumed responsibility for relief and it was left to the goodwill of governments to remove the obstacles to solutions. While much was achieved through the 1920s and into the 1930s, the very nature of the challenges posed by the rise of the Third Reich found the rest of the world wanting. As Nazism consolidated its hold, and as racial and political persecution and economic proscription became all pervasive, the League’s members cast a cautious eye on the reasons for departure. And in an all too familiar pattern, they saw the exodus, not as a human and humanitarian crisis, but as an economic, financial and social problem, a ‘political embarrassment’.

In this period of immigration restriction and economic uncertainty, widespread and concerted hostility to taking any Jews was paramount, and continued even into the period of post-war resettlement. States refused to face the costs, or to make room. Jewish refugees were not welcome because they were Jewish, because they were presumed to have the wrong skills, for geo-political reasons, or on security grounds, particularly after war broke out. By contrast, when the Second World War ended and the Cold War began, refugees were briefly found to have political significance, but at the price of coherent, people oriented strategies.

The humanitarian needs of the many thousands displaced by conflict and political developments in Europe were indeed met, but the self-interest of States was at work, and their policies also served broader political interests, allowing propagandist positions on source countries to be developed to advantage. Now, at the beginning of this twenty-first century, refugees no longer have political significance, though the need for protection is no less. As always, the primary costs, the human costs, are borne by those at serious risk if they remain, obstructed if they move.

The new order and the national dimension

Refugee protection and solutions are also matters for national initiatives and action. In 2003, however, the United Kingdom circulated proposals, which cast doubt on the premises underlying the international regime of refugee protection. These proposals assume that the ‘current global system is failing’. This premise in turn appears to be based on the assumption that the asylum process generally (which, by definition, is commonly driven by crisis and unpredictability) can be better managed, and that the perceived link between illegal immigration and asylum seeking can be broken. It is said, for example, that financial support for refugees is badly distributed; that those fleeing persecution have to enter the EU illegally, while most refugees remain in poorly resourced refugee camps in third countries; that the majority of asylum seekers do not meet refugee or other protection criteria; and that those found not to be in need of international protection are not returned to their country of origin.

Among various suggestions, the United Kingdom proposes regional protection areas (RPAs) in regions of origin, with the object of providing accessible protection ‘closer to home’. Asylum seekers arriving in Europe would be returned to their local RPA where ‘effective protection’ would be offered, where they might be processed either for resettlement in the region or, for some, for resettlement in Europe. The RPA, it is suggested, might also provide a destination to which failed asylum seekers might be sent from Europe, when immediate return to their country of origin was not possible.

Who can argue against better protection closer to home? The fact is, however, that for many refugees the idea remains just that. In the absence of concrete commitments to UNHCR (United Nations High Commissioner for Refugees) and refugee-receiving countries, it is no more than another responsibility-avoiding device, along with white lists, black lists, non-suspensive appeals, and doing away with review. Many commentators, including the European Commission, raised serious questions about the legality of these proposals and the means necessary to carry them to fruition, or noted their disassociation from the internationally agreed goal of ‘comprehensive durable solutions’, which is the fundamental premise for the international refugee regime.

Others saw the UK proposals as an exercise in burden-shifting, not burden-sharing. They remarked on their failure to acknowledge and integrate, among others, the need fully to respect international legal obligations, in particular, the full and inclusive application of the 1951 Refugee Convention, the non-refoulement principle, and the European Convention on Human Rights and Fundamental Freedoms. The European Commission and others noted the critical importance of addressing root causes; of access to legal immigration channels; of respect for international humanitarian obligations; and, in particular, they called attention to the need to improve the quality of asylum decisions in the European Union.

This last point is significant. In this country, we are beginning to hear a lot about the inability of the Home Office to take decent, defensible decisions on asylum applications. Over 20% of decisions are overturned on appeal, with that percentage rising to 35% in the case of Zimbabwe claims, 32% in the case of Somalis, and 30% in other cases. Strangely enough, the one element in the UK’s asylum procedure that has never been reformed in over 30 years of legislation is the Home Office, which leads one to question overall the premises underlying the recent United Kingdom proposals. Perhaps the sums currently spent on refugee determination could indeed be reduced, if the money were better spent on getting it right first time. And if the ‘current asylum system requires those fleeing persecution to enter the EU illegally…’ perhaps part of the answer is to ‘de-criminalize’ the asylum seeker.

Similarly, if the ‘majority of asylum seekers in the EU do not meet the criteria for refugee or subsidiary protection status’, then the reason why so many others use the asylum system may be due to labour market needs, implicitly condoned by governments throughout the developed world. Moreover, the reasons why ‘those found not to be in need of international protection are not returned to their country of origin’ are complex; in part, this may be due to lack of capacity in ‘sending’ States, political unwillingness to engage the issues, on either side, or again, because the labour resources provided by failed asylum seekers are acceptable, either in the long or short term.

