IS IT A BOY OR IS IT A GIRL…..IT’S BOTH: THE SOCIETAL CONDEMNATION OF INTERSEXUALS

July 4, 2013 § Leave a comment

It is predicted that 1 in 2000 babies in the world are born with ‘indeterminate’ genitalia, where doctors are unable to confirm whether the child is neither male nor female, they are intersex. There are many different conditions in which this takes place but this is generally seen in a variation of characteristics in the genitalia, gonads or female/male chromosomes.

I am writing this blog whilst sitting in my accommodation in Vancouver, Canada where I am participating in the ‘Law on the Edge’ conference. Over the last couple of days I attended a conference presentation and later a film screening of Intersexion, concerning the rights of intersex people.

As a fairly naïve participant I was shocked to hear how common intersexuality is (more prevalent than babies born with cerebral palsy) and frankly horrified at the social and medical response to these children, which seeks to ‘correct’ them and place them within the gender binary of either male or female. Surgeons suggest surgery should be carried out on such children as soon as possible to reduce scarring in later life and ease their passage into society as identifying within a gender. However the repercussions can include the loss of sexual stimulation, infection and gender identity confusion which leads to anxiety, depression and in some cases suicide. Some will undergo a sex change operation and later develop opposite identity traits when they hit puberty, further confusing their designated gender.

So why does society find it necessary to categorise these children into a gender binary? This issue was raised at the conference and the response was for common reasons such as school sport teams, toilets, changing rooms and perhaps more importantly because wider society does not accept those who live outside of male/female categorisation. But in light of the existence of intersex people and the recent changes to New Zealand legislation which legalised marriage between ‘persons’ as opposed to male-female or same sex, the necessity of gender within society is something which is becoming increasingly fractured, a topic I intend to explore in further research.

The documentary and narrative provided by Mani B Mitchell, an intersex person from New Zealand, illustrated the pain and resentment experienced by intersex individuals at having their freedom removed by surgical operations which leave many feeling mutilated, undertaken without their consent as babies. The emphasis of the film was that babies who are born intersex should be left alone and parents should be congratulated on the birth of their healthy and normal child as opposed to scare mongered into consenting to surgery to correct something society views as abnormal. Intersex individuals should be given the choice to identify with whichever gender they choose, either socially or surgically, or to live as neither once they reach a culpable age of consent.

Legally a fascinating point raised at the conference was whether this surgery would be considered an offence under laws prohibiting female genital mutilation (FGM). In the UK, the legislation governing FGM is the Female Genital Mutilation Act 2003 which states in section 1(1) that ‘A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris’ bringing intersex surgery on infants into this remit.

An exception is stated at section 1(2) which makes an allowance for surgery where it is carried out by an approved person for the necessity of their physical or mental health. Where the physical health of an intersex child is at risk there was a general consensus that surgery should be undertaken, but it was recognised in the documentary that in the majority of cases, intersex children (and later adults) can live a happy and healthy life, free from the pains of surgery. In these cases, the physical health exception is removed which leaves the exemption on grounds of mental health.

In determining necessity on grounds of mental health section 4(5) states that:
‘For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.’
The obvious justification used by medical professionals is that societal transition would be easier if the child were physically changed to either male or female, but is this not classified as a Western custom, on the basis of what is socially acceptable? Custom is defined as ‘a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place, or time’ a definition which seemingly places surgery on intersex infants within the context of FGM prohibition.

The Intersexion documentary was extremely touching and I recommend everyone to watch it as an education. As with most taboo subjects, ignorance can be combatted through education and increased knowledge of intersexuality. The anxiety and depression discussed within the documentary arose not from the groups existence as intersex but from the societal shame which arose from something which needs to be recognised as perfectly natural. After watching the documentary and hearing Mani’s personal narrative, it is clear that society should bare the shame for failure to recognise the position of those who are intersex and subjecting them to surgery which can only be described as amounting to genital mutilation.

Where’s the Humanity?

February 14, 2013 § Leave a comment

On Saturday the 26th January I attended a meeting organised by Tyneside Community Action Against Racism (TCAR). The day was organised by activists to highlight some of the pressing issues within the asylum regime. This blog will reiterate some of the concerns raised, in the hope that it will shed further light on an asylum system shamelessly focused on reducing immigration rather than providing sanctuary and meeting the needs of asylum seekers.Image

The speakers included Tom Vickers, Frances Webber, John Grayson and Raul Ally.
Tom’s speech ‘Racism and Politics in British State Welfare’ focused on the pitiful support that asylum seekers receive whilst they are in the UK and the racism which pervades the history of welfare provision and remains to this day. His speech can be accessed via his blog, consequently it will not be reiterated here.

I had the pleasure of reading Frances Webber’s book ‘Borderline Justice‘, which gives a comprehensive account of various aspects of the asylum system such as welfare, housing, detention, border control and access to justice. Her inspired speech gave a general overview of the developments in the legal system and the role of asylum seekers, community, lawyers and judges in fighting for a more humane asylum system, reiterating the importance of activism and community support. A video of her speech can be viewed by clicking the link.

The remainder of this blog is co-written by Raul Ally, who explains his profoundly moving experience of detention in the UK. He has also included a video link documenting his experience of seeking asylum

Before examining the deplorable practice of detention in the UK, the blog will examine discussion by John Grayson and the transfer of asylum seeker housing from the UK Border Agency to the privatised company G4S.

