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Are refugees obliged to claim asylum in the first safe country they reach?

Are refugees obliged to claim asylum in the first safe country they reach?

There has been considerable fuss made in the last week about a handful of refugees crossing the English Channel to claim asylum here in the UK. Here I’m going to look at the numbers, the wider context, what we know about refugee decision making and then turn to the law and what Brexit might mean.

Numbers

The numbers are small: around 100 a month for the last two or three months. 585 are reported to have arrived in the UK in this way in the whole of 2018. The most recent arrivals have attracted a disproportionate amount of media attention and the Home Secretary declared the arrival of these refugees to be a “major incident.”

As context, there were over 30,000 asylum claims made in the UK in the year 2017, the last year for which data are available. That represents a slight fall on previous years. Meanwhile, in Europe Germany there were 222,560 asylum claims, in Italy 128,850 and in France 99,330.

So, it is hard to see why the arrival of a few hundred refugees across the Channel can justify the jettisoning of traditional British phlegm.

Risk to life

There has also been some talk of the risk to the refugees themselves. Attempting to cross the English Channel in a small dinghy is certainly dangerous and rescue patrols should be established to assist those who need it. Let us not forget that 2,242 migrants are thought to have drowned in the Mediterranean in 2018, according to the IOM Missing Migrant Project.

That is an awful number but the official UK position was, for a long time, that rescue patrols should not be established because to do so would only encourage others to attempt the journey.

We do not support planned search and rescue operations in the Mediterranean. We believe that they create an unintended “pull factor”, encouraging more migrants to attempt the dangerous sea crossing and thereby leading to more tragic and unnecessary deaths.

Baroness Anelay of St Johns, Minister of State, Foreign and Commonwealth Office

To put it another way, it was better to let some drown in order to dissuade the others.

Refugees or migrants?

Personally, I’m not that hung up on the language used to describe those crossing the English Channel. Some think “refugees good, migrants bad” but (a) I don’t and (b) a refugee is a type of migrant anyway.

Some commentators seek to make a point by describing those arriving as migrants rather than refugees, on the implicit assumption that one cannot be both. Ultimately, the latest asylum statistics suggest that the majority are genuine refugees who will be recognized as such once their asylum claims are processed.

Most of those crossing the Channel are reported to be Iranian. If we look at the latest asylum statistics for the year ended September 2018, there were 2,689 decisions made on Iranian asylum claims and the success rate was 47%. That is basically half of all Iranian claims being granted by the Home Office.

But that is not the whole story. Those who are refused by the Home Office are entitled to appeal. In the same period, there were 2,193 appeal decisions made in Iranian cases and 46% were allowed.

Basically, it looks like about three quarters of Iranian asylum claims lead to a successful outcome.

I’m going to stick my neck out and say that those Iranians seeking to cross the Channel to claim asylum are refugees.

Reality of refugee decision making

Here on Free Movement we’ve been writing about immigration and asylum law since 2007. Unsurprisingly, this is not the first time that we’ve looked at whether refugees should claim asylum in the first safe country or why refugees might want to come to the UK.

Nick Nason most recently wrote on the subject in 2017 in his piece Should refugees claim asylum upon arrival in their first ‘safe’ country? I covered similar ground back in 2015 in a piece entitled Why do the “migrants” in Calais want to come to the UK? And Chris McWatters wrote on why refugees might not hang around in a massive refugee camp in his piece in 2015, What is life really like in Zaatari camp and how long should refugees be expected to wait there?

I have also written on several occasions about whether refugees can be prosecuted for illegal entry, for example in Channel Tunnel Man: Refugees should not be prosecuted for irregular entry.

Plus ça change.

The fact is that some refugees do not want to stay in the first safe country they reach, nor are they under any legal obligation to do so.

But first, let us not forget that many refugees do actually stay in refugee camps. The Home Secretary is getting himself in a tissy because of a couple of hundred of refugees. According to UNHCR, the top five countries hosting refugees are Turkey (3.5 million), Uganda (1.4 million), Pakistan (1.4 million), Lebanon (1 million) and Iran (979,400).

A very interesting and rather timely piece of research was recently published by Heaven Crawley and Jessica Hagen-Zanker entitled Deciding Where to go: Policies, People and Perceptions Shaping Destination Preferences, which is currently freely available. “Destination preferences”, as they put it, are rarely shaped by deterrent or other migration policies of receiving countries. Rather, decision making is shaped by a wide range of factors including “access to protection and family reunification, the availability/accuracy of information, the overall economic environment and social networks.” Where refugees already have close family members residing in a country and that country will not permit family reunion, a refugee may take desperate measures to reach his or her family. When faced with a hopeless existence because of language barriers or lack of employment opportunities, refugees may well decide the risk of an onward journey is worthwhile.

Finally, there is no known evidence to suggest a “real” refugee actually does stay in the first safe country he or she reaches. It is the Refugee Convention that defines the meaning of “refugee” and that definition is utterly unrelated to where the person claims asylum.

The Refugee Convention

The Home Secretary has said that a genuine refugee would claim asylum in the first safe country he or she reaches. He therefore deduces, or at least claims to deduce, that those traveling from France to the UK are not genuine refugees.

