“Inhumane and Oppressive” : British Policy to Those Who Seek Asylum

By RODERICK OGLEY (Emeritus Reader in International Relations at the University of Sussex）

For those who have never undergone the experience, it is difficult to imagine what it feels like to be a refugee, who can no longer return to the scenes of their earliest memories, or visit any of their family or friends who may still live there, without exposing themselves to the risk of arrest, torture, or even death, either at the hands of a repressive government or in the course of a vindictive private or family feud. Circumstances have robbed them of their roots.

That is true even if the country to which they have fled has fully accepted them, and allowed them to become its citizens. They, though, are the lucky ones, even when such acceptance, to the extent of being allowed to remain, comes only after a long and exhausting campaign, or a last minute decision from a minister or judge. But for far more would-be refugees, there is no reprieve. They are sent back to their countries of origin, where the very fact that they have sought asylum here reinforces any suspicions of their political unreliability, or even generates them where they did not exist before, in governments who have no scruples about how they dispose of those they see as political opponents.

The Holocaust – the killing of millions of Jews and members of other ethnic groups by the Nazi government of Germany before and during the Second World War – prompted a series of measures, taken soon after the Nazis had been defeated, in the hope of ensuring that nothing like it would ever happen again. One such measure was an attempt to reach global agreement on a list or “rights” which every human being was deemed to have, culminating in the UN General Assembly's “Universal Declaration of Human Rights” adopted on December 10 1948. In Europe, a Convention on Human Rights was adopted, to which all the democratic regimes of Western Europe, including those with which the victors had replaced the defeated dictatorships, became Parties. The Convention, unlike the UN's “Universal Declaration”, created mechanisms which allowed for the investigation of complaints, if one of its Parties was alleged to have violated one or more of the rights contained in it. The mechanisms originally consisted of two organs, a Commission and a Court. Now complaints go straight to the Court. Complaints by individuals could be made only if the state complained of accepted “the right of individual petition”, as all Parties did eventually. Complaints by one State Party against another could be made from the start, but few states wished to start arguments with their fellow states about developments which did not affect them. The UK did not accept the right of individual petition until the 1960s, and it was not until the passage of the Human Rights Act in 1998 that the Convention became part of UK law. Hitherto, a British Court could not consider whether an action by the British Government violated the Convention. The complainant could seek redress only by using the mechanisms of the Convention. The Government had accepted a duty to carry out decisions thus arrived at, but for the complainant, getting such a decision was a protracted process.

The mechanisms generated by the European Convention amounted to a breath-taking and almost unprecedented limitation of the tradition of state sovereignty, which exalted the “right” of every state to make and implement its own laws about how its subjects should behave, and how it might deal with them, unaffected by the opinions of external bodies. It was followed, to a limited extent, in other parts of the world, and the United Nations went on to adopt two “Covenants of Human Rights” which established a Human Rights Committee to which Parties undertook to report regularly.

All this did not mean, of course, that human rights were now universally accepted, even by the countries that had ratified these conventions and covenants. It did not even mean that there were no more cases of something resembling genocide, as for instance in Kampuchea (Cambodia) under the Khmer Rouge, and in Rwanda in 1994. Many dictatorships, like those of the Soviet Union and Franco's Spain, had survived the war. New ones came to be established. For those whose freedom such dictatorships denied, the only hope lay in seeking refuge in another country. At Geneva, in 1951, the United Nations adopted the Convention on the Status of Refugees, the Parties to which agreed to offer asylum to those with a “well-founded fear of persecution” in the countries in which they lived. They promised that the refugees thus welcomed would have rights equal to those of their own nationals in respect of freedom to practise their religion and arrange for the religious education of their children, access to courts and legal assistance, elementary education, public relief and assistance, pay and conditions of work, and social security, and even rationing, familiar from the war and the years that followed it. Initially, the refugees in question were those who found themselves in this state as a result of “events prior to the 1^st January 1951”. A protocol, adopted in 1967, removed this limitation. The convention also set up UNHCR (the United Nations High Commission for Refugees) to provide information and encouragement, but without any powers to order Parties to comply with the Convention. Of the UN's current 192 member states, 141 are Parties to both the Convention and the Protocol.

