Helping Refugees

Those seeking to assist refugees should know a little about who is or is not a refugee, that many myths and assumptions about refugees are baseless and that it is a criminal offence to assist a refugee enter the UK.

PRESENTATION OUTLINE

HELPING REFUGEES

WHAT IS THE LAW?

COLIN YEO

BARRISTER, GARDEN COURT CHAMBERS
I am a specialist immigration barrister practicing from Garden Court Chambers in London. As well as my case work I do a lot of campaigning work and write a blog on immigration and asylum law at www.freemovememt.org.uk.

Follow me at @colinyeo1

WHAT IS A REFUGEE?

1951 UN CONVENTION RELATING TO THE STATUS OF REFUGEES
The legal definition of a refugee is set out in the 1951 UN Convention Relating to the Status of Refugees. The definition is at Article 1A(2): "Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, unwilling to return to it."
Photo by climatalk

WELL FOUNDED FEAR

REAL RISK, JUDGED OBJECTIVELY
The first element is to show a "well founded fear". A refugee has to show a "real risk" of something bad happening to them if they are returned to their country of origin, and that risk must be judged objectively. Country information from human rights monitoring organisations like Amnesty International and Human Rights Watch is vital, as well as media reports and expert evidence.
Photo by epSos.de

OF BEING PERSECUTED

SEVERE VIOLATION OF BASIC HUMAN RIGHTS
The "something bad" has to be very bad; it has to amount to persecution. This is a high level of harm, described in UK case law as being "serious harm" and in the EU' Refugee Qualification Directive as a "severe violation of basic human rights". Discrimination and harassment will not normally amount to persecution.

FOR REASONS OF

  • Race
  • Religion
  • Nationality
  • Membership of particular social group
  • Political opinion
The well founded fear of being persecuted must arise for one of five reasons for a person to qualify as a refugee. These are referred to as the "Convention reasons". The characteristic in question does not need to be genuinely held, it can be attributed; a person persecuted for an opinion their persecutor falsely believes the person holds is still a refugee.
Photo by murdelta

NO PROTECTION

CANNOT GET PROTECTION, CANNOT RELOCATE
Refugee status has been described as "surrogate protection" that is available only when protection is not available in the refugee's country of origin. Further, if a refugee could reasonably relocate to another part of his or her country of origin, he or she will not qualify for refugee status.
Photo by william_79

SAFE THIRD COUNTRIES

NO LEGAL REQUIREMENT TO MAKE ASYLUM CLAIM
It is a popular misconception that a genuine refugee does or must claim asylum in the first safe country he or she reaches. There is no such requirement in the Refugee Convention. In the UK, the case of ex parts Adimi [1999] Imm AR 560 established that "some element of choice is indeed open to refugees as to where they may properly claim asylum".
Photo by poolie

BUT... "DUBLIN" SYSTEM

RETURN TO COUNTRY OF ENTRY INTO EU
Although there is no legal duty on refugees to claim asylum in a safe country through which they pass, within the EU the "Dublin" system (named after the Dublin Convention that introduced the system) requires Member States to fingerprint and register asylum seekers arriving in their territory and then to process that person's asylum claim. If the person moves to a different country, a positive hit on the Eurodac fingerprint database will generally lead to the person being returned back to the original country for a decision on their asylum claim to be taken there.

There is, though, a hierarchy of criteria about where a person's asylum claim will be decided. The presence of family members can in certain circumstances be sufficient basis for some to have their claim decided in that country.

The principal points of entry to the EU by sea are Greece and Italy. The capacity of those countries to absorb refugees is limited and many refugees want to travel to other countries in the EU where they have family, friends, language skills or where they have better prospects of finding work if their claim succeeds. Many refugees are aware of the Dublin system to some degree and try to avoid being fingerprinted.
Photo by mimo_

SAFETY *AND* STABILITY

WHAT DO REFUGEES WANT?
Many or most refugees might also be described as "economic migrants". Refugees, as well as fleeing persecution, also want the stability and safety to build a new life for themselves and their family. There is nothing mutually exclusive about being a refugee and an "economic migrant". This is why many refugee are not remaining in underfunded dead-end refugee camps close to their countries of origin; there is no future there.

TOP 5 NATIONALITIES ENTERING EUROPE BY SEA

The first four countries on this list, derived from information from UNHCR in June 2015, do not immediately come to mind as safe, secure countries. Human rights abuses are rampant in all four and it is no surprise that citizens are leaving.

SUCCESS RATES IN UK

In the UK, the quarterly statistics for the year ended June 2015 show a very high success rate for the top nationalities claiming asylum in the UK. You can see the statistics for yourself: https://www.gov.uk/government/publications/immigration-statistics-april-to-...

ASYLUM SEEKERS IN UK

  • Not allowed to work
  • Allocated accommodation
  • £36.95 per week cash payment
  • Extra £3-5 per week if pregnant or young child
  • Compares to £57.90 Income Support
It is unlikely that any refugee chooses to come to the UK for the generosity of the benefits they will receive while claiming asylum.

LEGAL PROBLEMS

HELPING REFUGEES COULD BREAK THE LAW
There are several potential criminal offences a person might commit if assisting a refugee to cross borders. One man has recently been prosecuted for assisting a child to enter the UK from Calais, for example. Great care must be exercised if working with refugees who want to travel to the UK.
Photo by just.Luc

ASSISTING UNLAWFUL IMMIGRATION
Section 25 Immigration Act 1971
14 years maximum sentence

Key passage:

(1)A person commits an offence if he—
(a)does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union,
(b)knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and
(c)knows or has reasonable cause for believing that the individual is not a citizen of the European Union.
Photo by kenteegardin

ASSISTING ASYLUM SEEKER TO ENTER
Section 25A Immigration Act 1971
14 years maximum sentence

Key passage:

(1)A person commits an offence if—
(a)he knowingly and for gain facilitates the arrival in, or the entry into, the United Kingdom of an individual, and
(b)he knows or has reasonable cause to believe that the individual is an asylum-seeker.

...

(3)Subsection (1) does not apply to anything done by a person acting on behalf of an organisation which—
(a)aims to assist asylum-seekers, and
(b)does not charge for its services.
Photo by Dusty J

TRAFFICKING FOR EXPLOITATION
Section 4 Asylum and Immigration Act 2004
14 years maximum sentence

Key passages:

(1)A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and—
(a)he intends to exploit the passenger in the United Kingdom or elsewhere, or
(b)he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.

...

(4)For the purposes of this section a person is exploited if (and only if)—
(a)he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour),
(b)he is encouraged, required or expected to do anything as a result of which he or another person would commit an offence under the Human Organ Transplants Act 1989 (c. 31) or the Human Organ Transplants (Northern Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)),
(c)he is subjected to force, threats or deception designed to induce him—
(i)to provide services of any kind,
(ii)to provide another person with benefits of any kind, or
(iii)to enable another person to acquire benefits of any kind, or
(d)he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that—
(i)he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and
(ii)a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement.
Photo by augieray

Colin Yeo

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