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:

Do Children Have Rights? A brief analysis of the theories of rights.

October 16, 2012 § 1 Comment

For my first blog I use the foundational reading I am undertaking at the start of my PhD studies in order to discuss the theories of rights, and more specifically, what these theories mean to children as right-holders. There are two main competing theories as to the nature of rights; interest theory and choice (or will) theory. I will start by trying to briefly explain each, pointing out the fundamental differences which lead to the problematic philosophical question of whether or not children have rights.

Interest Theory

Developed from Jeremy Bentham’s benefit theory, Joseph Raz’s interest theory focuses on rights arising from our holding of a sufficient interest. The subsequent right then informs a duty or obligation of others, as Raz explains;

[T]he interests are part of the justification of the rights which are part of the justification of the duties. Rights are intermediate conclusions in arguments from ultimate values to duties. They are, so to speak, points in the argument where many considerations intersect and where their results are summarized to be used with additional premises when need be.

From this it can be seen how we move from an interest to a right, and from the right to a duty. Rights are intermediate conclusions between interests and duties, and as such we also see a key point of interest theory; that rights talk can take place antecedent of duties. This means rights ground and justify duties, or are the ‘reasons for the duties to which they give rise.’

Choice Theory

The choice theory of rights was propounded by H.L.A Hart in his 1955 paper ‘Are there any natural rights?’ Hart’s core idea is that “if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free”. The use of conditional language also shows another important aspect of choice theory; the difference between a right, and the right thing to do. The actions of moral agents may be considered as ‘right’ or ‘wrong’ without reference to the exercise or violation of rights, which will be important later. For now it is enough to assert that possessing a right, on choice theory, is to have a moral justification to determine how someone else should act, whether it be to fulfil a duty owed or to waive the claim. The key to a right on choice theory is control and/or autonomy. Rights serve to protect a certain measure of freedom/control the right-holder enjoys by dint of their capacity as an active manager, a choosing agent, within a realm defined by the right.

What the differences mean

As seen above, choice theorists argue that people are the “active managers of their own lives even when to do so will work to their overall detriment”, thus the upholding of autonomy is central to the theory. Contrastingly it is argued that on interest theory individuals become “passive beneficiaries of the services of others”. Interest theory could place autonomy as an interest, which can then put others under a duty not to interfere, but at the same time it can be argued that autonomy is the core and to have interests that are worthwhile, or ‘sufficient’, one must first be autonomous. Autonomy may therefore seem to supersede all other rights and interests, however there does appear some circularity here and possibly an irresolvable intertwining between interests and autonomy. Do we have an interest in being autonomous because we are autonomous? Or does our autonomous nature now makes us realise that it was because people had a duty to protect our interests in the past, that allowed us to become autonomous beings at all? Choice theorists believe a right comes from having control over someone’s duty. Yet here it can be said that they have an interest in controlling someone’s duty, and so such rights may exist on interest theory, if this interest is seen as sufficient. Rights are more likely to conflict with interest theory, but this also ensures that we consider other’s interests when determining duties.

Another important difference is unwaivable rights. Choice theorists, as ‘active managers’, believe any rights we possess can be waived by us, and that if a ‘right’, such as not to be assaulted, cannot be successfully waived, it is not a right. As such there is no right not to be murdered, or not to be enslaved, but choice theorists do not therefore condone murder or enslavement (the difference between what is right, and a right). They argue the language must be different, and that something not being protected by a right, does not mean others do not have a duty against doing it. If we bring this idea out of moral philosophy and into pragmatic legal thought, then it may seem an idea for we which we have more sympathy. Whilst there is no such thing as legal murder, we have the right to medical treatment, but we also have the right to refuse medical treatment – that is to waive our right to medical care. Thus we can control our rights, or at least certain rights. Whilst appealing, this is not without problems in that in order to be able to control our rights, right-holders must necessarily be fully autonomous persons. Thus we come to the debate of whether children have rights.

The Rights of Children

The bestowing of rights upon children and incompetent adults is one of the major advantages of interest theory. Wenar has suggested that choice theory is ‘implausibly narrow’ because it does not give those groups of individuals rights as they do not have the necessary capacity to exercise their rights. “The appeal of the interest theory emanates from the wide range of rights that it can endorse, and from the evident fact that having rights can make a life go better.” “Few would insist that it is conceptually impossible, for example, for children to have a right against severe abuse.” And Hart, subsequently changed his views on the concept of a right in respect of moral rights, reportedly suggesting rights “may be used to focus upon individuals’ needs rather than upon their possessing choices.” This would suggest that Hart agrees that children therefore have moral and legal rights against their parents, to be fed for example, as this is something ‘focused upon their needs.’

