Written Evidence Submitted by Dr Natasha Saunders (ASU0003)

Introduction

1. This submission addresses the Joint Committee on Human Rights’ request for evidence on the Human Rights of Asylum Seekers in the UK. The submission addresses Questions 1, 2, and 3 – on “safe and legal routes” and on “relocation of asylum seekers”.

2. This evidence is submitted by Dr Natasha Saunders. Dr Saunders is a Lecturer in International Relations at the University of St Andrews, whose research expertise is in forced migration, with a focus on border policy and the rights of refugees and asylum seekers.


Evidence

Question 1: Is it compatible with the UK’s human rights obligations to deny asylum to those who do not use what the Government calls “safe and legal routes”?

1. To deny asylum is to refuse to provide and protect the rights to which refugees are entitled. It is only compatible with the UK’s human rights obligations to deny asylum to those who are not in fact entitled to it, and this can only be ascertained after an examination of an individual’s claim for protection. To deny asylum on the basis of mode of travel or entry is not consistent with the UK’s obligations under the Refugee Convention.

2. We can see why this is the case if we look at the structure of rights in the Convention itself. The Convention provides that:

• Some rights accrue (provisionally) as soon as an individual comes under the control or authority of a state party;[1]
• Other rights accrue once a refugee is physically present within the territory of a state party;[2]
• A further set of rights are owed once a refugee is “lawfully present” – such as when going through the asylum system;[3]
• And still other rights are owed only once refugee status is verified.[4]

If the intent of the Refugee Convention was to deny asylum to anyone who entered the state in an irregular manner – who didn’t use “safe and legal routes” – then the accrual of rights to individuals prior to formal recognition of status would make no sense. A signatory state would be enabled by the Convention itself to avoid the legal obligations imposed by the Convention simply by refusing to formally adjudicate refugee status. Any good faith reading of the Convention reveals such a position to be perverse and unable to withstand scrutiny.

3. Further, the possibility of excluding irregular entrants from the scope of protection of the Convention was expressly rejected at the Conference of Plenipotentiaries that drafted the Convention (which included the UK). The Australian delegation proposed to exclude “fraudulent entrants” from refugee status, and this proposal was rejected.[5]

4. The definition of a refugee in international and UK law also demonstrates why it is not compatible with the UK’s human rights obligations to deny asylum based on mode of travel or entry to the UK. The definition of a refugee in international and UK law is not dependent upon mode of travel or entry.

• Article 1 of the Refugee Convention outlines very clearly which circumstances make a person a refugee,[6] and also specifies who should not be recognised as a refugee.[7] These exclusion clauses do not mention mode of travel or entry.
• The only mention of mode of entry made in the Convention is in Article 31, which prohibits punishment of illegal entry provided the refugee is coming directly from a state where their life or freedom would be threatened.

5. The UK has an international legal obligation to interpret its treaty obligations in good faith.[8] Article 31 is not a sub-clause of Article 1 and was not intended to enable states to refuse to examine asylum claims, as demonstrated by the rejection of the Australian proposal when the Convention was drafted to exclude “fraudulent entrants” from refugee status.

6. It may be permissible to temporarily detain individuals who enter illegally when they are not coming directly from a state where their life or freedom would be threatened, but this is not the same as denying their application for protection without examining it, nor is it a justification for including mode of travel or entry in the criteria for refugee status.

Question 2: What “safe and legal routes” currently exist for asylum seekers in the UK? Should new routes be introduced?

1. While there are “safe and legal” routes of resettlement for specific groups of people already recognised as refugees[9] these routes do not apply to asylum seekers. If their citizenship does not entitle them to visa free travel to, or transit through, the UK, the only way for an asylum seeker to enter the UK “legally” is to secure a visa allowing entry to the UK prior to travel. The countries from which the majority of asylum seekers in the UK originate – Eritrea, Iraq, Vietnam, Sudan, Afghanistan, Iran, and Albania – are not entitled to visa free travel to, or transit through, the UK.[10] Without a visa, travelling directly to the UK by air is almost impossible, as airlines have a duty not to transport to the UK individuals who do not have leave to enter, meaning that individuals without visas or visa waivers will not be permitted to board.[11] The UK does not issue visas for the purpose of claiming asylum, nor does it facilitate getting visas for individuals who may wish to enter the UK to work but who would not meet the stringent terms for existing work visas.[12] An individual would therefore have to fraudulently obtain a visa for other purposes – such as for tourism – in order to travel directly to the UK and seek asylum. This means in practice that there is no way for an asylum seeker to reach the UK legally, forcing them to cross borders in an irregular manner.

Question 3: Is the policy of relocating asylum seekers to third countries consistent with the UK’s human rights obligations?

1. Asylum seekers, by virtue of lodging a claim for asylum, have entered into a legal process in the UK which makes them “lawfully present” in the UK under the terms of the Refugee Convention.[13] This triggers certain protections against removal, namely the protection of Article 32 (on ‘Expulsion’). Removal to another country before an asylum claim has been lodged (before “lawful presence” can be said to be established) is not prima facie impermissible under the Refugee Convention, however, there are other human rights obligations and concerns with removal to third countries that are also relevant. Such removal, fundamentally, must not violate an individual’s human rights.[14]

2. The UK has a human rights obligation to prevent refoulement (the return or expulsion of a person to a state where their life or freedom may be threatened.[15] This obligation not only derives from the Refugee Convention but other human rights treaties to which the UK is a signatory.[16]

3. Beyond a legal obligation to prevent refoulement, the UK has an obligation not to facilitate human rights abuses. A policy of relocating would-be asylum seekers (people who have not yet lodged a claim for asylum) to third countries would not violate the UK’s human rights obligations if this third country had a strong human rights record and is willing and able to provide protection of the rights to which refugees are entitled. For example, such a state should, at the very least, be a signatory of the Refugee Convention and have a record of implementation of the rights listed in the Convention. As Professor James C. Hathaway puts it: “protection elsewhere means precisely that: protection in line with the Refugee Convention and other applicable human rights standards.”[17]

4. The relocation agreement that the UK Government has negotiated with Rwanda does not meet the appropriate human rights standards. In Rwanda’s most recent Universal Periodic Review, serious concerns were raised about press freedom, freedom of expression, LGBTQ+ rights, arbitrary detention, torture, and police brutality.[18]

08/12/2022