At the time of the Cold War, many people who had been living in the communist states of Asia and Eastern Europe sought freedom in the “West”, and were welcome for their propaganda value; they were evidence of the unpopularity, and in many cases the brutality, of the regimes from which they had fled. When, in 1956, the Soviet Union invaded Hungary to replace the leader thrown up by its revolution, Imre Nagy, with the more compliant Janos Kadar, 200,000 Hungarians fled to Western Europe, reinforcing the condemnation heaped on the Soviet Union..With the disintegration of the Soviet Union in the 1990s, the political motive for welcoming refugees all but disappeared . Those seeking to escape persecution could now rely only on human fellow feeling, as a motive for giving protection. It did not always work. In spite of the clause in the Refugee Convention forbidding “refoulement” (forcible return of refugees to the country from whose persecution they were seeking to escape), many were, and still are, so returned. One notorious case in which the UK was involved was that of Ken Sara-Wiwa, whose protest against a Shell project in Nigeria made him persona non grata. Forcibly returned by the then Home Secretary, Michael Howard, he was executed, with eleven other protesters, by the Nigerian Government, shortly afterwards, a blot on Britain's reputation if ever there was one. Decisions like that reflected what was widely seen as a “culture of disbelief” pervading that part of the British civil service which deals with asylum applications, that is, the Home Office. The stories asylum-seekers tell to support their claims to have a “well-founded fear of persecution” in the countries they have come from are heard with suspicion. They are commonly described as “economic migrants”, inventing, or at any rate exaggerating, tales of mistreatment by their governments in order to enjoy an easier and more prosperous life here in the UK. There are exceptions – the Home Office has generally seemed prepared to accept that people of the Baha'i faith are persecuted in the sternly Islamic Iran, and the Baha'is are so well-organized globally that it is easy to check whether someone is or is not a Baha'i. On the other hand, it recently ordered the forcible return to Iran of a gay man, despite the fact that in that country, homosexuality is punishable by death, and that this man's partner had been arrested, and had named him as his partner, before being executed. It took a major campaign to persuade the Home Office to cancel the deportation. In general, its attitude has been that applicants who cannot prove persecution are making it up. Rejected applicants for asylum have a right of appeal to the Asylum and Immigration Tribunal, and in recent years more than 30% of such appeals have been successful, and since the passing of the Human Rights Act, some of those whose appeals have failed have been able to invoke that Act to persuade a court to issue an injunction against imminent removal, and require the Home Office to reconsider its decision, or look at fresh evidence. Moreover, it is now conceded that there are some countries, such as Somalia, where human rights are so disregarded that even rejected asylum-seekers cannot at the moment be returned. In the case of others, unwarrantedly optimistic impressions of the state of human rights in a country has been devastatingly criticized by bodies such as the Immigration Advisory Service, or, more recently Human Rights Watch, often drawing on assessments made by the US State Department.

One indefensible Home Office practice is to compile a “white list” of countries deemed sufficiently respectful of human rights to enable asylum applications from their nationals to be put on a “fast track” , and those rejected – and almost all of them are rejected, can be deported immediately and must exercise their right of appeal after their return. As a UNHCR official has pointed out, not only does this put substantial obstacles in the way of conducting an appeal, but in the rare cases in which the appeal succeeds, it manifestly convicts the UK of refoulement – returning genuine refugees to the country from which they have come - in direct violation of the Refugees Convention.

In the past the speed of Home Office decisions has varied enormously. One applicant had to wait 804 days – more than two years - for it. While their cases are being considered, and if they appeal, until their appeal is decided, applicants are entitled to accommodation and benefits which, with other provision, is supposed to put them financially on a par with those on unemployment benefit. They are not allowed to work. If their appeals are rejected, their benefits stop, unless, for some reason, the Home Office accepts that they cannot at the moment be returned to their country of orogin, in which case, provided that they agree to return as soon as the Home Office decides it is feasible, they get vouchers, spendable in supermarkets, but with no change given.

