International Refugee Law

The Rwanda Plan is Unlawful, the Supreme Court Rules

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The UK’s Supreme Court on Parliament Square, Westminster

The UK’s long-delayed and controversial proposal to deport asylum-seekers to the central African state of Rwanda was rejected by the Supreme Court on Wednesday 15 November 2023.

The Supreme Court unanimously dismissed the Home Secretary’s appeal and upheld the Court of Appeal’s earlier conclusion that “the Rwanda policy is unlawful”. This is because there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda. Lord Reed and Lord Lloyd-Jones gave a joint judgment with which the other members of the Court agreed.

The Supreme Court cited evidence by the UN refugee agency indicating Rwanda’s lack of adherence to the non-refoulement principle and raised doubts about the Rwandan authorities’ fairness of asylum claim assessments and human rights violations.

The Court made it clear that it was “not concerned with and should not be regarded as supporting or opposing any aspect of the political debate surrounding the policy”. However, its decision deals a blow to the government’s pledge to “stop the boats”, and with the Rwanda plan being at the centre of the recently passed Illegal Migration Act, a reassessment of asylum policies seems inevitable now.

In October 2022, the House of Lords International Agreements Committee published its 7th Report of Session 2022–23 on its inquiry into the Memorandum of Understanding (MoU) between the UK government and the government of the Republic of Rwanda for the provision of an Asylum Partnership Arrangement, citing written evidence submitted by Professor Theodore Konstadinides and Dr Anastasia Karatzia of the Essex Law School.

Prof. Konstadinides and Dr. Karatzia had questioned whether an MoU is an appropriate vehicle for the relocation of asylum seekers deemed to have arrived illegally in the UK, “especially given: (a) the implications it has for individual rights, and (b) the assurances and safeguards included in the MoU, particularly those relating to inspection and monitoring, a relocated individuals’ access to legal assistance, and data protection which give rise to legitimate expectations as to the other party’s conduct.”

The Research Visibility Team interviewed Prof. Konstadinides, co-director of the Constitutional and Administrative Justice Initiative (Essex CAJI) and academic lead for Public Law, to find out more about the Supreme Court’s ruling and its implications.

The Supreme Court’s ruling emphasised serious flaws in Rwanda’s asylum procedures. Could you elaborate on these shortcomings that led the court to determine it wasn’t a safe option for asylum seekers?

Removals to Rwanda, a practice established by the Home Secretary’s immigration rules, were held to be unlawful by the Supreme Court because of substantial evidence, including over 100 examples from the UN Refugee Agency, regarding Rwanda’s inadequate system of processing asylum claims. Rwanda’s poor human rights record and the lack of guarantees that upon arrival to Rwanda asylum seekers would have their claims properly examined by the respective authorities could result to further removal and repatriation where they would face a real risk of ill-treatment. The Supreme Court took this possibility very seriously despite the Home Secretary’s reassurance that Rwanda entered the deal in good faith.

There is a legal rule, or prohibition if you may, that refugees must not be returned to their countries of origin if their life or freedom will be under threat. This principle is known as ‘non-refoulement’ and it is a core principle of international law. Our colleague Prof. Geoff Gilbert is an expert in international refugee law and could tell you more about it. Suffice to say for now that asylum seekers are protected against refoulement by several international treaties to which the UK is a party including the UN Refugee Convention, the UN Convention against Torture and the European Convention on Human Rights (ECHR). As Lord Reid emphasised it is not, therefore, only the ECHR which is triggered here regarding the returning of asylum seekers in their country of origin without proper examination of their claims. The obligations under these international treaties are also reflected in our statute book for some time now, see for instance, the Asylum and Immigration Appeals Act (1993); the Nationality, Immigration and Asylum Act (2002) and, last but not least, the Human Rights Act (1998).

This explains in a way why the Supreme Court was unanimous that, once there are substantial grounds for believing that asylum seekers who are sent to Rwanda will be at real risk of ill-treatment or refoulment, there is only one way to decide this case.

The government is considering emergency legislation to declare Rwanda a safe country for asylum seekers, bypassing the Supreme Court’s judgment. What legal and political challenges might arise from such a move, and how could it impact the ongoing debate within the Conservative Party on issues like leaving the European Convention on Human Rights?

The government will try to negotiate changes and inject extra safeguards to the Rwanda deal. Of course, a revised or renewed deal cannot stop fresh litigation, especially challenges against the decisions of the Home Secretary made in light of such deal. Following the Court’s decision on the 16th of November, the Prime Minister expressed the will to use Parliament as a vehicle to reverse the Supreme Court’s unanimous decision.

If Parliament were to pass such legislation that would override the ECHR and the HRA (which gives the ECHR domestic effect) in relation to non-refoulment claims that would be the law of the land due to Parliamentary Sovereignty. But that would not be the end of the matter as far as international law is concerned: the government’s policy could still be in breach of international law. Also, as Lord Reid emphasised, the ECHR and the HRA are not the only relevant pieces of international and national legislation that protect asylum seekers from refoulment.