Privatised Housing and the shameless disregard for humanity:

Asylum seeker housing in the UK is now 100% outsourced to three multi-national security companies: Clearel (London and the South of England); Serco (North-West and Scotland & Northern Ireland); and G4S (North-East, Yorkshire & Humberside and the Midlands & East of England), who earn millions of pounds through securing provision. These companies cut costs by purchasing sub standard properties and letting them to asylum seekers who are left with little or no other options. Their blatant disregard for the standards of housing provided, the needs of asylum seekers and the suitability of areas of accommodation continue to place asylum seekers in precarious positions where their rights are frequently infringed.

G4S were granted 211million pounds for the seven year asylum housing contract. The company recently hit the headlines for botching security at the London Olympic Games, and more seriously for the death of Jimmy Mubenga in October 2010. Mubenga died after being restrained by G4S guards on a British Airways flight in an attempt to deport him to Angola, he was heard repeatedly shouting ‘I can’t breathe’ and ‘they’re going to kill me’ by fellow passengers and British Airways Crew.
In December 2012, G4S evicted a heavily pregnant asylum seeker from her home on the day she was due to be induced to give birth, expecting her to move all her belongings, register as homeless and travel to hospital herself. The woman was aided by one worker who took pity on her and gave her a lift to hospital.

The standards of housing provided by G4S are described by Grayson as appalling. In one case, a mother who had been housed in what Grayson describes as a ‘slum’, found a cockroach in her five month old son’s milk bottle. Her accommodation was damp and infested by slugs and cockroaches, the back yard was littered with piles of rubbish from previous tenants and the landlord had screwed cockroach traps to the walls, one of which was placed close to her son’s cot. Unlike national citizens who have tenant’s rights, asylum seekers were stripped of such rights via the Immigration and Asylum Act 1999. Despite this, the Government still have an obligation to provide asylum seekers with an adequate standard of living and physical and mental health via Article 11(1) and 12 of the International Covenant on Economic, Social and Cultural Rights.
They also have a national obligation to safeguard and promote the welfare of children, which they are bound to consider via Section 55 Borders Citizenship and Immigration Act 2009 and the Convention on the Rights of the Child. However, evidence suggests that the Government is failing to adhere to these obligations.

A recent parliamentary inquiry into the experiences of children within the asylum system found that in relation to housing, “families are living in poorly maintained, overcrowded accommodation which can be damp, dirty, cold and unsafe; infested with mice, cockroaches and other pests, rotting floorboards and locked windows. One submission characterized this as ‘death trap’ accommodation” noting there is little obligation upon housing providers to ensure high quality or appropriate accommodation. During the inquiry, one local authority affirmed that properties issued by private firms “are less well maintained and sometimes lack basic facilities needed for families with young children, such as washing machines. Children and parents have to share bedrooms, or live in flats and hostels with strangers, sharing communal areas.” The accountability of housing standards is thus a major concern.

Racist incidents have also been disregarded by G4S in their selection of accommodation areas, often housing asylum seekers in rough and notoriously racist areas. Grayson discussed the plight of an asylum seeking journalist from Iraq who was dispersed to a G4S property in Stockton in October 2012. On arrival the applicant and four other asylum seekers were overwhelmed by a crowd hurling racist abuse, who proceeded to break down the door and windows to their accommodation before being removed by police. The landlord repaired the door but refused to repair the windows, declining to move the asylum seekers to more appropriate accommodation. The police also refused to register the attack as racially motivated. In fear of reprisals the other four asylum seekers left the property, yet in doing so they also lost qualification for support.

The failure to return or subside at an authorised address constitutes a reason for the discontinuation of financial support to asylum seekers, who are also prevented from working. (See SI 2000/704 and Policy Bulletin 17, Failure to Travel)
Abandonment of address for reasons of racial harassment is classified as a reasonable excuse. In considering whether to discontinue support in these circumstances adjudicators must take into account the nature, degree, frequency, persistence and organisation of the harassment, as well as the effect it has on the asylum seeker and whether police have been informed and taken action. ‘The ‘sufficiency of protection’ test of refugee status itself has even been applied to deciding whether a refusal to return to the site of previous racist harassment was reasonable in the light of the police response. These decisions suggest that there is such a thing as an acceptable level of racial harassment (or a level of harassment which asylum seekers must accept).” (Macdonald’s Immigration Law and Practice 2010, page1104)

Though some asylum seekers are active in their fight for humane and dignified treatment, some are afraid to speak out, worried of the impact it could have on their asylum application. Consequently hundreds of asylum seekers continue to live in squalor and allow racist incidents to go unreported, choosing to remain at home rather than risk racial abuse outside.

Detention: A punitive response to seeking asylum?
Though immigration detention is claimed not to be a form of punishment, Morton Hall detention centre, where Raul was recently held used to be a female prison. At the TCAR meeting Raul described being locked in a cell intermittently during the day and released for breakfast, lunch and dinner. The centre placed restrictions on internet access, which prevented Raul from accessing websites to aid his asylum claim and he claims that staff would intercept his post. Raul reported that the majority of detainees were depressed, one of whom he witnessed stabbing himself with a fork in the dining hall through fear of deportation.

Though asylum seekers have committed no crime, once detained, they are imprisoned and unable to leave. Whereas criminals are imprisoned for a fixed amount of time, there is no time limit placed on immigration detention and no requirement to inform detainees of how long they will be incarcerated. The imprisonment of asylum seekers in the UK has led to countless riots, hunger strikes and suicides.