If the government of this country were truly radical, if it were seriously interested in reforming the asylum process, it would move responsibility for deciding refugee cases away from the Home Office and into an autonomous agency — a Refugee Board, ‘front-loaded’ with trained decision-makers who would both see the claimants and decide the cases of those who came before them, properly advised and represented; a Refugee Board which would be transparent and accountable, whose decisions would be based on impartially collected, objective and credible country of origin information, unsullied by politicians and their policy goals.

But this government is not radical, and is not interested in reform. It is consequently not interested in improving the quality of first instance decision-making, so much as in resisting accountability and in ring-fencing systemic inefficiency, incompetence and ineptitude. Those who pay are refugees and asylum seekers whose enforced destitution, even during the application stage, is a declared aim of this government; and whose children are intended as hostages to fortune should the system fail once again. And those who pay are ourselves, whose essentially if not exclusively British values of fairness, due process and the rule of law are subverted by what looks to be an alien, executive authoritarianism.

Concluding remarks

If there is indeed need now for a ‘new order’ — and to survive every living system must evolve — then it will clearly need to amalgamate both international and national elements. Experience, particularly over the last ten or twelve years, has shown that the international community ignores the causes of forced migration at its peril; that refugee movements can and do contribute to instability and thus also to apprehensions for international peace and security. The evolving order will have to respond proactively, and with a view to solutions, to internal displacement, intra-State conflict, and the demographic and political pressures attaching to persistent underdevelopment.

Faute de mieux, the new order will need also to factor in States’ concerns about individual threats to security, even though the connection between forced migration and the movement of individual terrorists is tenuous. Nevertheless, recent and current experience underlines the necessity for rule of law oversight, particularly where governments are inclined to act in disregard of human rights and internationally protected values. National bills and charters of rights and freedoms may help to moderate executive excess, but regional and universal protection mechanisms will still be needed.

Finally, we need to see how essential and agreed international goals may be linked to national goals and policies. This is where the UK’s so-called ‘New Vision for Refugees’ proves itself woefully inadequate, for it is not about solutions to a problem of international dimensions, so much as a self-regarding and self-interested attempt to minimise this country’s role, at the expense of refugees, asylum seekers, and less well off countries in the developing world.

Even if one accepts the premises, the gaps are obvious, for example, in the disregard of solutions for refugees and in the failure to commit, even in principle or in outline, to long-term financial support, such as has been proposed in the case of development. In short, then, this is a time for further evolutionary steps in the international protection of refugees. But it will not be accomplished through narrow national conversations and self-interested re-writing of international commitments.

On the contrary, it is by way of the path of experience; recalling the lives lost in Bosnia and Herzegovina because of the barriers thrown up in the way of those in flight; of lives lost in Rwanda because Security Council members declined to read the writing on the wall; of lives lost at sea, because families are intentionally divided by policies designed to penalize those who would dare to seek asylum; of refugees and asylum seekers deliberately alienated and driven to destitution on our streets, because of a government’s determination to avoid accountability and because of its persistent refusal to learn from the lives of those who have escaped persecution, torture and death.

Where will the impetus for change come from? Obviously, the self-interest of States will play a role, and many governments seem destined not to learn from the past, and bound forever to underestimate peoples’ capacity for self-preservation when faced with desperate circumstances and risk to life and liberty.

The picture is not universally bleak, however. Some governments do now invest in the future, and contribute to the development of civil society in countries emerging from crisis or conflict, recognising that local stability and reasonable future prospects are a powerful incentive to stay. It is this constituency of commitment which we must seek to join and to enlarge.

If the values established and promoted by the United Nations over decades are to be preserved and strengthened, then we must be prepared to face up to those governments which appear content, often for mixed reasons, to allow the dehumanization of the refugee and the asylum seeker, and ready to build systems of control and degradation upon perceptions of the common will driven by irresponsible elements in the popular press.

Clearly, there are important battles ahead. The weight of public opinion must be secured, in the often hostile environment created by some of the media, and other battles must be fought through the courts. Both will need to be won, if the rule of law is to prevail and that human dignity and worth common to us all is to be effectively protected.

The author is a Fellow of All Souls College, Oxford, Professor of International Refugee Law, Oxford and President of the Refugee Legal Centre, London.

This is an edited extract from Professor Goodwin-Gill’s speech for the Evan Memorial Lecture, entitled: ‘The United Nations and Refugees: Time for a New Order?’ The full text is published on the UNA Oxford Branch website http://una.oxfordcity.org/.

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