One of the principal sources of the current mess is the 1951 Refugee Convention. Formulated in the aftermath of the Second World War, when millions were displaced across Europe, it was designed to provide legal protection for those who could not safely return to their country of origin because of persecution. It was soon incorporated into British law.
The convention defined a refugee as someone with a ‘well-founded fear of being persecuted’ based on race, religion, nationality, political opinion or membership of a particular social group. It also introduced the principle of ‘non-refoulement’, meaning that the UK could not deport or return a refugee to a country where he or she would be at risk of persecution.
The convention was conceived as a response to a particular historical moment. Hence, it limited refugee status to those affected by events occurring ‘before 1 January 1951’. States could also choose to apply it only to refugees from Europe. But in 1966, an additional protocol to the convention extended its geographical remit to the whole globe and removed the pre-1951 limit on its application.
The protocol remains the only formal amendment to the Refugee Convention in its history. Therefore, a law that continues to hold sway over our immigration system was passed in the middle of the 20th century and has been barely reviewed since.
But history, unlike the law, has moved on. UN estimates suggest that around 43million people worldwide would now be categorised as refugees under the convention. The job of a piece of law is to set reasonable boundaries on what the state can or cannot do. The Refugee Convention does not do this. Instead, it leaves the UK open to a completely unmanageable level of migration, for an indeterminate period.
Even the most ardent advocate for asylum must admit that the Refugee Convention is not fit for purpose. Yet no government in recent history has been brave enough to reconsider it. Leaving the Refugee Convention is thought to be politically unpalatable, but it really shouldn’t be. It has long since failed to keep up with the reality of global migration flows.
The Refugee Convention isn’t the only legal obstacle to a rational, humane asylum system. There is also the European Convention on Human Rights, which the UK became party to in 1953. The ECHR is designed to allow citizens to petition the European Court of Human Rights if they believe the state is impinging on certain fundamental rights. The convention became part of UK law in 2000 with the passing of the Human Rights Act 1998. This meant that all UK institutions had to take decisions in accordance with the ECHR and the judgments of the European Court of Human Rights.
One of these fundamental ‘human rights’, as set out by the ECHR, is Article 8 – the right to family life. This far-reaching right stops states interfering in a citizen’s ‘private life’, ‘home’ or ‘family’ unless certain conditions are met. The courts have further expanded the definition of Article 8, applying it to non-familial relationships and a person’s ‘physical and moral integrity [and] sexual and social identity’.
Article 8’s influence has been balanced in recent years by domestic laws made by our parliament. But there is still considerable evidence pointing to its continued impact on asylum cases. Indeed, between April 2016 and November 2021, out of 1,011 appeals against deportation allowed on human-rights grounds, 70 per cent were allowed solely on Article 8 grounds.
The relationship between Article 8 and deportation is complex and contested. The 2007 UK Borders Act increased the power of the state to make deportation orders against foreign criminals. For the first time in UK law, any non-national with a criminal custodial sentence of 12 months or more was automatically considered for deportation. As a result, lawyers defending those facing deportation have come to increasingly rely on human-rights law. It is this, some say, that has bolstered the reliance on Article 8 in recent years, rather than activist lawyers and judges.
What is undeniable is that the passage of the Human Rights Act has fuelled the influence of the judiciary in asylum cases. It means that all decisions regarding asylum must be taken with one eye on the jurisprudence of the European Court of Human Rights – an institution and system over which we have no democratic control. Developing a better asylum system requires us to have democratic control over the rules.
Polling suggests that the public wants an asylum system that is generous to the needy but tough on criminals. In 2014, a Find Out Now poll showed that 84 per cent of Brits support deporting migrants who commit violent crimes, and 85 per cent support deporting those who commit sex offences. A 2018 Ipsos MORI poll found that 60 per cent of Britons supported making it as difficult as possible for illegal immigrants to remain in the UK. However, the same poll indicated that a majority also favoured ensuring that those with a legal right to remain are not wrongly deported.