The National Clinical Director for Health and Criminal Justice at the Department of Health has affirmed that ‘custody causes mental distress and acts to exacerbate existing mental health problems, heighten vulnerability and increase the risk of self-harm and suicide.’ The following case study has been taken from a blog written by Clare Sambrook and provides an insight into the realities of immigration detention and deportation:

“When immigration officers called at his home in Leeds for a ‘pastoral visit’, the man was open and friendly. He let them in, offered them a seat, a cup of coffee, told them of his depression, showed them his medication. The very next day a dozen officers arrived at dawn and broke down his door with a battering ram — (an “absolutely routine pick-up”, they called it). The man and his 13 year old son woke up to find an immigration officer and a police officer in their attic bedroom. They were told to dress and pack, told they’d be flown the following morning to Angola — a country where, the man said, his mother, father and sister had been killed by the authorities.
On the drive to the removal centre — Yarl’s Wood, in Bedfordshire — escort staff from private contractors G4S confiscated a coil of washing line from his bag. At Yarl’s Wood they said he could not keep his medication or the washing line with him, but nobody noted any indication of risk of self-harm in his file. He was found hanged in a Yarl’s Wood stairwell at around 1 AM the next morning. His son was woken up and told the news. The man was Manuel Bravo. He was 35 years old. The circumstances of his death were recorded, with some compassion, by the Prisons and Probation Ombudsman Stephen Shaw in January 2006.”

At the TCAR event Raul spoke of the profound impact detention had had on him, stating ‘I may seem ok on the outside, but really I am not.’

Raul’s account:

On the 24th of June 2012 I was arrested and held in North Shields police station for 3 days. I was released 3 hours before my prom, I was arrested without committing any crime or doing anything wrong and ordered to sign on (at an immigration centre) every week.

It was Wednesday the 1st of August and I was meant to be watching an Olympic football match between Brazil and Australia, but unfortunately I couldn’t make it because I was rearrested by the UKBA and taken to Morton Hall detention centre in Lincolnshire where I was detained for over 2 months.

My experience in Morton hall has to be the worst experience I have had in Britain. I first arrived there thinking there would only be a few of us, but I was shocked to see how many people were held there, people from all different countries with different circumstances. I expected to see only asylum seekers but there were people being detained for no specific reason which was very sad to see. There were people with major illnesses such as heart disease, people who were blind, those suffering mental illness and people without limbs. It was sad spending time with them, sometimes I wished that they could be released and I remained in there because they didn’t deserve to be held in those conditions.

The staff in Morton Hall were very harsh, I heard one with my own ears saying that they had the hardest job working in a detention centre as we (asylum seekers) were the worst criminals. They treated people like animals, I saw one detainee being forced to move, they strangled and cuffed him, the guy couldn’t even breathe properly and shouted that they were killing him, it was very sad to watch. The nurses lie and say whatever is necessary so people can be deported, there was a Vietnamese person who had heart problems and couldn’t even go to the dining hall to get his food, yet the nurses signed that he was fit to be deported, and they only supply you with pain killers as medication.

The immigration rules say that the maximum someone should be held in detention is 3 months, but some of my friends were held for up to 6 years, some people have even been deported to wrong destinations, just so they can get rid of them. There were a few Somalis who pooed in the plane because they were taken to unknown countries and they used fake documents to deport them. It was hell being in a detention centre, and it hurts me to see people being treated like this. God’s world has no borders. Shut down detention centres!

By Raul Ally

A video documenting Raul’s asylum journey can be viewed at:

Deaths at Sea – Asylum Seekers and Illegal Entry

August 1, 2012 § 1 Comment

(Residents and police try to rescue refugees from an asylum boat being smashed by violent seas against the jagged coastline of Australia’s Christmas Island Photo: AP)

This month disturbing news revealed that 54 people died in an attempt to reach Italy from Libya by boat, one man from Eritrea survived, the rest perished from dehydration in a 15 day ordeal.

This blog aims to provide a legal and realistic narrative of the reasons why deaths at sea continue to occur and who is to be held accountable.

A Personal Account

Before I begin this blog, I want to draw attention to a story I came across during my reading. It is written by a Somali woman who was smuggled into Europe. Her personal account exposes some of the realities of smuggling and the dangers people face in escaping persecution.

“I remember living a medium life. Me, my husband and eight children. I remember my baby calling, “Mama, mama”. Quite normal.… But the war breaks. We fled. Far away to south Somalia….Two months on. Everything’s out of hand. We run away from the civil war. Me, my husband and eight children.… And we go from Somalia by boat towards Kenya. But suddenly the boat is sinking. The boat is overloaded…. The boat broke. Water breaking into us…. I can’t swim. The boat sinks. Who will rescue us?…. 200 people are dying, drowning. I’m losing my family to the sea. Five of my daughters are lost…. And my eldest son, he’s just begun his life, he’s finished university. He’s lost. That makes six of my children. Dead in the sea, in one day.… Suddenly, an Italian tourist boat is passing.… people come to rescue us. They grab my baby, who I’m holding. And another child of mine…. All the time my baby’s calling “Mama, mama.” Suddenly, I am hauled into the boat like a baby myself…. I am crying. My whole body. Crying.… Do you hear me?… I cannot forget that day. Although I’m here before you today, you can’t have imagined the life of one Somali woman.…  am breaking my silence. The world should know my life, my baby calling “Mama, mama”. The world should hear this life.” Found in research commissioned by the Information Centre about Asylum and Refugees in the UK (ICAR) at http://www.icar.org.uk/somalicommunityreport.pdf

The Factual Reality

Though the above stories are horrendous, it’s a narrative that continues to take place as persecuted individuals continue to employ criminal smugglers in attempts to find sanctuary within Europe. Figures from UNHCR show that since the 31st of January 2012 over 500 irregular migrants and refugees died attempting to cross the Mediterranean sea. Sadly, this figure is also likely to be higher as not all deaths are recorded (throwing dead bodies overboard is common) and death records are only accounted for in tales from survivors or through enquiries from family members looking for missing persons.  Unfortunately the majority of people smuggled into the UK and Europe are those seeking refuge from conflict ridden countries.

