Written evidence from Humanists UK (NBB0036)

ABOUT HUMANISTS UK

Since 1896, our work has been helping people be happier and more fulfilled. By bringing non-religious people together we help them develop their own views and an understanding of the world around them. Together with our partners Humanist Society Scotland, we speak for 100,000 members and supporters and over 100 members of the All-Party Parliamentary Humanist Group.] Through our ceremonies, pastoral support, education services, and campaigning work, we advance free thinking and freedom of choice so everyone can live in a fair and equal society.

We are a human rights-based organisation with particular expertise in freedom of religion or belief. We work closely with Humanists International, the global representative body of the humanist movement, uniting a diverse range of non-religious organisations and individuals. Our Chief Executive is also the President of Humanists International. We are also a member of the European Humanist Federation (EHF). We hold strong relations with the UK Foreign, Commonwealth, and Development Office, having regular bilateral meetings with relevant ministers, as well as being part of the human rights minister’s religion or belief roundtable. We are an active member of the All-Party Parliamentary Group on International Freedom of Religion and Belief and are a member of its Asylum Advocacy Group. We also are accredited at the UN Human Rights Council – the only national humanist group to hold such accreditation – and make interventions there every session. We contribute annually to Humanists International’s Freedom of Thought Report, and are part of the End Blasphemy Laws campaign, which has successfully prompted ten countries to repeal their blasphemy laws since it was founded in 2015.

For the past three years, our asylum support service has supported over 50 non-religious asylum claimants. We are the only organisation in the UK providing support to non-religious claimants. In addition to supporting individual claimants, we have played a key role in advocating improved treatment of non-religious asylum claims. We helped the Home Office develop a training course for asylum assessors on claims concerning persecution based on religion or belief and assisted in its roll-out, delivering training directly to hundreds of asylum assessors on how to identify genuine non-religious claimants. We are also a member of the Home Office’s Equality Stakeholder Group.

EXECUTIVE SUMMARY

●       The Home Office proposed to introduce a temporary protection order for those who have entered the UK by irregular means, or are present in the UK without permission before making a claim. We believe that this is outside both the spirit and the letter of the UK’s obligations under the Refugee Convention 1951.

●       We fundamentally reject the Bill’s provision to amend sections 77 and 78 of the Nationality, Immigration and Asylum Act to allow for the deportation of asylum seekers before the conclusion of their cases. We believe this is against the spirit of the Refugee Convention.

●       Before considering raising the bar of what is considered ‘a well-founded fear of persecution’, we believe the Government needs to consider how it can improve the quality and accuracy of decision-making and credibility assessments. Especially with regard to the level of understanding of non-religious beliefs and the persecution of the non-religious globally, which is currently severely lacking, as well as how it assesses credibility in religion or belief claims.

PERSECUTION OF HUMANISTS – SOME GENERAL OBSERVATIONS

‘In my observations, humanists, when they are attacked, are attacked more viciously and brutally than in other cases.’[1]

These are the words of the UN Special Rapporteur on Freedom of Religion or Belief, Dr Ahmed Shaheed, highlighting the fact that humanists are one of the most vulnerable belief groups around the world – vulnerable to hate crime and state-sponsored persecution. In 13 countries being non-religious is a capital crime under blasphemy and apostasy laws and it is an imprisonable offence in over 40 more. In the past five years there has been a worrying global trend of increased communal and vigilante violence against humanists, which has resulted in numerous high-profile murders – for example, that of Mashal Khan, who was beaten to death by fellow students at his University in Pakistan, simply for calling himself ‘The Humanist’ on Facebook.[2] The result is that in many countries, there is virtually no openly non-religious community at all – it is simply impossible to be so. Speaking in 2020, Dr Shaheed stated ‘Humanists are the invisible people of the present 21st century. While almost everybody is persecuted when they are in a minority, the attacks on humanists are particularly violent. They are exposed to harm in the communities where they live, and of course, for many of them, the family is not a safe place. The pandemic therefore intensifies that.’[3]

RESPONSE TO CONSULTATION QUESTIONS

1.      Does introducing a two-tier system of rights for refugees meet the UK’s obligations under refugee law and human rights law?

Rejection of a two-tier asylum system
We believe that the introduction of a temporary protection order for those who have entered the UK by irregular means or are present in the UK without permission before making a claim is outside both the spirit and the letter of the UK’s obligations under the Refugee Convention 1951.

The Home Office has presented no evidence to suggest that the creation of a temporary protection order will be effective in discouraging irregular asylum entry. It seems that this provision will only serve to impoverish and add uncertainty to those with this status regardless of the risk of persecution they face.