This takes us to your question about leaving the ECHR altogether, getting Parliament to repeal the HRA and either resuscitating Dominic Raab’s Bill of Rights Bill or relying on a combination of rights under the common law and statute and other international obligations that have found their way into our statute book. I don’t personally think it is a good idea to establish a record of treaty withdrawal every time we are unhappy with the outcomes that international law produces, although I worry that leaving the ECHR will become part of a future Tory Manifesto that has been flirting for some years now with the idea of repealing the HRA or “updating” it.

Unfortunately, this government has been too ready in its rhetoric to breach international law, albeit in a specific and limited way which is worrying in terms of the rule of law which requires compliance by the state with its obligations in both national law and international law.

Given the ruling on the Rwanda plan and its implications for the UK’s asylum policy, what do you foresee as potential avenues for the government to reconsider its approach? Could the quest for a new safe third country lead to similar legal challenges, and how might this affect the broader discourse on asylum processing in the UK and globally?

A new Bill that will, according to Suella Braverman’s response on X (formerly Twitter), “block off ECHR, HRA and other routes of legal challenge” is a legal fiction. As Prof. Mark Elliott (University of Cambridge) responded to her post, domestic legislation cannot just “block off” the ECHR, which the UK will still be obliged in international law to comply with for as long as it remains a member of the Council of Europe. Prior to legislation, a new treaty with Rwanda or another safe third country is possible, however. The Supreme Court, and the Court of Appeal before it, said explicitly that if there are no grounds for believing that asylum seekers who are sent to Rwanda or a third state for that matter will be at real risk of ill-treatment then the policy is sound and lawful.

The current memorandum of understanding between the UK and Rwanda provides some reassurance but being an expression of political will and not legally binding, it cannot be relied upon by asylum seekers. A treaty, however, can better protect such commitments, something that I initially argued with Dr. Anastasia Karatzia in our evidence to the International Agreements Committee of the House of Lords that got cited in the end. Following the judgment yesterday, the UK’s Prime Minister publicly stated that his government has been working on “a new international treaty with Rwanda” which will push to “ratify without delay” in Parliament and “will provide a guarantee in law that those who are relocated from the UK to Rwanda will be protected against removal from Rwanda”.

Some people, including myself, will still find this solution to the issue disappointing given Rwanda’s poor track record of human rights protection, judicial independence, and lack of adherence to the terms of similar agreements with other countries in the past, especially on non-refoulment of asylum seekers. However, yesterday’s judgment is a small legal victory insofar as the rule of law is concerned.

Unlike the initial memorandum that the government signed with Rwanda, a treaty will be subject to Parliament’s statutory role in scrutinising treaties as set out in the Constitutional Reform and Governance Act 2010. In the grand scheme of things, this may look like a small step. But let me remind readers that the UK-Rwanda memorandum was only published when it became operational on signature which left no space for any type of review or revisions by Parliament.

If the House of Commons passes a resolution opposing the ratification of a new UK-Rwanda treaty, it triggers an extra 21-day delay, preventing the government from proceeding with the ratification during this time. However, there is a catch: a minister has the authority to ratify a treaty without following this process, but this option becomes void if either House passes a negative resolution. Essentially, this represents a modest legal triumph.

Human Rights Centre Clinic: United Nations High Commissioner for Refugees Project (2021-22)

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Charlotte Dickson, Ayşe Uzun Demir and Arne Vermeerbergen in UNHCR HQ

Over the Summer of 2021, the Human Rights Liaison Unit (HRLU) in the Division of International Protection (DIP) of the Office of the United Nations High Commissioner for Refugees (UNHCR) negotiated with Essex’s Human Rights Centre (HRC) Clinic to coordinate a project with human rights and humanitarian law masters students to investigate the interaction between Special Procedure Mandate Holders (SPMHs) and UNHCR at headquarters, in the regions, and at country level.

In October 2021, Arne Vermeerbergen, Ayşe Uzun Demir, Charlotte Dickson and Parkhi Saxena took on this project. They came with varying degrees of prior knowledge, but for all of them, the scope and complexity of the project was a steep learning curve which they all took on with great enthusiasm. This was one of the six projects of the HRC Clinic of the University of Essex in 2021-22 (the annual report of the Clinic’s activities can be found here).

To give a brief overview of the scope of the project, there are 45 Thematic Mandate and 13 Country Mandate Holders, variously titled Special Rapporteurs, Independent Experts or members of a Working Group. They are supported by the Office of the High Commissioner for Human Rights (OHCHR). They are a Charter mechanism and so are not tied to any particular human rights treaty, but they all have their own separate mandates.