The stark reality is that despite the right to ‘seek and to enjoy in other countries asylum from persecution’ as enshrined by Article 14 of the Universal Declaration of Human Rights (UDHR), when conflicts erupt or it is likely that there will be an influx of people from a particular country, the UK government introduces stringent visa requirements and this is paralleled throughout Europe.

This can be seen in the UK Border Agency’s (UKBA) current list of countries requiring visa entry for the UK, which includes many refugee producing countries. Unfortunately given the nature of refugees, (in that most come from politically unstable countries) seeking visas from British embassies within their own countries is often impossible. Currently included on the UKBA’s list is Somalia, yet Somali’s cannot obtain passports, let alone British visas and UNHCR recently reported that a boat was still at sea carrying 50 Somali and Eritrean people attempting to reach Italy. Other countries such as Iran and China are also listed, yet within these countries the State is the persecutor from whom people seek to escape, therefore obtaining travel documents or visas can be dangerous to the applicant or the family they leave behind.

Consequently, legal entry, for the majority of asylum seekers, is unfeasible:  in essence the worse the situation in the country of origin, the more difficult it is to gain entry to the UK or Europe. As a result of this, the activities of criminal smugglers have prospered and human rights abuses have increased. Amnesty International estimates that every year, four million people are trafficked or smuggled across international borders- the value of this criminal trade is estimated at approximately $US10 billion per year.

Illegal entry and the rising death toll can be addressed as a three- fold problem:

-the first (as cited above) is due to visa requirements for entrants from refugee producing countries;

-the second is the failure of the UK government and other European States to provide sufficient resettlement programs;

-and thirdly the increased security of Europe’s external borders forces asylum seekers to find ever more complex and dangerous methods of entry.

Resettlement

In 2004 the UK government, in partnership with UNHCR, set up a refugee resettlement scheme (under Section 59 of the Nationality, Immigration and Asylum Act) which provides 500 resettlement places to those refugees most in need throughout the world, this has since been increased to 750 places.

Currently sixteen European countries provide resettlement to refugees, yet they only provide 8% of global resettlement places. 90% of places are provided by the three top resettlement countries: the United States, Australia and Canada. Recently the European Union adopted the EU resettlement program, which intends to co-ordinate, harmonize and increase the number of resettlement places offered throughout Europe. However the number of resettlement places has not increased in parallel with the number of countries needing the resettlement of citizens. UNHCR estimates that 800,000 refugees are in need of resettlement places each year, far more than the places available, the result being that only one in ten refugees in need of resettlement will secure protection through the programs.

Border Control and Smuggling

As discussed, illegal entry is often the only resort of those who wish to escape their country and find refuge. In attempting to do so, asylum seekers commonly employ criminal smugglers to smuggle them across the borders to a new life. This often involves extortionate amounts of money and the sacrifice of safety, putting individuals and families at the mercy of criminal smugglers. Contrary to popular opinion, the poorest members of societies within these conflict ridden countries often can’t afford to pay people smugglers, thus the majority of asylum seekers who reach the UK or Europe in this way come from wealthier backgrounds. Often individuals pay for the journey with their life savings, their family’s life savings or community contributions, and in some instances it can cost them their lives. Causes of death can be due to a number of circumstances such as: extreme weather; unseaworthy boats; beatings from smugglers; drowning; starvation; dehydration; suffocation and in some cases suicide out of desperation.

The increase in European and UK border control makes entering Europe progressively difficult, the visa restrictions and increased security has gained media attention as “Fortress Europe” which propels smugglers further in finding extreme methods of trafficking people across the borders.

Within the Schengen area of Europe external borders in terms of sea, land and air, are guarded by Frontex who employ a border surveillance system and European Border Guard Teams, whose mission is to reduce the number of irregular migrants entering the country.  The UK has its own border agency the UKBA who employ over 23,500 staff in protecting the UK’s borders.

Legal Responsibility

There is a legal framework for people crossing the borders by boat which divides responsibility between Shipmasters, and State parties:

Two Conventions: The 1982 United Nations Convention on the Law of the Sea and the 1974 International Convention for the Safety of Life at Sea (SOLAS) place the Shipmaster under an obligation to assist those in distress at sea, regardless of any circumstances such as nationality etc.

In terms of State parties, several international conventions obligate them to ensure appropriate rescue arrangements for distress calls received within their area of responsibility. These include:

– 1982 United Nations Convention on the Law of the Sea, Article 98(2) (UNCLOS)

– 1974 International Convention for Safety of Life at Sea, Chapter V, Regulation 7 (SOLAS)

– 1979 International Convention on Maritime Search and Rescue, Chapters 2.1.10 and 1.3.2 (SAR)

The State must aim to relieve the Shipmasters of responsibility by arranging disembarkation of those rescued as soon as possible. The State responsible for those rescued depends on the SAR region in which the survivors were recovered, the State responsible must provide a place of safety for survivors. Disembarkation should not be delayed for procedures such as screening or status assessment. (Guidelines on Treatment of Persons Rescued at Sea – Resolution MSC 167(78).

For further information see the following guidelines: http://www.marisec.org/rescueatsea.pdf

International Refugee Law

Though there is a right for individuals to seek asylum, as enshrined by Article 14 of the UDHR, there is no corresponding obligation upon States to grant asylum. The word ‘receive’ was removed from the UDHR on the premise that member State’s should retain their sovereignty in being able to decide who could enter their territory. Therefore international refugee and human rights law does not offer any concrete protection for refugees until they enter the territory in which they seek refuge. As a result, the onus is on the refugee themselves to escape persecution.

