The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees form the basic framework of international refugee law today, setting out who qualifies for refugee protection and who does not. But where does this framework for protection come from?
In its most basic form, the regime that deals with refugees and forced migration regulates the treatment of individuals within different state territories and jurisdictions. In the old world, the rights and obligations of individuals towards the state were tied to territoriality and divinity. With the development of the modern nation-state, this evolved and became a question of nationality: the state as an independent political apparatus became dedicated to advancing the general good of its own population. Nationality thus offered entitlement to a form of protection as part of the social contract between citizens and the state. In exchange for this protection, the citizens or nationals have obligations towards the state they must fulfil, such as paying taxes. Contrastingly, the rights of non-nationals are at the state’s complete discretion, since non-nationals are not indebted to the foreign state, only to their own. But what happens when the state of nationality no longer provides the necessary protection for its nationals? That is the lacuna wherein refugee law developed.
World War I created a massive movement of people within Europe. When the League of Nations was established to maintain peace and security, they grappled with this new influx of migrants on an interstate level. Thus, refugee law developed within the League framework as a primarily humanitarian exception to a generally protectionist norm.
The League employed a group or category-based approach. When a particular crisis created a migratory flow or movement of people, the League of Nations would react and intervene to protect those specific minorities at risk. In this context, “refugees” emerged in the 1920s, first after the Bolshevik revolution and later following their expulsion and persecution in the Soviet Union. In 1921, the League of Nations thus accorded a status to those denationalized by the Soviets who became stateless as a result of that denationalisation, guaranteeing some form of protection for them.
At the essence of this project lies the idea that when one loses the protection of their home state, another state can and should assume responsibility. In 1922, the Armenians in Turkey fell victim to massacres in Turkey and started fleeing en masse. The principle created for Soviet refugees was extended to Armenians as a response to that migratory flow. These two refugee groups formed the basis for modern refugee law. Both refugees were victims of mostly mass expulsion, and the international arrangements made in response were based on the idea of expulsion.
During the 1930s, as Hitler rose to power in Germany, the old model of refugee law was challenged, as Jews were not merely expulsed from Germany but exterminated. Germany had left the League of Nations and resigned from the Peace Treaties they signed after the First World War, weakening the League and the existing refugee law model. The League needed to change its approach. It was then decided that persons with German nationality who for some reason were no longer protected by Germany also qualified as refugees. They were considered “stateless” - this was the first explicit mention of statelessness as a migratory issue.
A new definition of refugee emerged, one that only applied to individuals forced to emigrate “on account of their political opinions, religious beliefs or racial origin.” This laid the basis of our approach to refugees and asylum seekers today.
After World War II, human rights gained importance. When the Universal Declaration of Human Rights (UNHDR) was proclaimed in 1948, it laid the basis for an international standard of applications for human rights protection, including the right to ask for asylum under Art.14 of the Declaration. Paired with the 1948 Convention on the prevention of Genocide, which indicates that potential victims of genocide can flee and be protected by other states and the Geneva Conventions, which regulated the means of war, refugees emerged as internationally protected persons. These developments exhibit the close relationship between international refugee law and human rights law, a relationship that has evolved over the years.
Under Art.1(a)(2) of the 1951 Refugee Convention, the definition of a refugee is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
This definition is limited in its scope. First and foremost, it is based on social and political rights only. Those fleeing other types of hardship, such as economic crises or natural disasters, fall outside of the scope of protection. This is still the case today, although new categories of protection have been added through interpretation, most notably for those fleeing gender-based persecution. Secondly, at the time of implementation, the Convention was limited both temporally and geographically: to those having fled their home country before 1951 and only those fleeing within Europe. This changed in 1967, when the Protocol relating to the status of refugees universalised the refugee definition to remove the time constraints as well as include refugees from other parts of the world.
The 1951 Convention has changed and evolved, and human rights have expanded its interpretation, but it remains limited. For example, international refugee law protects only those who are successful at leaving their country; internally displaced people are subject to other rules, no matter how egregious a situation may be within a country’s own borders. These and other failures originate in the inherent tension between state sovereignty and the need for protection. The role of state sovereignty in international refugee law is often minimised or overlooked. Traditional accounts of refugee law logic emphasise the need for humanitarian protection as a key imperative for the development of the refugee framework. Whilst need for humanitarian assistance is certainly an important factor in the development of international law and human rights, it is not the only noble motivation that shaped the system of international protection. If it was, the framework would look very different than it does today. We should aim to read the Convention from a different point of view, one that does not consider migratory flows a problem to be managed but rather centres the human dignity and rights of those forced to flee.
Since Russia invaded Ukraine on 24 February 2022, the UK Home Office has announced numerous policy changes to deal with the stream of refugees fleeing Ukraine towards Europe. This stream of ever-changing information can be confusing and overwhelming. We try to sum up the different policy proposals in this post, with the caveat that they may change, as they have before until now. Always check whether information is still up to date by checking the government website, or contacting us directly. We deal with protections under the Ukraine Family Scheme, the Homes for Ukraine Scheme, and for Ukrainian nationals currently in the UK.
The starting point is that there is no open border for Ukrainian nationals. They need to apply under one of the schemes or systems established under the immigration rules, like all other visa nationals, to enter the UK.
1. The Ukraine Family Scheme
As it stands, this is for Ukrainian national family members of British nationals / settled UK residents / pre-settled status holders / refugees or persons with humanitarian protection.
Initially, Home Secretary Priti Patel gave a statement on 28 February 2022, announcing the creation of something she called a “humanitarian route” for fleeing Ukrainians, that could potentially benefit up to 100,000 Ukrainian citizens. Once details of this route came to light, it turned out that only Ukrainian nationals who were close family members of British nationals were eligible. The statement was widely perceived as unclear and misleading, and the policy as restrictive. Since then, the Home Office and Home Secretary have been under increased pressure to help those fleeing conflict and seeking refuge in the UK. The humanitarian route was expanded; it now allows extended family members to come join their settled family members in the UK. So, on the one hand, the applicant pool has been widened from close to extended family members, as long as they are Ukrainian nationals. On the other hand, the person currently living in the UK based on whom the application is made (the “sponsor”) no longer needs to be a British national; it is enough if they are living in the UK with indefinite leave to remain, settled or pre-settled status under the EU Settlement Scheme, humanitarian protection, or refugee status. The normal family visa requirements of the sponsor having a minimum income threshold and the applicant having English language proficiency are waived, as is the normal requirement to obtain a tuberculosis certificate.
Up until 10 March the Home Office maintained that all eligible family members must submit online forms and attend biometric appointment at visa application centres in order to complete the application process. Only then can an application be processed and a visa issued. Due to intense political pressure citing the lack of available biometric appointments at visa centres, and possibly the low number of visa being issued compared with applications made (4000 visa as of 13 March out of 17,000 applications made), the Home Office announced that Ukrainian nationals with passports will be able from 15 March, to submit an online application to be processed and – assuming a visa is granted – they will be able to enrol their biometric information after they have arrived in the UK. For those Ukrainian nationals who do not have a passport, they must continue to attend overseas biometric visa appointments with alternative identity documents (for example a Ukrainian national ID card), to complete the application process. These centres are located across Europe, including Poland, Hungary, Romania and even France. It has been pointed out to the Home Office that Ukrainian nationals without passports are likely to be the most vulnerable refugees – women, children and older citizens – fleeing the violence in Ukraine. These refugees do not present a security threat and are the most in need of having overseas biometric enrolment waived. In response, the Home Office repeats security concerns as a justification for requiring overseas biometric visa enrolment.
Those who are granted visas under the scheme receive permission to live in the UK for up to three years with the right to work and claim public benefits. There is no explicit mention of a path to settlement in the long run.
There is no cap on the numbers of Ukrainian nationals who can apply under this scheme as long as they can demonstrate their family relationship to a UK sponsor and meet the suitability conditions (this means that any applicants with criminal records may be prevented from benefiting from the scheme). The UK government has stated around 200,000 Ukrainians could benefit though this scheme (and the humanitarian pathway scheme), though there appears to be no source for this figure.
2. Homes for Ukraine Scheme
As it stands, this is for Ukrainian nationals outside the UK without a connection to a family member in the UK.
The initial Home Office policy announcement on 28 February was criticised for not included any provision for humanitarian / refugee assistance to Ukrainian nationals displaced by the conflict who had no connection to someone in the UK. In response, the Home Secretary announced that the Home Office and the Department of Levelling Up, Housing and Communities would be creating a sponsored humanitarian pathway for displaced Ukrainian nationals, to be sponsored by individuals.