Clearly, the Country Mandate Holders focus on human rights in that country, but the thematic SPMHs focus on their mandate globally; they may issue thematic reports, communications, statements and undertake country visits on their mandate followed by a country report. SPMHs change regularly and a new one may have more or less knowledge of persons within the mandate of UNHCR.

Initially limited to refugees, UNHCR’s mandate has expanded over the past eight decades to include stateless persons and conflict-driven internally displaced persons (IDPs) within the Global Protection Cluster. And UNHCR staff move in and out of headquarters and between countries and regional offices in the field.

Maintaining links in such circumstances is not straightforward and the Clinic Project was about improving communication along with expanding interaction. The Team needed to learn all about the Mandates, but also about UNHCR’s mandate and its operations, as well as the interaction between different parts of the UN: UNHCR, OHCHR, and the independent Mandate Holders.

The desk-based research showed that there was a wide variation in engagement by SPMHs with persons in UNHCR’s mandate, and sometimes there was no carry-over when the SPMH changed. While there is an obvious link between the Special Rapporteurs on the human rights of internally displaced persons and on the human rights of migrants, nearly every thematic SPMH has some relevance to refugees, IDPs and stateless persons – violence and discrimination against women might spark flight and be a constant threat during protracted displacement, minorities are often persecuted and have to flee, the threat to freedom of religion and belief is often the reason for seeking refugee status abroad, transitional justice may be essential for refugees and IDPs to feel it is secure to return. To substantiate the desk-based research, the Team also interviewed SPMHs, their OHCHR support teams and relevant sections in UNHCR HQ and the regions.

Their report made clear the need for greater training for SPMHs regarding UNHCR’s protection mandate, but also for improving awareness of the usefulness of SPMHs to UNHCR’s field operations – UNHCR achieves most of its successes through quiet diplomacy from its in-country missions to 137 countries. Over 80% of the 100 million forcibly displaced persons within UNHCR’s mandate are living in low- or middle-income countries, many that are not party to any refugee convention or even international human rights law treaty. A lot of what UNHCR does has to remain confidential, in much the same ways as the ICRC. However, SPMHs can and should speak out about rights violations and while SPMHs are there for every victim, they are also there for refugees, IDPs and stateless persons.

What the Team also highlighted was UNHCR’s cross-border perspective compared to SPMHs that either are mandated for one country or are carrying out country visits. While the independence of all parties needs to be maintained, the potential for coherent and coordinated intervention cannot be doubted.

In recognition of their continued association with the project, the Team received the Essex Law School Bursary of the 2021-22 academic year. Furthermore, to promote their findings, the Team were invited by Peter Swiniarski of the HRLU, who hard worked with them all year, to speak at the UNHCR HQ in Geneva on 29 September 2022. They prepared over the Summer and then, with a little specific planning on the night before and in the morning, three of them in person, Arne, Ayşe, and Charlie, with Parkhi joining online from India as she prepared to take up her new position as Assistant Lecturer at Jindal Global Law School, presented in Lecture Room 4 in UNHCR to members of the HRLU and to about 40 field officers around the world.

A picture of the online presentation (inset: ongoing session in UNHCR HQ, Parkhi Saxena presenting online)

It was a fantastic success and the following day, a former Essex student, now based in Mogadishu for UNHCR, Sebastian Herwig, contacted Prof. Geoff Gilbert (who supervised the project) to congratulate them. This was insightful, beyond Masters-level, impactful research that will affect UNHCR, OHCHR and SPMHs as they all seek to enhance the human rights of persons within their mandates.

The Team summed up their year-long experience in a few words:

We were fortunate to work on a project that was incredibly interesting yet very challenging. We hope that the outcomes of our research can make a difference to UNHCR’s and SPMH’s work in building better lives for those forced from their homes.

Human Rights and Climate Change Symposium – University of Essex 9-11th June 2021

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Photo by William Bossen

There are many ways in which climate change impacts upon a range of human rights. Therefore, it may appear strange that the linkages between human rights and climate change were not widely acknowledged until relatively recently. The first UN Human Rights Council resolution relating to climate change occurred in March 2008, where it acknowledged that climate change, ‘poses an immediate and far-reaching threat to people and communities around the world’.

The meaning and understanding of the linkages between human rights and the environment more generally have taken a long time to emerge at national and international levels. Following a key moment at UNCHE in Stockholm in 1972 when it was declared that people have a ‘fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being..’, developments have taken place gradually and often in a fragmented manner.

All the same, through national constitutions and courts, regional human rights treaties and tribunals, declarations of international organisations and through the work of the international community more generally, law and opinion in the field of human rights and the environment have developed year by year. And yet, in spite of the many developments that have taken place, the right to a safe, clean, healthy and sustainable environment has still not been acknowledged through a globally applicable international treaty or a resolution of the UN General Assembly. 

