Dr Martin Parsons is the author of a book on Conservativism and is a former overseas aid worker in Pakistan and Afghanistan.
Many people have heard the chicken nuggets story – the Albanian man who entered the UK illegally, gave a false name and nationality and was later given a two year prison sentence for fraud. Despite this, he was allowed to stay in the UK supposedly because his son couldn’t eat the type of chicken nuggets that are sold back in Albania. Actually, I suspect there was a bit more to that case than that, but it certainly raised perfectly reasonable concerns about the extent to which human rights law is being used in some asylum claims.
What should probably concern us more, is the guidance the Home Office issued a few years earlier, stating that senior members of the Muslim Brotherhood should be granted asylum as they were at risk of persecution in Egypt. For those who don’t know the Muslim Brotherhood was founded by Hasan al-Banna (1906-49) the founding father of modern Islamism and continues to be the vehicle for his ideology.
Those sorts of issues arise because we have departed from the original principles set out in the 1951 Refugee Convention and instead focused on the European Convention on Human Rights (ECHR), which not only encompasses a much broader range of rights than are really refugee issues, but has and continues to develop its own case law, which in some respects goes well beyond either the Refugee Convention or what those who drafted the ECHR ever intended.
It might sound obvious, but if we are to weed out the wheat from the chaff among the 100,000 or so people who claim asylum in the UK each year, around 40 per cent of whom arrive on small boats, then we need to define much more clearly what actually is a refugee.
The 1951 Refugee Convention
For example, the Refugee Convention assumes, though does not explicitly state that a refugee should claim asylum in the first safe country they reach – with Article 33 prohibiting signatory countries from returning a refugee to “the frontiers” of any territory where their life would be at risk.
It also assumes that refugee status should be temporary with Article 1(c) stating that where “the circumstances in connexion with which he has been recognized as a refugee have ceased to exist” he should return to his own country.
While Article 2 specifically states that refugees have a specific obligation to obey the laws of the country giving them asylum, implying that any serious breach of laws could justify that country removing their right to remain.
Article 33 on the expulsion of refugees is quite explicit on this, stating that whilst a refugee may not be expelled or returned to the frontiers of a country where their life would be threatened, this does NOT apply to
“a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
So, yes, as far as the Refugee Convention is concerned, extremists and terrorists can be deported back to their own country – even if they would face torture or even execution there.
If you think all of this sounds somewhat far removed from many of the claims made today by people arriving in small boats, you would be right. Which is why we need to go back to first principles and define what actually is a refugee.
In fact, Article 36 of the Refugee Convention assumes that national governments will write their own laws to implement the principles set out in the convention.
We need a law defining precisely who is a refugee
Surprising as it may seem, there is actually no precise definition of what a refugee is in international law.
The 1951 Refugee Convention simply defines a refugee as someone who has fled their own country
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”
That of course begs the question of what exactly constitutes ‘persecution’?
However, rather unhelpfully the Refugee Convention simply assumes we all know what ‘persecution’ is and doesn’t actually define it.
In fact, almost the only other reference to ‘persecution’ in international law is the 1998 Rome Statute of the International Criminal Court which includes ‘Persecution’ in a list of things which constitute ‘crimes against humanity’ – and says that
“‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group…”
But again, somewhat unhelpfully, this doesn’t specifically define what those ‘fundamental rights’ are.
However, most people instinctively realise that there is a bit of a difference between ‘persecution’ and some other actions covered by the ECHR such as ‘discrimination’. But because asylum claims are now decided on the basis of ECHR rights, those responsible for assessing asylum claims sometimes struggle to know where to draw the line.
In fact, the word ‘persecution’ in the English language appears to largely owe its origin to Christian theology and Church History. Since the time of John Wyclif (1330-84), English Bible translations of Jesus’ warning in the Parable of the Sower that his followers would face “trouble and persecution”, have maintained that distinction. The former referring to various forms of pressure put on people because of their faith, the latter to people needing to flee because of the risk of being killed or at least imprisoned.
As such, it would be helpful for a UK refugee law to specifically set out that
- A refugee is someone fleeing persecution because of their religious or political beliefs etc.
- Persecution means a serious threat to their life, imprisonment for those religious or political beliefs, or certain specific crimes against humanity such as enslavement, torture, forced deportation etc. in the country they have fled from.
Defining who can claim refugee status
As I said above, the Refugee Convention assumes that someone fleeing persecution will claim asylum in the first safe country they come to. It absolutely does not envisage the sort of asylum claim shopping that many migrants arriving in small boats have clearly engaged in, travelling across various European countries before reaching the UK.
Granted we now live in a time when international travel is much easier and cheaper than when the Refugee Convention was written. But that does not negate the basic principes set out in it.
It is therefore wholly legitimate for a country to pass a law stating that someone will not be eligible to claim asylum if after leaving the country where they claim to have faced persecution, they have travelled through another safe country where they failed to claim asylum when they could reasonably have done so.
However, to do so, it would need to leave the ECHR. Contrary to some of the wilder claims made in the media, that does not mean we would be abandoning human rights. Although the Refugee Convention and the ECHR were written around the same time, they were entirely separate. There was actually a significant debate in the UK at the time as to whether the UK needed to join the ECHR because over the centuries, we had led the world in developing freedoms which in some respects provided better protections for the individual citizen than the ECHR did.
A compassionate and fair refugee policy
Neither does this mean that we shouldn’t have a compassionate refugee policy that provides a place of safety and refugee (the original meaning of refugee) for those fleeing persecution from brutal authoritarian regimes and jihadist violence. The problem we have at the moment is that the criteria for who is a refugee has become so muddled that that sometimes we actually end up refusing asylum applications from people who face a genuine threat to life in their own country, while sometimes allowing in the very people who persecute them, such as those who espouse jihadist violence.