On 14 March the Secretary of State for Levelling Up, Housing and Communities gave a statement to the House of Commons setting out some of the details of the proposed humanitarian route that has been named Homes for Ukrainians. The basis of the scheme would be that UK residents who have at least six months or more immigration status would offer their homes or other accommodation to Ukrainian nationals, residents of Ukraine and their families to come and live in the UK.
The accommodation offer must be for a minimum of six months; the government encourages the offer to be longer than this where possible. The government will pay £350 per month to sponsors who take in refugees under the scheme. Note that the £350 is a fixed rate and does not increase if more persons are sponsored.
Those who are granted a visa under the scheme will be allowed to reside in the UK for three years, can take up employment and have full access to public benefits. In order to safeguard those under the scheme, sponsors are subjected to a vetting process – though it is unclear what this entails. The government stated that it would not be a full DBS check, and that local authorities will be charged with safeguarding those who have come to live in the UK under the scheme. Central government has committed further funding to local authorities to carry out this. Additionally, those being sponsored under the scheme will also have to pass a security check – again, it is unclear what this entails.
Phase one of the scheme is limited to individuals who wish to sponsor Ukrainian nationals and their families. This means that at the present time, charities, businesses, and community groups cannot act as sponsors under the scheme.
On the same day that the statement was made to Parliament (14 March), a government website went live to allow for expressions of interest from individuals who may wish to act as sponsors. The online registration form crashed early into the launch which indicated large numbers of individuals were seeking to sign up. It is reported that over 100,000 UK residents have expressed interest in helping under the scheme. There was no precise timeframe given for the additional phases of the scheme to open and therefore it is not known when charities, businesses, and community groups will be able to register as sponsors. During the debate, the Scottish National party confirmed that the Scottish government wishes to act as a “super sponsor” meaning that more significant numbers of refugees could be sponsored to come to Scotland. The Welsh government has made a similar commitment however, whilst expressing gratitude for the offer from the devolved nations, it was unclear whether the Secretary of State committed to enabling the Scottish and Welsh governments to act the super sponsors.
The NGO sector has responded to this statement, stating many concerns with the policy. The main issue is that using a sponsorship scheme limits the numbers of Ukrainian refugees who will benefit. The bureaucracy involved and the significant safeguarding that must be put in place between sponsors and those being sponsored form hurdles that prevent eligible individuals from receiving protection. Additionally, over 6 million persons have now fled from Ukraine due to ongoing violence; it is unlikely that a volunteer-based approach such as the Homes For Ukraine Scheme will provide enough spaces or support for the massive influx of people in need of protection.
3. Ukrainian nationals inside the UK without family members who can sponsor them
The Home Office has not created any new specific humanitarian or immigration routes for Ukrainian nationals who are already present in the UK. However, any Ukrainian nationals who meet the family relationship eligibility requirements of the Ukraine Family Scheme can make a free application under this scheme. For those who do not have UK based family sponsors, the Home Office has removed the switching conditions of many visa routes to allow Ukrainian nationals in the UK to apply for permission to remain without having to undertake the normal process of leaving the UK to apply for visa permission to return. Thus, those with existing visas (including visit visas), can apply to extend in any available immigration route without needing to leave the UK (e.g. under the Ukraine Family Scheme, skilled work, student routes). Visa fees and Immigration Health Surcharge will still be applicable for those extensions, unless the applicant switches into the Ukraine Family Scheme. Additionally, those on temporary working routes (seasonal work, HGV drivers, pork butchers) will automatically have their immigration permission extend free of charge until 31 December 2022, but they cannot sponsor family members under the Ukrainian Family Scheme. As a consequence, they face the choice of remaining in the UK without their families or attempting to reunite with them outside the UK. The Home Secretary hinted that this issue is under review.
Finally, those who do not meet the criteria of another immigration route can still apply for asylum / humanitarian protection. The controversial Nationality and Borders Act, about which we have written before, passed and became law on 28 April 2022, meaning that under its provisions, Ukrainian nationals who enter the UK unlawfully and claim asylum will in principle be deemed inadmissible and they will be unable to apply for asylum.
For all of the above paths to safety, the onus is on Ukrainian nationals present in the UK to utilise existing immigration routes and prolong their stay in the UK, except for those on temporary visas.
4. A note on visa requirements
Ukrainian nationals traveling to the UK remain visa nationals. From 15 March, Ukrainian nationals with a passport can apply online and enrol biometrics on arrival in the UK. Those without a passport (i.e. have national ID card) need to enrol biometrics at a visa application centre; this, as many NGO’s and professionals in the field, forms a huge barrier for those in desperate need of protection. According to Home Office statistics, as many as 90% of Ukrainian passports do not have a biometric chip and therefore, the Home Office scanning app cannot be used to verify their identity. They would also have to use a visa application centre. There are no functioning visa application centres in Ukraine and therefore most applications must be made through neighbouring countries such as Poland, Moldova, Romania, and Hungary. This approach could push Ukrainian refugees to attempt to enter the UK through irregular means raising the risk of exploitation by criminal smugglers, and, following the Nationality and Borders Bill in its current form, criminalisation by the UK.
The policy position to require visas before travelling to the UK is predicated on the protection of UK and the need for security checks to take place outside of the country, before allowing Ukrainian nationals to travel to the UK. Reference has been made in debates to persons posing as Ukrainian nationals to try enter the UK, and to the 2018 Salisbury Novichok poisoning. During the Parliamentary debates, the Home Secretary’s attention was repeatedly drawn to the EU decision to remove visa requirements for Ukrainian nationals fleeing the conflict, with critical MPs arguing that the UK should follow its EU allies and apply a similarly generous approach. It was also noted that as Ireland has removed the visa requirement for Ukrainian nationals to enter, Ukrainians are effectively able to cross the border between the Republic of Ireland and Northern Ireland in the UK without a visa. Many government MPs have used their “question” in parliamentary debates to insist that visa and biometric enrolment must not be waived repeating security concerns. Home Office reactions to this massive public outpour of criticism remains to be seen.
If you are Ukrainian and need legal advice / immigration advice, the Ukraine Advice Project is offering free services to connect Ukrainian citizens in need with legal professionals. If you want to contact us directly, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
In a statement to the House of Commons this week, the government confirmed that they will not lift the ban that prevents asylum seekers from working whilst they await their application outcome in the UK.
Since October 2018, over 250 charities, businesses, faith groups, think thanks and trade unions came together to campaign against the UK Government’s ban on asylum seekers being able to work whilst their application is being resolved. Their coalition, “Lift the Ban” prepared a report which they presented to the Home Office. In October 2020, they presented the Home Office with a petition that gathered over 180,000 signatures calling on the Government to lift the ban.
But what does this ban entail exactly, and what would lifting it mean?
Under international law, there is no obligation on countries to grant asylum seekers the right to work. Each country is allowed to make their own rules on the matter. Sweden is most generous in its approach, as they do not impose any restrictions on asylum seekers’ working rights. In most other countries, asylum seekers will have to wait a few months before being allowed to work. Sometimes, they will have to pass a resident market labour test to show that the position they are accepting could not be filled by a member of the domestic labour force.
As a general rule, people seeking asylum in the UK are banned from working whilst waiting for their asylum claim to be resolved. Instead, they receive £39.62 per week, or £5.66 per day, from the Home Office to survive, an amount that is laughable in the face of actual cost of living in the UK. This puts many at risk of exploitation and/or destitution.
There are exceptions to this general rule; in some circumstances, asylum seekers may apply for permission to work. For example, if an applicant’s asylum claim is outstanding for 12 months or more, and where the delay is not the applicant’s fault, they may apply to obtain the right to work. If permission is granted, they can then apply for jobs on the Shortage Occupation list. Only applicants themselves can apply for such an exception; dependants of applicants (e.g. partners or children) cannot apply for permission to work at all.
Lift the Ban’s 2018 report argued that these rules are overly restrictive, stating that the UK is “an outlier amongst comparable countries.” Indeed, though certain European countries also require the applicant to do a resident market labour test, the waiting period is often shorter or the types of job available wider. According to Lift the Ban, this is also true for Canada and the USA. In addition, restricting the right to work leads to increased modern slavery and forced labour, as asylum seekers are forced to go underground if they wish to survive.