Home Secretaries and their subordinate ministers and officials repeatedly describe the hundreds of thousands of rejected asylum-seekers thought to remain in the UK.as “people with no right to be here”. But many of them, if their stories were true, were refugees within the meaning of the Convention and had every right to be here. If forcibly returned to their countries of origin, they can expect, without having committed anything would be regarded as a crime in the UK, to be imprisoned, tortured or even, like Ken Sara-Wiwa, killed. No wonder they choose to stay here as long as they can, even though, to survive, they had to work illegally, rely on charity or on the support of family and friends in the UK, if they had any, or beg. A study of destitute asylum-seekers in Leeds found some having to live in telephone boxes or abandoned cars.

Others, no doubt through some form of illegal employment, established themselves in the areas in which they lived and sent their children to local schools, and became popular figures in their communities. Attempts to remove them encountered angry protests from their neighbours and their children's schoolfriends.

In 2003 the Home Office granted an amnesty, that is to say asylum, to all families with at least one child, who had lived in the UK for at least three years and had no serious criminal record, a decision both realistic and magnanimous. Even so, when Home Affairs Committee of the House of Commons, investigating “immigration control” asked the then Minister of Immigration, Liam Byrne, how many “illegal immigrants” were then living in the UK, he answered “I haven't the faintest idea.” Others put the figure at more than 200,000. More recently, the Home Secretary sent out questionnaires to what became known as “the legacy” of cases, families who had been here for several years, and granted many of those who responded “leave to remain”. Many, of course, had left the accommodation given them at the time when their asylum claims were being considered, and could not be traced.

Suppose, for a moment, that you were someone persecuted in your own country, who had decided to flee to somewhere that could offer you acceptance as a refugee, with a reasonable assurance that you would not have to fear arrest or imprisonment so long as you complied with the law. First, you have to find a way out of the country you now live in. As a “wanted” political opponent of your country's government, it may be out of the question for you to get a passport or a visa. To apply for one would be to invite arrest. So you have to find someone to forge one for you. It may be for a country whose language you do not speak. Let's say it is the UK. You may know nothing about how its asylum system works, how long you have, after arrival, to apply formally for asylum, and what documents you will need. You may need to leave in such a hurry that you have no time to pack, or you may worry that documents found on a body search would so incriminate you in the eyes of your government that you would be seized at the airport and prevented from flying. Suppose, like many seeking asylum, you have been tortured. Do you tell your story to the first British official you meet, and hope, and trust, that he will be sympathetic? Officials you have encountered where you have come from haven't been. Can you bear your children, accompanying you, to know all the details? If the Home Office rejects your claim, you have a right of appeal, but for that you will need a good lawyer, and how do you know how to find one? If, initially or eventually, you are granted asylum, how do you manage in the gap of time when you no longer get benefit as an asylum-seeker, but do not have a job, and have to wait to qualify for unemployment benefit? If rejected, you must live with the possibility that any morning, you and your family could be seized and taken to an IRC (Immigration Removal Centre) without being given time to pack or even dress properly before leaving your home, and without being able to say good-bye to your friends, or the friends your children have made at school. In a few days, unless you can somehow get a Court Injunction forbidding it, you will be put on a plane to be returned to the country you came from. Before they put you on the plane, the Home Office will tell the world how confident they are that you need no protection, and that you will be perfectly safe in the country you've come from. Once you are back, though, they will do nothing to find out what has happened to you. There is no monitoring of the fate of those they return.

Moreover, while you are here, you will read newspapers suggesting that asylum seekers like you are responsible for most of the social ills of this country. It will hard to avoid concluding that the people of the UK are hostile to refugees.

But there is another side to this story. There are many individuals, groups and organizations in Britain that welcome refugees and are distressed at the harshness with which many of them are treated by the British Government and those who act on their behalf.

Time and time again, when individuals, or families, are seized in “dawn raids”, and face imminent forcible removal, local people, who know them personally, quickly form a group to protest and to organize a campaign, often securing the support of the local Member of Parliament, appealing for them to be released and to be granted “leave to remain”. To encourage and assist such campaigns, the National Coalition of Anti-Deportation Campaigns (NCADC) has emerged. There is, of course, no guarantee that such campaigns, however widely supported, will succeed in changing the Government's mind about a case, but many do.

