Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 278 - 299)




  278. Good afternoon and welcome to this evidence session of the Home Affairs Committee. As you know, we are inquiring into physical controls at United Kingdom ports of entry and indeed elsewhere in the European Union as well as looking at the provisions of the 1951 Convention on Refugees. You will be familiar with the Home Secretary's speech in Lisbon on 16 June when he said there was a fundamental contradiction at the heart of the operation of the 1951 Convention in that it gave us an obligation to consider any claims made within our territory but no obligation to facilitate the arrival on our territory of those who wished to make a claim here. Do you think the Home Secretary has got this right in this regard?

  (Ms Hanlan) We do not see that there is a fundamental contradiction at the heart of the Convention. We see that there is a contradiction in the manner in which states operate the Convention, and I think that is a very different thing. The Convention was never designed to be a migration tool and we feel that asylum should be dealt with using asylum tools and migration should be dealt with using migration tools.

  279. I think what the Home Secretary was getting at was if somebody was in fear of their lives, say, in Afghanistan and gets into Pakistan, why is not the asylum application made in Pakistan for asylum in Pakistan or asylum in the United Kingdom, say, because of family connections instead of people getting themselves half way across the world to land here to make the claim?
  (Ms Hanlan) The UNHCR would not have a problem in refugee status determination being undertaken in a third country provided—and that is a very big proviso—provided that there is competence in the people who are managing the status determination, and that has not been proven in the countries where this has been experienced.

  280. Professor Goodwin-Gill, what do you make of what the Home Secretary said?
  (Professor Goodwin-Gill) I think it is important not to see the Convention as the sole answer to refugee problems. It is part of a broader international regime, but if you think about how refugee problems have been handled in the past where there have been massive inflows into particular regions, Indo-China, Central America and so forth, then there have emerged programmes for re-settlement of refugees in other parts of the world. What we do see having emerged as a problem in latter years is a de-prioritisation of that sort of international commitment to help other countries by lightening their burden, by taking numbers of refugees from them. I think to see the Convention in isolation is erroneous. You have to see it as part of a regime that incorporates other states—after all there are 138 other states who are parties—the UNHCR and states' members of the Executive Committee of the UNHCR and the sorts of expectations and indeed responses and sense of obligation, if not legal obligation, which states bring to the resolution of refuge problems when they are working out at their best.

  281. It is not for me to defend the Home Secretary, he can do it himself, but I must say I thought that speech was not on the narrow point. I understand what you are saying. It is not narrowly on the asylum issue but more widely in the context of the need for the EU itself to better develop policies for dealing both with migration, with assistance to developing countries, and also with the issue of asylum, especially this issue where in a sense—coming back to the narrow point that I mentioned—in many instances it is inevitable that people are going to be forced into the hands of people traffickers in order to cross countries and get to the country where they want to make that asylum application, in this case the United Kingdom.
  (Professor Goodwin-Gill) There are many things the Convention does not say. It says nothing about international responsibility sharing. It says nothing about solutions to refugee problems. It says nothing about anticipated refugee flows. It is important to remember that and not to read in contradictions which, quite frankly, I do not think are there any more than they are in the Human Rights Convention, for example.

Mr Howarth

  282. Can I follow that up because what the Professor has just said does not, as far as I can see, square with the Protocol which was signed on 22 April 1954 where it says: "Considering that the grant of asylum may place unduly heavy burdens on certain countries, a satisfactory solution of the problem, of which the United Nations has recognised its international scope and nature, cannot therefore be achieved without international co-operation."
  (Professor Goodwin-Gill) That is a preambular reference and in fact that refers back to the 1946 resolution by the General Assembly when it met for the first time here in London, and recognised that the resolution of the refugee problem is an international one and that states will have to co-operate. It is a big step from making preambular reference to the ideal of international co-operation to establishing anything in the way of mechanisms of obligation, and I see that as one of the major challenges we face today. We can talk about the duty of states to co-operate but when you come to try to translate into action then you run up with the petty sovereignties that we meet today.