The report’s recommendations include shortening the timeframe for permission to work from 12 to 6 months and removing restrictions to the types of jobs asylum seekers are allowed to do. Implementing these recommendations would benefit the government financially, said Lift the Ban, estimating benefits of up to £180.8m a year. In addition, allowing asylum seekers to work would push their integration into British society, as well as allow them to live in dignity and security whilst awaiting the outcome of their application.
The government has now responded to Lift the Ban’s recommendations, stating that their evidence “indicates the assumptions underpinning the recommendations are highly optimistic.” Their main argument is that the benefits outlined in Lift the Ban’s report are overstated, because if migrants are allowed to work, they tend to work in precarious jobs, often part-time, and not very lucratively.
Tom Pursglove, MP for Corby, said: "In light of wider priorities to fix the broken asylum system, reduce pull factors to the UK, and ensure our policies do not encourage people to undercut the resident labour force, we are retaining our asylum seeker right to work policy with no further changes." The Home Office considers that resources should instead be redirected to ensure timely responses to asylum claims, so that applicants can resolve their status quickly and either leave the UK upon rejection or stay and find work upon receiving their status.
In summer 2021, the backlog of asylum cases passed 70,000, despite the number of applications being down since the pandemic hit. In addition, the number of applicants waiting an initial decision on their application for longer than six months has been rising 40% year after year since the early 2000s. To clear the backlog, the Home Office wants to create a fast-track system of applications, the framework of which is set out in the Nationality and Borders Bill.
Advocates for lifting the ban, and for a more humane asylum system in general, say that fast-track applications will lead to more mistakes and wrong decisions. As it stands, almost half the initial decisions made by the Home Office are already being overturned upon appeal. The 250-member Lift The Ban coalition certainly agrees with the Home Office that months- if not year-long delays on asylum applications are a disgrace. The solution they present, however, could not be more divergent from the Home Office’s. Though the Home Office’s statement, which ironically took three years to produce, was disappointing, they will not stop campaigning.
Over the summer, thousands of migrants (estimates range from 5000 to 10000) arrived at the external borders of the EU through Belarus, near the Latvian, Polish and Lithuanian borders. They originated mostly from Syria, Iraq, Afghanistan and Yemen. In recent weeks, the amount of people appearing at the Polish-Belarusian border significantly increased.
International law prescribes that once an asylum seeker finds himself on European Union soil, they cannot be refused until their asylum claim has been processed and decided. Poland is a member state, and the migrants had been promised a way into Poland through Belarus through fake online ads. Belarus has been accused of being behind these ads to encourage the influx of migrants by granting tourist visas and then pushing them to the Polish border.
Upon landing in Minsk, the migrants paid a lot of money to drive to the border, where upon arrival, they found that they could not get into Poland; the borders are closed. 3000 to 4000 migrants amassed at the border in early November, including women and (very young) children. Polish authorities refused to let them in, and Belarusian authorities refused to do anything at all. They were stuck in no-man’s-land, with no means of returning to Minsk or any other inhabited part of the country as there was no available transportation.
What are the circumstances like at the border?
As winter came, circumstances worsened. At least 9 people, including one child, have died whilst camping out at the border in recent weeks.
Poland on its part has implemented a state of emergency. During the worst of the crisis, they did not let journalists, NGOs or doctors near to border, leaving the migrants without any external help. Videos of Polish border guards using tear gas and water cannons to push back migrants have gone viral -- pushbacks that are illegal under international law.
Why would Belarus target the EU in this way?
Migration is a touchy subject for the EU. Member States disagree on how to handle migratory and refugee issues, and have often come head-to-head when trying to strike a compromise. At the height of the Syrian civil war in 2015, when millions of Syrian refugees were desperately fleeing their homes, this manifested in a gridlocked Union. Individual states took divergent and independent action, undermining the EU’s principles of cooperation and shared responsibility, as well as severely affecting the bloc’s legitimacy. Germany at the time decided to open its borders and accepted over 800 000 Syrian refugees into their country, more than any other Member State, whilst countries like Hungary and Poland took a hardline anti-immigration stance by building walls and pushing back those migrants who showed up at their borders.
In other words, migration is one of the EU’s weak spots. President Lukashenko is backed by Putin, and together, they have an interest in making the EU seem weak. Lukashenko especially has not been on good terms with the EU since they imposed sanctions on his regime after the 2020 elections, which are widely believed to have been fraudulent.
What has been the reaction in the EU?
EU President Charles Michel has emphasised the need to stand firm against Belarus for exacerbating and, some may say, manufacturing unrest at the border. He emphasised the need to react against this attempted manipulation of the EU through additional sanctions and solidarity with Poland. At a press conference in Brussels, EU foreign affairs chief Josep Borrell confirmed that sanctions will be imposed on Belarus and other actors involved. The humanitarian crisis and its human victims was strangely absent from Michel’s November 10 speech on the matter; it has taken another week for the EU to send rescue packages with blankets and food.
Where are the migrants now?
On November 17, the first reports of migrants being moved came out, as Belarus put some of them on buses to a nearby warehouse. The warehouse is a radical improvement on the freezing temperature and unbearable living conditions that existed when the migrants were left to their own devices in open air, it does not say anything about what is next for them. Belarus has not clarified what they plan on doing with them upon processing; the chances of them actually getting to Europe as they were initially promised are slim. Belarus may simply deport them back to their countries of origins – meaning their trip, which cost thousands of pounds and in a lot of cases, family savings to escape ravaged and impossible home situations, never-mind illness and death, has all been for nothing.
What does the UK have to do with this?
President Lukashenko’s instrumentalisation of people in desperate need and want of a new and better life is an extreme example of how we often use human beings and their suffering for political gain. The UK is no longer a part of the EU, and so in a way far removed from the Polish-Belarusian border. But parallels with the UK’s external borders are easy to make; the Calais jungle, where thousands of people wait to cross the channel is not a freezing forest in Belarus, but the migrants stuck there find themselves at a similar impasse. The UK’s new immigration system (the Points-Based System) cracks down on asylum seekers, and the government is working hard to create an illusion of tough borders and strict migration, not unlike the EU, whilst insisting they have the migrants’ best interests at heart. The instrumentalisation of human life may be less explicit, but it is just as present.
A Syrian family has brought legal action against Frontex, the European Union (EU) organisation charged with management and control of the Union’s external borders, for beach of their fundamental human rights. This is the first time that such a claim is brought to the Court of Justice of the European Union.
The family, which includes four children aged between one and seven years old, arrived in Greece from Syria in October 2016. Upon arrival, they were denied the right to have their asylum claim processed and promptly put on a flight to Turkey, their last non-EU country of passage. The flight was managed by Frontex, and was supervised by Frontex employees. On the flight, which was supervised by Frontex employees, the young children were separated from their parents and forced to sit next to escort guards. Five years later, the family lives in Northern Iraq, as building a life in Turkey was not sustainable.
Informal cross-border expulsions such as this are known as “pushbacks.” Pushbacks are illegal under international and EU law. They are in breach of the 1951 Refugee Convention, and of Art.14 of the Universal Declaration of Human Rights, which states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” In addition, pushbacks breach the absolute prohibition on non-refoulement, a basic tenet of international law which prohibits sending people back to a country where there is a risk of prosecution or inhumane and degrading treatment.
The right to asylum is enshrined in the EU Charter of Fundamental Rights, yet since the 2015 influx of Syrian refugees, there have been countless reports of EU member failing to comply, and EU organisations unofficially condoning the practice. Most recently, Croatia, Greece and Romania were called out for such practices, as it was revealed that over 2,000 migrants lost their lives after systemic pushbacks.
The family has now brought action for damages against Frontex for the breach of their human rights and the breach of the children’s rights which, they claim, occurred when they were separated from their parents on the flight from Greece to Turkey. The lawsuit is part of a wider campaign, “Not on Our Border Watch,” which fights to hold the European Union accountable for its controversial migration policies. Not On Our Border Watch aims to demand a change in the current asylum and border system, of which Frontex is one of the core pillars.
The lawsuit, brought by Dutch firm Prakken d’Oliveira, therefore explicitly targets Frontex, stating that “it is no longer acceptable that Frontex, equipped with an ever wider mandate and a bigger budget, deems itself above the law. It is time that Frontex respects fundamental rights and the rule of law.”