Climate change as a specific environmental issue has gained prominence relatively recently, however, the trajectory of developments in its relationship with human rights has been rapid. In the early 1970s, the international issues that dominated the headlines were issues such as the Vietnam war, famines in different parts of the world, factional wars and violence in newly independent countries and the introduction of early computers. In contrast, the 2000s have seen climate change rise rapidly up international agendas. This is seen through the intensity of attention afforded to it at meetings among national leaders, through the strategies of multinationals to respond to the need to reduce emissions, and through the levels of engagement with the issue by the international community generally. This has meant that work has intensified very rapidly to fully understand the human rights implications of climate change.

That said, there are still many questions that need to be answered. These include questions relating to the ways that climate change impacts upon and intersects with existing human rights, those relating to the ways that human rights as legal mechanisms can be activated to respond to the challenges related to climate change, and questions relating to the level of recognition or the status of the ‘right to a safe climate’ itself. 

Between 9-11 June 2021, the School of Law and the Human Rights Centre at the University of Essex in conjunction with its partner organisations, will be hosting a symposium that will focus on issues related to the nexus between human rights and climate change. The symposium is grateful to the numerous international experts who have offered to participate.

In particular, it is grateful to Elizabeth Mrema (Executive Secretary of the Convention on Biological Diversity) and Professor John Knox (former UN Special Rapporteur on Human Rights and the Environment) for their participation and support.

The symposium will include talks and panel sessions that focus on different aspects of the intersections between human rights and climate change. They include environmental constitutionalism, biodiversity, dignity, migration, energy provision in developing countries and the rights of a child. The symposium will also include panel sessions that specifically consider Bhutan and the rights of nature. 

We extend a warm welcome to you and hope that you will join us. 

For further information and details on how to register see: Human Rights and Climate Change Symposium

Partner Organisations: 

  • Environmental Law Institute (Washington DC)
  • University of Bayreuth (Germany)
  • University of East Anglia (UK)
  • Global Environmental Rights Institute, Dignity Rights Project (USA)
  • Widener University Delaware Law School (USA)

The Forever War and the Laws of War

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Photo by israel palacio

Dr. Nathan Derejko, Lecturer in Law, University of Essex

The looming threat of a ‘forever war’, characterised by the so-called ‘Global Battlefield’ and the perpetual applicability of International Humanitarian Law (IHL), has thrust the question of when and how Non-international Armed Conflicts (NIAC) end to the forefront of international concern and debate. In both practical and legal terms, identifying the end of a NIAC is notoriously difficult. There are several reasons for this, but two in particular should be highlighted.

First, is the complex spectrum of social, political and economic factors that underpin, propel, and ultimately bring NIACs to an end. Indeed, history is replete with NIACs spanning several years and, in some cases, several decades.

Second, is the virtual silence of IHL regarding its temporal scope of application during NIAC. While conventional IHL speaks of the ‘end of hostilities’ and the ‘end of the conflict’, it stops short of providing any guidance on the precise meaning and scope of these expressions, or the relationship between them.

These factors are further compounded by a comparative dearth in legal scrutiny of when and how NIACs end. While considerable judicial and academic analysis has focussed on IHL’s threshold of activation (when a NIAC legally comes into existence), much less attention has been given to its threshold of termination (when a NIAC legally ends).

In a recent article, A Forever War? Rethinking the Temporal Scope of Non-International Armed Conflict (published in the Journal of Conflict and Security Law), I undertake a forensic examination of IHL’s threshold of termination during NIAC.

The article first explores the temporal architecture of Common Article 3 and Additional Protocol II to determine what, if anything, IHL has to say about its threshold of termination. From here, it unpacks and critically examines two of the leading approaches for determining IHL’s threshold of termination during NIAC: the ‘peaceful settlement’ approach advanced in the jurisprudence of International Criminal Law; and the ‘lasting pacification’ approach advanced by the International Committee of the Red Cross.

While both of these approaches possess advantages and limitations, it is argued that neither produce entirely satisfactory results for determining IHL’s threshold of termination during NIAC.  In short, their common ailment is a quest for a single point in time that marks the ‘end’ of a NIAC, and at which point IHL terminates in toto. In practice, such an approach invariably results in the over-extension of IHL to factual circumstances that no longer warrant its application, or by the termination of its applicability before comprehensive protection is restored under International Human Rights Law.

For these reasons, the article develops and proposes an innovative ‘functional approach’ for determining IHL’s threshold of termination during NIAC, which  addresses the silence and shortcomings of existing law and doctrine, while at the same time, holds true to the very object and purpose of IHL during NIAC.

The New EU Pact on Migration and Asylum and the Global Compact on Refugees and Solutions

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TabareyBarey Camp in Niger

By Geoff Gilbert, Professor of International Human Rights and Humanitarian Law, University of Essex, Chair of the Global Academic Interdisciplinary Network

The United Nations Global Compact on Refugees (GCR) of 2018 is a document that tries to embrace all aspects of forcible displacement across international borders in the 21st century. This review of the new EU Pact will focus principally on how it might facilitate solutions for displacement in relation to the GCR, but necessarily there first has to be some more general analysis.

