The Illegal Migration Bill and the Refugee Convention

Does the new Illegal Migration Bill breach the United Kingdom’s obligations under the 1951 Refugee Convention? At the Bill’s second reading Home Secretary Suella Braverman KC MP stated that ‘claims that the Bill will breach our refugee convention obligations are simply fatuous’ (13 March 2023). Many commentators including the UN Refugee Agency – UNHCR – disagree; but provide little detail of how it might do so. Where and how, then, might the Bill go contrary to the obligations established by the Refugee Convention?

A key point of legal contention concerns the Bill’s imposition of a blanket duty on the Home Secretary to remove to a ‘safe third country’ non-nationals who have ‘entered or arrived in the UK illegally’ after 7 March 2023 and have not travelled directly from a country in which they feared persecution for a Refugee Convention reason. Towards this end, the Bill also requires the Home Office to decline to determine their claims for refugee status. Ostensibly, this seeks to deter refugee claimants from arriving by small boats; a trend that shot up since the pandemic started.

Certainly, it is open to question whether this measure will deter irregular arrivals and whether the UK will be able to increase significantly its currently tiny numbers of removals, even if the Rwanda scheme were ultimately found to be lawful. The vast increase in the detention estate that it implies, as thousands of new arrivals each year will be detained pending a removal that may never happen, represents a significant burden to the public purse. Those who are released from detention pending removal will not have access to status or work, making inevitable an increase in the ‘asylum hotels’ hated by the taxpayer, local communities and the refugees themselves.

But even if the duty were implementable in practice, does it comply with the Refugee Convention? At times, governments give the impression that this treaty is one that they are forced, reluctantly, to follow. Legally speaking this is quite untrue. A country can be bound only by international law rules to which it has consented. The UK was not only one of the original drafters of this Convention, but also pushed for it to be applied globally and not just to refugees in Europe in the Second World War’s aftermath. Governments also sometimes suggest that the Convention’s apparently high-minded ideals of refugee protection are not practical for them. This too is a surprising claim.

The Refugee Convention was drawn up and ratified by governments no less self-interested than those today. It was created to deal pragmatically with a reality which they recognised no country can escape – while persecution and war exist, refugees will be a fact of life. In a chaotic world, the Convention is a highly practical tool for resolving the challenges that refugees pose. It provides a collective yardstick by which the world’s governments can decide hard-headedly which irregular arrivals truly need sanctuary. It establishes guarantees for those refugees so they do not end up living illegally on the margins of society; a situation of risk for governments, communities and refugees themselves.

Even to the no-nonsense Refugee Convention drafters, the idea that a country might decline to determine refugee status, and instead detain and remove those claiming its protection, was likely unthinkable. Such a move would have been entirely counterproductive. The whole idea of the treaty is to give governments a way to deal pragmatically with refugees. What is the point of not applying it? The treaty may not stipulate that a government must determine refugee status, but only because that is so utterly self-evident. This pragmatic approach to the reality that many refugees will have to enter or be present illegally underpins the entire Convention.

Firstly, it underwrites the established legal principle that refugee status is ‘declaratory’. This means that a State determining a claim for asylum does not award or confer refugee status on a person, but merely recognises what already exists, i.e. their objective circumstances meet the refugee definition in art 1 of the Convention. If refugee status were not declaratory, then governments could ignore their obligations towards refugees (and even send them to persecution) simply by declining to carry out the determination of refugee status. In this world, the Convention would be legally a dead letter. It would serve no purpose for governments, least of all as a blueprint for a common approach.

Legally, this principle means that governments must treat all claimants for refugee status as if they were refugees until it determines objectively that they do not meet the refugee definition. As such, the UK remains bound by basic Convention obligations towards all refugees until it determines their refugee status, even if they have arrived irregularly and are not yet ‘lawfully staying’. These legal obligations are quite extensive (see Convention, arts 3-8, 12-14, 16, 20, 22, 27, 30, 31, 33, 34). Guarantees pertinent to whether a State can decline to determine refugee status include: non-penalisation for illegal entry or presence (art 31); non-refoulement (art 33, i.e. non-return to a country where they fear persecution); and facilitating assimilation and naturalisation of refugees (art 34).

