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THREAD: Changes to the immigration rules published today seem likely to put the UK on a course to violate some fairly key parts of basic international refugee law. Just a quick and dirty run down of a couple of the possible ways this could happen. 1/
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/942890/Statement_of_changes_in_Immigration_Rules_HC_1043__PRINT_.pdf
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/942890/Statement_of_changes_in_Immigration_Rules_HC_1043__PRINT_.pdf
Section 11.4) “327D. An officer is not capable of receiving the claim in the territorial waters of the United Kingdom”. As per UN guidance, it's not always possible to process claims onboard a ship, however the flag state may have primary responsibility 2/
https://www.unhcr.org/3e5f35e94.pdf
https://www.unhcr.org/3e5f35e94.pdf
As per the case of Hirsi Jamaa and others v Italy, the courts have ruled that "a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying" and returning asylum seekers could constitute refoulement. 3/
https://www.asylumlawdatabase.eu/en/content/ecthr-hirsi-jamaa-and-others-v-italy-gc-application-no-2776509
https://www.asylumlawdatabase.eu/en/content/ecthr-hirsi-jamaa-and-others-v-italy-gc-application-no-2776509
To put it simply, yes it isn't practical to go through a formal asylum application process on board a ship at sea. That does not mean that the state under whose flag the vessel is flying is not responsible for the claim though, and therefore receiving it in the first place. 4/
Section 11.5) There is no requirement in the UN Convention Relating to the Status of Refugees for them to stop in any particular country, however crossing countries is deemed acceptable. This has been reinforced by case law, including the UK courts. 5/
http://www.bailii.org/ew/cases/EWHC/Admin/1999/765.html
http://www.bailii.org/ew/cases/EWHC/Admin/1999/765.html
Furthermore the follow up additions in these changes allowing the Sec of State to remove an asylum to a "safe third country" poses not just a legal challenge, but also a practical one. If states refuse to take asylum seekers it would leave them in limbo in an unknown country. 6/
This opens up whole new questions, particularly if there's an additional issue of someone's citizenship, remember it is illegal to leave someone stateless and this could be a genuine risk for refugees, in regards to who is liable to provide assistance. 7/ https://www.unhcr.org/uk/un-conventions-on-statelessness.html
The way these changes read, removing people without a fair hearing poses a significant risk of violating Article 33 of the UN Convention, as without assessing the claim you cannot be certain a country is safe for the applicant. 8/ https://www.unhcr.org/uk/3b66c2aa10
It also risks, albeit obliquely, Article 31 of the UN Refugee Convention, which prohibits the penalisation of asylum seekers based on their manner of entry. Due to the UK's geography, it seems likely that these clauses are designed to penalise refugees who don't arrive.....9/
through a government sanctioned resettlement route. Due to the limited number of refugees able to use such routes, even when they are in operation, this would severely curtail the rights of refugees to seek asylum in the UK. 10/
States have the right to set their own criteria and processes for assessing asylum claims, subject to international law, which is why the UN sets out guidance documents on the subject. These changes seem to contravene a lot of that guidance. 11/ https://www.unhcr.org/uk/publications/legal/5ddfcdc47/handbook-procedures-criteria-determining-refugee-status-under-1951-convention.html
As UK leaves Dublin III Regulations it is seeking ways to try and replicate them in some kind of monstrous mishmash of a manner. It is still, however, bound by obligations to not only the UN Refugee Convention, but also other human rights treaties to which it is a signatory. 12/
Domestic law is subservient to international law, no matter what certain MP's may be trying to argue at present. You cannot enforce a domestic law which would contravene international laws to which you are a signatory. These changes risk doing just that. 13/
As @ColinYeo1 points out here, where applications are being heard this policy seems liable to delay rejections, which just leaves refugees in a further precarious position. It's effectively lose lose for asylum seekers however you cut it. 14/ https://twitter.com/ColinYeo1/status/1337066594594381828?s=20