Choice theorists however would rebut that such non-right-holders are still afforded protection by non-correlative obligations, that is, obligations that are not grounded from any right. Every right may inform a corresponding duty, yet not every duty therefore is informed by a right. Such non-correlative obligations are necessarily held by the autonomous right-holders. Sumner incorporates relational duties based on a benefit analysis into his view of choice theory, leaving us with a result he hopes will negate such problems;

[A]lthough a theory of rights which adopts the choice model can make no sense of the rights of animals or foetuses or infants or young children or the severely mentally handicapped, it can accomplish essentially the same objective by making them the beneficiaries of our protective duties.

Such protective duties may seem to make the theory more palatable however there is more to the rights of children than negative duties and obligations by adults not to harm them. For example, protective duties may no room for the right to education or even to be cared for. No positive rights for children can exist, as no rights for children exist, which means our children enter a world where moral thought concerning them is that the superior autonomous human beings merely have an obligation not to harm them. It should perhaps go without saying that we as a society have problems accepting this. Children have rights. They may not have always been recognised in law, such as the Roman Republic, yet as MacCormick states, “that only means that some or perhaps many legal systems have been morally deficient, which is scarcely a startling observation.” Thus he seems to propose a blend of the two theories of rights. Interest theory is not without clear problems such as; unwaivable rights; third party beneficiaries, which show a right can be held by one who will not benefit from the duty; and that what a ‘sufficient’ interest is that will ground and justify a right has not been given any more objective description. Yet protecting sufficient interests is vital for children to have rights, and perhaps equally vital to protecting them in order to allow them to become autonomous moral agents. At this ‘cut-off point’, when this may be is another debate entirely, such moral agents may be considered to know what is in their own interests and as such move into a choice theory conception of rights. Such an idea is worthy of further thought, as it bestows rights upon children, yet has the vital aspect of control and freedom for competent and fully autonomous agents as well.

– Dominic O’Brien

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

The Embassy and International Law

July 2, 2012 § 1 Comment

Image

Utilised in numerous Hollywood blockbusters in recent years, from Robert Langdon’s dash to the U.S embassy in Paris in ‘The Da-Vinci Code’ to Jason Bourne’s run in with the consulate officials in ‘The Bourne Identity’, the position of the embassy in international law could be mistaken for the setting of the latest cinematic release rather than a fundamental instrument in diplomatic relations. Events in the past two months however have illustrated that the inviolability of the embassy is much more than a plot device in the latest Bond film, and instead is one of the oldest and most sacrosanct principles of international law.

In late April 2012 Cheng Guancheng, a Chinese dissident activist, escaped house arrest and fled to the U.S embassy in Beijing. Arriving days before a planned visit from U.S Secretary of State Hilary Clinton, his residence in the U.S embassy sparked a brief diplomatic crisis between the United States and China. This crisis was seemingly reconciled in May 2012 when Mr Guancheng flew with his family to the United States to take up a position at a U.S university.

In developments much closer to home, wikileaks founder Julian Assange appears to be avoiding his imminent extradition to Sweden by residing in the Ecuadorian embassy in London. Mr Assange faces accusations of sexual assault in the Scandinavian country but has sought the sympathy of Ecuadorian officials to prevent the extradition which could see him further transferred to the United States. Mr Assange’s primary fear is that if extradited to the United States he could face the death penalty in relation to charges concerning his dissemination of confidential information.

Drawing on examples from these two recent cases, this post intends to set out the position of the embassy in international law and provide a brief uncritical explanation of why individuals wanted by a forum State have sought protection in the diplomatic premises of other nations.