As a consequence of this, States are able to introduce stringent visa measures for refugee producing countries.  The reasons behind this are obvious in that no member State wants an influx of asylum seekers from a particular country. Once this occurs within Europe the first member State to receive applicants remains responsible for those individuals in processing their application and offering them refuge (via the Dublin Regulation – which is why Italy’s refugee system is under intense pressure). The politics of the situation seems like a playground quarrel and ultimately that’s what it is, clearly if all member State’s removed visa restrictions, some of the barriers for entry would be removed, but there is no legal requirement to do this and therefore it is unlikely this will ever happen.

As can be seen the protection for those residing in conflict ridden countries is relatively weak, however once applicants reach the State in which they seek sanctuary, Article 33 of the International Convention on the Status of Refugees (‘Geneva Convention’) becomes active. Article 33 is the right to ‘non-refoulement’ which means that once an applicant is under a State’s jurisdiction they cannot be returned to a territory ‘where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.‘  Consequently State’s must process an individual’s asylum claim before returning them to their country of origin. If they satisfy the member State’s requirements for refugee status they will be allowed to remain.

Escape

Article 33 of the Geneva Convention is seen to be ‘the cornerstone’ of refugee protection. Read in conjunction with Article 14 of the UDHR it offers significant protection to those who manage to escape their country and reach sanctuary. International maritime law also aims to protect those who take to the seas in seeking safety. But that protection only starts once people start their journey, and as shown above, even with that protection people continue to lose their lives.

As discussed there are many barriers for asylum seekers in reaching sanctuary. With no legal framework of absolute responsibility for member States to offer resettlement, or to remove visa requirements, the onus of responsibility for the safety of refugees realistically remains upon themselves. Though their countries of origin are ultimately responsible, in the real world safety does not become apparent until refugees start their perilous journey to sanctuary.

 

– Katie Bales

Gardens of Justice – Critical Legal Conference 2012

July 18, 2012 § Leave a comment

At the beginning of June I took a four week holiday to travel through California. Just before I left I received the fantastic news that my abstract ‘Asylum Seekers and the Welfare State: A Social Dystopia?’ had been accepted for the Critical Legal Studies Conference in Stockholm, in September, a conference that I was particularly keen to attend.

To put my abstract into context, I will present my paper in the welfare stream, the theme of which is the ‘welfare state as a social utopia?’  When I initially read the stream information for the conference I was excited at the prospect of entering an abstract as the ideas floated by the stream organiser’s mirrored topics I wished to explore in my thesis. The stream itself is heavily focused on ideas of solidarity, exclusion, equality and the utopian ideal to which the welfare state can aspire.

Despite gaining experience of presenting conference papers at the SLSA and Queen Mary Postgrad conferences, each conference is unique and presents its own challenges, which continues to test my confidence! Though this is a relatively new area of examination for me, I am enjoying exploring postmodern ideas within literature and forming nihilistic arguments of laws which I find arbitrary, ineffective and inhumane.

After four weeks of Californian sunshine, exhilaration and discovery, returning to research is both exciting and daunting, but I am grateful for the opportunity to present my ideas at such a fascinating and interesting conference. For now, the reading continues and then begins the formidable task of translating my thoughts and ideas into a conference paper.

The abstract for my paper is cited below and I will update the blog with a reflection after the event.

‘Asylum Seekers and the Welfare State: A Social Dystopia?

The redistribution of resources through the English welfare State is fundamentally an expression of national solidarity, which provides for the indigent members of society. However this form of solidarity is stratified on the basis of immigration status which, it will be argued, overlooks social need in defining the responsibilities of the welfare State. As a result, a hierarchy of entitlement and rights exists.

Despite international and European legal verification for the occupancy of asylum seekers within the sovereign State, NGO studies show that this group including those whose applications have been refused, suffer from systematic poverty, prejudice and inadequacy and in some instances abject destitution.

This paper will examine the welfare provision for asylum seekers and refused asylum seekers within this context.  The paper will use a hypothetical case study to outline the current support system for asylum seekers and refused asylum seekers, whilst at the same time accounting for the experiences, history and consciousness of applicants. It will stress that applicants are not only discriminated against in their exclusion from the national welfare framework but also experience the detrimental and compounded effects of intersectional grounds of discrimination, which can then impact further upon rights.

It aims to consider the boundaries of ‘solidarity’ within the current welfare system and whether those boundaries should be extended to include asylum seekers and refused asylum seekers. With reference to the case study, human rights and cosmopolitanism I will consider how  and why this is necessary even within ‘the factual reality of given society’.

Katie Bales

Photo Credit:

SHARPSHOOTA.com – NYC street photography

CEAS Update: ECJ rules that asylum seekers cannot be removed to Greece under the Dublin regulation.

January 6, 2012 § Leave a comment

In January 2011 the European Court of Human Rights declared that asylum seekers were at risk of being subjected to inhuman and degrading treatment if deported back to Greece. On 21/12/2011 the European Court of Justice (ECJ) ruled that member states cannot deport asylum seekers back to another EU country if they have “substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment”. On this basis they declared that the UK could not deport asylum seekers to Greece under the Dublin regulation.

For more information on the case see the report by the Guardian.

The ECJ ruling puts the functioning of the Dublin regulation in the spotlight: its introduction has meant that Italy and Greece, predominant gateways to Europe for North African countries, have had to take responsibility for any asylum seekers that travel through their borders. Both countries have declared the regulation an unfair burden to carry given the current economic instability of the countries, which has also meant that there is little welfare support for asylum applicants.

The UK government has taken an unsurprising ‘islander’ approach, claiming that the UK should be able to deport asylum seekers to any EU country under the Dublin regulation. Although reform of the regulation is needed, the UK has vehemently resisted agreement to any reforms. As discussed in my previous blogs, very few asylum applicants are sent back to the UK under the Dublin regulation but the UK utilises it to return large numbers of applicants to other EU countries, leading to obvious conclusions about why the government are so keen to keep it.