We fundamentally reject the proposal to create different pathways for asylum seekers depending on the legal status of a person upon entry into the UK. The lived reality of persecution means that it is often not possible for asylum seekers to obtain legitimate travel documents from recognised government authorities nor wait to gain legal permission to enter, such as through a visa. This is simply not possible for the vast majority of those who are forced to flee persecution in their country of origin. But this does nothing to undermine their credibility as asylum claimants or to cast doubt on the threat of persecution that they face, and therefore it should not affect the protection afforded to them. Thus, the Refugee Convention recognises,
             

‘A refugee whose departure from his [sic] country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge. It would be in keeping with the notion of asylum to exempt from penalties a refugee, escaping from persecution, who after crossing the frontier clandestinely, presents himself as soon as possible to the authorities of the country of asylum and is recognized as a bona fide refugee.’[4]

An individual’s ability to gain legal travel documents and entry permission is often affected by their protected characteristics, such as religion or belief, sex, marital status, and race, and the extent to which those characteristics are persecuted in their home country. Penalising those unable to access legal routes may therefore be indirectly discriminatory, which is prohibited not only by the Human Rights Act but by the Refugee Convention itself.

Article 31 of the Convention states:

‘1. 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.[5]

Although the above wording stipulates direct entry from a country where the person's life is at risk, it is clear that the intention of the Convention is that there should be no distinction or penalty for unauthorised entry. This principle should also be applied to those who have come indirectly from a place where they faced persecution. The spirit of the Convention is further highlighted by the Office of the United Nations High Commissioner for Refugees who has stated:

‘The Convention is both a status and rights-based instrument and is underpinned by a number of fundamental principles, most notably non-discrimination, non-penalization and non-refoulement. Convention provisions, for example, are to be applied without discrimination as to race, religion or country of origin. Developments in international human rights law also reinforce the principle that the Convention be applied without discrimination as to sex, age, disability, sexuality, or other prohibited grounds of discrimination. The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.’[6] (emphasis added)

Although there are certain exceptions to penalising illegal entry and the creation of a two-track system is not specifically detailed in the (non-exhaustive) list of prohibited penalties above, it is clear that the Convention does include provision that illegal entry should not affect the outcome of the asylum claim or should render it inadmissible – as is proposed bin this Bill. In fact, it advises against any penalties at all. Therefore it is clear that the Bill is not in line with the intents and purposes of the Refugee Convention. For this reason, it runs directly counter to the UK’s treaty obligations and so these aspects of it should be rejected.

2.      Do proposed new powers for UK Border Force to direct vessels out of UK territorial waters, and for the Home Office to return people to “safe countries” risk undermining refugees’ human rights as well as the principle that refugees should not be expelled or returned to the frontiers of territories in any manner whatsoever where they risk persecution (the principle of non-refoulement)?

We believe that the proposals do risk undermining the principle of non-refoulement. We have expanded on our reasons for believing this to be the case in answer to question 4.
 

3.      Do the proposed powers to remove asylum seekers to “safe countries” while their asylum claims are pending, with a view to supporting the processing of asylum claims outside the UK in future, comply with the UK’s obligations under refugee law and human rights law?

Rejection of clause to amend the Nationality, Immigration and Asylum Act 2002
We fundamentally reject the Bill’s provision to amend sections 77 and 78 of the Nationality, Immigration and Asylum Act to allow for the deportation of asylum seekers before the conclusion of their cases. There is nothing within the Refugee Convention to suggest that an individual can be removed whilst an asylum application is pending, save in time of war or grave and exceptional circumstances. No blanket policy is permissible. The Convention states:

‘Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.’[7]

Moreover, the Bill is very vague on essential points such as where these claimants will be located, how this location will be determined to be safe, by what mechanism they can return to the UK if their asylum claim is successful, or what considerations there will be for people with disabilities, children, pregnant women, or those who have suffered from torture or similar traumas. Most notably, the Bill has not considered the impact of Article 6 of the European Convention on Human Rights, the right to a fair trial. How can the Home Office guarantee the integrity and fairness of its decision and the decisions of the appeals tribunals if the claimant is not present in the UK to attend and give evidence in person?