The emergence of the embassy in international law

The relevant law which has led to the UK Foreign Office informing the Metropolitan Police that Mr Assange is out of their reach so long as he resides in the Ecuadorian embassy is found in the Vienna Convention on Diplomatic Relations (VCDR). As highlighted by the preamble to this international treaty, the provisions contained within the Convention were not new in 1961 when the treaty was formally created, but are a codification of principles which have been followed for hundreds of years in relation to the diplomatic official:

‘Recalling that peoples of all nations from ancient times have recognized the status of diplomatic Agents’

Writing in 1924 Korf highlighted that even in ancient civilizations the position of the diplomatic official was given a protected status:

‘[i]t was recognized everywhere that the envoy had a specially privileged position; his person was inviolable and sacred, his status abroad was protected by the principle of extraterritoriality; he was exempt from municipal and local laws and taxation’

By providing an individual with a special protected status tribes, kingdoms and other large groupings could negotiate differences and conduct trade without the fear that their envoy or messenger would be the victim of attack or imprisonment. The system was mutually beneficially between different parties as if an envoy of one kingdom was endangered or imprisoned while conducting his role in a receiving kingdom, his contemporary in his own kingdom would be at risk of direct retaliation. In effect, according to Dixon, the diplomat was seen as a representative or alter ego of the sovereign and was thus entitled to all of the immunities which he or she would have enjoyed.

Eileen Denza has stated that even before the congress of Westphalia in 1648, where international law is commonly seen to have emerged into its modern Sovereign State form, permanent legations were accepted as the normal way of conducting international business between different kingdoms or tribes. This is evident in that France’s permanent representation abroad began as early as 1522 when King Francis I sent a delegation to the Swiss.

Vienna Convention on Diplomatic Relations

In the period immediately following WW2, when international law was arguably at its most fertile and the concurrent demise of colonialism saw the creation of numerous new nations, the decision was made to codify the customary provisions which had previously regulated the law on embassies. Listed in the preamble to the treaty the purpose of the VCDR was for the ‘the maintenance of international peace and security, and the promotion of friendly relations among nations,’ and ‘to ensure the efficient performance of the functions of diplomatic missions as representing States’.

Denza notes that, even despite the diplomatic problems caused by the Cold War, the treaty was relatively straightforward to negotiate. This was partly because the States who negotiated the treaty had generally followed the rules they were negotiating for hundreds of years until the point of codification, and also because States had a common interest in the successful creation of the treaty. Just as with the tribes and kingdoms of centuries before, States may have had enormous gripes and ideological differences with one another, however as the sanctity of diplomatic channels benefitted all parties, they could agree on the sovereign immunity of their diplomats abroad and safety of their embassies.

Entering into force in April 1964, the treaty currently has 60 signatories and 187 parties making it one of the most universally accepted provisions in international law. Dixon highlights that in the US Diplomatic and Consular Staff in Tehran Case the Court has indicated that a great part of the VCDR now also makes up customary international law as well as international treaty law.

The inviolability of the embassy

The reason why Mr Guancheng fled to the U.S embassy in Beijing, and why Mr Assange is currently residing in the Ecuadorian embassy in London, is because it is not only the position of the diplomat but of the embassy premises which are out of reach of the authorities of the forum government.  The inviolability of the diplomatic premises are a natural extension of the protection provided to diplomats. In theory it enables diplomatic staff the freedom to carry out their duties and functions conscious that they will not be harassed or intimidated by officials of the receiving State.

Their sanctity is provided for by Article 22 of the VCDR which states that:

1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

It is the blanket inviolability of the embassy, visible here in section 1, which creates this loophole in international law. Intended seemingly to protect ambassadors, staff and their sensitive materials it is this provision which has the capacity to protect individuals within embassy premises also. Signed by both Ecuador and the United Kingdom in 1961, this safeguard is what is currently preventing the Metropolitan Police from gaining entry to the Ecuadorian embassy and arresting Mr Assange for breaching his bail conditions.

Although there is a certain irony in Mr Assange availing himself of embassy protection when his organisation undoubtedly caused diplomatic headaches for embassies all over the world, he will be safe within the Ecuadorian Embassy for as long as the mission is willing to accommodate him. Although it is likely that his visit to the embassy will be over in a matter of days, as Ecuadorian officials consider what approach to take on his case, it is not unheard of for individuals to spend long periods of time living in another State’s embassy. For instance, the Hungarian Priest Jozsef Mindszenty spent 15 years of voluntary confinement in the U.S Embassy in Budapest.

Thus, it is the right afforded to the Ecuadorian State under international law which is currently protecting Mr Assange. My next blog post will consider the responsibility of the Embassy State (the ‘sending State’) when an individual claims refuge there from human rights abuses.

– C. Mallory

ISA 2012 Glasgow Human Rights Conference

June 25, 2012 § 1 Comment

Last week I presented my paper ‘Where Blame Lies: State Responsibility and the Accountability of Non-State Actors’ at the International Studies Association (ISA) Conference. The event was held at the University of Glasgow. An abstract for the paper is provided below.