There are, too, voices in Parliament which champion the concerns of those who seek asylum. In 2007, the Joint Human Rights Committee, a body made up of six members from each House of Parliament, the Commons and the Lords, investigated the ways in which the treatment of such asylum-seekers has violated their human rights, as defined in the UK's Human Rights Act. Its report began by reminding the Government that the parties to the European Convention, on which the act is based, are required to “secure to everyone within their jurisdiction”, including “asylum seekers and refused asylum seekers”, the rights contained within it. It listed many aspects of Government policy that violated their rights, and concluded that the Home Office had failed to protect “desperate and vulnerable people” from “inhuman and degrading treatment under Article 3 of the Convention”. The Committee has no power to enforce its recommendations, but the current Home Secretary has recently implemented one of them, on a somewhat different issue, by withdrawing the UK's reservation to the Convention on the Rights of the Child.

Home Secretaries, and their subordinate ministers in both Houses, also have to respond to parliamentary questions on the subject of asylum, of which there is a steady flow from members both sympathetic and well-informed. Reinforcing these parliamentary pressures for a more consistently humane policy, and helping to keep parliamentarians well-briefed, is a rich diversity of non-governmental organizations.

Not surprisingly, the Society of Friends, probably better known as Quakers, who have traditionally campaigned on social issues such as penal reform and the prevention and relief of destitution, have been active in calling for changes of policy and practice. A Quaker Asylum and Refugee Network, which now meets four times a year, found that “with respect to asylum seekers, major injustices are being done in the UK's name” .Statements to similar effect have come from other churches and church leaders, including Anglican and Catholic bishops. One significant development came almost by accident. An attempt by the Catholic Borough Dean of Croydon to trace a parishioner's documents at the headquarters of what was then the Immigration and Nationality Directorate of the Home Office, Lunar House in Croydon, led to an inquiry into Lunar House's treatment of asylum seekers by a body called South London Citizens. Its report was well-received at Lunar House and several of its recommendations were implemented. This same report also led to the creation of an “independent citizens enquiry into the implementation of national policies on asylum”, given effect by the Citizens Organizing Foundation in the form of an Independent Asylum Commission.

The Commission's composition was impressive. Its twelve Commissioners were:

a former High Court judge (Sir John Waite)

the President of the Association of Muslim Lawyers (Ifath Nawaz) (co-chairs)

a former member of the Asylum and Immigration Tribunal (the Countess of Mar)

a professor of politics at the University of Sussex (Shamit Saggar)

a Canon Theologian at Westminster Abbey (Nicholas Sagovsky)

the Director of the British Institute for Human Rights (Katie Ghose)

a former Chief Inspector of Prisons (Lord Ramsbotham)

the President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Dr Silvia Castle)

a non-party member of the House of Lords (the Earl of Sandwich)

a journalist from Sarajevo, and Executive Director of the Migrant and Refugee Communities Forum in West London (Zrinka Bralo)

a Catholic Auxiliary Bishop (Patrick Lynch)

and the Deputy Representative of the United Nations High Commissioner for Refugees (UNHCR) in London (Jacqueline Parlevliet).

The Commission did a thorough job, setting themselves three fundamental questions, in each case seeking both to discover what does happen, and to prescribe what should happen:

1. How do we decide who needs sanctuary?
2. How do we treat people seeking sanctuary?
3. What happens when we refuse people sanctuary?

One of the ways they set about answering these questions was by holding seven all-day hearings in different parts of the country, at which those who wanted to could make oral statements and could then be questioned by the Commissioners. They also invited written submissions and received over 180. The British asylum system, they concluded, was “inhumane and oppressive.” Having arrived at detailed recommendations for improvement, they entered into dialogue with the Border Agency, which has now replaced the Immigration and Nationality Directorate, and included its responses in their report.