  1. The GCR as framing the argument

The GCR may not be binding in international law (paragraph 4), but it still gives rise to commitments for the international community as a whole. Its two principal elements pertinent to this discussion relate to burden- and responsibility-sharing and its focus on solutions.

The 1951 Convention relating to the Status of Refugees (1951 Convention) and its 1967 Protocol, and the 1950 Statute of the United Nations High Commissioner for Refugees (UNHCR) are directed towards protection of refugees in the country of asylum, not so much on the inevitable burden that providing protection entails, nor the ultimate protection, a durable and sustainable solution to their displacement. Paragraph 4 of the Preamble to the 1951 Convention did call for international co-operation:

CONSIDERING that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation.

Nevertheless, it took until the GCR in 2018 to put “flesh” on those bare bones. As figures from UNHCR [accessed 14 September 2020] show, there are 79.5 million displaced persons of concern to UNHCR, of whom 20.4m are refugees and 4.2m are asylum seekers; 73% live in neighbouring countries to those that they have fled, often alongside the 45.7m internally displaced persons (IDPs) who are also of concern to the organisation.[1] Of the top five hosting states, only Germany is in the global north: 80% of displaced persons of concern to UNHCR live in states where there is acute food insecurity and malnutrition.

In these circumstances, where the modal average length of a situation of displacement is around eighteen years, it is little wonder that the development actors play such an important role in the GCR, while UNHCR maintains its unique protection mandate for all refugees, including asylum seekers and returnees without a durable and sustainable solution.

Some aspects of the new EU Pact have a direct impact on how the GCR’s guiding principles and objectives (paragraphs 5 and 7) are to be achieved – as the new Communication on the new Pact (COM(2020) 609 FINAL) states, the EU is the “the world’s major development donor” (p. 18).

As regards durable and sustainable solutions, the traditional three are voluntary repatriation, resettlement or local integration. The GCR recognised a fourth means for responding to displacement, complementary pathways for admission to third countries (paragraphs 94-96). There is, however, language in those paragraphs that indicates that complementary pathways are not durable and sustainable, with references to student scholarships and labour mobility. If the objective is to provide the refugee with the sustainable international protection of a state rather than that upheld by UNHCR under its mandate, then studentships and labour mobility schemes do not offer that guarantee, at least in the first instance, although they may facilitate one of the traditional durable solutions and provide the refugee with the capacity to resolve their own situation.

  1. The new EU Pact and the GCR

It is always worth mentioning that the EU’s approach of joining asylum with migration is fundamentally flawed, regardless of how long they have persisted with it. Asylum is about protection and immigration is about controlling borders.[2]

The idea that the new Pact’s focus should be “a common framework for asylum and migration management at EU level as a key contribution to the comprehensive approach and seeks to promote mutual trust between the Member States” does undermine the primacy of refugee protection (COM(2020) 610 final, 2020/0279 (COD), Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) [Asylum and Migration Fund] (23 September 2020), p.2).

Nevertheless, in the context of solutions, some aspects of the new Pact may be facilitative (see, C(2020) 6467 final Commission Recommendation of 23.9.2020 on legal pathways to protection in the EU: promoting resettlement, humanitarian admission and other complementary pathways (23 September 2020), Preambular paragraphs 3 and 6). Equally, those elements relating to prevention, development aid and migration as a way to end refugee status and protect the dignity of refugees could be helpful (see COM(2020) 609 final, §§6.2, 6.3, 6.5)

2.1. Prevention

The cynical view within the 1990s was that there was no such thing as post-conflict, just a pause before it was pre-conflict again. Nevertheless, the link between development assistance and prevention is well established and is even built into the responsibility to protect (UNGA Res. 60/1 (2005), paragraph 139).[3]

139 … We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

The new Pact takes this further and should be read with paragraphs 8 and 9 of the GCR:

8 … In the first instance, addressing root causes is the responsibility of countries at the origin of refugee movements. However, averting and resolving large refugee situations are also matters of serious concern to the international community as a whole, requiring early efforts to address their drivers and triggers, as well as improved cooperation among political, humanitarian, development and peace actors.

In line with the Sustainable Development Goals, the international community, including the EU, should provide development assistance. The new Pact takes a similar line in COM(2020) 609 final §6.3 when it asserts that,

Conflict prevention and resolution, as well as peace, security and governance, are often the cornerstone of these efforts. Trade and investment policies already contribute to addressing root causes by creating jobs and perspectives for millions of workers and farmers worldwide. Boosting investment through vehicles such as the External Investment Plan can make a significant contribution to economic development, growth and employment.