As the UK government rushes to pass its new Nationality and Borders Bill (which includes measures to penalise certain entry routes to the UK in breach of the 1951 Refugee Convention), refugees and asylum seekers are pushed further to the margins of British society. By keeping migrants and asylum seekers physically as far removed from the public as possible, the government’s hope seems to be that the migrants might actually disappear, or at least that the Home Office will receive less attention when the system fails, asylum seekers’ waiting times soar, their living circumstances worsen, and their death tolls rise. Off-shore detention centres for asylum seekers awaiting a decision, another one of Ms. Patel’s proposals, are meant to complete that mission of pushing migrants out of sight and out of mind to let the Home Office do its business uninterrupted.
But refugees refuse to go into hiding, to make themselves invisible. At the 2020 summer Olympics, Yusra Mardini, who fled Syria in 2015 after her house was destroyed, was shining as she walked down the opening ceremony carrying the Olympic flag, representing not her own nation but the Olympics themselves as part of the Refugee Olympic Team.
The Refugee Olympic Team was created by the IOC for the 2016 Olympics, to include athletes in competition after having been forced to leave their home countries due to circumstances beyond their control. In 2016, the team comprised of 10 athletes. This summer, it has 29 representatives in Tokyo. These 29 athletes represent a population of 20.7 million refugees and 82m displaced people across the world: their struggles, their stories and their place in their adopted home countries after being forcefully displaced, often thousands of miles away from home.
Mardini is a symbol of hope for all of them. She and her sister left Damascus in August 2015. Once they arrived in Turkey, they embarked on the dangerous journey to Greece in an overcrowded inflatable lifeboat. When the boat started taking on water, they were forced to stay afloat swimming for hours on end before the boat started working again, and they were able to continue their journey to Lesbos. From Lesbos, they walked through Europe until they reached Germany, where Mardini now lives and trains for her swimming races. In 2016, she became the first Refugee Athlete to participate in the Olympics, using the same swimming skills which saved her life a year prior to swim the 100 metres freestyle and the 100 metres butterfly at the Rio Olympic Games.
The Refugee Olympic Team is ground-breaking for many reasons. It disrupts the traditional patriotic nationalist make-up of the Olympics, allowing for an independent team of different nationalities to participate under the same flag whilst representing a diverse, multinational population of refugees across the world. This sends an encouraging message; in sports, everyone can compete. There is no difference to be made based on where you are from or how you got there. It also shows a sign of solidarity and hope for refugees and those forced to leave their home, giving them role models who have been through similar experiences, pushing the boundaries of what they can imagine to one day achieve.
Yusra Mardini and her co-athletes represent the potential and possibility of a society where refugees are included and empowered to be a part of their adopted homes. It shows how they can transcend their traumatic past and boasts of the potential they can fulfil if given the opportunity to do so. Such initiatives could be mirrored at a national level. Shamefully, that is not the case in individual states like the UK, where hostile environment policies and increasingly harsher measures against asylum seekers slim their chances for a fulfilled life and contribution in British society.
During the COVID-19 crisis, the government has announced changes and exceptions to the rules regarding healthcare access. All migrants can now access certain essential healthcare services free of charge and free of immigration checks. As such, non-UK residents in England can get free care with regards to COVID-19, irrespective of their immigration status. This includes free access to COVID-19 testing, treatment and vaccination for all overseas visitors to England, including non-residents and those living or staying in the UK without permission.
In early February, it was officially announced that COVID-19 vaccines would be made freely available to all adults in England, Scotland and Wales, regardless of their immigration status. Thus, all adults are eligible to get the vaccine, including those with no recourse to public funds (NRPF), those who are undocumented, those who are only in the UK short-term, those who have overstayed their visa, and those who normally have to pay for NHS treatment. This open policy is very different from the general approach to migrants, for whom certain public and health services are normally restricted.
Generally speaking, visa applicants for all visa types except visitors and those with indefinite leave to remain have to pay a fee known as the NHS surcharge in order to access National Health Services (NHS) services. In addition, some temporary migrants are also liable to be charged up to 150% of costs for secondary healthcare interventions.
The “no recourse to public funds” (NRPF) rule, then, is generally imposed on people with limited leave to enter or remain in the UK, prohibiting those such limited status from accessing certain defined public funds, such as Universal Credit or benefits. Those with outstanding asylum applications and undocumented residents are similarly barred from accessing public funds. If a person claims public funds despite not having the right status, that is considered a criminal offence, which may well carry consequences for their future immigration applications: any existing leave can be curtailed, and any future application refused as a consequence. In May 2020, this policy was found partially unlawful, as the High Court ruled that the government must make it easier for migrants to access the welfare system if they are about to become destitute.
Finally, the hostile environment policy deters migrants from accessing healthcare they are entitled to. Until 2018, the NHS functioned as a “gatekeeper” for the Home Office, sharing patient information to help the Home Office track down people thought to be violating immigration rules. This is no longer the case – data-sharing with Home Office immigration enforcement teams is now limited to cases of deportation for serious crimes only – but the culture of fear produced by such measures persists, not only preventing the NHS from fulfilling its function but also putting public health at risk.
Against the backdrop of the hostile environment, it is not surprising that migrant take up of the vaccine has been slow. Long-standing barriers to healthcare and lack of trust in public authorities lead many migrants to be afraid to access services even though they have the right to do so in this specific scenario. As such, most migrants who are entitled to free NHS care and still report feeling afraid of the repercussions of actually accessing the service. Among migrants who do have a visa and are in the UK lawfully, 30% still reported being fearful of seeking healthcare. For undocumented migrants, the situation is even more dire, as their data may be passed from NHS trusts to the Home Office, which can result in them being targeted by immigration enforcement. Such reluctance to get vaccinated could make a significant dent in vaccination totals, as an estimated 1.2 million people live in the UK without official documentation, and the real number is likely to be higher.
Migrants Right groups including the Refugee Council and the Joint Council for the Welfare of Immigrants (JCWI) have warned that many could still be left unvaccinated unless concrete action is taken to roll back aggressive policies such as data-sharing, NRPF and NHS surcharges as part of the hostile environment. In order to raise awareness and pressure government into making changes, the JCWI campaign to protect migrant rights during the COVID-19 pandemic has a list of resources and action points for those wanting to help.
Since officially leaving the European Union (EU) on 31 January 2020, the UK has been navigating an 11-month transition period negotiated by Theresa May and later Boris Johnson. During the transition period, EU law still applies in the UK, even though the UK is no longer formally a member of the EU.
That transition period is set to end on 31 December 2020. On that day, various important changes happen automatically, because from 1 January 2021, EU law will no longer be directly applicable in the UK. For immigration purposes, the most widely discussed change following from that will be that on the 1st of January, free movement of people ends, and the rebranded points-based immigration system is coming into full force to replace it. Obviously, the end of free movement is a big deal. There will, however, be numerous other significant changes to migration as a consequence of Brexit. One such area is asylum.
Asylum regulation is based on a number of international, EU and domestic laws. The relevant international law is set out in the 1951 Refugee Convention, and the European Convention of Human Rights (ECHR). The applicability of those texts will not be affected by Brexit, the end of the transition period, or any other event to do with the EU, as their legal basis is not in EU law. Despite the ECHR’s name, it is not an EU treaty, and the Strasbourg human rights court is not an EU body – so these laws will continue to apply.
EU law, however, is a different story. Due to the Common European Asylum System, the end of the transition period will heavily affect individuals claiming asylum in the UK, as the EU law relevant to asylum will no longer be automatically applicable in the UK. Some of it will be repealed immediately and replaced by domestic law, such as Home Secretary Priti Patel’s infamous Immigration Bill implementing the points-based system and end of free movement in practice. Another piece of legislation set to be repealed is the Dublin III Regulation. The purpose of the Dublin Regulation is to determine which State is responsible for examining an asylum application. The legislation is marked down for immediate repeal because it is meaningless without cooperation of other EU member states.
In very simple terms, the Dublin Regulation allows the UK to return asylum seekers to another EU country if they passed their on their way to the UK. In less simple terms, Dublin III sets out mechanisms determine which country should assume responsibility of asylum seekers within their borders, and to return them to those responsible countries. The Regulation is intended to ensure quick access to asylum procedures and reduce double handling of asylum claims by different States.