Dr Martin Parsons is the author of a book on Conservativism and is a former overseas aid worker in Pakistan and Afghanistan.
Many people have heard the chicken nuggets story – the Albanian man who entered the UK illegally, gave a false name and nationality and was later given a two year prison sentence for fraud. Despite this, he was allowed to stay in the UK supposedly because his son couldn’t eat the type of chicken nuggets that are sold back in Albania. Actually, I suspect there was a bit more to that case than that, but it certainly raised perfectly reasonable concerns about the extent to which human rights law is being used in some asylum claims.
What should probably concern us more, is the guidance the Home Office issued a few years earlier, stating that senior members of the Muslim Brotherhood should be granted asylum as they were at risk of persecution in Egypt. For those who don’t know the Muslim Brotherhood was founded by Hasan al-Banna (1906-49) the founding father of modern Islamism and continues to be the vehicle for his ideology.
Those sorts of issues arise because we have departed from the original principles set out in the 1951 Refugee Convention and instead focused on the European Convention on Human Rights (ECHR), which not only encompasses a much broader range of rights than are really refugee issues, but has and continues to develop its own case law, which in some respects goes well beyond either the Refugee Convention or what those who drafted the ECHR ever intended.
It might sound obvious, but if we are to weed out the wheat from the chaff among the 100,000 or so people who claim asylum in the UK each year, around 40 per cent of whom arrive on small boats, then we need to define much more clearly what actually is a refugee.
The 1951 Refugee Convention
For example, the Refugee Convention assumes, though does not explicitly state that a refugee should claim asylum in the first safe country they reach – with Article 33 prohibiting signatory countries from returning a refugee to “the frontiers” of any territory where their life would be at risk.
It also assumes that refugee status should be temporary with Article 1(c) stating that where “the circumstances in connexion with which he has been recognized as a refugee have ceased to exist” he should return to his own country.
While Article 2 specifically states that refugees have a specific obligation to obey the laws of the country giving them asylum, implying that any serious breach of laws could justify that country removing their right to remain.
Article 33 on the expulsion of refugees is quite explicit on this, stating that whilst a refugee may not be expelled or returned to the frontiers of a country where their life would be threatened, this does NOT apply to
“a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
So, yes, as far as the Refugee Convention is concerned, extremists and terrorists can be deported back to their own country – even if they would face torture or even execution there.
If you think all of this sounds somewhat far removed from many of the claims made today by people arriving in small boats, you would be right. Which is why we need to go back to first principles and define what actually is a refugee.
In fact, Article 36 of the Refugee Convention assumes that national governments will write their own laws to implement the principles set out in the convention.
We need a law defining precisely who is a refugee
Surprising as it may seem, there is actually no precise definition of what a refugee is in international law.
The 1951 Refugee Convention simply defines a refugee as someone who has fled their own country
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”
That of course begs the question of what exactly constitutes ‘persecution’?
However, rather unhelpfully the Refugee Convention simply assumes we all know what ‘persecution’ is and doesn’t actually define it.
In fact, almost the only other reference to ‘persecution’ in international law is the 1998 Rome Statute of the International Criminal Court which includes ‘Persecution’ in a list of things which constitute ‘crimes against humanity’ – and says that
“‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group…”
But again, somewhat unhelpfully, this doesn’t specifically define what those ‘fundamental rights’ are.
However, most people instinctively realise that there is a bit of a difference between ‘persecution’ and some other actions covered by the ECHR such as ‘discrimination’. But because asylum claims are now decided on the basis of ECHR rights, those responsible for assessing asylum claims sometimes struggle to know where to draw the line.
In fact, the word ‘persecution’ in the English language appears to largely owe its origin to Christian theology and Church History. Since the time of John Wyclif (1330-84), English Bible translations of Jesus’ warning in the Parable of the Sower that his followers would face “trouble and persecution”, have maintained that distinction. The former referring to various forms of pressure put on people because of their faith, the latter to people needing to flee because of the risk of being killed or at least imprisoned.
As such, it would be helpful for a UK refugee law to specifically set out that
Defining who can claim refugee status
As I said above, the Refugee Convention assumes that someone fleeing persecution will claim asylum in the first safe country they come to. It absolutely does not envisage the sort of asylum claim shopping that many migrants arriving in small boats have clearly engaged in, travelling across various European countries before reaching the UK.
Granted we now live in a time when international travel is much easier and cheaper than when the Refugee Convention was written. But that does not negate the basic principes set out in it.
It is therefore wholly legitimate for a country to pass a law stating that someone will not be eligible to claim asylum if after leaving the country where they claim to have faced persecution, they have travelled through another safe country where they failed to claim asylum when they could reasonably have done so.
However, to do so, it would need to leave the ECHR. Contrary to some of the wilder claims made in the media, that does not mean we would be abandoning human rights. Although the Refugee Convention and the ECHR were written around the same time, they were entirely separate. There was actually a significant debate in the UK at the time as to whether the UK needed to join the ECHR because over the centuries, we had led the world in developing freedoms which in some respects provided better protections for the individual citizen than the ECHR did.
A compassionate and fair refugee policy
Neither does this mean that we shouldn’t have a compassionate refugee policy that provides a place of safety and refugee (the original meaning of refugee) for those fleeing persecution from brutal authoritarian regimes and jihadist violence. The problem we have at the moment is that the criteria for who is a refugee has become so muddled that that sometimes we actually end up refusing asylum applications from people who face a genuine threat to life in their own country, while sometimes allowing in the very people who persecute them, such as those who espouse jihadist violence.