Examination of Witnesses (Questions 300
THURSDAY 20 JULY 2000
300. They represent their people. They are entitled
to return people themselves. Why should we tell the Germans or
the French what to do?
(Professor Goodwin-Gill) We are part of an international
system in which we are seeking a common understanding of common
Mr Howarth: I apologise to Mr Linton, I hi-jacked
301. I do not regard this necessarily as an
imposition. Many of them in my constituency contribute enormously,
through their work, to the economy, but nevertheless it is important
that there should be clarity in the subject about whether the
law is that they should seek asylum in the first safe country
they come to or whether they can come to a country of their choice.
The Home Secretary said in his speech, "There should be no
right under the Convention for refugees to choose a particular
destination on the other side of the world and travel to it."
The question is as broad as that. Does the 1951 Convention convey
a right to choose your destination or does it not?
(Professor Goodwin-Gill) One of the things that the
Convention does not do is regulate, for example, which state ought
to provide protection. That is one of the lacunae.
302. The word "directly" surely does?
(Professor Goodwin-Gill) Directly goes some way down
303. A lot of people arrive here directly by
air from destinations all over the world, more than arrive indirectly
across the channel. I would have thought the common sense understanding
of that was that they should have applied for asylum if that was
their objective before they reached here?
(Professor Goodwin-Gill) Certainly if we are looking
at the European Union these are the sorts of issues which the
Dublin and Schengen Conventions were intended to deal with, to
in effect identify once and for all which state ought to treat
an application for asylum.
304. Could I ask Ms Hanlan for her comments
on this issue, because it is very much the UNHCR's interpretation
of this that is important?
(Ms Hanlan) It is identical to Professor Goodwin-Gill's
interpretation, but we would even go further. We realised that
about 400 people were being imprisoned annually when we visitedbecause
we do visit prisons and detention centres on a regular basisand
found some cases and investigated and found that approximately
400 were being annually imprisoned due to having contravened the
provisions of Article 31, according to the state.
305. In all countries?
(Ms Hanlan) In Britain alone. We raised the issue
in January and actually on 5th January we wrote a letter to the
Attorney General's office and we had a response which indicated
that they were not fully aware that imprisoning a person who had
arrived illegally but who was claiming asylum was potentially
in contradiction of Article 31. They investigated it and we are
happy to say that up until November of last year we were having
discussions with the Crown Prosecution Service based on their
recognition that what they were doing was not correct. We are
at the stage where a draft memorandum of understanding exists,
but we understood it had gone to the Home Office and the immigration
services for final review. It is in its third draft. We hope we
will eventually get to see a final draft, but we think it will
go a long way towards making officials, port officials in particular,
understand the distinction between a migrant seeking to enter
the country illegally and an asylum seeker seeking to enter the
country, who has been forced, in many cases, to resort, maybe
against his will, to using forged documentation.
306. I realise the powers of detention is a
very sensitive subject, but can I broaden this question a little
bit, because one of the points that was made by the Home Secretary
is that the assumption at the time of the 1951 Convention was
certainly that most refugees would be protected in neighbouring
countries in the same region, and that was at a time when there
were many European refugees. Now we have moved to a time when
there are European refugees from Kosovo and places like that,
but there are also refugees from many distant parts of the world
coming to Europe. The question is not only legally does the 1951
Convention give them the right to come all the way to European
countries via other countries, but also whether that is in the
interest of a solution of our world refugee problems on which
you are obviously the key agency. In other words, one of the things
the Home Secretary said was that there should be an obligation
on European states to support the states that receive the major
influxes and to work, as he says, on horizon dimensions through
foreign aid, foreign policy and development to help those countries
that naturally get the greatest number of refugees rather than
try and solve the problem by having more and more refugees come
to European countries. To take a simple example that I am faced
with all the time, I have Somali families in my constituency who
are refugees. Other members of their family are in Italy and other
members of their family are in Kenya. All of them are refugees
from Somalia and the family is divided into different countries.
I often ask myself, is it actually helping the Somalian refugee
problem by having them dispersed and would it be better if the
European Government helped the Kenyan Government to deal with
refugees in Kenya, or wherever the rest of them initially go,
or is it better for them to be received in this country? That
is the nature of the problem.
