Immigration: deterrence measures against asylum seekers threaten refugee protection regime

Jennifer VenisWednesday 28 July 2021

In early July, the UK’s Home Secretary, Priti Patel, introduced new post-Brexit immigration reforms into Parliament. The Nationality and Borders Bill would enable officers to treat asylum seekers differently based on factors including their route of arrival, potentially criminalising those crossing the English Channel, and have asylum seekers processed offshore, among other changes.

But similar reforms elsewhere have been condemned by human rights advocates, who are concerned about the threat to the rights and protections of asylum seekers and refugees globally as governments push back against territorial asylum systems.

In June, Denmark passed a law enabling the government to outsource asylum claims processing to a country outside the EU. Those in need of protection as refugees will not return to Denmark, but receive their protection in that third country.

It’s not so much how do governments fulfil the rights and obligations in the Refugee Convention, it’s rather, how much can they push the boundaries of these different conventions

Eva Singer
Director, Asylum Department at the Danish Refugee Council

Eva Singer, Director of the Asylum Department at the Danish Refugee Council, fears the policy could lead to rights violations within Denmark due to an increased use of force and detention. Her biggest concern, however, is how Denmark will be able to guarantee rights in a non-EU third country.

‘Not to compare it with the hotspots [in] Greece because it’s very different being on European soil, but there’s this remoteness of the asylum procedure, and the difficulty of having qualified legal and medical assistance, for people to make assessments about vulnerability and so on’, she says. ‘If we see that on EU territory, as we do in Lesbos and Samos, we can imagine how much more difficult that will be in a country outside Europe.’

The Danish Immigration Service shared with Global Insight a letter to the UN Refugee Agency (UNHCR), in which ministers state that Denmark is in talks with potential processing countries and has ‘been very clear about the fact that a possible arrangement regarding the transfer of asylum seekers must be in line with our international obligations.’

But European countries ‘are absolutely not in a position to guarantee anything outside of the EU,’ according to Barbara Wegelin, Website and Communications Officer of the IBA Immigration and Nationality Law Committee and member of the Meijers Committee, the standing committee of experts on international immigration, refugee and criminal law in Europe.

She highlights how migrants attempting to reach the EU via the Mediterranean are instead being driven into the hands of the Libyan coastguard and taken into detention, where ‘we can’t guarantee what type of treatment people are subjected to’.

Wegelin, who’s also a partner at Van der Woude de Graaf in Amsterdam, believes there is a trend towards externalising the asylum system. She points to the EU’s Dublin Regulation, under which the EU Member State that asylum seekers first arrive at is responsible for claims processing. This trend may threaten not only individual rights, but the territorial system of refugee protection itself. The UNHCR has warned that ‘national, unilateral measures which, in effect, deny access to territory to claim asylum at a country’s borders and abdicate responsibility to others, threaten the long-respected refugee protection regime.’

Singer explains ‘there’s a risk that [the regime] will be undermined in terms of lowering the level of what you can do. You will see this quite often, that it’s not so much how do governments fulfil the rights and obligations in the Refugee Convention, it’s rather, how much can they push the boundaries of these different conventions?’

In the UK, the courts have been holding ministers accountable to their obligations, preventing deportations and ordering greater protections for vulnerable asylum seekers in the government’s care after finding violations of human rights in housing and claims processing.  But in Australia, considered the birthplace of many externalisation approaches, the country’s parliament passed a law in May that undermines the judiciary’s oversight of refugee protections.

Part of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 grants Australia’s immigration minister unchallengeable powers to revoke a refugee’s protection status. It has drawn concern from Australia’s own joint parliamentary committee on human rights. The Bill was drafted after Australia’s Federal Court ruled in September 2020 that indefinite detention without a purpose was unlawful. The government appealed and won, but not before passing the Bill, which critics argue enables indefinite detention when a refugee who cannot be deported has their protection status removed.

A spokesperson for Australia’s Department of Home Affairs told Global Insight that ‘the Amendment Act does not create a system that permits indefinite detention. Rather, it is a safeguard to clarify that detainees are not required to be removed in breach of Australia’s international protection obligations.’ 

But Wajiha Ahmed, Secretary of the IBA Human Rights Law Committee and partner at Buttar, Caldwell & Co Solicitors in Sydney, believes the Bill ‘is working in the absolute opposite direction of the purpose of domestic laws, let alone the international obligations, which are designed to protect people from persecution.’

‘The power that the Minister now has to cancel refugee status undermines the purpose of the adoption of the Refugee Convention into our domestic law in the first place’, she says. ‘This is nothing short of an abuse of power and very worrying times for Australia.’

Ahmed tells Global Insight about a client of hers, who came to Australia as a child, and was recognised as stateless and in need of protection. As an adult, he served a seven-year jail sentence, and due to Australia’s policy of mandatory visa cancellation, instead of returning to his community like a natural citizen upon release, he lost his protection status and was detained – first in Sydney, then Perth, and now on Christmas Island, an offshore detention site. But, as a stateless person, he can never be deported.

Ahmed says the Bill may mean he faces indefinite detention. ‘That’s a 30-year-old man who spent seven years in jail, and it is very difficult for me to know that as of right now, the current state of the law says he cannot ever be released from detention.’

The client told her that on Christmas Island, every night, fellow detainees will reach a state of heightened emotion, and he will be able to hear their distress. ‘He says it has a real impact on your own headspace. […] How can you keep someone locked up with no end in sight?’ 

Wegelin emphasises that ‘the 1951 Refugee Convention is based on the idea that the refugee becomes part of the country that protects them. […] If we’re no longer willing to provide refuge to people in need then it says something about who we’ve become, as a society.’

Image: Ajdin Kamber / Shutterstock