Secondly, this declaratory principle implies a duty to determine refugee status. That can also be derived from the legal principle of effectiveness and from specific Convention provisions. For instance, the art 1 refugee definition takes the form of a legal test, which would not be needed if refugee status determination were discretionary. Any refusal to determine status also seems to conflict with the art 34 duty to ‘as far as possible facilitate the assimilation and naturalization of refugees’. Moreover, in practice, if a State like the UK routinely declined to determine status, then Refugee Convention rights would accrue indefinitely to any and all non-nationals who claim asylum there and not just to refugees. This would defeat the purpose of the treaty.

Thirdly, the Convention pragmatically recognises that refugees fleeing persecution or war will often be unable to enter another country by regular means. Art 31 acknowledges that this can bring refugees into conflict with national laws criminalising illegal entry or presence. It thus provides a partial exemption for some refugees. But nowhere does the Convention suggest that States can refuse to determine refugee status on this ground. That is not a penalty for illegal entry; it is the dereliction of the core Convention obligation to determine status. This is clear also from the structure of art 31, which requires refugee status to be determined in order to know whether penalties for illegal entry or presence can be applied in the individual case.

Fourthly, the Convention was set up by the drafters to address the reality that refugees go where they perceive sanctuary to exist. The integrity of the Convention as a whole thus rests on the implicit duty on a State party to receive refugees, determine their claims and fulfil Convention obligations to them in its own territory. This may not result in a ‘fair’ sharing of the world’s refugees between countries. But it is a realistic way of addressing refugee problems and avoids States playing ‘beggar-my-neighbour’. Indeed, if the treaty merely prevented the refoulement of the refugee (as the UK government claims), then every State in the world could spend all its time trying to ship refugee arrivals to other countries. This would make the Convention pointless and leave refugees wasting their lives in indefinite stasis as States argued about responsibility in each individual case.

Finally, the Refugee Convention implements the ‘right to seek and to enjoy in other countries asylum from persecution’ from the Universal Declaration of Human Rights. The Declaration is not in itself a binding source of international law. But it does articulate shared values in respect of human rights for the entire international community of which the UK is a part. The ‘territorial’ nature of such asylum is well-established as an institution of international law. This also reflects a pragmatic stance: States are rarely willing to intervene in other States, but persecuted individuals who can reach another State’s territory are in a different legal position. The provision of territorial asylum to those eligible to receive it (in this case under the Refugee Convention) is thus a foundational duty under international law, which is potentially breached by the provisions of the new UK Bill.

This illustrates how the Refugee Convention is not the UK’s only source of refugee law obligations. Indeed, the core obligations to determine the status of refugee claimants and to provide territorial asylum derive not only from the Convention itself but also likely exist as parallel binding rules of customary international law. Let’s take an example. It is evident that all States parties to the Convention that regularly receive refugees operate procedures to determine refugee status. Globally, these procedures take various forms (and may even be operated by UNHCR) but this ‘general practice accepted as law’ evidences both a customary rule and ‘subsequent practice in the application of the treaty’ for the purpose of interpreting the Convention. The UK Bill puts at risk our adherence not only to multilateral treaty obligations but also global customary rules.

It is true that some States already operate schemes to send refugee claimants to a ‘safe third country’, rather than determining their status. But such schemes cannot invert the essential rule that States must fulfil their obligations towards refugees where they are present. To do so would be to make the Refugee Convention practically redundant, as countries would be free to engage in constantly seeking to remove all refugees to allegedly ‘safe’ countries. Thus, at a minimum, individual transfers require the receiving State to acknowledge a responsibility for determining the claim on the basis of a past connection with the applicant, and a willingness to assume that responsibility. The Dublin arrangement effectively treats the EU as a single territory with identical asylum standards and judicial protections to allow the lawfulness of any transfer to be challenged. Ultimately, in the case of the UK, the point is largely moot since, despite many years of efforts, the UK does not have any safe third country agreements, aside from the legally questionable Rwanda scheme.

Overall, then, the pragmatic rationale of the Refugee Convention explains why pertinent clauses of the Bill are likely to be unlawful as well as impractical. As a core duty, the Convention requires States parties to deal with refugees where they arrive for practical reasons. Under this global approach, the UK actually receives far fewer refugees than most comparable countries in the world. By unravelling the threads of the Refugee Convention, the UK not only risks contravening the treaty but puts at risk the integrity of this collective global structure for dealing with refugees. Moreover, paradoxically, a world in which the Refugee Convention is no longer observed would be one in which the UK receives many more illegal arrivals, as options for refugees to access protection in other parts of the world dry up too. The UK should reject this plank of the proposed Illegal Migration Bill. There are sensible alternatives to addressing the concerns that recent small boat arrivals pose for the UK.