The Citizens Organizing Foundation was also responsible for a campaign in favour of a further, still one-off, regularization of the position of the hundreds of thousands of migrants, including rejected asylum seekers, now living here illegally. Any who have found work are further breaking the law, because in their situation they have no right to work, and to avoid detection, their wages, and the profits their employers may make out of employing them, are not likely to be included in any tax returns. The Government thus loses millions in lost tax. “Illegal workers”, moreover, cannot invoke the law in respect of the health and safety of the conditions in which they work, or insist on being paid the “minimum wage” the law now endorses for all legal employment. The “Strangers into Citizens” campaign called for a two-year “sponsored pathway” into full citizenship for those who had lived here continuously for at least four years, and had no criminal record, and in April 2007 an opinion poll showed that 66% of people in the UK would accept refused asylum seekers and those who overstayed their visas if they worked and paid taxes. An Early Day Motion in the House of Commons, which gives members an opportunity to indicate their support for a political proposal even though it is not before the House as a Bill or part of a Bill, was introduced by John Cruddas, who was later to stand , unsuccessfully, for the Deputy Leadership of the Labour Party. It proposed an all-party committee to consider whether such a measure. Its 93 signatories included members from all political parties.

The Government tends to respond to such proposals by arguing that they would constitute an incentive both for entering the country illegally in search of jobs, or for making unfounded claims for asylum No one seems to have attempted to discover whether after the 2003 amnesty, mentioned earlier, the statistics of asylum applications would tend to support this hypothesis. In fact the number of asylum applications, which tends to reflect the patterns of events in the countries from which refugees flee, declined in the years following the amnesty.

One appalling aspect of Britain's treatment of asylum seekers is the violence, often accompanied by racial abuse, which “failed” asylum seekers have suffered at the hands of the “escorts” responsible for seizing them and transporting them, first to an Immigration Removal Centre, and then onto a plane. No doubt the forced removal of such asylum seekers is, or can be, a desperately difficult, and unpleasant, job. The more genuine their reasons for seeking asylum, the more frightened they are likely to be at the prospect of forcible return, and thus the fiercer their resistance is likely to be to it. No doubt, if they are to be removed, force can often be necessary, but to hit them, cause them physical pain, or abuse them verbally is inexcusable. That this happens was exposed by the Independent newspaper in an article it published in October 2007. Beatrice, a rejected asylum seeker from Cameroon, was tripped and crushed by an escort guard and a French policeman who jumped on her when she tried to run away at Paris airport. She was then kneed in the groin so hard that blood poured from between her legs, and during the flight to Cameroon had five panic attacks. Such was her condition that Cameroon Immigration refused to accept her, and she was flown back to Britain in a wheelchair. Another “failed” asylum seeker, being returned to Nigeria, had his knee deliberately twisted to the point of dislocation by his escorts. A Ugandan, who had been sitting in the plane, tied to his seat, and about to be deported when news of a Court injunction forbidding the removal reached his guards, and then had to be taken back to the detention centre, was then, in the course of that journey, punched, injured and racially abused by those same guards. There is no way in which such physical and verbal aggression could be explained, let alone justified, as being necessary in order to effect his removal, since that removal had now been stayed. Complaints of mistreatment are numerous, and the Border Agency's record in investigating complaints has been shown to be shamefully inadequate. The Home Office's own Complaints Audit Committee (CAC) found that in 2007 five out of six “serious” complaints received “indefensible” responses, which often simply accepted the account of the person(s) complained about, and did not attempt to interview the complainant. A year later the record had improved, but still two out of three such complaints were, in the CAC's view not properly looked into.

The Border Agency repeatedly defends itself by painting a picture of sensitive and considerate “escorts” who employ only the minimum of force necessary to do their job, that is, take those who have no legal right to be here into custody and put them on the plane on which they have been booked for return to their country of origin. Medical Justice, a body [check whether it is actually a charity] set up by Emma Ginn, until recently on the staff of the NCADC, has ensured that the evidence for claims by deportees of actual assault or bodily harm inflicted by these “escorts” can be promptly checked by doctors, in cases where the complainants have somehow managed to stay in this country.

