I'll be live tweeting this for those who can't join, speaking now @JC_Hathaway , the dean of international refugee law. Tune in though, he's fascinating!
https://twitter.com/SimonFRCox/status/1440607319159558151
Nothing in the Refugee Convention says refugees have to claim asylum in the first country they reach. States can chose how they respect the Convention - refugees can choose their country of asylum - JCH
when the Refugee Convention was being drafted, Australia argued refugees should only used legal routes - so the rest of the states made clear that's wrong in the language of the Convention
tech glitch -= back on track now. Listening to a Q & A with @JC_Hathaway on 70 years of Geneva Convention
harsh words for the UN's Global Compact and UNHCR - 'verbiage' says @JC_Hathaway . "Crazy ideas" from UNHCR - label refugees as students or workers - undermining the protection of refugees
if resettlement was really working, it would be many times that the UK is talking about - but thats not under discussion - @JC_Hathaway
Pushbacks - is the prohibition on refoulement (expulsion) still working? To some extent- says @JC_Hathaway - only yesterday European Court of Human Rights made interim orders against Greece
Geneva Convention lacks any international enforcement mechanism. UNHCR doesn't want that role - they're more interested in handing out blankets.
Only way this will change is a co-ordinated international refugee system with burden sharing and international oversight
Only way this will change is a co-ordinated international refugee system with burden sharing and international oversight
Hathaway thinks States would welcome an internationally enforceable regime (UNHCR hasn't pursued this...) - @JC_Hathaway
Could refugee protection be too much for a state? Tanzania took a million refugees in 36 hours.. (compare with UK's pearl clutching - SFC comment)
Hathaway talking now about mjilonline.org/jdforum/digita…
ECHR ruling n NT & NV v Spain has good parts, but also naive to suggest refugees confronted by barbed wire borders can be blamed for attempting dangerous crossings strasbourgobservers.com/2020/03/26/n-d…
Hathaway defending the (realpolitik?) position in Michigan Guidelines that states could - in extreme situations - justify pushing a refugee away, with no get out ever, states will reject protection
"certainly dangerous to renegotiate the Refugee Convention" eg for climate change says @JC_Hathaway . If 30 years ago we had opened it up to add sex as a ground, would have led to states taking advantage to reduce protection
Many climate change refugees fall under the Geneva Convention, because they are receiving more harm on account of their [political, religious, sex-based etc[ convention status.
But if the *whole* country is sinking, or ceasing to function, because of climate crisis - then that isnt a Refugee Convention situation, its a Statelessness Situation - @JC_Hathaway
If we reopened Geneva Convention to get rid of the limitation on who is a 'convention' refugee - which is what climate change would require - states wouldnt buy it
where will we be in 25 years? Probably the Convention will limp along. The creativer lawyering we have seen for the last 25 years will continue - but fundamental change is unlikely
[I can't do justice the quality of James language, my fingers dont move fast enough, you have to watch the recording. I dont know how @IanDunt does this]
Now the Panel! with more experts @DanGhez up first!
States making it harder for refugees, says @DanGhez - walls, maritime interdictions, sanctions against carriers closing legal routes too
States are racing to the bottom, emulating each other and diffusing the same ideas. Asylum is specially vulnerable to this - because of state interdependence. Stopping an asylum seeker at one border pushing them to another state
When a state successfully pays lipservice to protecting refugees, others copy. Bad faith legal pretexts & secrecy - spreads from state to state
Increase interest in Australian model: push-backs, offshoring, within rhetorical frame that spontaneous asylum-seeking is "wrong" - even though thats exactly what Geneva Convention protects - and that resettlement is "right"
Australia-model was based on US model (interdiction & extra territorial processing), American policy makers gave high level advice. But US did it quietly, while Oz has been loud - with receptive audience in Europe
Nethelands far-right party pushed for the Australian model, as did left-wing Danish Socialists.