Important to note is that Dublin III does not allow for the UK or any member state to return asylum seekers to their country of origin, or outside of the EU. It applies to asylum seekers within the bloc, and determines which member state is responsible for processing their claim. The Dublin III Regulation utilises a host of criteria to determine where an asylum seeker should claim asylum, ranging from family unity, to possession of residence documents or visas and irregular entry or stay. The latter has become something of a hot topic in recent months, as reports of migrants crossing the channel in small boats from France have risen, and inflammatory remarks from the government has led to much commotion. At some point, Home Secretary Patel stated she wanted the British navy to patrol the seas in order to send illegal channel crossers back to France. This idea was quickly dismissed, as it turned out that it would only be legal under international law if the country whose waters the migrants would be sent back to (in this case France) agreed to the return, but the narrative presented has remained the same.
Ms. Patel has frequently justified returning channel crossers to France on the idea that their asylum claims in the UK are “illegal” because they arrived in France first, and then entered the UK illegally. This is not exactly true. There are limits, legally, to the extent irregular entry can be used as a reason for transfer back to the first point of entry. For example, the principle can be outweighed by other primary considerations such as family unity. Additionally, a Member State will be responsible for a claim submitted by a person who has been living there for at least five consecutive months, even when that person first gained entry into the EU by an irregular crossing of a border in another Member State. So, if an asylum seeker entered the UK via France, but has been in the UK for over five months since, they cannot be returned to France and the UK will automatically assume responsibility.
In 2019, statistics indicate that 714 individuals were transferred into the UK based on Dublin III rules, and 263 were transferred out to another EU country. Numbers have been steadily rising since the Brexit referendum, indicating a push to complete as many Dublin III transfers as possible before the Regulation stops to apply.
The government has given no indication that it plans on introducing a post-Brexit successor to the Dublin Regulation. Instead, it has proposed two draft agreements with the EU which relate to certain specific aspects of the Dublin Regulation. On the one hand, the government is looking to come to an agreement on the transfer of unaccompanied asylum-seeking children for family reunion purposes, and on the other, it has proposed a readmission agreement for accepting returns of irregularly residing UK/EU citizens and third country nationals. Both of these proposals are much narrower than the Dublin Regulation allowed for.
None of these proposals have been accepted by the EU, and the Government has said that it might pursue bilateral agreements with individual Member States if it cannot secure EU-wide agreements. It is unclear whether these individual agreements would be compatible with the EU’s exclusive competence/power over migration policy, and so whether they will be possible at all. The end of Dublin III hence leaves a gap in UK immigration law that is unlikely to be filled before the ever-approaching end of the transition period.
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Thousands of refugees and migrants were forced to flee the overcrowded Moria refugee camp on the Greek island of Lesvos after multiple fires erupted on Tuesday night. Due to the flammable nature of refugee housing at the camp, the fire spread rapidly and by Wednesday morning, most of the containers and tents as well as other facilities had been burned to the ground.
Charity and activist groups on the grounds have confirmed that returning to Moria is not an option, since the camp was effectively destroyed by the fire. Those who were living in Moria are now left with nothing; already traumatized by their experience traveling to Europe, they have now lost the few belongings they still had, with no idea of where they will end up next.
Greek authorities were quick to accuse migrants of deliberately starting the fire as a reaction to COVID-19 related lockdown measures which had just been implemented after 35 people at the camp tested positive for the virus. But the real culprits are not the refugees living at the camp – it is the EU policies that enabled circumstances under which such a blaze or other catastrophe seemed unavoidable.
There have been concerns about poor conditions and overcrowding at Moria, Europe’s largest refugee camp, for years. In theory, it has the capacity to house about 3000 migrants. In reality, it was sheltering over 25000 people at its busiest time. Since the COVID-19 outbreak, that number was halved to about 12000, of which at least 4000 were children and young adults. A number of young unaccompanied migrants were relocated to other EU member states, including the UK (https://www.seraphus.co.uk/news/files/9ceb468e732f0163c7ddd1f8de1d7596-30.php). Even so, the camp was still housing more than four times the number of people it was designed for in abysmal conditions, with many of them sleeping in self-made tents or even in the open air.
During the COVID-19 outbreak, conditions worsened, as it quickly became clear that social distance and good hygiene are impossible to maintain in the overcrowded camps. Doctors Without Borders accused the Greek government and EU leaders of using the pandemic as an excuse to exert control over migrants and refugees. The Doctors without Borders spokesmen went so far to state that the conditions that allowed for this fire to happen were not accidental, but rather a deliberate policy put in place by the EU to deter migrants from coming to the island, which is located just 10 kilometres from the Turkish coast.
This policy failure goes back to the 2015 migration “crisis,” when Germany emerged as one of the only EU countries taking action on the issue by accepting over one million refugees into Germany instead of looking the other way or fighting with other Member States. After the Moria fire, Germany rose to the occasion again, as Armin Laschet, the governor of a region in western Germany, said he was willing to admit up to 1000 refugees from the camp as part of a wider European resettlement programme that has yet to be developed.
That programme is long overdue. Earlier this year, Commission President Ursula von der Leyen promised a new migration pact proposal "right after Easter." It never materialised, because the same disagreements from 2015 persist and grow deeper as time goes on. Greece, Italy and other Southern countries have long sought a mandatory system to redistribute asylum seekers across the EU (which could help empty overcrowded camps like Moria) while Central and Eastern countries like Hungary and Poland are implacably opposed to such compulsory relocations. Now, the proposal is expected to be presented at the end of September, to be discussed by EU ministers during the fall, and be implemented in 2021. Previous delays have come at a great humanitarian cost – and there is no guarantee that this time, the proposals will fare any better.
Ironically, Brussels now said it would help with the immediate relief effort for the Moria camp. European Council President Charles Michel said his "thoughts go out to all those who have been put in danger" while Commission Vice President Margaritas Schinas is due to travel to Greece on Thursday for an emergency meeting.
These empty words are not enough. The EU may not be responsible for all the conflicts that force people from their homes, but there is no doubt about who is to blame for the 12000 displaced people who are homeless following the fire. The EU, with its lack of coherent policy on migration, is fully responsible for the erosion of key humanitarian protection systems, the heightened border security regime, the criminalisation of rescue ships, and for making life in reception camps unbearable for vulnerable people.
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The Home Office are continuing to adapt the ways they work during the coronavirus crisis and have provided the following key updates to services for asylum seekers.
UASC SEF and Witness Statement returns
As part of a focus on minors applications, including planning to facilitate the restart of asylum interviews, we have contacted legal representatives in all cases where SEFs and Witness Statements are outstanding in order to request their completion and return at the earliest opportunity. Where there are obstacles to SEF and Witness Statement completion and return, we ask that representatives contact their local asylum office to explain the issues faced, plans for resolution and expected timeline for completion and return.
The Home Office remains committed to working with legal representatives to resolve issues, reduce delays and progress minors claims in accordance with the Immigration Rules.
Resumption of Asylum Substantive Interviews
As you will be aware, substantive asylum interviews were paused on 19 March 2020 due to the impact of Covid-19. More recently, Asylum Operations has been working to enable substantive interviews to restart with safety as our priority for all attendees, initially through the use of videoconferencing. We have now published guidance on the resumption of substantive asylum interviews on Gov.UK. This guidance should be read in conjunction with the Asylum Interviews guidance as normal.
What is immigration detention?
Immigration detention refers to the Home Office practice of detaining foreign nationals for the purposes of immigration control. It is supposed to be the final point before removal.
How does immigration detention in the UK work?
The United Kingdom has one of the largest immigration detention systems in Europe, confining over 30 000 people a year in 10 detention centres or immigration removal centres (IRC). The IRCs are run by private, sub-contracted companies. Since they are managed by different companies, they vary immensely in the way they are managed, as some of them are run by charities and others by private security companies.
The Home Office has the discretionary power to detain a person at any point of their immigration process: upon arrival in the UK; upon presentation to an immigration office within the country; during a check-in with immigration officials; once a decision to remove has been issued; following arrest by a police officer; or after a prison sentence.
Once in immigration detention, there is no upper time limit to how long individuals can be detained.
Is the UK truly the only country in Europe without a time limit on how long people can be detained?
The short answer is yes. All European countries except for the UK have statutory time limits on how long someone can be administratively detained and deprived of their liberty, whereas in the UK, that is not the case. Rather, the rule in the UK is that detention with a view to removal is lawful only if there is a realistic prospect of this occurring within a reasonable period. The reasonable period, however, is not defined.
How does immigration detention work in other European countries?