  283. We are just back from Germany. I have forgotten the numbers but there were quite substantial numbers of refugees from Kosovo, many if not most of whom have now returned or are now returning. That was under a special one-off arrangement, as it were, because of the emergency there. The other thing we discovered—and I would like your help on this one—is we were told in Spain for example and between Germany and the Czech Republic that they have agreements across those borders they will not entertain asylum claims from Czech nationals coming across that border. Ditto from Morocco into, say, Algeciras. There is an agreement to send them straight back. These are nationals of the Czech Republic or Morocco. How does that work in the context of the international obligations under the Convention?
  (Ms Hanlan) Not all states that sign the Convention strictly respect the Convention and not all states that have not signed it do not respect it. In other words, if you take Mexico, Mexico has received over many years lots of Guatemalan refugees and has treated them exactly as one would wish according to the principles of the Convention but they have never signed the Convention. It is not a guarantee. It is not a guarantee because states implement procedures which we do not openly criticise as UNHCR but which we do not necessarily condone. I would like to refer to the previous question concerning what is UNHCR's reaction especially with regard to international co-operation. We had the honour of having the Minister for Immigration yesterday in Geneva visiting UNHCR, and we were pleased to be able to explain to her some consultations which we plan to undertake.

  284. This is Barbara Roche?
  (Ms Hanlan) Yes, precisely because we realise in this very complex debate that there is a need to look at how the 1951 Convention actually operates in today's reality. We identify three concentric circles. At the very centre would be the core basic principles which we were happy to see reaffirmed in Tampere last year and in Amman this year. Consistently the 57 Member States of the Executive Committee of UNHCR have confirmed the continuing validity of this core. The middle circle of this series of concentric circles would deal with the issues where states, particularly within the EU, are not harmonised on in their procedures and practices. Then the outer circle would contain elements such as family unification, burden sharing, mass migration, how you treat women and children, special measures. Those are areas where we recognise and we agree with the Home Secretary that there are definite gaps. But we do not think that it is by virtue of identifying gaps that one has to unravel the central core. Therefore, commencing this month and until October of this year UNHCR is going to embark on a series of consultations with senior government officials, NGOs and experts such as Guy Goodwin-Gill and others. We would aim that out of these consultations would emerge an agenda and we will be focussing on those two circles which I have described and the Home Secretary has also described in certain paragraphs of his speech. We would aim that by the end of next year, 2001, we would have arrived at a series of possibly additional Protocols because we do feel in many respects that the 1951 Convention as it stands does not respond to the realities of today.

  285. Thank you very much for that statement. You have just anticipated a question I was going to ask.
  (Ms Hanlan) I am very happy to know that.

  286. I was going to ask your view on the need to have a look again at the work in that Convention, not to get away from its core values and obligations and responsibilities, not for a moment, but in a vastly changed world from when it was agreed 50 years ago. Would you go along broadly with that, Professor?
  (Professor Goodwin-Gill) I think there is a lot that needs to be done to make the 1951 Convention a continually living instrument. I think it is a Convention worth preserving. It reflects our commitment to the individual as someone of dignity and worth and someone who deserves respect. If we want to make it work we have to recognise not only that the world has moved on but that perhaps we have not. I joined the United Nations High Commissioner for Refugees in 1976 and I initially worked in this country and my first dealings were with the Home Office, as you might expect, and the decision-making procedure in place in 1976 was no different from the decision-making procedure in place today. I find that somewhat remarkable.

  287. Remarkably depressing?
  (Professor Goodwin-Gill) Remarkably depressing, Mr Chairman. I do have experience with procedures in other countries. If we are going to make this workable and to avoid backlogs—and, after all, no refugee, no migrant ever caused a backlog, it is systemic and it is more likely in some systems than others—I think we need to bring the decision-making procedure to the problem. That is why I mentioned in my written submission that I thought the Oakington model represents an initiative that I think should be studied with care because it might have some of the answers for us.