On the other hand, while the new Pact has some useful language regarding long-term prevention through addressing root causes, there are other references that indicate an EU-centric attitude that will not effect global fairness and reduced displacement. In COM(2020) 609 final, §2.4 of the document talks about how “[the] new Asylum and Migration Management Regulation will … improve planning, preparedness and monitoring at both national and EU level”, rather than solidarity with the states in low- or middle-income countries who host 83% of the world’s refugees (UNHCR Global Trends 2019, p.25); as such, the focus once again seems to be on averting another 2015 European asylum crisis that never was a crisis given the wealth of European Union member states and the very limited numbers they were dealing with by comparison with many other low- or middle-income countries.[4]

2.2. Burden- and responsibility-sharing/ Local Integration

Predictable and equitable burden- and responsibility-sharing is fundamental to all of the GCR (paragraph 3). In this particular context, given the protracted nature of most displacement crises and that most displaced persons only cross one border according to the World Bank (Forcibly Displaced, 2017, p.23), supporting the low- or middle-income countries who host most refugees is part of the solution to the crisis. Solutions start from the moment of protection, as human rights and the rule of law protect refugees in the country of asylum.

The traditional durable and sustainable solutions are the endpoint of an international protection framework that is based on resolving the issues to which displacement gives rise: denial of access to education, employment and healthcare, interference with the guarantees the rule of law should offer, and the upholding of human rights. Some of the new Pact targets these problems refugees face during their situations of displacement. COM(2020) 609 final §6.2 states that

… [The] EU is determined to maintain its strong commitment to providing life-saving support to millions of refugees and displaced people, as well as fostering sustainable development-oriented solutions.

Nevertheless, this is a perfect example of why the new Pact might be evidence of hope triumphing over expectation. Niger has provided incredible support to forcibly displaced persons for years,[5] but according to the UNDP Human Development Index for 2020, Niger came 189th out of 189 countries. The EU should not be ‘solving’ forced displacement and providing protection through transfer to one of the poorest countries on the planet.

What is also true, however, is that whether formally or not, lots of forcibly displaced persons remain for protracted periods in the country of asylum and settle there. As will be seen, where voluntary repatriation is not possible, refugees have few options other than to make a new life in the country giving protection. The generosity of many countries of asylum in this regard, though, cannot be abused by the international community and, thus, EU initiatives with respect to development, also indicated in the new Pact, will inevitably play a large part in solutions. According to COM(2020) 609 final §6.3:

The EU is the world’s largest provider of development assistance. This will continue to be a key feature in EU engagement with countries, including on migration issues. Work to build stable and cohesive societies, to reduce poverty and inequality and promote human development, jobs and economic opportunity, to promote democracy, good governance, peace and security, and to address the challenges of climate change can all help people feel that their future lies at home.

It may not be what low- or middle-income countries hoped for during the Formal Consultations on the GCR, but without robust engagement with the source states, which have predominantly remained the same since the 1990s (World Bank, Forcibly Displaced, 2017, p. 23), voluntary repatriation will not resolve displacement crises.

2.3. Resettlement and Complementary Pathways

Resettlement is one of the classic durable and sustainable solutions, but it is less and less available, such that only for the most vulnerable will it provide a means of ending refugeehood. The Commission Recommendation on legal pathways to protection in the EU: promoting resettlement, humanitarian admission and other complementary pathways (C(2020) 6467 final) supports the expansion of resettlement programmes within the EU. But even so its impact on low- or middle-income countries that host so many refugees would still be minimal because the base figure is so low – 107,800 in a mere 26 countries worldwide in 2019 according to UNHCR.

The proposed Recommendation is a positive move by the EU, although the role of the European Asylum Support Office (EASO) alongside UNHCR needs to be further developed. Complementary Pathways are an additional solution listed in the GCR (paragraphs 94-96), but whether they will always be durable and sustainable like the traditional ones is open to question. The Pact deals with one very specific aspect of this in §6.6, the migration control effected through visa requirements for short-term mobility.

The remaining aspects of the proposed Recommendation apply equally to resettlement and complementary pathways. The aim of trying to ensure that forcibly displaced persons do not have to resort to irregular migration or even people smugglers is to be commended (§6.6, new Pact), but unless that reflects effective access rather than simply top slicing particular refugees based on limited skill sets that only suit EU member states (see paragraphs 19 and 21 of the Recommendation), then no noticeable change will take place. It will also reduce the skill-base in the country of nationality for when transition towards peace and stability can commence.

To start, resettlement is a humanitarian response that benefits refugees and the countries of first asylum, usually low- or middle-income countries, it is not a means by which to “match people, skills and labour market needs through legal migration” (§6.6, new Pact). That might be applicable to complementary pathways, but not resettlement as is clear from the Pact’s own description of the Union Resettlement and Humanitarian Admission Framework Regulation. The Pact also encourages broader community engagement with resettlement programmes that again reflects positive aspects of the GCR. (see paragraph 91 read in the light of paragraphs 33-44).