In most countries, asylum seekers can be detained for a time period ranging from four to six weeks. Some countries, such as Spain and Hungary, allow for an initial detention period of only 72 hours. After those 72 hours, continued detention needs to be investigated and approved by the judiciary. In the Netherlands, the time limit is six weeks for asylum seekers. For non-asylum seekers who are placed in immigration detention centres, a longer period of up to six months may be allowed. Generally, the average length of detention is about 3 months before cases are resolved and people are either removed or released. In France, the law does not differentiate asylum seekers from other detainees; instead, there is a general time limit of 90 days.
In Germany, the rules regarding how long individuals can be detained is tiered. The standard rule is that individuals can be held for up to six weeks whilst deportation is prepared. Deportation and detention pending exit can then be court ordered for up to six months, and if the detainee actively sabotages or hinders deportation, it can be extended to 18 months. This extension is only possible in exceptional cases. In comparison, BiD, a London-based charity which helps people get out of immigration detention in the UK, have at least 4 clients at any given time who have been in immigration detention for over 18 months.
Have there been many changes to immigration detention practices in recent years?
On the continent, there have been many reforms to detention centres in recent years. In Germany, for example, the immigration detention system has undergone major changes since 2014, when the Court of Justice of the EU ruled that using prisons for immigration detention purposes was unlawful.
Contrastingly, in the UK, several hundred individuals are still being held in prisons under immigration powers today. In addition, many of the UK detention centres are ex-prisons refashioned as immigration facilities. Most famously, Morton Hall, of which the government announced its closure this week, used to be a female-only prison complex.
What about countries outside of Europe?
Other common law countries such as Australia and the USA don’t have a statutory time limit either. But considering both those systems have been subject to intense criticisms and increased scrutiny of their human rights abuses, maybe the UK should hold itself to a higher standard.
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Whilst waiting to find out if their asylum claim is accepted, asylum seekers are often stuck in the country where they lodged their claim for months. In the UK, they are not allowed to work during this time, yet they have to provide for themselves. To help alleviate their financial burden, the government provides them with “Asylum Support” which includes housing and a small cash allowance for essential products such as clothing, food, and toiletries.
The government guidance on eligibility and access to this support is clear. To qualify for accommodation, an asylum seeker will have to prove that they have nowhere else to stay. For the cash allowance, they will have to prove that they do not have the means to survive. Applicants should fill in form ASF1, which asks about their financial situation and that of their relatives, await a decision, and then receive the support they qualify for.
In practice, however, the decision-making process is slow, leaving applicants in limbo for weeks if not months before getting the support they need. Housing is scarce, and there is often a waiting list for accommodation. The cash allowance is minimal: asylum seekers are expected to make do with just over £5 a day. To make matters worse, they are often forced to spend a significant part of that sum on public transport, as they have to report once a week to the immigration authorities whilst awaiting the outcome of their application. This makes it very hard for asylum seekers and their families to make ends meet.
A number of charities have challenged this allowance in the past, arguing that it is unrealistic to expect anyone to survive on that little money. They argue that asylum support should be more in line with Universal Credit rates, which are more than twice as high as the Asylum Support allowance.
During the COVID-19 pandemic, these charities’ voices were amplified. As prices are rising in general, and all citizens are expected to invest in basic hygiene products such as hand sanitiser, masks and pain killers to avoid the spread of the coronavirus, the economic hardship imposed on asylum seekers has spiralled out of control. That is why on June 8th, the Immigration Minister Chris Philp announced that from June 15th, the stipend or Asylum Support rates would increase - from £37.75 to £39.60 per week, to be precise. Effectively, that amounts to an increase of 26p a day. If that does not sound very ambitious, that’s because it isn’t. If before the pandemic, asylum support rates were already significantly lower than mainstream benefits, the gap has now widened beyond belief, as they are now barely equal to 40% of the allowance people over 25 receive on Universal Credit.
With the prospects of inflation and an economic crisis on the horizon, over 250 organisations, faith groups and community leaders wrote to Home Secretary Priti Patel to ask her to urgently reconsider her decision. They called the proposed changes to the Asylum Support Rates “an insult, not an increase”, and instead requested an increase in line with the recent changes to Universal Credit and Working Tax Credit, which were increased by approximately £20 per week as part of the coronavirus relief measures. As of yet, there has been no response from the Home Office.
When lockdown measures were introduced in March, the Prime Minister stated that the UK “will look after all the most vulnerable in society” including asylum seekers. On 23 May, he stated that, “we will make sure that nobody in this country, let alone asylum seekers, is ill-treated.”. Ensuring that people seeking safety in the UK are able to meet their essential needs and stay safe, and making up to those promises, however, will take more than a 26p increase in funds.
After the death of George Floyd on 25 May 2020 at the hands of a white police officer, protests against police brutality and institutional racism erupted in the US and around the world. The US now finds itself in a period of political unrest and upheaval not unlike after Martin Luther King’s assassination in 1968. In the UK, George Floyd’s death resonated with many, mobilising thousands in London, Manchester and Cardiff to march in solidarity with Black Lives Matter, a movement dedicated to ending violence and systemic racism towards black people.
Highlighting the racism and unfairness engrained in the American justice system is important, but it is easy to judge what happens abroad without looking inward. The reality is that Britain is not innocent when it comes to institutional racism or police brutality – far from.
When it comes to UK immigration, the dissonance between how white (Western) immigrants and immigrants of colour from the Global East and South are treated is painstakingly stark. The culmination of these double standards was the 2018 Windrush Scandal, which erupted after Theresa May introduced the hostile environment rules in 2012. Under the hostile environment, those who lack documents evidencing their lawful residence become subject to the hostile environment checks. They are no longer allowed to work, rent or even open a bank account in the UK.
Many people of colour who came to the UK in the 50s, 60s and 70s from Commonwealth countries were granted indefinite leave to remain in 1971 but when the hostile environment kicked in, thousands of them were not able to prove their status, and as a consequence, were wrongly told that they were in Britain illegally. Hundreds were detained, and some of them deported, despite living and working in the UK legally for decades.
Although Windrush victims are now able to apply for compensation under the Windrush Scheme, the number of applications has been remarkably low, and internal reviews confirmed that the government’s hostile environment immigration policies still have devastating impacts on the lives and families of black citizens in the UK. With the new Points-Based Immigration system, set to come into force in January 2021, that impact is set to worsen. Requirements like visa fees (UK fees are among the highest in the world), income thresholds (the minimum salary under the PBS is set at £25,600) and health surcharges (recent controversy on the NHS surcharge led the government to scrap it for migrant NHS staff) have been found to predominately affect those from the East or South, as they are less likely to be able to meet financial requirements. The new points-based system thus builds on existing discriminatory structures instead of breaking them down. That is not a coincidence.
Don’t be mistaken - Windrush was a direct result of an immigration system set up to discriminate against some but not others. It was not just a profound institutional failure or mistake of government. It was not a mistake at all, but rather simply the hostile environment rules put into practice. The points-based system is a continuation of that. It is institutional racism at its peak, rearing its ugly head yet again, here in the UK.
When the then Prime Minister Theresa May (yes, you read that right - the same person who introduced the hostile environment in the first place) apologized for the catastrophe of Windrush in April 2018, she insisted it was not her government’s intent to disproportionately affect people from Afro-Caribbean backgrounds in the operation of her hostile environment policy. That statement shows exactly what the government fails, or refuses, to understand, namely that racism is much bigger than discrimination with intent, that it encompasses more than active and direct discrimination. It is about institutional neglect of certain parts of the population, certain neighbourhoods, and certain ethnic minorities, creating and feeding into more hardship for those groups compared to their white British counterparts. The public health crisis that we are currently dealing with is only the latest of an endless string of examples.
People of colour are 2.5 times more likely to die of COVID-19 than their white counterparts in the UK. For the black Caribbean and African population, that number goes up to three against one. This is partly because BAME communities are more exposed to the virus, as a third of all working age black Africans and black Carribeans work in key worker roles (that is 50% more than white British people), whilst Indian men are 150% more likely to work in health or social care roles than their white British counterparts. It is also because BAME communities are more economically vulnerable to the current crisis than white ethnic groups, and not enough is done to actively help them bridge that gap.
To make matters worse, people of colour are not only more likely to die of the virus once they get it, but they are also 54% more likely to get fined for violating lockdown rules than the white majority British population. More broadly, in our criminal justice system, Metropolitan Police officers are four times more likely to use force against black people compared with the white population.
