- The Observer,
- Sunday August 19, 2001
Absolutely nothing in the Convention stands in the way of asylum claims being 'dealt with swiftly, through quick decisions and an effective system for returns', as the Prime Minister suggested in the run-up to the election. The convention reminds us and every other one of the 141 States party to it that we have a common obligation not to send refugees back to persecution, torture or death, but that's a duty most of us would recognize, convention or not.
The problems are much more basic and much closer to home. No one in or out of government will mention it, but the fundamental issue is systemic inefficiency. The present process of getting from a claim for protection to a decision is inappropriate, inflexible, wasteful of resources, too prone to error, open to political manipulation, and not worth defending.
Our asylum blindspot
Over the last twenty or so years, governments have repeatedly failed to respond adequately and effectively to flows of people. Some of the responsibility can be laid at the door of the Office of the United Nations High Commissioner for Refugees. Over the last decade, it stepped aside from its principal mandate, declined to engage in the procedural and implementation dimensions of refugee protection, and failed to contribute to improving standards and practices in the interests of States, host communities, and refugees themselves.
Governments, of course, were party to these omissions, and must share responsibility for most failings. In Europe, ministers and officials have long argued that we live in a world of zero immigration. We don't, of course, and never did. On the contrary, as active agents in an interdependent world, linked by lines of history, blood and culture with the four corners of the planet, we are a necessary part of the ebb and flow that comes with trade, with a globalizing economy, and with the expectations of our citizens and their families. And we need the labour, too, for we built much of our wealth on the migrant and the guest-worker. As our populations decline, we find there are still many jobs which we, the citizenry, want done, but not by us.
So we tolerate, and allow to be exploited, an irregular labouring underclass. We try to claim some sort of high ground by criminalizing the migrant without papers, and we trumpet our toughness and our unwillingness to be 'soft' by breaking up families and arbitrarily consigning a few luckless souls to months or years of detention. But we never think outside the box. Whether we are British, German, Danish or Irish, we still see ourselves as some sort of neo-Victorian sovereign state, actually able to isolate ourselves physically from people and events. We react to symptoms of the moment, not stopping to consider where the refugees come from, or our role in their reasons for flight. We fail to register that the primary source countries for Europe - Afghanistan, Sri Lanka, or Iraq - are countries in conflict or turmoil and precisely those you would expect to produce refugees. If we were really serious about movements in our direction, perhaps dealing with causes might be rather more effective - working to prevent and resolve conflict, encouraging investment, development and grassroots democratization.
Developing protection - the positives
But not everything is bleak. In recent years the courts and tribunals of this country have contributed substantially and often unanimously to the body of refugee jurisprudence. They have reminded us of the basic values which must underpin any credible and effective refugee policy. Landmark decisions have strengthened the protection of women refugees, and highlighted the legal deficiencies, indeed, the illegality, of approaches adopted by a small minority of our European partners.
Regrettably, however, the last Home Secretary lacked the courage or perhaps the inclination to promote consistent and correct standards of international protection across Europe, settling instead for a tabloid-drive approach to backlogs and so-called abuse. Once again, the rhetoric diverted attention from the issues.
The failures of 'reform'
It has been claimed that the 1999 Immigration and Asylum Act has helped to 'overhaul a system which was failing everyone'. Not so. It is also claimed that the backlog has been reduced. In some measure, perhaps, though we now know that a substantial proportion of so-called decisions are in fact a sham, contributing not a whit to our knowing whether the people concerned in fact need our protection.
More is required than tinkering with appeal rights, and the first focus must be on practices in the Home Office. To my knowledge, and despite the efforts of successive officials who knew we needed to do better, nothing of central importance has changed at least since 1976 at least, when I first came across the Asylum Unit as a UNHCR legal officer. True, four members of staff are no longer considered enough, but the processing of asylum requests has failed to evolve.
