Time to tear up the Refugee Convention
Democratic states must be able to control their borders.
The householder has the right to decide his or her guests. The political party has the right to decide its members. The employer has the right to decide its employees. The hallmark of any independent institution is an ability to control its entrants. Yet when it comes to the nation, it can no longer control who enters. The 1951 UN Refugee Convention has shattered the ability of nations to control their borders.
If the entire population of Syria flew into the UK, a signatory state of the Refugee Convention, and claimed asylum, the British government would be powerless to prevent 23million Syrians from entering. Indeed, if the entire populations of Iraq, Afghanistan or Eritrea flew into the UK, France, Australia or America and claimed asylum, each of these nations would be required by the Refugee Convention to let them in. The examples are exaggerated but principally because of the penalties that airline carriers would have to pay for carrying those without visas. The actual impact of the Refugee Convention is currently being demonstrated by the thousands of asylum seekers who, on a daily basis, are able to avoid airline carriers by paying smugglers to help them reach a Western state border by crossing the Mediterranean or walking great distances overland.
For centuries the state’s right to control its borders was seen as axiomatic. It was so obviously necessary and so universally accepted that it became a cornerstone of international law. When reviewing the law in 1906, the House of Lords noted that ‘one of the rights possessed by the supreme power in every state is the right to refuse to permit an alien to enter that state’. This right did not just belong to the British; rather, it was a right that belonged, the court noted, to ‘the law of nations’. Yet despite being applied in numerous immigration court cases since 1906, this principle has not been applied in a single reported case concerning UK immigration law since 2005. The Refugee Convention has now consigned the principle of border control to legal history.
Borders have not disappeared for all migrants, as any ‘economic migrant’ who wants to come to the UK or any other Western state to seek a better life will quickly discover. But they have disappeared for any asylum seeker who is able to make it to the border of a state that has ratified the Refugee Convention. ‘Stop’, says the border guard. ‘I’m an asylum seeker’, says the migrant. ‘Come through’, says the guard, discharging his legal obligation under the convention. The convention prevents states from returning the asylum seeker (in the absence of a safe third country) until his asylum application has been determined, invariably a lengthy process.
The porous nature of Western borders is well known to people in Africa, Asia and Latin America who, in recent years, have been making ever more determined efforts to exercise what in practice is a right of entry established by the Refugee Convention. They also know that the state’s ability to distinguish a ‘genuine’ from ‘bogus’ refugee is fraught with difficulty. How could it be otherwise? It is not generally thought to be a good idea for receiving states to ask foreign states if they are torturing or persecuting the person who claims asylum.
In any case, asylum seekers know that, once in a Western state, it’s often possible to live under the country’s radar for many years. An illegal stay can last for so many years that by the time the failed asylum seeker is detected, he’ll often be allowed to remain in the Western state. Those four words, ‘I’m an asylum seeker’, if they can be uttered to the border guard of a state that’s ratified the Refugee Convention will invariably result in entry, and will often result in a long-term stay, whether or not refugee status is established.
A porous border wouldn’t matter if it had, in a democracy, been agreed by the electorate. But for many years now, the people of democratic states in Europe, north America and Australasia have grown increasingly restive with state policy on asylum. Their unease matters, not because it’s either justified or misplaced, but because in a democracy the state must always be able to debate and change a public policy. And border control should be one of the most important issues that any democracy can determine, since it addresses the core issue of entry into that democracy. Having the right to control a border doesn’t mean that the border has to be closed, but it does mean that the demos must have the right to debate and determine the extent to which it is open or closed. But, with the Refugee Convention in force, that is a debate it would be pointless to have because the convention guarantees the porous nature of national borders.
Although the convention is now stifling democracy, this is a relatively recent development. When it was established in 1951, it was nothing more than a practical solution to the existence of 400,000 people in Europe who had still not been resettled after the Second World War. The US and its Western allies were determined that there should be no organisation that posed a threat to their national sovereignty. Hence the convention only applied to refugees in Europe and only in respect of those who had acquired that status due to events that happened before 1951 – the convention did not, for example, assist with the refugees who fled Hungary in 1956. In fact, the West’s response to the Hungarian crisis was shaped by the views of people who wanted their governments to accommodate the Hungarian refugees. The events of 1956 showed democracy acting as it should: people considering the circumstances and making the right decision.
Only in 1967 were the regional and temporal limits of the Refugee Convention lifted so as to give rights to refugees from around the world, regardless of when they acquired refugee status. However, this development did not then stifle national democracy, at least not in the West, for it was motivated by a desire to make political capital out of the Cold War. Refugees, historically of relatively small numbers (around 200 claims per year in the UK in 1971), were welcomed in the West as a way of demonstrating the superiority of democracy over communism. The circumstances of the time meant the Refugee Convention bolstered the moral authority of Western democracies.
With the fall of the Berlin Wall in 1989, the Refugee Convention lost its raison d’être. In 2004, Tony Blair noted how the convention, ‘first introduced in 1951, at a time when the Cold War and lack of cheap air travel made long-range migration far more difficult than it has become today, has started to show its age’. Following Blair’s lead, the Conservative Party fought the 2005 General Election with a manifesto commitment to withdraw from the convention.
But since 2005 most Western politicians have made their peace with the Refugee Convention, despite the evident folly of its provisions. This is testament to the elite politics of today’s leaders. Unable to connect or engage with the people, they seek to hide behind the force of international law. Those on the left tend to do so through the language of legal rights, while those on the right tend to do so through the language of moral responsibility. Hence, new Labour leader Jeremy Corbyn, at Saturday’s ‘Solidarity with Refugees’ rally, demanded that the government recognises its ‘obligations in law’. Cameron, of course, has every intention of doing that, but prefers to stress Britain’s ‘moral responsibility’ to help refugees.
However they frame it, Western leaders share an increasing distrust of the demos. No matter how many migrants make it to Western borders and gain entry by relying on the Refugee Convention, they treat the convention as beyond debate. Yet the Refugee Convention is no longer just showing its age – it has outlived its usefulness. In its Cold War heyday it bolstered democracy; nowadays it shackles it. It’s time to tear up the Refugee Convention, and begin a proper debate about immigration that is premised on the state’s right to control its borders.
Jon Holbrook is a barrister based in London. He was shortlisted for the Legal Journalism prize at the Halsbury Legal Awards 2014. Follow him on Twitter: @JonHolb
Jon will be speaking at ‘From Magna Carta to human rights: can the law set us free?’ at the Battle of Ideas festival in London on Sunday 18 October. Get your tickets here.