In mid-2008, a sixty-odd page document, produced jointly by Medical Justice, the NCADC and a firm of lawyers, Birnberg Peirce and Partners, summarized a dossier consisting of nearly 300 cases of insults and physical injuries suffered by those being deported. The document, called “Outsourcing Abuse”, is painful to read. Its title indicates one of the main reasons why such abuse has recently become so common. The task of “escorting” those about to be deported has been increasingly given to private companies, operating under contracts negotiated with the Home Office. As an instance of the latter's capacity for misjudging the character of those it thus empowers to arrest such deportees and put them on the appointed plane, it has recently come to light that the head of one such firm had previously, under a different name, served a thirteen-year sentence for “masterminding” a murder.

The Border Agency's response to the cases cited in “Outsourcing Abuse” promised to refer them to an investigator from its Professional Standards Unit (PSU) under the oversight of the former Police Ombudsman for Northern Ireland, Dame Nuala O'Loan. By March 2009 no information had been made available as to when these investigations would be completed.

Perhaps the most hopeful development in the politics of refugee issues in the last few years has been the “City of Sanctuary Movement”. As the Independent Asylum Commission noted in its report, the word “asylum”, in the UK, has some unsympathetic connotations. A century or so ago, mental hospitals were commonly, and disparagingly, referred to as “lunatic asylums” The word “sanctuary” gives a more appealing image, suggesting the peace of mind that refugees are looking for, with the knowledge that they are now protected from the persecution from which they have fled.

This movement began in Sheffield in 2005, describing itself as “a movement to build a culture of hospitality for asylum-seekers and refugees in Sheffield. We are working to make Sheffield a city that takes pride in the welcome it offers to people in need of safety, and that enables asylum-seekers and refugees to contribute fully to the life of our communities” It is based on three “core” principles: local groups working to build coalitions of organizations from all sectors...which make a public commitment to welcome and include refugees and people seeking sanctuary in their usual activities; a commitment to forming relationships between asylum seekers and local people through events and activities; and encouraging communities to take pride in offering a place of safety for people whose lives are threatened, and celebrating their contributions to our towns and cities.”

Sheffield officially became a “City of Sanctuary” in September 2007, after a Declaration to that effect by the City Council and an agreement by the movement that it had met the demands implied by this status. Other “City of Sanctuary” groups have been established in Bradford, Coventry, Leicester, London, Norwich, Nottingham, Oxford and Swansea.

The potential significance of such a movement lies not just in the warmer and friendlier reception refugees and asylum seekers in Sheffield and other cities that follow their example will get if they live up to their commitments, but also in the encouragement they could offer to British governments that, if they insisted on more sympathetic treatment of asylum seekers, this would harmonize with local attitudes for more than the sustained hostility towards them that some popular and widely-read newspapers are prone to give vent to.

There is still a long way to go. In March 2009, a Panorama programme on “illegal migrants” into the UK, some of whom have lived here for many years, led to a vote on whether, subject to certain conditions, they should be given an amnesty and allowed to stay, work legally and pay taxes. Only 33% of those responding said “Yes”, which, taken in combination with the April 2007 poll, mentioned earlier, suggests that there is now much less support for such a policy than there was two years ago.

It is sad that there are so many people in Britain who are not ready to welcome those who seek asylum here. It is even sadder that the Government pays private companies to enforce removals, and that they do not seem worried when it emerges that the companies which they appoint for this purpose employ such aggressive and racist staff. That is not to say that policy towards refugees is totally inhumane and unsympathetic. It is not. But the assumptions on which that policy rests, that applicants for asylum are probably lying, and that anyone whose plea fails at both the initial and the appeal stage does not have a well-founded fear of persecution, pave the way for claims that those we deport “have no legal right to remain here” and harsh decisions of the kind described here.. When an application for asylum is rejected, the issues of fact are often essentially difficult to determine. Why should the onus of proof not rest on those who would dispute the applicant's story, rather than on the applicant? A British Minister for Immigration recently boasted that we deport someone, on average, every eight minutes. Even if we were to sustain that rate, night and day, week in, week out, with all the pain and terror that can accompany deportations, we would “account for” about 60,000 a year. Hundreds of thousands of people would remain illegally in the UK, unregulated, untaxed, and living in fear. We can only hope that the spirit behind the City of Sanctuary Movement, which is widely shared, even though not at present by anything like a majority, will, in the end prevail.