Decision-making remains mostly separated from the actual claimant by time and distance, creating additional delay and expense in clear up any ambiguities of language, credibility, interpretation, or substance. It relies on information about countries of origin which is not exposed to public scrutiny, or subject to known standards of corroboration and verification. The process is driven too often by targets set by Treasury Board - which is even further removed from life and how it is lived - and concerned more with the quantity of decisions taken rather than their quality, whether we can stand by and defend them, or whether they just make us look stupid.
A New Refugee Board
Conversations with senior and middle-ranking Home Office officials, many of whom see the need for change and have tried to bring it about, have convinced me that reform is in fact impossible - that the bureaucratic inertia which so often inhibits the developments necessary to good government will prevail once again, no matter what the economics or the merits of the case. If this or any future government really desires to 'do something' about asylum in this country, as opposed to pandering to institutional self-interest and the xenophobic tendencies in certain media, then a realistic and viable alternative to the present system must be found.
In my view, that can be done. The fact that asylum applicants still wait three to four years for a first decision merely confirms the inescapable, which is that authority for determining refugee status and asylum must be removed from the Home Office and conferred on an independent agency - a separate, autonomous organization, a Refugee Board, free of the political pressures which daily distort the determination process.
It means a process where decision-making, appeal, representation, interpretation, and country of origin information can be assured, and in which the public and human rights and refugee advocacy constituencies can have confidence. It means an environment in which decision-makers can produce solid, defensible determinations, rather than decisions driven solely by productivity targets.
What fairness demands
The essentials of an efficient and effective refugee and protection procedure can be summarised in just six injunctions: Bring decision-making to the applicant; ensure full, authoritative and credible country of origin information is available; guarantee advice, representation, and interpretation; give prompt, reasoned decisions in writing; allow appeals on the facts, and review on the law.
The basic resources already exist. Many presently engaged in decision-making can be trained to run administrative-style hearings in which rights and claims are guaranteed and properly determined. Ideally, these decisions should be decentralised and ideally close to where asylum seekers concentrate. More decision-makers - and this would contribute no end to confidence in the new system - can be recruited from the outside, particularly from the non-governmental and refugee advocacy community.
Essentials, such as interpreting, should be concentrated on initial counselling sessions and the decision hearing itself, with competent representation, for example, by the Refugee Legal Centre or other counsel. At least at the initial stage, alternatives should be sought to the adversarial and confrontational approach; too often, it frustrates the effective assessment of risk of harm, which is what refugee protection is all about. Country of origin information should finally be systematized and standardized, at least on background issues, in a co-operative exercise with human rights and advocacy organizations.
The existing Immigration and Appeals Authority also offers a resource on which to build the new Refugee Board's appeal process. By concentrating decision-making, interpretation, representation and appeals under one institutional roof, and by removing it from the politicised environment of the Home Office, we can begin to create an open, responsible and accountable process in which the community of the United Kingdom can have confidence.
And if promptness is the issue, let that be achieved by time limits, so that if an initial decision were postponed for any reason, the claimant should be recognized as a refugee within three months of the hearing, subject to the a further time-limited right of appeal on the part of the Secretary of State - Now, that should concentrate the mind...
And though it has been said many times before, one truth bears repeating: The best deterrent against abuse of process is prompt, effective and efficient decision-making.
Avoiding delusion
Take away the Convention and nothing essential changes. The human dimension remains - there will still be individuals claiming and in need of protection; officials or someone will still have to decide; basic constitutional values will still be there; the refugee and human rights advocacy community will demand satisfaction; the public will need confidence in good decisions.
No recent proposal comes close to providing an answer to our need in the UK to protect our values through protecting refugees. Something totally new is all that's left; and then we can begin, internationally, to work for a reduction in the necessity for flight.
Guy S. Goodwin-Gill is Professor of International Refugee Law at the University of Oxford and President of the Refugee Legal Centre in London.
guy.goodwin-gill@law.oxford.ac.uk