The off-shore processing model has been shown to be a failure in deterring asylum claimants, has consistently been condemned for poor conditions where it has been introduced, and has no legal basis in UK law. This proposal is not new. It was first suggested by Tony Blair in 2003, under the name of Regional Protection Areas, but is essentially the same proposal. He claimed that the Refugee Convention did not mandate that claims had to be processed in the country of application and that as long as these processing centres did not expose claimants to cruel or degrading treatments they could be legally implemented.[8] He was wrong on both counts and this Bill in echoing this line of thinking is also incorrect. The proposals were dropped after it was concluded that the UK would need to withdraw from both the Refugee Convention and the European Convention on Human Rights to do so. The then Government stated that:

‘If we want to reduce our asylum obligations we could completely withdraw from the Convention. However, this will bring us little gain unless we can withdraw from or alter Article 3 of EHCR [sic] [prohibition of torture]. If we could change Article 3 then withdrawal from Geneva Convention may be worth considering. The danger here is that a UK or European withdrawal would lead to the collapse of the Convention with developing countries reasoning that they need not tie themselves to obligations that the developed world is not prepared to keep. This would result in increased global flows of refugees with millions of people being left in limbo without protection. Therefore any future withdrawal from the Geneva Convention needs to be couple[d] with an alternative protection regime for refugees.’[9]

This could hardly be seen as a realistic or desirable solution. As this Bill does not also contain clauses to remove the UK from the European Convention on Human Rights and the Refugee Convention, it is clear that off-store processing centres cannot be legally implemented. There has been no change in law caused by Brexit: these obligations reside outside the EU institutions.

Furthermore, the Home Office has presented no evidence in support of its claim that off-shore processing centres will deter irregular entry or tackle trafficking. Following the introduction of off-shore processing centres in Australia, more people arrived in the first 10 months of the policy than at any other time in Australian history. Within three months, the forecast capacity of the offshore detention centres had been exceeded, meaning the majority of those who came would never be sent offshore.[10]

In such circumstances, it is hardly surprising that conditions inside these centres have been condemned by the UN Refugee Agency, which in 2018 called for urgent medical interventions. It issued a statement that,

‘Australia’s so-called “offshore processing” policy continues to exacerbate the dire health condition of vulnerable men, women and children alike. Too many, from children not yet of school age to their elderly grandparents, are now critically unwell. This deterioration has been reflected in a growing sense of despair, resulting in increasing self-harm and suicide attempts in both Papua New Guinea and Nauru in recent months. Following years in held detention, and continuing uncertainty and hopelessness after more than five years, the acute needs of refugees and asylum-seekers are in no way comparable to those of the respective local populations.’[11]

We simply would not want such policies implemented in the UK. Nor do we believe that this Bill will offer value to taxpayers as the cost of detaining a claimant in an offshore facility will far exceed the cost of them living in the community in the UK. In Australia it is estimated to be up to 50 times more expensive.[12]
 

4.      Is Home Office decision-making in immigration matters that raise human rights concerns sufficiently independent and rigorous to ensure that human rights are properly respected?

Before considering raising the bar of what is considered ‘a well-founded fear of persecution’, we believe that the Government needs to consider how it can improve the quality and accuracy of decision-making and credibility assessments within the asylum process, especially with regard to the level of understanding of non-religious beliefs and the persecution of the non-religious globally, which is currently severely lacking, as well as how it assesses credibility in religion or belief claims.

Need to address the exclusion of non-religious victims of persecution
Currently 13 countries maintain the death penalty for blasphemy or apostasy and in over 40 more these are imprisonable offences. Such individuals can flee to the UK and claim asylum under the ‘religion’ ground of the 1951 Refugee Convention. However, with a refugee system that is primarily understood in terms of persecution of people because of their religion (religious minority groups or converts from one religion to another), the Home Office has failed to consider the experience of an often invisible group, those who are persecuted because they are non-religious.

General Comment 22 of the UN Human Rights Committee makes clear the right to freedom of thought, conscience, religion, or belief within the Universal Declaration of Human Rights includes ‘non-theistic and atheistic’ beliefs, but the conceptual framework that defines beliefs favours traditional religions over other belief systems.  It is thus clear that the non-religious are equally protected. An asylum claim made on the ground  of religion rests upon establishing the credibility of the claimant: being able to demonstrate they genuinely hold persecuted beliefs. However,  there is a lack of clear guidance on how a genuine non-traditional belief or lack of belief can be manifested and assessed by the Home Office has led to a failure to recognise non-traditional beliefs. This in turn has unfairly led to negative credibility claims. Amnesty International’s 2004[13] and 2013[14] reports concluded that poor credibility assessment is an endemic problem within the Home Office. A paper by the All-Party Parliamentary Group on International Freedom of Religion or Belief[15] addresses how the non-recognition problem is manifested at the policy level through a lack of religion or belief literacy among decision-makers, leading to poor credibility assessments. This problem needs to be addressed as a matter of urgency and before the Home Office considers changing the threshold of persecution.