  288. One of the inferences—I had better be careful—I drew from that is possibly there should be some form of initial detention, or was the emphasis much more on provision, as the Refugee Council and other agencies suggest, of expert advice to people seeking asylum in order to get the claim in good order as soon as possible?
  (Professor Goodwin-Gill) I would try to avoid the word, as you might expect, "detention" and think more in terms of "processing centre" or "facility" where the asylum seeker can be brought rapidly in contact with the official who will take an initial decision but in a context in which he or she receives advice and representation. I think it is at that moment you are more likely, provided you front-end load with access to information on countries of origin, interpretation and so forth, rapidly to get to a defensible decision. What we see too often these days is, quite frankly, indefensible decisions which should never have been taken.

  289. It might please you to know that I suggested to Minister Roche she causes a league table to be kept of the decisions taken at Oakington and decisions taken, say, at Croydon and see what numbers end up going through the appeal system, and what the number of decisions in each area is.
  (Professor Goodwin-Gill) I think that sort of audit would be extremely useful.

Mr Howarth

  290. I was going to ask the Professor if he could think through the consequences of his suggestion. If Oakington were to form the model, we had 70,000 asylum seekers last year, that would entail making provision for secure accommodation in one year for a population which would exceed the total prison population at the present time. We are talking about something pretty substantial.
  (Professor Goodwin-Gill) There you are making a assumption about the continuing influx of 70,000 persons a year. I think one has to recognise that the 70,000 persons we had last year is a function of inefficiency on the part of the present decision-making procedure. There is no doubt that an ineffective and inefficient procedure will act as a magnet. There is no doubt in my mind about that whatsoever.

  291. Can you explain that? An inefficient procedure will act as a magnet because people will think that by coming to the United Kingdom because the process is so long drawn out and, you might say, incompetent therefore they stand a better chance of gaining entry into the United Kingdom. Because it takes so long to process their claim, by the time it is decided they will be have been in the country so long so they might as well be admitted anyway?
  (Professor Goodwin-Gill) That is a fact we know from experience. It gets harder to remove people the longer they are around for various good and bad reasons. They establish equities, they integrate, they work, they pay their taxes, they marry, they have children and their children go to school. Those equities build up in favour of individuals. Curiously enough, those equities are also one of the reasons why those who come to enforce policies decided in Whitehall often find it very difficult because the decision to remove does not seem to be judged in the light of personal circumstances which they, the enforcement arm, have to recognise. We are not thinking about a solution that comes into operation overnight. I am thinking about a solution that needs to be integrated as rapidly as possible with a view to dealing as rapidly as possible with newly arriving asylum seekers. The backlog is something you have got to deal with in another way.

  292. You have been active in this field for the best part of a quarter of a century and you have come here to tell us today—
  (Professor Goodwin-Gill) To suggest, sir.

  293. —to suggest that those who are aspiring to come to the United Kingdom would be deterred—significantly deterred perhaps—by a more efficient operation of assessing their cases in the UK?
  (Professor Goodwin-Gill) I have no doubt in my own mind that those that come without reason or refugee-related reasons would indeed be deterred by a process that reached defensible decisions quickly.

  294. Is it a part of the internal intelligence of the network of facilitators, as these crooks who traffic in human beings are called, that they take into account the bureaucratic procedures of nation states to decide where is the best place to land their people?
  (Professor Goodwin-Gill) I am sure of it. I also think that if you are a refugee yourself and you are on the point of flight, one of the questions you might well ask is where am I most likely to find protection? So you will also be motivated by knowledge, for example, that one country is more generous than another. These are the facts of life. I think that is what experience tells us.

Mr Linton

  295. I want to ask questions on two main subjects, one is exploring a bit more the 1951 Convention, and particularly Section 31 and your understanding of that, and the second part is your reaction to the proposals that the Home Secretary made in his Lisbon speech. If I can start on the Convention. Clause 31, as I understand it, provides no penalties for illegal immigration on people coming directly from their country of origin providing they can show good cause. You quote UNHCR as saying that this concept of "coming directly" should be a bit more flexible and include the concept of necessary transit and the difficulties facing refugees arriving in an ungenerous country. An interesting concept. And, indeed, the UNHCR in its evidence to us says that with "coming directly" it is generally accepted that it also covers a person who transits in an intermediate country. I want to ask you, first of all, generally accepted by whom? Bearing in mind that we have been looking at the situation on the German/Czech border and the Spanish/Moroccan border where this is a very key issue and, clearly, more than half of the clandestine immigration seems to be coming over by sea or Channel Tunnel across the Channel. So this issue about whether you can transit through other countries on the way to claiming asylum here is an absolutely vital part of it. I would like to know what your views are respectively on this issue.
  (Professor Goodwin-Gill) I drew very much on the practice of states and the course of `travaux préparatoires' (preparatory works). By way of caveat let me say first of all that this provision, Article 31, applies to refugees not to migrants as such. There is no justification and no excuse for illegal immigration. It was introduced in particular because it was recognised that to escape very often you had to break the law, either of your own country or the country in which you sought refuge. "Directly" is, of course, a term which a lawyer like myself would be happy to argue about.