(Ms Hanlan) I think you have to realise that the people
that you are seeing in Europe, the asylum seekers and the refugees,
are a tiny number compared with the vast numbers currently being
housed in Kenya in vast refugee camps in KaKuma and in Dadaab.
They are there for years on end. People have never known anything
except a refugee camp and, therefore, it is quite unrealistic
to imagine that merely by adding more money to the problem in
Kenya you will ever stop people's desire to better themselves
and to escape even from Kenya. Kenya is not a panacea. Many refugee
women are raped in the Kenyan camps to the point where there is
a Victims of Violence Women's Project which helps Somali and Sudanese
refugee women to escape from the camps, because their physical
safety is so much in danger. Canada, Australia and the US have
such a programme in recognition of that fact, and you already,
through DFID, do contribute towards these vast numbers of refugees
in places like Tanzania and Kenya.
307. You implicitly accept that they are seeking
refuge from Kenya, whereas of course they accept refuge from Somalia
(Ms Hanlan) It is the human spirit, and one has to
remember that refugees are also people like us. Every human being
has the desire to survive, and not just to survive, but to flourish
and for his family. Those refugees from Somalia who are scattered
right now between Italy, Britain, Germany, wherever, have one
important vision and that is a future where they can not only
exist but also flourish, and I think one has to hold that in ones
mind throughout this debate.
308. Can I just move on to the issue of a common
European policy on this, because in your evidence from UNHCR you
supported the idea of humanitarian visas in the country of origin?
(Ms Hanlan) Additionally, not instead of.
309. And the Home Secretary in his speech talked
about applications made outside the receiving state on an agreed
quota basis. He seems to be talking about the same kind of system
that you are describing. Do you see that he is trying to create
a European wide system that would help more asylum claims to be
dealt with before people reach this country, removing some of
the need for clandestine immigration and racketeering?
(Ms Hanlan) I think it is a concept which is embedded
in the concept of burden sharing. Within that framework the UNHCR
would not have a problem with such an approach, provided that
the people who were doing the status determination were competent
people and provided that people who did manage to get as far as
the EU states would not be turned back. In principle we would
not object to it. It is actually happening now in Indonesia with
people seeking asylum in Australia.
310. You accept that this would be done on the
basis of European Union countries dividing up the number of applications,
they will still be considered individually on their own merit
by each country?
(Ms Hanlan) I would not go as far as that, no. I think
you have to look at this in the wider context of burden sharing
or responsibility sharing, to use a better word. I do not think
UNHCR can come to a conclusion, one would have to see how it works
in practice to be quite honest. The idea merits scrutiny and great
311. The Home Secretary did say that UNHCR would
be asked to give advice particularly on the issue of identifying
those countries and ethnic groups that were most at risk, and
that is essentially a part of another proposal you were talking
about, safe countries. Do you feel that UNHCR would be happy to
fulfil that role?
(Ms Hanlan) I think UNHCR would want to know more
about it. What I can say is that they would not be prepared to
support an approach which automatically bars any specific nationality
from being admitted into an asylum procedure.
312. Even European Union states?
(Ms Hanlan) Yes. We do not feel that there is any
single country or individual coming from any single country that
should automatically be considered not to have a well founded
claim. We would rather see that you should contemplate applying
very accelerated procedures and using a manifestly unfounded situation,
as you have in Oakington.
313. Professor Goodwin-Gill, may we have your
opinion about the safe third countries suggestion?
