Asylum seekers cannot be penalised for their manner of entry. Not to mention that it is illegal to intercept and return refugees without hearing their cases.

First published in December 2020.

Changes to the immigration rules published on 10 December seem likely to put the UK on a course to violate some fairly key parts of basic international refugee law.

Here is just a quick and dirty run down of a couple of the possible ways this could happen.

Statement of changes in Immigration Rules. | UK Government

Section 11.4) “327D. An officer is not capable of receiving the claim in the territorial waters of the United Kingdom”.

As per UN guidance, it is not always possible to process claims onboard a ship, however the flag state may have primary responsibility.

As per the case of Hirsi Jamaa and others v Italy, the courts have ruled that “a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying” and returning asylum seekers could constitute refoulement.

To put it simply, yes it isn’t practical to go through a formal asylum application process on board a ship at sea. That does not mean that the state under whose flag the vessel is flying is not responsible for the claim though, and therefore receiving it in the first place.

Section 11.5) There is no requirement in the UN Convention Relating to the Status of Refugees for them to stop in any particular country, however crossing countries is deemed acceptable. This has been reinforced by case law, including the UK courts.

Furthermore, the follow up additions in these changes allowing the Secretary of State to remove an asylum to a “safe third-country” poses not just a legal challenge, but also a practical one. If states refuse to take asylum seekers it would leave them in limbo in an unknown country.

This opens up whole new questions, particularly if there is an additional issue of someone’s citizenship. Remember that it is illegal to leave someone stateless and this could be a genuine risk for refugees, in regards to who is liable to provide assistance.

UN Conventions on Statelessness
The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the key international conventions

The way these changes read, removing people without a fair hearing, poses a significant risk of violating Article 33 of the UN Convention, as without assessing the claim you cannot be certain a country is safe for the applicant.

Convention and Protocol Relating to the Status of Refugees. | UNHCR

It also risks, albeit obliquely, Article 31 of the UN Refugee Convention, which prohibits the penalisation of asylum seekers based on their manner of entry. Due to the UK’s geography, it seems likely that these clauses are designed to penalise refugees who don’t arrive through a government sanctioned resettlement route. Due to the limited number of refugees able to use such routes, even when they are in operation, this would severely curtail the rights of refugees to seek asylum in the UK.

States have the right to set their own criteria and processes for assessing asylum claims, subject to international law, which is why the UN sets out guidance documents on the subject. These changes seem to contravene a lot of that guidance.

Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. | UNHCR

As the UK leaves the Dublin III Regulations it is seeking ways to try and replicate them in some kind of monstrous mishmash of a manner. It is still, however, bound by obligations to not only the UN Refugee Convention, but also other human rights treaties to which it is a signatory.

Domestic law is subservient to international law, no matter what certain MPs may be trying to argue at present. You cannot enforce a domestic law which would contravene international laws to which you are a signatory. These changes risk doing just that.

As Immigration and asylum barrister Colin Yeo points out, where applications are being heard this policy seems liable to delay rejections, which just leaves refugees in a further precarious position.

It is effectively lose-lose for asylum seekers however you cut it.🔷

Dan Sohege, Human rights advocate, international refugee law specialist, immigration economist, charity fundraising professional and Director of Stand For All.

[This piece was first published as a Twitter thread and turned into the above article on 19 December 2020 with the purpose of reaching a larger audience. It has been minorly edited and corrected, and published with the author’s consent. | The author of the tweets writes in a personal capacity.]

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