For further discussion, listen to a short BBC Radio 4 debate on the subject.

– Katie Bales

Conference Review: ‘The EU Asylum Directives: Is Opting in Necessary?’

December 19, 2011 § Leave a comment

On the 24th November 2011 I attended a conference at the Bingham Centre for the Rule of Law titled ‘The EU Asylum Directives: Is Opting in Necessary?’ The event was created to consider the general implications of the UK’s opt out of the amended EU Asylum directives and the effect this could have on the UK’s position in the Common European Asylum System (CEAS).

There were three speakers at the event; Valsamis Mitsilegas, Director at Criminal Justice Centre, Queen Mary; Elspeth Guild, Professor of law at Queen Mary and David Saville, Head of EU Asylum Policy Team, UK Home Office. Chairing the discussion was The Hon. Mr Justice Blake.

I have outlined the discussions of each of the speakers in my own words below:

First to speak was Valsamis Mitsilegas:

Valsamis outlined his intentions to discuss whether opting in to the amended protocols was necessary, and whether the UK could afford not to participate in the amended directives without being excluded from the CEAS as a whole. I have briefly summarised his considerations below:

Valsmais used the history of the Schengen agreement to form his theory that the UK would not be able to participate in the CEAS if they continue to pick and choose which protocols to implement. The Schengen Agreement aimed to abolish internal EU border controls, allowing for passport free movement of EU nationals. Currently 25 countries are part of the Schengen agreement. However the UK only partially opted in to the measures, approving inter-police co-operation, whilst refusing to adopt the abolition of border checks and the common visa policy in favour of maintaining its own border. Despite being resistant to sacrifice national border controls, the UK was keen to take part in the Visa Information System (VIS) which shares visa data for security purposes between the participating Schengen states, however the other EU states blocked the UK’s attempt to use the VIS which was upheld by the European Court of Justice in UK v EU Council (Case C-482/08). During the case the UK claimed that because it had an opt-in measure and had adopted inter-police co-operation, it was entitled to use the VIS system, despite refusing to abolish border controls.  The Court rejected this argument stating that the VIS measure needed to be looked at objectively, taking into account its context, purpose and effectiveness as a whole, rather than the specific wording of the protocol.

The purpose of the VIS was to support the removal of national border controls whilst maintaining state security, as the UK refused to abolish their own border agency they could not participate in the establishment of the European Border Agency and consequently the VIS measure. The Court held that as well as the strict legal basis of the measure, the logic of the Schengen agreement as a whole must be taken into account and as the UK does not contribute to that purpose it is not allowed access to the VIS.

Valsmais also drew attention to Article 4a of Protocol 21 of the Treaty of the Functioning of the European Union (TFEU), which he believes allows for ejection of the UK from the CEAS if the UK’s refusal to adopt certain measures renders the directives inoperable.

In light of this interpretation, Valsmais asserted that it is unlikely that the UK will be able to participate in the Dublin Regulations if they refuse to adopt the Procedural and Reception protocols.

The objective of the Amsterdam treaty is to achieve a common asylum system between all European Union member states to ensure high quality decision making and treatment of refugee claimants. The four directives; Dublin, Procedures, Qualification and Reception (described in detail in my previous blog post) are all contingent upon one another in achieving the aim of the CEAS and therefore when viewing the directives objectively as a whole, and taking into account the Schengen ruling, the UK should not be able to participate in one of the directives if it refuses to adopt the others.

The second speaker was Elspeth Guild.            

To begin with Elspeth outlined the numbers of people whom the UK decisions would affect, namely asylum seekers, and summarised the numbers of asylum applications that are lodged within the EU.

In 2010 there were half as many asylum applications within the European Union as there were in 2001/2002. The Eurostat figures show that in 2010 the UK received 23,715 applications- lower than France who received 52,725; Germany 48,490; Sweden 31,875 and Belgium 26,130, all of whom are part of the CEAS. To put the UK figure into perspective, in 2010 only 6,500 people were granted asylum and approximately 20,000 claims were rejected.

Elspeth asserted that:

The UK has thus far only opted in to the recasts of the Dublin and Eurodac measures, rejecting the reforms of the Qualification, Reception and Procedures directives. The purpose of the Dublin regulation is to determine the liability of state responsibility towards asylum applicants, placing responsibility on the state first sought by the asylum applicant. The Eurodac measure is a fingerprint database, its sole purpose being to determine whether asylum applicants have been apprehended or sought asylum in another European country.  Eurodac checks are not automatic, they can be performed upon suspicion and if the applicant is found to have been in another country the responsibility will pass to that state.

In practice the UK is a ‘net sender’ of the database, regularly sending applicants finger prints for checking, which more often than not, results in a ‘hit’ allowing the UK to transfer responsibility. Comparatively other EU countries have very few ‘hits’ against the UK. These two measures have been adopted by the UK, allowing the government to offload responsibility on to other member states, which has recently facilitated the return of thousands of asylum applicants to Greece and Italy, which has the worst welfare provision for asylum seekers (See the report by the Guardian for further details). However the measures which actually provide increased protection to applicants, have been rejected by the UK.

In light of these measures it is clear why the system must be seen as a whole. If a state passes responsibility of an applicant to another member state, the state transferring responsibility needs to know that the receiving state will uphold the applicant’s rights and provide treatment and decision making of an equal standard to themselves i.e. a Common European Asylum System. Although positive individual asylum decisions do not have mutual recognition amongst member states, negative decisions do. Consequently the decision making process must be equal between member states to ensure fairness. Therefore the UK should not be able to adopt the Dublin measures (which offload responsibility) without adopting the qualification directive as there needs to be a common system for qualification.

