The UK's Regression to its Commitment to Non-Refoulement

Article by Gezana Rai | November 11, 2024 | Global Rights Defenders

Introduction

The UK has shown a significant turn towards a stricter asylum system in recent years, what with the passing of the Nationality and Borders Act (NBA), Illegal Migration Act (IMA), and UK- Rwanda Migration and Economic Development Partnership (MEDP). [1] This article seeks to examine how these changes to asylum procedures point towards a worrying trend of the UK regressing in its commitments to non-refoulement as set out in international refugee law, and what this can mean for asylum seekers in the UK.

Background

The UK is a signatory to the 1951 Convention Relating to the Status of Refugees (hereinafter referred to as the ‘Convention’) and its subsequent 1967 Protocol, [2] which details the conditions required in order to acquire refugee status and seeks to protect the interests and rights of these refugees. [3] A critical section of the Convention is Article 33, which imposes the duty of non- refoulement on signatory states, meaning that they cannot return a refugee to a territory where their life of freedom would be threatened on account of their race, religion, nationality, membership of a particular social group, or political opinion. [4] This principle of non-refoulement is of such international significance, that it is widely considered to be a norm of jus cogens in international law, meaning that states are expected to comply with committing to non- refoulement, regardless of whether they are a signatory to the Convention. [5]

Non-refoulement in the UK

The IMA places a duty on the Home Secretary to remove everyone who arrives in the UK by irregular means “as soon as reasonably practicable”. [6] ‘Irregular’ means are considered to be routes not officially sanctioned by the government, and routes where someone has passed through a ‘safe’ third country before arriving the UK border. [7]

The IMA prohibits anyone arriving in the UK from these ‘irregular’ routes, regardless of their reason for seeking asylum. [8] Many individuals fleeing persecution do not have the means, money, or time to enter the UK via the very few existing safe and legal routes, and so the IMA effectively ignores each individual’s unique claim. [9] The IMA stipulates that individuals arriving through irregular routes should be detained to third countries and cannot claim asylum in the UK. [10] The MEDP arrangement set out Rwanda as a ‘safe third country’ in which asylum seekers arriving in the UK could be sent to. [11] The reality of the safety of these third countries is never guaranteed, as evidenced by the UK Supreme Court ruling the Rwanda policy as unlawful, due to the substantial grounds to believe that asylum seekers would face a real risk of ill-treatment if removed there. [12] The Convention mandates that even if an individual is sent to a third country, it must be safe and provide full access to asylum procedures, which has been proven to not be the case in Rwanda. [13]

Even with the MEDP currently inactive, the UK’s detention and removal of asylum seekers simply for arriving irregularly and passing through other safe third countries on route goes completely against the spirit as well as the letter of non-refoulement in the Convention. The IMA requires the Secretary of State to remove all individuals meeting the four conditions enumerated in Section 2 of the IMA, irrespective of what claim they are making, whether it be protection, human rights, slavery, or human trafficking related. [14] The very nature of the UK being an island, and its geographical location means that it is extremely difficult for asylum seekers to reach the UK without passing through another ‘safe’ third country first, meaning that those unable to afford to arrive by aeroplane are almost guaranteed not to be granted asylum in the UK as they naturally will cross through several European and EU countries (all EU countries are deemed ‘safe’ under UK legislation). [15]

How can we help from home?

Despite the Illegal Migration Act drastically changing the legal framework for refugees arriving in the UK, there are meaningful ways we can make an impact ourselves and support refugees within the UK and abroad:

• Volunteering with Registered Charities:

  • Many charities legally support refugees and asylum seekers, such as British Red Cross, Refugee Action, Refuweegee, and Refugee Council

  • Volunteering across different roles such as direct support, administrative help, teaching English, etc. can make a huge impact

• Fundraising or Donating:

  • Charities supporting refugees always need funds for their basic needs, or direct donations of things like clothes, non-perishable foods, toiletries

  • You can also provide specialist services if you have the right skills, such as legal advice, mental health first aid, and trauma support

• Advocate and Support:

  • Spread the word of how we can band together to help. Raise awareness on social media, write to your local MP, or attend peaceful rallies to express your concerns about refugees

  • Challenge stereotypes and miseducation of refugees and build community support

Concluding Remarks

The IMA is just one example of how states are able to and actively are sidestepping their international duty to protect refugees. The IMA has tarnished the UK’s global reputation, and harshly contrasts the commitments the country made when they signed onto the Convention, as well other principles enshrined in international human rights law. The majority of provisions of the IMA have not yet been implemented, meaning that the UK has managed to evade accountability for violating the Convention thus far. However, the UK must now address these inconsistencies to remain in line with its obligations to refugee protection, or it sets a dangerous precedent for other countries to follow.

Bibliography

1 Morgan, J., & Willmington, L. (2023). The duty to remove asylum seekers under the Illegal Migration Act 2023: Is the government's plan to ‘Stop the Boats’ now doomed to failure?. Common Law World Review, 52(4), 103-109.

2 Janmyr, M. (2019). The 1951 refugee convention and non-signatory states: charting a research agenda. International Journal of Refugee Law, 33(2), 188-213.

3 Mahmud, M. S. (2015). How Far the Definition of a Refugee under the Refugee Convention 1951 Protects the Victims of Human Rights Abuses? A Review in the Light of Legislation and Case Law of the UK. Mediterranean Journal of Social Sciences, 6.

4 ‘Convention and Protocol Relating to the Status of Refugees’. UNHCR, https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees. Accessed 30 Oct. 2024.

5 Allain, J. (2001). The jus cogens Nature of non‐refoulement. International Journal of Refugee Law, 13(4), 533-558.

6 Morgan & Wilmington, 2023, p. 103.

7 ‘Explanatory Notes: Illegal Migration Act 2023’. Chapter 37, https://www.legislation.gov.uk/ukpga/2023/37/pdfs/ukpgaen_20230037_en.pdf. Accessed 30 Oct. 2024.

8 Francis, S., & Bartram, N. (2024). What is the Illegal Migration Act?. The IRC in the UK.

9 Ibid.

10 Ibid.

11 Mallory, A. (2023). Closing down Access to Asylum: The Illegal Migration Act's Incompatibility with International Refugee Law. Brook. J. Int'l L., 49, 712.

12 [2023] UKSC 42

13 Ibid.

14 Mallory, A. (2023). Closing down Access to Asylum: The Illegal Migration Act's Incompatibility with International Refugee Law. Brook. J. Int'l L., 49, 712.

15 ‘Government Updates: The Illegal Migration Act 2023’. Government Events, https://www.governmentevents.co.uk/ge-insights/illegal-migration-act-2023-overview/. Accessed 30 Oct. 2024.