It is true that the UK is not a nation of gun ownership like the US. It is true that British police officers do not carry weapons. And it is true that these things play a part in limiting violence and abuse of power. But we cannot trick ourselves into believing we are so much better, and that it could not happen here. The US might be a land of extremes, and the UK a country of covertness, but the foundational institutional challenges we face are the same.
According to a report published in 2019 the number of self-harm incidents in Colnbrook Immigration Removal Centre (IRC) has tripled since 2016. In 2015, 393 suicide attempts were reported in UK immigration detention centres. That same year, 2957 people in detention were put on suicide watch. In 2018, more than one person a day needed medical treatment for self-harming in detention, with the number of detainees on regular suicide watch still on the rise. Yet, the risk of suicide in detention is barely on the Home Office agenda.
In 2016, the Home Office called upon Stephen Shaw, former Prisons and Probation Ombudsman, to use his expertise and write a review on the welfare of vulnerable persons in detention. As a former government employee himself, he openly criticised some of the most irrational aspects of the Home Office’s policy towards vulnerable detainees.
In his report, Shaw highlighted some of the issues with the UK handling of Foreign National Offenders. These are the people who, once they finish their custodial sentence and are released from prison, often get stuck in detention for the longest periods of time. These are also the people who the Home Office have insisted on keeping in detention during the nine-week long (and counting) COVID-19 pandemic-induced lockdown, even though there has not been a realistic prospect of removal for months as planes were grounded all over the globe.
It is therefore on Foreign National Offenders that the effects of detention often weigh the most. Case in point is Michal Netyks, 35, who jumped from a first-floor window in HMP Altcourse in Liverpool on 7 December 2017. He had been due to be released from prison, having just completed his short criminal sentence. An inquiry found that Mr. Netyks had packed up his belongings and was waiting for his release when he was informed that he would continue to be detained under immigration powers pending possible deportation to Poland. He took his own life that very same day.
The Coroner’s report outlined numerous concerns with this practice, echoed in Shaw’s report. By de facto depriving ex-prisoners of their liberty indefinitely beyond their custodial release date, the Home Office shatters any hope and expectation of rebuilding and rehabilitating after a criminal offence. This is made infinitely worse by not giving prisoners any prior notice that they will be detained upon release from prison. In his review, Shaw wrote that this practice is most detrimental to the detainees’ mental health, fuelling suicidal tendencies and tragedies like Mr. Netyks’. Nevertheless, the Home Office made no changes to its policy; the responsibility for the horrendous consequences of this failure to act rests entirely on the government’s shoulders.
As a response to Shaw’s findings, the Home Office developed a new Adult at Risk policy for people held in detention under immigration powers. This new policy is underpinned by the rule 35 mechanism, which supposedly ensures that potential vulnerable adults are examined by a medical practitioner and that their detention is only maintained when there is absolutely no other option.
But the numbers tell us otherwise. In 2018, an average of two suicide attempts a day happened in UK detention centres. 56% of these attempts were committed by individuals who had a rule 35 report and were recognised vulnerable adults. Clearly, the rule 35 regime is not effective, despite the Home Office’s continued argument that they do everything in their power to flag up potential concerns about detainees’ suicidal tendencies.
Shaw also raised concerns about the concealment and coverups of deaths in detention. Generally, when someone dies in an IRC, the Home Office does not conform to the Ministry of Justice’s practice of publishing data on deaths of immigration detainees who passed away under Home Office supervision. That is why numbers and explanations are elusive, and thus, exacerbations of harm even harder to prevent. In Mr. Netyks’ case, the Coroner’s report found that files had actively been deleted and redacted by senior management, an alarming example of how non-transparent the Home Office is regarding death in detention.
Between 2000 and 2015, at least thirteen people committed suicide in detention. This accounts for 36% of the deaths that happened in detention in that same period of time. The high rate of self-inflicted deaths reflects the high rates of mental despair among immigration detainees caught in a system which is difficult to understand, and seems arbitrary and unfair. To prevent these horrible and inhumane results, it is not a question of improving the management of vulnerable people. Rather, the Home Office should ensure that they are not put in detention in the first please so as to avoid unnecessary and inhumane deaths and trauma.
On Monday, a group of 52 asylum seekers and refugees, including 16 unaccompanied minors, flew from Greece to Britain to be reunited with their families in the UK. The transfer had been delayed due to the COVID-19 lockdown.
Under the EU Dublin III Regulation (the Dublin Treaty), family reunifications are facilitated if a close relative is already in the country of destination. As such, section 67 of the Immigration Act 2016 provides that unaccompanied refugee children can lodge an asylum claim to come to the UK from another Dublin State if they have family in the UK to be reunited with. The burden of responsibility for those children lies on the State in which the child has family ties, in this case the UK, and it is up to that State to make arrangements to transfer the child.
In light of the COVID-19 pandemic, however, family reunification has been suspended across much of Europe as a natural consequence of closed borders and cancelled flights. After a six-week corona-related delay, a joint effort by the UK and Greek governments allowed a flight with over 50 migrants to go ahead and bring over 50 migrants to the UK from Athens on Monday. The individuals on the flight included people from Somalia, Afghanistan and Syria. Many of them have been living in Greece’s overcrowded refugee camps for months, alone and in problematic sanitary conditions. There are currently 42.000 people on the Greek islands. Amongst these are at least 1500 unaccompanied minors, in addition to another 3500 unaccompanied children who are stranded on the mainland.
The UK and Greece recently committed to a Joint Action plan on migration in which they focus on family reunification, and specifically on the best interests of unaccompanied children in Greece. Monday’s flight can be considered a first direct product of this pact. Although this renewed commitment to family reunification efforts under the Dublin treaty is welcome, the pact comes with significant shortcomings.
On the one hand, the Action Plan is only valid for “as long as the UK remains bound by the Dublin Regulation.” In other words, it will only stay in force until the end of the transition period – which is less than eight months away. Once the transitional period ends, and the Dublin Treaty is no longer binding on the UK, there is no guarantee that unaccompanied minors will still be able to join their family members in the UK. Additionally, the pact only addresses unaccompanied children who qualify for family reunification. It does not satisfactorily deal with the relocation of other unaccompanied children stuck in Greece. In order to protect all children refugees adequately, relocation efforts for unaccompanied children in Greece’s refugee camps who do not have family members or relatives in the UK should be in addition to the UK’s pre-existing legal obligations under Dublin III. There is no mention of that in the Joint Action Plan.
The success of this particular flight was a result of intense advocacy by refugee families in the UK working with charities such as Safe Passage, a campaign group which fights for family reunification and two cross-party members of the House of Lords, Lord Alf Dubs (Labour) and the Earl of Dundee, a Conservative peer with responsibility for child refugees at the Council of Europe. Beth Gardiner-Smith, the CEO of the refugee charity Safe Passage International, said in a news release: “The British and Greek governments have shown real leadership in reuniting these families despite the travel difficulties.”
Let’s hope they keep doing so in the future.
Over 3.6million Syrian refugees made Turkey their home since civil war tore their country apart in the 2010s. Polls show that most of the Turkish population want them to leave. On February 28th, President Erdogan announced that his government would heed that request, and Turkey would no longer stop refugees from crossing over to Greece.
Mr. Erdogan’s promise of free passage to Europe led tens of thousands of migrants to leave Turkey and resume their journey to Europe. What the President failed to mention was that on the European side of state lines, borders would remain closed.
The current political impasse originates from the 2015 refugee crisis, when over 1 million migrants entered Europe from Turkey. In an attempt to stop the influx, the EU struck a deal with Mr. Erdogan. As part of that deal, the EU gave Turkey over 6.0 billion euros in aid. In exchange, Turkey promised to keep the refugees inside their borders and prevent them from migrating to Europe through Greece. When Turkey ran out of aid last year, Mr. Erdogan requested more funding to keep up his end of the bargain, but the two parties failed to reach an agreement.
In response to the arrival of so many people, Greece doubled down on their border security. The government sent riot police, armoured vehicles and 1000 soldiers to the Turkish border, and suspended the right to apply for asylum for a month. Greek authorities as well as rogue actors detained, assaulted, robbed, and stripped asylum seekers and migrants, and then forced them back to Turkey. Tens of thousands of people now find themselves in limbo between borders.
Greece, like all EU countries, is bound by the EU Charter of Fundamental Rights. The Charter recognises the right to seek asylum and guarantees protection from forcible return of anyone at real risk of persecution or other serious harm. Greece’s suspension of the right to claim asylum, in combination with their appalling treatment of migrants on the border, is a gross violation of human rights.