States are ultimately responsible for the abusive acts of non-State actors which violate human rights. The ability of non-State actors to threaten the enjoyment of human rights is of increasing concern, and as such there are many circumstances in which potential abuses can be said to arise from the actions of international organisations, transnational corporations, armed militias and opposition groups. As a result, legal debate has arisen concerning whether these non-State entities could, and indeed should, be held directly accountable in international law, or whether such measures would undermine the authority and responsibility of States.

This paper seeks to analyse the different legal approaches utilised in the regulation of non-State actors and the difficulties in extending direct liability, such as the inadvertent ascription of greater status to non-State entities. Moreover, it seeks to assess the argument that in the wake of globalisation, we have reached a stage where the liability of non-State actors is vital given the minimal, non-interventionist role played by States, and their diminishing economic and political capacity to protect. Would this shift in conception be a positive and necessary step forward, or undermine legal fundamentals of human rights protection?

It has been a long journey with this piece. I wrote this abstract in the second month of my PhD back in October on a whim and was somehow accepted to present. As I prepare for annual review this week it has been great to reflect on my progress over the past 10 months or so.

My experience at the conference was extremely positive in many respects. It has forced me to critically engage with some of the foundational legal and theoretical arguments around which I will centre my future doctoral research, and has provided me with a great deal of new knowledge and perspectives from the various other disciplines represented at the conference.

To be given the opportunity at such an early stage to speak alongside such established names and to learn from their research has been extremely motivational. I look forward to developing my research in new directions over the coming months.

– Lee McConnell

David Cameron and the ‘Small Claims Court’

January 31, 2012 § 1 Comment

Last week David Cameron made a speech at the Council of Europe in Strasbourg outlining the reasons why he believes it is time for the European Convention on Human Rights system to be reformed. In his speech the Prime Minister suggested that unless reform is enacted the Court risks becoming a ‘small claims court’. His comments have drawn criticism from Sir Nicholas Bratza, the senior British judge, currently acting as President of the Court. This brief post will summarise what Mr Cameron said and why his comments are both untimely and unwarranted.

Need for change
Mr Cameron outlined three interrelated reasons why the UK, under the coalition government, would be pursuing change to the Convention system.
Firstly, he argued that the ability of the Court to fulfil its mandate was being threatened by its increasing workload. He identified the current backlog of cases and continuing increase in applications as an obstacle. In particular he suggested that the most egregious violations were not receiving the consideration they required under the current system. Secondly, the Prime Minister argued that the Court was rapidly becoming a Court of the fourth instance, giving an applicant a final attempt at succeeding where they have failed in domestic hearings. Mr Cameron’s submission here was that under the current system the Strasbourg Court was having its time wasted by being forced to consider trivial applications, many of which had already been rejected on numerous occasions in domestic hearings. Thirdly, he argued that the margin of appreciation, allowing for country specific interpretations of the Convention, was shrinking in favour of a Strasbourg imposed broad European base. Here he specifically referred to the UK’s recent troubles regarding the deportation of terror suspects and prisoner voting rights as issues which the Strasbourg Court should have left to the discretion of national courts.

A better system
Mr Cameron concluded by stating that the Court should be freed to deal with the most serious of violations; that the Court should ensure the right of the individual application rather than act as a ‘small claims court’ and that it should hold each country to account instead of undermining the decisions of national courts.

Critique: Untimely and unwarranted

Backlog
Mr Cameron’s first reason for reform was the vast backlog of cases pending before the Court. Although correct, this criticism is untimely given that the Council of Europe has, only relatively recently taken steps to rectify the problem by enacting Protocol 14. Despite being objected to by Russia for a number of years, this provision finally came into force in June 2010. Under Protocol 14 there are now measures for dealing quickly with repetitive cases, the Court’s filtering capacity has been reinforced and a new admissibility criterion requires applicants to have suffered a significant disadvantage to gain access to a hearing.
Having been negotiated for a number of years the Council of Europe’s Committee of Ministers first adopted Protocol 14 in May 2004. It appears that despite waiting over six years for this provision to finally come into force, Mr Cameron and his government want to reform the system without even waiting to see if the changes have any impact on the efficiency of the Court.
It is understandable that there is frustration with the backlog of cases, but the reality is that the Court has to give adequate consideration to allegations of human rights violations taking place across 47 states. Although this criticism by Mr Cameron may be well intentioned, the Council of Europe should be wary of accepting further reforms which could allow the Court to spiral into a constant state of transition.