  296. It seems to have one meaning to me.
  (Professor Goodwin-Gill) But if I suggest to you, for example, that your refugee initially came through a country in which he or she could not find asylum for whatever reason, perhaps that country had geographical limitations on its obligations, or perhaps that country did not happen to like refugees of his or her ethnic origin, or perhaps that country was not a party to the 1951 Convention, you can see how the idea of "directly" might need to expand. It is interesting that the first High Commissioner, Dr Van Heuven Goedhart, a Dutchman, drew on his own experience when he fled the Nazis. He had fled from Holland into Belgium and he had to flee to France and Spain and finally made his way to the United Kingdom. He used that experience to telling effect at the 1951 Conference to persuade states that they would need to adopt some measure of flexibility in how they interpreted "directly".

  297. I understand the legal definition is a country of origin from which they are fleeing persecution or a country that could not be relied upon not to return them to that country. That would clearly apply to Holland or Belgium in 1940, but it does not apply to any EU countries now.
  (Professor Goodwin-Gill) I do not think the issue arises with respect to EU countries. There was some litigation last year, with which you may be familiar, in which many of those who had arrived in the United Kingdom who had been found to be in illegal possession of passports had been jailed without being asked to make their case for refugee status, and the court held that this was unlawful. One of the cases which I happened to be involved in involved an Albanian who had escaped via Greece. By reason of the political circumstances prevailing in Greece it was reasonable to suppose that he could not have expected to find protection there. That was not an unreasonable position to adopt even though Greece is a member of the European Union.

Mr Howarth

  298. Surely it is absurd that a fellow member of the European Union should not be deemed to be a safe haven and that we should end up as being responsible for looking after them? That is why people in this country are so concerned about this asylum issue. We are almost unique in the EU. Apparently France is not suitable and is not a safe haven according to the High Court in the United Kingdom. Now you are telling us that Greece is not. It beggars belief that the United Kingdom is the only safe haven.
  (Professor Goodwin-Gill) With respect, sir, I have been in many countries all of which thought they were the preferred country for every refugee in the world. I think we are a preferred destination in many respects, and rightly so. If the problem is as you describe it, then effort should be made with respect to our EU partners. Equally, I would say it was absurd that the German courts should interpret the definition of a refugee so as to exclude "persecution by non-state agents". Rightly, in my view, the court found that Germany was not safe for a refugee from Somalia who would not by virtue of that interpretation be recognised.

  299. The question is, why should the British people who we represent and for whom this is a serious problem—it is not an academic legal problem -be imposed upon in this fashion uniquely to be such a beacon of excellence that even our European partners, nations which are respected throughout the world, should be deemed to be inferior and lacking in morality?
  (Professor Goodwin-Gill) Perhaps I can put this into context and mention that the numbers of individuals involved are very few and that decisions that have been taken have been on the facts of particular cases. There is no general rule applicable in this country that refugees are safer here than they are in Germany or in France. There are individual cases in which it has been established that this refugee, by reason of his or her circumstances, would not find protection. I think it is also wrong to imagine that we are being imposed upon by refugees. We are being imposed upon and we are suffering the consequences of an absence of a coherent or harmonised interpretation of the refugee criteria within the European Union. It does seem to me that if we have concerns about the way in which this is interpreted by our EU partners we should direct our efforts to them and we should persuade them, for example, in the case of Germany, to come into line with the rest of the European Union, because they are a minority.

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