Yet this violation has received very little scrutiny. As the spread of COVID-19 pushed the images of men being shot, children being hit, and faces behind barbed wire to the back of the news cycle, these breaches of the 1951 UN refugee convention and EU law went unnoticed. Instead, Ursula von der Leyen, head of the European Commission, announced the distribution of a £609 million aid package to help and support Greece’s border infrastructure. She called Greece “our European shield”, and praised the country for its tough response, as it has helped avoid another “crisis” like the one in 2015.
Instead of taking collective responsibility, the EU, yet again, has shown lack of leadership on the issue of migration at an astronomical human cost. The only solution to this endless plight remains unchanged from 2015: meaningful change to EU asylum policy allowing for coordinated resettlement and shared responsibility for all EU member states. The UK should be leading the charge, accepting a number for resettlement and providing for safe routes to claim asylum in the UK. Instead, in the midst of a global health crisis, the violence and human suffering at the border persist. We should fight to end it and create an immigration which actually reflects the European discourse of enlightenment and human rights in practice, rather than the dysfunctional and divisive system that is in place now.
The UK is one of many countries that has implemented lockdown measures to deal with the coronavirus outbreak. These measures include strict travel restrictions, and in over 50 countries around the world, they go as far as a complete aerial lockdown.
Immigration detention is only lawful if there is a prospect of imminent removal. With borders closing worldwide and flights suspended, that prospect is non-existent. That is why Detention Action, an NGO which fights for immigration detainees’ rights in the UK, issued judicial review proceedings on 18 March 2020. The proceedings challenged the lawfulness of continued detention, in particular of persons with medical conditions placing them at increased risk from COVID-19.
In response, the Home Office has committed to reviewing all detainees’ case files to release as many people as possible, as quickly as possible, unless they pose a grave danger to the public. When the government began their case-by-case review, one case of COVID-19 had already been confirmed in Yarl’s Wood IRC, two cases had been reported in Brook House, and symptoms were recorded in most other removal centres.
Under the current circumstances, detention centres are at risk of becoming hotbeds of coronavirus spreading, as both detainees and staff are constantly in close contact with each other and amongst themselves. In efforts to prevent the virus from spreading within the centres, some facilities have isolated detainees and barred them from leaving their rooms, effectively turning their bedroom into a prison cell.
Nevertheless, Detention Action lost their case in the High Court, and the Home Office still refuses to systematically release all individuals currently held in detention, putting all individuals involved in this system at continued risk of ill health.
Government action, however, shows awareness that keeping detainees locked up could come back to bite them. Since Detention Action launched their claim, the Home Office released over 350 people held under immigration powers. The courts are also playing their part, as a solicitor from Bail for Immigration Detainees (BiD), a London-based charity, reported that ever since the travel restrictions and lockdown were enforced, 13 of his clients were granted bail and no applications were refused.
This is good news, but it is not enough. People currently held under immigration powers still need to go through the process of applying for bail if they are to be released, a process which has been made significantly more complicated by the pandemic itself.
On 20 March 2020, visits to immigration detention centres were indefinitely suspended as part of measures to contain the virus. This does not only have devastating implications for detainees on a personal level, as they can no longer see their loved ones. It also means that lawyers can no longer visit their clients in immigration removal centres.
Meanwhile, the Tribunal has started holding hearings remotely, but it seems that the courts do not lean itself to the online sphere easily, and their infrastructure is not ready to make the transition. This failure of court proceedings weakens detainees’ access to justice even further, as bail hearings are frustrated by the practicalities of online hearings.
This situation is not sustainable. After calls from Strasbourg and the Council of Europe to release immigration detainees in the face of this crisis, it is time to release everyone currently held under immigration powers, close detention centres and ensure that every individual receives the necessary care and support they need and deserve during these unprecedented times.
The World Health Organisation defines Female Genital Mutilation (FGM) as ‘all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.’ FGM is an intrusive and extremely painful procedure which stains a girl’s entire life, and is linked with severe long-term consequences including cysts, infections and complications in childbirth.
A 2016 government report states that FGM is child abuse. It promises not to tolerate this practice in the UK, and expresses a commitment to taking concerted action to prevent and ultimately end FGM.
As such, the government has taken active steps to combat it. In the UK, agencies have been set up and legislation passed to fight the practice aggressively. FGM has been a criminal offense in Britain since 1985, and new legislation in 2003 introduced a jail term of up to 14 years for British citizens carrying out FGM abroad, even in countries where it is legal to do so. Beyond British borders, the government pledged to invest £50m in grassroots organisations working to stop the practice across Africa, where it is most prevalent. As it stands, there are over 30 countries where young girls are still routinely subject to FGM. That begs the questions: what happens to girls who escape the practice in their home country and seek refuge elsewhere? Does the commitment to prevent and end FGM extend to them?
In order to qualify for refugee status in the UK, an asylum seeker must show a fear of persecution in their home country. Claims made based on fear of FGM have to fit into this legal terminology in order to succeed. Three basic elements must be proven for the claim to be successful. Firstly, the asylum seeker must have a well-founded fear of persecution. Secondly, the individual must be subject to the persecution for reason of race, religion, nationality, membership of a particular social group, or political opinion. Lastly, the asylum seeker must prove that they cannot be adequately protected against the persecution in their country of origin. These three elements are worth discussing each in turn.
FGM has been classed as a form of torture and inhumane or degrading treatment, and as a violation of the human rights as well as health and bodily integrity of women and girls. It violates numerous human rights statutes such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), as well as the Convention on the Rights of the Child (CRC) which asks to ‘protect the child from all forms of physical or mental violence, injury or abuse.’ As such, FGM constitutes persecution in the legal sense of the word.
Considering the second element, FGM can be claimed under a couple of these umbrellas. Since it is a practice that affects only women and these women experience discrimination in their countries of origin, they can be considered to belong to the particular social group “women.” FGM is a form of violence against women and girls which is in itself both a cause and consequence of gender inequality, and therefore targets a particular social group, namely a particular gender. Opposition to FGM can also be considered a religious or political opinion. Either argument can satisfy the second element of an asylum claim.
Lastly, the claimant must prove that they cannot accurately be protected against persecution in their home country by for example relocating or seeking protection from the local authorities. This is where it usually goes wrong. The Home Office, focused on meeting net migration targets, often claims that contrary to the evidence, the risk of FGM in such cases is low because the mother can single-handedly protect her daughter from familial, religious or community pressure to undergo FGM; or that, just because the mother has been cut, it does not necessarily follow that her daughter will be cut; or that the state can protect the girl from FGM. As a consequence, asylum is often refused, even though it is widely documented that, when considering the risk of FGM, the most important factors are whether the girl’s family has a history of practising FGM, whether it is known to be practised in her community or country of origin, and whether laws to facilitate protection against are actually enforced in that particular country (hint – they often are not.)
If a girl has already been subjected to FGM when she claims asylum, the claim will usually also be refused. The physical and psychological trauma of having been through the mutilation does not, under current law, form a sufficient basis for an asylum claim, since the claimant is not at risk of FGM in the future. As such, unless there is a reasonable degree of likelihood that the procedure might be redone after the birth of a baby, or that FGM might be performed on the claimant’s daughters, someone who has previously been cut will not be granted asylum on that basis alone.
Even when a FGM claim succeed, that only guarantees status for the person directly at risk. More often than not, these claimants are children on the cusp of puberty. Since parents cannot be dependants on their daughter’s asylum claim, the Home Office has to evaluate whether accompanying parents qualify for refugee status on the basis of a well-founded fear of persecution in their own right. This may be either as a member of a particular social group, that group being the accompanying parents of a daughter at risk of FGM, or for other reasons in the country of return. If this is not the case, the parents may be granted discretionary leave, but, predictably, this is entirely at the Home Office’s discretion, effectively bringing these children at risk of separation from their parents if they want to avoid mutilation back home.
This exemplifies the duplicity of the government’s public commitment to ending FGM with real support for victims. On the one hand, the rhetoric against FGM is strong and unequivocal. In the UK, as well as for British citizens abroad, the practice is criminalised and heavily punishable. On the other hand, women and girls at risk of mutilation abroad are deported. As Charlotte Proudman, a Goldsmiths chambers barrister and academic specialised in FGM cases said last year, if the government was genuinely committed to protecting women and girls from FGM, it would be concerned with them being cut at home as well as overseas.