Because the UK has opted out of the recast of the directive, it intends to implement the previous version of the directive, however this still causes the same problem of a differing qualification system between UK and other member states. On this basis it is likely that problems will arise in the courts and doubt is cast on the UK’s ability to participate in the Eurodac and Dublin regulation without accepting the other amended directives.

In consideration of this argument Elspeth therefore emphasised that the more legally preferable, legitimate and administratively practicable option is that the UK accepts the amendments.

The final speaker, in position to defend the Governments decision not to opt in, was David Saville from the Home Office.

David stressed that the government’s main aim in border control is security. The change in government has led to strong views on state sovereignty and the present government does not support the harmonisation of border controls. The UK believes that asylum claims should be decided by member states, which should retain sovereignty in matters of immigration. David asserted that the EU legislation is not effective in practice and means nothing if it is not implemented correctly, which was recently shown by the failings of Greece and Italy to provide a sufficient asylum system. In reality the UK upholds and will continue to uphold the rights of applicants above other countries, (like Greece and Italy who have opted in to the protocols) as the UK’s measures are practical and achievable. Despite rejecting the measures, the UK still provides some of the highest protection in Europe.

In defence of the decision not to opt in to the protocol David reasserted that through Protocol 21 the UK is entitled to opt in or out of any measures which they do not feel appropriate.

In defence of the assertion by Valsamis that the principle of the Schengen ruling could lead to the UK’s exclusion from the CEAS, David stated that the Schengen agreement is a specific and limited part of EU law which is excluded from the directives as it is a separate ring fenced agreement. In drawing attention to Article 4a of Protocol 21 David affirmed that it only allows for ejection from the directives, if the state completely refuses to accept the directive not just the veto of an amendment. Consequently the UK will continue to implement the original directives.

The UK is also not the only country to opt out of the amended protocols as Ireland has also chosen to do so. With reference to the Dublin regulations, David outlined that the regulation has been extended to non-EU countries with no expectation upon them to take part or uphold the other directives. Asylum applicants are protected by fundamental rights which would prevent extradition to countries where their rights would not be upheld and therefore the directives are not essential in supporting applicant’s rights.

My thoughts on the subject…

In conclusion the repeated reason for the government’s veto of the amendments was sovereignty. The arguments put forward by the panel were convincing and unfortunately David Saville and the Home Office appeared to be a victim to the well thought out questions and savvy opinions of the panel and audience. Sovereignty seemed to stand stoutly in the way of protection for asylum seekers, and reasons given by the government such as: the resistance to allow quicker access to the labour market and the desire for fast track detention, have not been supported by evidence to show that these measures are necessary. On the contrary, much evidence provided by NGO groups shows quite the opposite i.e. that the detention estate and restrictions on work are a huge expense to the state and cheaper alternatives could produce the same results.

The assertion of sovereignty does not address why the minimum standards put forward in the amendments could not be adopted by the UK. If the UK provides one of the highest standards of protection to asylum seekers, then why not implement the minimum safe guards to promote equal protection across Europe?  Surely if the UK refuses to uphold the protective measures granted by the amendments, they should be prevented from using the procedural measures to transfer responsibility on to other states.

At a time when the UK government continues to spout human rights rhetoric to North African and Middle Eastern countries, it is a self contradiction to reduce the human rights protection afforded to the most vulnerable group of people on the planet, refugees. 

– Katie Bales

The Common European Asylum System and the UK

December 13, 2011 § 1 Comment

At a time of increasing hostility towards immigration and asylum and with a euro-sceptic government at the helm, we examine what the Common European Asylum System is and what it means for the UK.

 The CEAS and its purpose:

Introduced in the treaty of Amsterdam (1997), the Common European Asylum System (CEAS) seeks to harmonize the treatment of asylum applicants between European Union member states. It aims to establish a common system that will standardise the protection afforded to asylum applicants through a unified qualification system; high quality criteria for the reception and processing of applicants and definitive responsibility of member states. The European Asylum Support Office will standardise practical considerations such as the Country of Origin Information and will deploy support teams to states in need of asylum support.

The CEAS has so far been implemented in two phases. Phase one took place from 1999 to 2004 and established a number of measures, the four most important ones being: the ‘Dublin’ regulation, the ‘Reception Conditions’ Directive, the ‘Qualification’ Directive and the ‘Procedures’ Directive. A period of reflection and consultation was then given as to the quality of the measures, then in 2008 phase 2 began, aiming to improve and build upon the measures already implemented. Amendments were made to three of the most important directives; the procedural, qualification and reception directives.

The UK took part in all of the original ‘first phase’ measures, however the country has an option to opt in or out of the directives (Protocol 21) and has thus far rejected the revisions, choosing only to fully opt in to the Dublin regulations. The government claim that they will continue to implement the old directives, yet the whole premise of a ‘common’ European asylum system could be undermined if the UK chooses to implement differing standards to other EU states, calling into question the UK’s participation in the system.

The meaning of the Directives:

The ‘Dublin’ Regulation: To determine state responsibility for asylum applicants and prevent ‘asylum shopping’; where applicants travel across different EU states to obtain the most preferential treatment. The responsible state is the state which is most central to the asylum seekers application. It is normally the first state which was entered illegally or legally, where the latest visa was issued or where the applicant’s family are legally resident.