Australian model also reaches UK - crucial rhetoric penalising spontaenous arrival over resettlement. Tony Abbott ex-Aus PM behind scenes pushing Oz model in UK
Australian model on asylum has been a cautionary tale - devastating human and financial cost, new briefing here kaldorcentre.unsw.edu.au/projects/offsh…
Offshore processing of asylum is "horrific by design". Conditions in processing have to be worse than what is being fled, to deter arrivals - @DanGhez and *everyone" has to be sent, including children
Mindboggling financial costs of 'Australia model' of asylum Half a million £ per year every year
Offshoring has harmed Australia's multicultural society - attacking & mistreating one set of migrants knocks on to social attitudes to other migrants.
China calls out Australia's mistreatment of refugees to deflect criticism of China's human rights abuses
Australia's role amongst Pacific nations has been undermined by its asylum policy and lack of responsibilty-sharing
Following Australia's lead - wealthy states closing borders to refugees - means poorer states can't be expected to protect refugees.
I'm livetweeting this event - next up my @DoughtyStImm barrister colleague @jeliasane eventbrite.co.uk/e/the-refugee-…
Jelia's talking about how EU's asylum policies are extra-territorialised in Africa, especially in Niger
The EU's new border is really in Niger in North Africa - 400,000 people travelled through [South-North] and the state received 100,000s Euros from EU
[Just to say I love Jelia's talking speed...]
EU's partners in Africa - Niger, Chad, Libya - have poor human rights records, but they are the new border guards for Europe
How has EU incentivised becoming border guards, given emigration and remittances are good for these country's economy? EU is making access to development aid conditional on immigration co-operation
This 'border imperialism' doesnt involve these (poor) states in developing any of the immigration policies. The power imbalance lets EU intervene in African states sovereign decisions on border policy
Continuing trend, but big step up since 2015 and EU's asylum policy crisis - main new tool EU Emergency Trust Fund for Africa, adopted under EU Migration policy
Next, in 2016, EU adopted a new Partnership Framework, making irregular migration principal concern of EU's foreign policy to "tackle migration upstream"
What does EU want African states to do?
Catch and detain migrants - see Libya
Catch and detain migrants - see Libya
What else
Militarise the border, with surveillance. In Niger, EU has gone one further - migration & border now part of EU's security mission (which was about terrorism)
Militarise the border, with surveillance. In Niger, EU has gone one further - migration & border now part of EU's security mission (which was about terrorism)
In 2015, Niger criminalised people smuggling with up to 30 years in prison. This "Valletta law" (so called because the EU demanded it) doesnt distinguish those crossing illegally, including refugees, from those who smuggle.
Frontex & EU states put their own border officials in Niger, to impose a de facto travel ban in the north of Niger.
2018, UN rapporteur on migrants condemned the EU incentivised practice as leading to arbitrary detention
EU policies have massively cut numbers of people moving to Agadez - but they havent stopped moving. Instead, they move through rsmaller routes in the desert - more expensive and more dangerous. Annual *recorded* migrant deaths in desert rose 71 to 417, 2 years after Valletta law
How do states justify this? "Saving lives and tackling organised crime" But this pretends that people seeking to travel for asylum dont need smugglers - when they do because there are no legal routes.
Extra-territorialisation, intensified border contol, but with no safe and legal pathways, traps people in a vicious cycle - says @jeliasane .
More deaths follow, more calls against smuggling, more restrictions - means more deaths. As in Niger
More deaths follow, more calls against smuggling, more restrictions - means more deaths. As in Niger
Extra territorialising is a disproportionate response against developing countries who already host the vast majority of refugees
All this is done without human rights safeguards - detention, pushbacks, in places where there is no protection - is an erosion of the international protection system - @jeliasane
Last up on today's panel, barrister Anthony Vaughan @anthonymv1 at @DoughtyStImm who is starting with my favourite asylum stats - about Belgian refugees coming to UK
@anthonymv1 @DoughtyStImm Belgians arrived in 1915 with no visas. "Folkestone has earned the gratitude of the whole civilised world" said the King of Belgium
But today in Folkestone?