(Professor Goodwin-Gill) The idea of safe third countries
in the sense of countries to which one can refer or return asylum
seekers without looking at the substance of their case and the
merits has always bothered me. It seems to me that if you wanted
to have defensible decisions, why not get to grips with the claim
itself and then act upon it. Safe third countries seems to be
one of those decision avoidance mechanisms which tends to be even
more protracted over time, to create even further problems. With
regard to the related issue of reception in the region, which
has been much debated recently in the European Union, I have concerns
very similar to those expressed by the colleague from UNHCR. It
sounds a nice idea that the refugees should be protected closer
to home, but I think our experience is that such protection is
frequently not available or of the most minimal kind and that
refugees very often find that they have very good reasons, which
may be family links or just a sense of how it is over the hill,
to move on. One has to face the reality also that migration and
movement onwards is a phenomenon and it is not going to be stopped
by purely reactive measures. I think that seriouslyand
this has not been sufficiently discussed in recent yearswe
have to look beyond dealing with the movement and managing the
movement of people to giving people a reason not to move, which
means looking ahead into early warning and preventative diplomacy,
it means looking into democracy and development, it means looking
into ways and means by which we can manage migration. It is rather
remarkable that even after all these year we do not have an efficient
international management regime. That is something that I think
we should be thinking about. The United Nations Fund for Population
Activities recently published a very interesting report on replacement
migration which raises the possibility that certain states in
Europenot actually in the United Kingdom where our fertility
is quite strongare going to face a major population decline.
Estonia, for example, is liable to suffer a population loss of
some 33 per cent in the next 50 years. Italy, 28 per cent. There
is room for migration in Europe.
314. That decision is for those states?
(Professor Goodwin-Gill) That decision is for those
states, but it is also a decision for Europe itself. I think the
experience of the 58 who died at Dover should remind us that this
is a European phenomenon as well as a national phenomenon.
315. You are talking about economic migration?
(Professor Goodwin-Gill) I am talking about economic
migration very much. We used to talk in the past about separating
the refugee out from the migrant and it is an ideal world. The
fact is, of course, that the flows tend to mix one with the other
and the task becomes harder. I think we do have to turn our minds
seriously to how we are going to manage migration and, as a region,
what place, what role, migration can play in our own economy and
in other development strategies.
316. You both seem to accept that the attempt
to separate out asylum and the 1951 Convention completely from
economic migration is impossible?
(Professor Goodwin-Gill) Let me say that applying
the 1951 Convention in a situation in which groups are mixed is
problematic. It is not impossible to do and I think one of the
ways of doing it is by bringing the decision making procedure
as close as possible.
317. Can I go back to a point that Ms Hanlan
made earlier? She said that the Convention was not designed to
be a migration tool, which I quite understand, but I did draw
attention to the preamble of the Convention itself, which does
indicate that we really have got a wholly new situation. The Home
Secretary said in Lisbon that less than 15 years ago there were
4,500 applications for asylum. Last year there were 70,000. As
practical politicians we have to address that issue and I wonder
whether either of you think that we do need to review the Convention,
bearing in mind that it was drawn up in wholly different circumstances.
It was originally drawn up to deal with the problems of refugees
displaced in the aftermath of the Second World War, although that
was changed by the 1967 protocol. Do you think that now there
is this ease of transport around the world that we should revisit
the Convention itself, either of you?
(Ms Hanlan) I am so sorry, it appears
that I failed to convince you when I first tried to address this
point. Under no circumstances does the UNHCR feel that the core
principles of the Convention should be tampered with.
318. Should not be tampered with?
(Ms Hanlan) They should not be touched. They are in
essence the solid foundation on which refugee protection is built.
It is the only truly universal instrument that exists in the world
for the protection of refugees.
Mr Howarth: The problem we face is, as Mr Linton
was saying, that originally people migrated and sought refuge
in neighbouring territories because they could not jump on an
aeroplane because there were not any aeroplanes that they could
jump on and now there are aeroplanes that they can jump on and,
as the Professor said, it has been found that our European partners
are wanting, but somehow we are not so wanting. Therefore, the
full burden is coming upon the United Kingdom. We are the only
ones that are currently playing the game, but we do play cricket,
of course, which not all the others do.
Mr Cawsey: To an extent.
319. And we are winning.
(Ms Hanlan) Being a Jamaican I will refrain from commenting
on the performance of the West Indies in this latest series of
cricket matches. You are preaching to the converted when you recognise
that migration cannot be ignored. We agree with you on that, and
in describing those three concentric circles we would situate
migration very firmly in the third outer circle as one of the
issues that definitely requires very urgent attention. That does
not mean that you must tamper with the middle circle.