The Qualification Directive: To give a common definition of the meaning of ‘refugee’ across member states and reduce ambiguity regarding the terminology that is currently used in defining refugee status. (Full name: The ‘Directive laying down minimum standards for the qualification and status of non-EU nationals and stateless persons as refugees or as persons who otherwise need international protection)

The Reception Conditions Directive: To ensure a common standard of treatment for applicants across all member states. This includes common:

  • Access to information upon arrival
  • Time restrictions on access to the labour market
  • Access to education
  • Access to housing
  • Access to medical care

(Full name: The Directive on reception conditions for asylum-seekers)

The Procedures Directive: Provides minimum procedural guarantees across member states, such as access to legal advice and the existence of a personal interview in the application process. It also sets minimum requirements for decision making such as independent, qualified decision makers; conditions for notification of the decision and rights to appeal. It also gives a unified understanding of claims which are ‘manifestly unfounded’ and countries which are regarded as ‘safe countries of origin’.

For further information on the directives, or the system as a whole, see the Europa website on European Commission Home Affairs:

What do the revisions mean for the UK?

Beginning with the…

Reception Conditions Directive: the biggest change (and hence the Government’s refusal to adopt) would be to the detention of asylum seekers.

The UK has one of the largest immigration detention estates in Europe. Approximately 26,000 people were held in immigration detention in 2010, the majority of whom were asylum applicants. Most people are held in detention for over two months, in 2010 the cost for one individual for one night was £120.00, a costly exercise for the government and a further promotion for the prohibition of detention of asylum applicants.  (See ‘Bail for Immigration Detainees’ for further details)

In short the new measures (Article 8) included in the amended directive codify the grounds for detention to four circumstances:

  • to determine or verify nationality
  • to determine the basic protection elements on which the claim is based
  • to verify the procedural right to enter the territory and
  • on grounds of national security.

These circumstances may only be invoked when necessary and ‘if other less coercive measures cannot be applied’ creating a further requirement of proportionality. It also asserts that applicants will not be detained on the sole basis of an application for asylum being lodged.

This is a problem for the UK government as the majority of applicants held in UK detention are held under ‘fast track’ measures also known as administrative detention, which allows for detention of claimants whose case can be decided quickly, this is normally based on the person’s country of origin. If a claim is ‘fast tracked’ the applicant will be detained whilst they wait for their claim to be determined, if the claim is rejected, fast track applicants have no right of appeal in the UK and will be deported. Applicants from certain countries which are listed by the Home Office as being ‘safe’ will automatically be placed on the fast track system unless they can prove that their claim is obviously not unfounded. However, worryingly the UK Government do not always have the most up to date country of origin information, although Congolese applicants were not fast tracked, the Guardian reports that recent decisions made by the Government to deport applicants back to the Congo were based on dated country information from 2008. The consequences of this are detailed in a report ‘Unsafe Return’ by Justice First: which provides case studies of seventeen adults and nine children, the majority of whom were subjected to inhuman or degrading treatment upon their return to the Congo, including imprisonment, rape, sexual assault, beatings and electric shock treatment.

In conclusion if the government opted in to the amended directive they would not be able to use the fast track system for detention as the border agency would have to prove detention necessary in each individual case and that no alternative methods of control could be used. They would also have to establish that detention was not based upon an application for asylum being lodged. If the directive were implemented the majority of those currently in fast track detention would be released and granted temporary admission.

The amended Reception Directive also requires all detention to be confirmed by a judicial authority within 72 hours from the beginning of detention (Article 9). Currently the decision to detain in the UK is decided by a UKBA officer with the authority of the Secretary of State, consequently if the UK opted in to the directive, the administration for decisions to detain would have to change, which is viewed by the Government as an unnecessary administrative burden on the judiciary. However, as many have pointed out, the criminal justice system bears the administrative weight easily and in comparison the numbers for immigration prove insignificant.

The other change (and one which was cited in the government’s rejection of the amendment) is to the time length restriction placed on asylum seekers to access the labour market. The previous time restriction to work was 12 months, which is what the UK currently has in place. The new amendment creates a maximum of six months restriction. The immigration minister Damien Green stated: ‘Signing up to the Reception Conditions Directive would have forced the UK to allow asylum seekers to work after six months, even if their claims had been refused and they were appealing the decision…This would have sent out the wrong message, encouraging those who do not need our protection to make unfounded asylum claims’ The result? Asylum seekers in the UK will be forced to claim benefits for an extra six months. The government have offered no evidence to show that early access to the labour market encourages ‘unfounded asylum claims’ and this assertion contradicts the government rhetoric that welfare benefits also attracts ‘unfounded asylum claims’. Contrary to popular opinion NGO evidence provides that welfare is rarely a factor in decisions regarding where to lodge an asylum application. Often asylum seekers pay an agent to smuggle them out of their country and have no choice in where they will be taken and if they do, the location of family or friends is the paramount concern. For further information see the Still Human Still Here website.

The Procedures Directive: The main change to the Procedures Directive is the right to in-country appeals and further restrictions to the use of accelerated procedures or ‘fast track’ decisions.

As already stated if a fast track applicant has their claim rejected, in current UK law they have no right of appealing the decision whilst remaining in the UK and can consequently be deported. Article 46(5) of the amended procedures directive gives applicants the right to in country appeals which conflicts with current UK practice.

Again relating to the UK ‘fast track’ procedure, any case can be considered suitable. Approximately 70% of UK asylum applications are allocated to the fast track procedure. However the directive specifies seven limited situations in which fast track or accelerated procedures can be used, which would greatly reduce the UK’s use of fast track decision making and create further administrative burden. Yet when one considers the extortionate costs involved in detaining asylum applicants, it is unlikely that greater administration would necessarily equate with greater cost.

For further information about how the UK’s refusal to accept the amended directives will affect its place in the Common European Asylum System, see my forthcoming blog post titled ‘Conference Review: The EU Asylum Directives: Is Opting in Necessary?’

– Katie Bales