But today in Folkestone?
UK Gov's Immigration Bill has two concepts new to UK statutory law - 'inadmissibilty & overshoring' and '2 or 3 tier refugee protection'
UK's new bill makes an asylum claim 'inadmissible' if person was in another state and it was reasonable for them to make a claim
Inadmissibility means - the person is removable to the state they passed through and could have claimed in OR ANY OTHER 'safe' state
Under international law, a refugee cannot be sent to a country which may send them to another to face persecution, or which doesnt have an effective system of protection but...
... nothing in the UK's Bill explicitly requiring Home Office decision makers to consider whether the asylum-seeker they are removing would have access to genuine protection
UK's Bill would penalise refugees for the way in which they reach the UK. As @JC_Hathaway notes, the British representative when the Geneva Convention was being drafted objected to an asylum-seeker having to prove that there was no safe country en route to the country of asylum
The Borders Bill isnt expressly about offshoring asylum claims, but does contain the legal architecture for it, see proposed amendments to s 77 & 78 2002 Act - @anthonymv1
Current law prohibits expulsion of an asylum-seeker who has not had a decision on their claim, but these amendments may allow for this
New Plan for Immigration says these amendments are to keep option of offshoring - though UK hasnt persuaded any other country to accept UK's refugees yet
The new refugee 'protection' plan is a 2 - or 3 - tier one.
Top tier is refugees resettled fronm abroad by UK Gov - they get indefinite leave to remain straight away
Next down is Group 1 refugees ("good") - people who claim directly to UK, presented without delay and if they entered UK can show good cause
The 'bad' refugees in Group 2 will get more limited leave and may be barred from public funds [though presumably Home Office will then have to support them - SFC]
This 3 tier system may be a penalty under art 31 of the Refugee Convention.
Gov now seems to propose that refugees will have *prove again* their refugee status to obtain further leave - but that conflicts with Art 1C of the Refugee Convention which deals with 'cessation' of status
How can EU's externalisation agreements be challenged?
Jelia - @GLAN_LAW 's legal challenges have been innovative (shout out to GLAN)
Jelia - @GLAN_LAW 's legal challenges have been innovative (shout out to GLAN)
@GLAN_LAW have brought a challenge in the EU's European Court of Auditors about EU funding
Challenge to the Working Party on Enforced Disappearances against Greek police pushbacks to Turkey
International Criminal Court - still investigating Libya after 10 years - has opened investigation into torture etc of migrants
One of 3 legal challenges
One of 3 legal challenges
@DanGhez Australian legal challenges repeatedly defeated by retrospective legislation. One challenged Gov spending on offshore spending. But tort law claims (non-contractual liablty) for harms to individual migrants have succeeded, costing Gov large sums [they dont seem to care]
@DanGhez speaking about temporary protection scheme - huge delays, but now these claims have to be reassessed - huge burden on decision-makers, but even more for the refugees waiting
@anthonymv1 - judgment in ex p Adimi (on when a refugee is not 'coming directly') sets law - but Bill shows attempt to push back against obligations, meaning legal fights about how provisions have been interpreted
@anthonymv1 legal fights coming about that caselaw in a new, authoritarian enviromment
@jeliasane answering Q on how to connect lawyers to activism working directly for asylum-seekers
'Learn reality on the ground, be proactive with NGOs who have access to the facts - but who may not be aware of possible legal strategies'
'Learn reality on the ground, be proactive with NGOs who have access to the facts - but who may not be aware of possible legal strategies'
@anthonymv1 - how to connect lawyers & activists? Get in touch! lawyers have worked on this bill.
last word to @DanGhez - just as politicians talk across national boundaries - so do activists, lawyers, academics - as we have done today!
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