Appeals body
The Prime Minister also criticised the Court as being a final appeals body for trivial applications. Mr Cameron used an application concerning sub-standard travel conditions on a bus from Budapest to Madrid to use as an example of the bizarre nature of one case. Evidently his researchers appear to have been more diligent than those of his Home Secretary when they found this case. One must always be wary, however, of using isolated examples to illustrate a fundamental point. It is unfortunate but true that a number of cases submitted to the Strasbourg Court are of a trivial nature, but this is why the Council voted to adopt Protocol 14 and weed out such applications at any early stage.
Furthermore, the fact that a number of applications, trivial or serious, have the opportunity to be heard in Strasbourg after receiving negative judicial treatment in domestic Courts should be seen as a success, rather than a failure in the current structure. The Strasbourg Court presents the final opportunity to highlight domestic legislation or State action as being incompatible with the Convention, and thus this structure has enhanced the protection of human rights. As recently as 2008 for instance, the European Court of Human Rights overruled decisions of the UK Administrative Court, Court of Appeal and House of Lords in finding that s.64 of PACE, authorising blanket retention of finger prints and DNA samples, was in breach of Article 8. The Conservative Party subsequently campaigned that they would overhaul data retention legislation to make it more human rights compliant and the result of this, the Protection of Freedoms Bill, is currently making its way through the House of Lords.
Although it is justifiably frustrating for a government when their legislation or actions are defined as in breach of the Convention, it is one of the greatest successes of the Convention system that there is a final arbiter who specifically focuses on the human rights impact of a particular law or action and, when appropriate, advocates for change.

Margin of Appreciation
The Prime Minister’s assertions regarding the Margin of Appreciation are grounded in his general approach to Europe. It has been reported that if his reforms are not accepted, the Conservative manifesto at the next general election will include a pledge to call for looser ties to Strasbourg. Preparation for such a break in ties may already be underway as towards the end of Mr Cameron’s speech he highlighted how UK the government is currently investigating the case for repealing the Human Rights Act 1998, a law which gives direct effect to the Convention provisions, to replace it with a UK Bill of Rights.
It may simply be the case that the speech Mr Cameron gave in Strasbourg last week was a prelude to a more prolonged campaign for the UK to break away from the Convention system. If that is the case Mr Cameron should come out and state it as party policy, rather than using his position as the leader of the UK government to direct criticism at the Court.

Small Claims Court
Mr Cameron stated his concern was that the Court was at risk of becoming a small claims court. The Prime Minister should bear in mind when making such comments that although the United Kingdom has improved its human rights record dramatically over recent decades, with only 8 judgements being rendered against the State in 2011, the outlook for individuals across much of Europe is not as bright.
Last week the 2011 statistics of the Court were released presenting clear evidence that the Court is much more than a small claims tribunal. The most common violations regarded the length of proceedings (341), the right to liberty and security (241) and the right to a fair trial (211). There were also 70 violations of the right to life and 183 violations of Article 3. These statistics do not reflect the work of ‘small claims court’.

Concluding thoughts
Mr Cameron made a number of valid points in his speech. The Court is certainly oversubscribed with applications. Several practitioners do attempt to manipulate the Convention system for personal gain rather than for the well-being of their clients. The term ‘human rights’ has developed negative connotations in some quarters due to trivial applications and, on occasion, it would be fair to say that the Court could have made a decision on the basis of the margin of appreciation, rather than searching for a pan-European level of acceptability.
Some of Mr Cameron’s criticisms are serious and reflect a weakness in the system in its current form, yet that is exactly why they are already being addressed on various fronts. It would appear, however, that much of the Prime Minister’s comments are politically motivated and are representative of the Conservative Party’s position on Europe, instead of the United Kingdom’s commitment to human rights.
It is possible that Mr Cameron’s comments are a knee jerk reaction in light of recent decisions against the United Kingdom, or they may form part of a long term goal to grasp sovereignty back from Strasbourg, nonetheless they are both ill advised and untimely. Perhaps what one could take from them is that if the short term threat to the Court is an enormous backlog of cases; the long term threat is unwarranted politically motivated calls for reform.

– Conall Mallory

Where Am I?

You are currently browsing the Human Rights category at Northumbria Law Blog.