2.4. Voluntary repatriation

Often spoken of as the most desired solution by refugees and countries of asylum, voluntary repatriation relies on restoration of human rights and rule of law in the country of nationality, along with substantial development initiatives. UNHCR can ensure that voluntary repatriation does lead to durable and sustainable solutions for returning refugees through monitoring, but the international community as a whole will provide the framework.

The EU has a major role to play in peace building and conflict resolution, not only as regards addressing the root causes, not just vis-à-vis prevention, but also to encourage voluntary repatriation (§6.3). While there is much in the new Pact on the economic initiatives and on return programmes where people do not require protection, more on restoring human rights, rule of law and good governance would have been welcome.

  1. Conclusion

The Pact on Migration and Asylum has once again missed the opportunity to put the EU at the forefront of resolving the global displacement crisis. It focuses on internal EU concerns and aims at pushing the problem away, often with a cynical reference to how that will protect so many from the dangers they might face in trying to reach Europe. When only 17% of persons of concern to UNHCR were in high-income countries in 2019, the need to support low- or middle-income countries and to offer enhanced protection and assistance to refugees should have been the outward-looking drivers for this review. International protection standards have been sacrificed in the (vain?) hope of achieving a compromise within the EU.

This post first appeared on the website of the ASILE project and is reproduced her with permission and thanks.

Endnotes:

[1] This year’s figures include 3.6 million Venezuelans displaced abroad, alongside the 93,300 refugees and 794,500 asylum seekers – 4.5 million Venezuelans in total.

[2] For further discussion, see Gilbert, ‘Is Europe Living Up to Its Obligations to Refugees?’ 15 EJIL 963 at 968 (2004); Refer to S. Carrera, ‘Whose Pact? The Cognitive Dimensions of the New EU Pact on Migration and Asylum’, Policy Insight Kick-off Contribution to the ASILE Forum.

[3] For further discussion, see Gilbert, ‘Rights, Legitimate Expectations, Needs and Responsibilities: UNHCR and the New World Order’, 10 International Journal of Refugee Law 349 (1998), fn.1.

[4] See UNHCR Global Trends 2019, p.25, Figure 12.

[5] For further discussion, see Gilbert & Rüsch, ‘Rule of Law and UN Interoperability’, 30 IJRL 31 at 35 and fn.136, (2018)

Knowing all of the law, all of the time – responding to COVID-19

/ Alexandros Antoniou / Leave a comment
Photo by Phil Botha

Geoff Gilbert, Professor of International Human Rights and Humanitarian Law, University of Essex 

As Paul White has written on these pages, success in our COVID-19 response in humanitarian settings should not be measured in the ‘number of webinars, seminars, guidance and strategies’. Part of achieving success, though, is ensuring that humanitarian actors in the field are aware of key laws, so as to ensure that governments fulfil their obligations and displaced persons do not fail to obtain their rights. While this pandemic raises new challenges, there are well-established bodies of law to keep at the front and centre of responses, including international human rights law, international refugee law and international humanitarian law.

If governments and humanitarian actors are to safeguard displaced persons during this pandemic, they need to be aware of all of the law, all of the time. Only by constantly reasserting these legal commitments will governments be forced to leave no-one behind.

Protection is often thwarted by lack of access – access to safety, access by humanitarian actors, and access to services. According to UNHCR, as at 24 April 2020, there had been no serious outbreaks of COVID-19 in any refugee or IDP camp or settlement. However, governments had restricted access to protection, curtailed the rights of displaced people in their territories, and had limited humanitarian agencies’ access to them in some cases. Let’s look at each challenge in turn, and the pertinent law that can help our response.

Access to safety

Much has been published on the right of refugees to seek and enjoy asylum and protection from refoulement, despite states’ power to control their own borders in the light of the pandemic. Yet, article 14 of the Universal Declaration of Human Rights and article 33(1) of the Refugee Convention mean that states cannot use their power to control borders to override the rights of refugees and people seeking asylum. In addition, article 12 of the International Covenant on Civil and Political Rights provides the right to freedom of movement, including the right of individuals to leave their country of nationality. Article 12 also protects IDPs seeking safety within their own country.

Individuals caught up in conflict must be allowed to move within the country in order to obtain protection. According to Additional Protocol I to the Geneva Conventions, parties to an international conflict cannot constrain the movements of non-fighters ‘in order to attempt to shield military objectives from attacks or to shield military operations’ (art 51(7)). In an internal armed conflict, Additional Protocol II provides that ‘displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand’ (art 17(1), emphasis added). Principles 5–9 of the Guiding Principles on Internal Displacement are about trying to prevent displacement, but Principle 15 recognises that when people are displaced, they have the right to leave their country and seek asylum.