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This sounds good and appeals to a certain constituency. It is also what some in the UK would like the law to be. But we have seen that human nature does not work like that. Nor does the law.

Firstly, there is no obligation in the Refugee Convention, either explicit or implicit, to claim asylum in the first safe country reached by a refugees. We have previously looked in detail at the definition of a refugee (if you want more check out our online course on refugee law) and it is basically about whether a person has a well founded fear of being persecuted in his or her country or origin. Whether that person travelled through several countries before claiming asylum simply has no bearing on fear of persecution at home.

Additionally, Article 31 of the Convention protects refugees against prosecution for illegal entry to a receiving country:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

This has been recognised by the courts in England and Wales. In the landmark case landmark case of R v Uxbridge Magistrates Court (ex parte Adimi) [1999] Imm AR 560 Lord Justice Simon Brown held that refugees did not have to claim asylum in countries through which they pass to reach safety in order to be protected by Article 31:

… I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s Executive Committee (‘ExCom’), and the writings of well-respected academics and commentators (most notably Professor Guy Goodwin-Gill, Atle Grahl-Madsen, Professor James Hathaway, & Dr Paul Weis), that some element of choice is indeed open to refugees as to where they may properly claim asylum.

Protection from prosecution was incorporated into UK law with section 31 of the Immigration and Asylum Act 1999. This provides a defence based on Article 31 against charges based on illegal entry and various documents offences. This hasn’t prevented wrongful prosecutions of refugees, sadly.

Leading politicians in the United Kingdom have long wanted it to be the law that a refugee should be returnable to a safe third country if he or she manages to reach our furthest flung corner of Europe. Theresa May made a big and rather abhorrent speech about it back in 2015 when she was still Home Secretary. And, in fact, there is such a system operating within the EU. But the UK will not be able to participate in that system after Brexit.

The Dublin system

Back in the 1990s the EU set about creating the Common European Asylum System in order to standardize asylum law and process across the whole of the EU and thereby reduce incentives for asylum seekers to travel within the EU. If they would be treated broadly the same everywhere, the reasoning went, they would not seek to move between EU countries.

One aspect of the system is referred to as the Dublin system or the Dublin Regulation. This piece of EU law provides broadly that where an asylum seeker has been fingerprinted in an EU Member State but then moves on to another EU Member State, the asylum seeker can be sent back to the first country to have the asylum claim processed there.

For example, if an asylum seeker reaches Italy, is fingerprinted then travels to the UK and claims asylum, pretty much the first thing the Home Office will do is take fingerprints, check them against the central Eurodac fingerprint database and then if a match is found notify the other country and send the asylum seeker back there pronto.

There is no legal duty or obligation on the asylum seeker to claim and remain in the first safe country and an asylum seeker who moves on is not breaking the law by doing so or disqualifying themselves from refugee status. But as a matter of administration, one EU country can send the asylum seeker back to another EU country under this system.

There are currently several hundred such “Dublin removals” every year from the United Kingdom. It is system that the UK is very happy with, but Italy and Greece rather less so.

An inevitable consequence of the type of Brexit currently being pursued by the UK Government is that the UK will be leaving the Common European Asylum System and the Dublin Regulation will cease to apply. The UK says that it would like to negotiate a similar agreement from outside the UK but the prospects of the EU agreeing to that seem extremely slim.

Brexit therefore means it will no longer be possible for the UK to remove those asylum seekers who reach the UK via EU countries.

Why not just send them to France anyway?

Because the French Government would not accept them. One country cannot simply send a person to another country without the receiving country’s permission. Other countries don’t do it to us and we don’t do it to them. It’s pretty basic.

Imagine, how would it work? If just placed on a boat, plane, train or automobile, the receiving officials would refuse to let the the person disembark or would just send them straight back to the UK. The UK would then face the same problem. Ferry terminals and airports would quickly start to fill with people caught in bureaucratic limbo. And what would be the consequences to our relationships with other countries?

UK border officials could physically take a person to the other country, perhaps, and then hand them over. But what happens when the receiving officials say “non”? Do the UK officials, um, just run away?

Intercepting dinghies in the Channel and then towing them to France likewise seems a tad impractical. Landing the occupants of the dinghies in France without French permission might well be rather frowned upon, I imagine. I cannot imagine the British Government being very happy if the French did the same to us.

And that, ladies and gentlemen, is why we have laws. And why even Sajid Javid accepts that there are no easy solutions.

In summary…

So, to sum up, there is no obligation on refugees to claim asylum in the first safe country they reach, although many in fact do. The UK receives a tiny number of refugees compared to other countries in the EU and beyond. There are multiple reasons why refugees might want to move on from refugee camps or travel to find family members or better prospects. If they do so, and would face a well founded fear of being persecuted in their home country, they are still refugees. There is a system within the EU called the Dublin system under which refugees can be sent back to their point of entry to the EU to have their asylum claims processed. But the type of Brexit being pursued by the British government means that the UK will be leaving the Dublin system when we leave the EU.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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