While we froth over stories of barriers in the Channel and wave machines to push migrant boats back into French waters, we must not take our eyes off the Home Office’s current inhumane treatment of asylum seekers and violations of the law.
First published in October 2020.
It is obvious that the Home Office is trying to create ever more ludicrous plans regarding asylum seekers, but seeing as you have the likes of Alexander Downer (former foreign minister of Australia and former High Commissioner to the UK) talking on the BBC Radio 4 Today programme defending offshoring asylum seekers, it is worth taking a look at what it actually means.
First off, there is the point raised by Alexander Downer that offshoring processing facilities would need to be located in international waters because once they are in the territory of the state they have the right to seek asylum. This raises issues of its own, as Australia found.
Depending on how and where asylums seekers were intercepted, offshoring them in international waters could in and of itself be considered illegal. Seeing as we are talking about people crossing the English Channel it may involve removing them from the UK territory without hearing claims.
It is a well founded principle in international refugee law that a state in which an asylum seeker lodges an application in is responsible for processing that application. Now, under both international and UK law they may be removed to a “safe country”.
It is highly unlikely that the UK could legitimately argue that housing people on a rock somewhere in the middle of the Atlantic for example classes as a safe country. This, by the way, is one of the reasons Australia’s policies were found to be illegal.
Under international law, host nations – those in whom someone has launched a claim for asylum – have a responsibility to provide a certain degree of standards in their reception conditions for asylum seekers, something which these plans would not.
While there are criteria for when a state may restrict the movement of refugees, these have their own restrictions in how they may be used. Not only would this open the door to potential legal challenges of offshoring them on ships, but also it would not change the situation.
Whether an asylum seeker’s claims is processed 4,000 miles away or in Kent it doesn’t alter the fact that the UK would still be required to process their claims fairly and allow them to settle in the UK if the claim is successful, as most are.
Offshoring isn’t a new idea, Tony Blair looked at it, as have the EU. They all come across the next stumbling block, beyond the potential illegality, it requires another State to agree to take them, something which countries like Morocco have already refused.
As previously mentioned a failure to relocate asylum seekers to a safe country by offshoring in international waters would pose serious risks of violating international law, so you need states which have already said No to agree to take them.
So, on a legal basis these plans are never going to come to fruition without the Home Office being bogged down in legal battles from now until the end of times. Similar risks apply to using ships just off the coast within UK territorial waters though. Not only would these plans potentially violate laws on reception conditions for asylum seekers, but also other international laws, such as Article 9 of the International Covenant on Civil and Political Rights (ICCPR), deprivation of liberty, again as Australia found in their actions.
So, legally again, they are onto a potential loser.
This is before the human rights arguments, which should be the first thing people are focused on, but they appear to have been ignored completely in the reporting on this. It feels wrong to not focus too much on the human rights issues, but if you cannot see why sticking people in inhumane conditions when they are just seeking safety – and no, France may not necessarily be considered safe – then what can I say?
I suppose it is worth looking at claims, such as those made on the Today programme by both Adam Holloway MP and Alexander Downer, that this is a “humanitarian” move to prevent asylum seekers falling foul of traffickers and thereby help break up gangs.
Let’s quickly clear up the difference between “traffickers” and “smugglers”. Smugglers are usually paid upfront to provide a service so that people can access a country to seek asylum. Traffickers force people to pay off their travel by exploiting them once they have arrived.
This means victims of trafficking:
a) may not know which country they are going to end up in anyway; and
b) aren’t able to seek asylum in the manner being made out because they are being held by the gangs.
So, these policies won’t work against traffickers. Why would policies designed to “deter” asylum seekers reduce the number of people being trafficked when they have no choice in what is happening to them and often can’t seek asylum anyway once they have arrive.
A bit of common sense needs to be applied.
The UK has a legal and moral duty to provide suitable and safe reception conditions for asylum seekers. Now, it is obvious that they don’t care about either of those, but the one thing which they damn sure do worry about is the cost.
Let’s not put too fine a point on it, offshoring – even done badly – is expensive, very expensive, for absolutely no gain because you still need to process the claims and allow those successful to settle, which then costs you again as you have to bring them back.
This, along with most of the other “leaks” coming out from the Home Office, such as barriers in the Channel and wave machines to push boats back into French waters, may play well with the likes of Farage and may wind the left up, but they are non-runners.
The real question now is why would the Home Office even suggest policies which it knows it cannot implement without massive legal challenges and disrupting ties with other countries, aside from the costs and ‘practicalities’ involved? It is not a hard question to answer.
It allows them to seem ‘reasonable’ when they put forward serious plans of housing asylum seekers in old prisons and military camps. They know that doing this is still inhumane and risks violations of the law, but they can say, “look how much worse it could be”.
With offshoring of asylum seekers being all over the news, we are stuck debunking it and pointing out why it is wrong. Unfortunately that is exactly what the government wants. It is important to ensure that while we froth over the fiction we don’t take our eyes off the reality.🔷
Dan Sohege, Human rights advocate, international refugee law specialist, immigration economist, charity fundraising professional and Director of Stand For All.
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