Access by humanitarian agencies

Under its 1950 Statute, UNHCR has a unique mandate to provide international protection to refugees; its extended mandate includes conflict-driven IDPs and other persons of concern. To fulfil that role, UNHCR needs access to these populations, and governments have a duty to cooperate with UNHCR in the exercise of its functions (Refugee Convention, art 35). 

During the pandemic, however, access by humanitarian actors has been restricted, particularly in conflict zones – even though they face the same COVID-19 threat. To resolve this, regard needs to be had not just to human rights law, but also to the international law of armed conflict and the international rule of law which strangely have been missing from much of the current analysis.

Under the 1949 Geneva Conventions, the International Committee of the Red Cross and ‘any other impartial humanitarian organization’ (Geneva Convention IV, art 9; Additional Protocol I, art 5; Additional Protocol II, art 18(1)) may undertake care for the sick, while parties to the conflict should permit ‘relief actions which are humanitarian and impartial in character and conducted without any adverse distinction’ (common art 3). The UN General Assembly has also affirmed that international and national rule of law applies to states and international organizations. Read with the 2018 Global Compact on Refugees, which ‘emanates from fundamental principles of humanity and international solidarity, and seeks to operationalize the principles of burden- and responsibility-sharing to better protect and assist refugees and support host countries and communities’ (para 5) and the humanitarian principles that include humanity, neutrality and impartiality, it is clear that states have obligations to ensure access so that people’s essential and medical needs can be met.

Access to services

Displaced people need to be able to obtain a variety of services, whether they are refugees or IDPs. During the pandemic, the most obvious is access to health care. However, when it comes to accessing health care, legal status matters. IDPs, by definition, are within their own country so should have access to all services as normal (unless, of course, their displacement resulted from an event that disrupted services for everyone). As for refugees, it will depend on the laws of each country, but if a country has recognised someone as a refugee then he or she will ordinarily be treated the same way as a national. However, asylum seekers may not have full access to health care. That said, they should always have access to emergency care – there should be no discrimination based on the fact that they are seeking asylum.

Refugees, asylum seekers and IDPs must be able to access the highest attainable standard of health (International Covenant on Economic, Social and Cultural Rights, art 12). If people are scared that seeking medical advice might lead to their detention and removal, then they will be more likely to conceal their presence. And if they are contagious, then this has huge risks for the virus spreading. It therefore makes sense – for everyone – to ensure that displaced people have as much access as possible to testing and health care. 

Equally, they need access to information, which includes access to the internet. Access to the internet for information has been recognised as a right by the Human Rights Council, and governments must ensure there is no digital divide. As UNHCR’s guidance has made clear, that information must be understandable by refugees, asylum seekers and IDPs, possibly requiring governments and UNHCR to combine their resources. 

Likewise, everyone has the right to an adequate standard of living (ICESCR, art 11). What is adequate in the time of a global pandemic that requires social distancing is clearly different from what would be acceptable at other times. It should also be noted that over 60 per cent of refugees live in urban settings, not camps, so the ability of international organisations to regulate accommodation in such circumstances is limited.

The flipside of in-state services is detention by the state. Quarantining those who may have the virus is undoubtedly permitted, but it must be provided for by law, be proportionate and last for no longer than is necessary. When it comes to those held in immigration detention, governments must ensure that people are not placed at greater risk of infection from COVID-19 – social distancing and proper sanitation must be part of any detention regime.

Conclusion

The lives of displaced people are already complicated and challenging: COVID-19 has added a further layer of complexity, if not outright threat. Within the already complex context of displacement, the pandemic presents new and pressing issues for all the various actors – but existing law can address these challenges provided that we have the knowledge and will to use it. Refugees and IDPs have to be resilient to survive displacement, but, as Jane McAdam has made clear on these pages, they are in situations of vulnerability, and when states are threatened, the ‘outsider’ is frequently left unprotected.

This post was first published on the Kaldor Centre for International Refugee Law website and is reproduced here with permission and thanks.

New RightsCast Episode

Photo by Jonathan Farber

Before the COVID-19 crisis there was the refugee crisis: protecting forcibly displaced persons in a global pandemic

UNHCR have released a set of documents relating to protection considerations in the context of the COVID-19 response. Roughly 75% of refugees live in overcrowded camps, settlements or shelters around the world, where they lack access to adequate sanitation and are therefore extremely vulnerable to the COVID-19 pandemic.

Listen to the new RightsCast episode, in which Dr. Madeline Garlick of UNHCR and Professor Geoff Gilbert of the University of Essex discuss the work to protect the 80 million people of concern to UNHCR globally and how that work is adapting to the challenges posed by Coronavirus.

Their enlightening conversation ranges from a reminder of states’ obligation to provide access to asylum in a context of closed borders, to how refugees are contributing to health responses in their communities, and ultimately ends with a call for strengthened international cooperation in light of the Global Compact on Refugees.