For example, in 2018 the Home Office rejected a claim for asylum on the grounds that the humanist claimant, when asked to name ancient Greek philosophers who were humanists, did not name Plato and Aristotle (neither of whom were in fact humanists!). The claimant, Hamza bin Walayat, an ex-Muslim ‘apostate’ and member of Humanists UK, would as a humanist face ostracism, violence, and persecution if returned to his native Pakistan.[16] During his substantive interview, he was subjected to an extraordinary line of questioning, revealing a fundamental misunderstanding of equality and human rights protections by the Home Office with regard to non-religious people. He was chastised for stating ‘your religion as Humanist despite knowing that this is not a religion.’ Semantics aside, it has been long established in UK and international law that references to religion must be read as including references to non-religious beliefs. The law protects non-religious people from persecution just as it protects religious people.

The fact that humanists do not subscribe to a set of religious beliefs does not mean humanism isn’t treated the same as religions for the purposes of prevention of persecution. However, the Home Office currently does not have sufficient capacity/understanding to accurately and fairly assess the credibility of people claiming to be non-religious.  This again needs to be resolved before the Home Office considers placing additional barriers to recognition into its policies. Humanists UK has worked with the Home Office to develop a new training course on religion or belief claims, which is inclusive of the non-religious.

Lack of correct information to assess level of persecution against the non-religious Additionally, country guidance and policy notes on which asylum decision-makers rely to determine the risk faced by a claimant if returned to their country of origin often do not include the treatment of the non-religious. This has wrongly led decision-makers to conclude that there is no risk, or to treat the non-religious in the same way as other named minority groups, such as Christians or Ahmadis, whose situation and treatment is distinctly different and not comparable. For example, the country policy and information notes on Pakistan contain separate reports on the treatment of Christians, Shias, and Ahmadis. However, there is no mention in any of the guidance of atheists, humanists, or other non-religious people.[17] This is significant because although the aforementioned religious groups are subject to various forms of persecution, they also enjoy a degree of tolerance that is not afforded to apostates, those who leave Islam, who comprise the majority of Pakistan’s non-religious population. It is not acceptable that the lack of accurate information on the treatment of non-religious people should continue.

In 2019, we helped the Home Office develop a training course for asylum assessors on cases based on persecution based on religion or belief, and drafted case studies on the persecution of the non-religious for inclusion in the training materials. We also assisted in the roll-out of this course, delivering training directly to well over 100 asylum assessors on how to identify genuine non-religious claimants. Although this training was a positive step forward, there is still a long way to go to ensure that interview practices, country guidance, and credibility assessments are correctly carried out to ensure those from non-traditional religions, religious minorities, and the non-religious receive fair treatment.

Improving decision-making
The Government has set ‘fairness’ as its main criterion for reform of the asylum system in this Bill, but has failed to look inwards at its own processes and decisions to assess areas of injustice and ineffectiveness. Currently, 76% of all asylum claimants wait longer than six months for a decision, and 36% of Home Office refusals appealed by the claimant are overturned.[18] This suggests that there is a serious need for reform of Home Office practices to ensure fair outcomes for claimants, including timely and accurate decisions.

In 2010, the Independent Chief Inspector of Borders and Immigration stated as his first recommendation on decision-making that the Home Office ‘as a matter of priority, assesses how it can deliver performance improvements consistently; and how it proposes to deliver its target of concluding 90% of cases within six months by December 2011’ – citing staffing levels as one of the key problems in achieving this.[19] Over a decade later, the Independent Chief Inspector again highlighted staffing as a primary concern in his 2020 review of resettlement schemes, recommending that the Home Office ‘ensure that the resourcing of the UK Resettlement Scheme within UKVI has sufficient capacity at senior levels to manage the policy and strategy challenges, including cross-departmental dependencies, and at working level to run the scheme day-to-day, ensuring that all roles have up-to-date Job Descriptions’.[20] The Inspector had previously found that job descriptions and grades were poorly defined and training was insufficient for assessors to be deployed as needed.

This Bill does not address staffing, resources, or training as part of the proposed reform, although these have been evidenced as major causes of delays and bottlenecks in the system. It is not new legislation that is needed to tackle the decision-making issues within the Home Office. A key objective of reform to the asylum system must be to look at the Home Office’s operational capabilities and address its long-term failings.

17/09/2021