By Katy Adams
The UK risks failing to uphold its international legal commitments to asylum seekers with its post-Brexit immigration regime. Pursuing an ‘Australian-style’ system will only make this worse.
The UK and international asylum law
The UK is party to several international treaties which afford rights to individuals seeking asylum in foreign countries. These legal instruments grant the right to seek asylum when escaping persecution in another country.
Additionally, when fleeing ones own country due to a well-founded fear of persecution, those seeking asylum may legally enter foreign countries without any documentation. States cannot impose penalties on individuals who do this.
It is therefore not illegal to cross the English Channel by boat without documentation under certain circumstances, despite the claims of several media outlets and the Prime Minister.
When discussing migrants crossing the Channel, he stated that “[w]e will send you back […] you are an illegal migrant and […] the law will treat you as such”.
Whilst their asylum claim is being processed, asylum seekers do not have the right to work in the UK and must rely on £37.75 per week, provided by the state. This often results in such individuals living in poor-quality housing and sharing a room with several others.
These conditions arguably contravene the right to adequate housing, which includes a right to non-discriminatory access to adequate housing and the right to choose one’s own residence.
Moving to Australia?
Despite the harshness of conditions in the UK, those seen in Australia’s offshore detention centres are much worse.
The UK Government has to some extent sought to replicate Australia’s approach to asylum, even mirroring tactics they have used to try and deter asylum seekers from attempting to enter the country.
Following Australia’s offshoring policies, which involve holding asylum seekers in costly detention centres on islands off mainland Australia, the Home Secretary Priti Patel suggested building detention centres on St Helena and Ascension Island to house unauthorised arrivals into Britain by boat.
Although rejected for logistical reasons, this consideration of using overseas British territory to hold asylum seekers suggests the UK is moving towards much harsher treatment of these individuals.
Under the Dublin III Regulation, the UK has so far been able to legally expel many asylum seekers. Following Brexit, the Government has replaced this law with its own legislation to enable it to return asylum seekers to a “safe third country” if they have travelled through one on their way to the UK.
Whilst Article 28 of Dublin III states that asylum seekers should not be detained prior to removal to the safe third country unless deemed a flight risk, the UK has detained many asylum seekers and has no laws on maximum detention periods as restrictions on detention are not mentioned in the revised regulations. Evidence suggests that this practice will remain, raising questions around the UK’s respect for the right to not be arbitrarily detained.
As Priti Patel implements a new post-Brexit immigration system, rhetoric around ‘taking back control of our borders’ and ‘tackling illegal migration and asylum claims’ has become commonplace.
This clearly mirrors Australia’s tactics, where asylum-seeking is framed as synonymous to illegal immigration in need of a harsh reaction. The Government has been open about wanting to send this message to those attempting to exploit the system.
Additionally, new immigration commitment to support “the most vulnerable” refugees – such as children, women and those already subjected to torture – implies a hierarchy of asylum seekers, where only those at the top will have their rights recognised.
This could result in the UK disregarding its obligations to asylum seekers it deems to be less vulnerable, in clear contravention of the Refugee Convention and Protocol.
Doing what’s right, not what’s popular
Both Australia and the UK continue to fail to uphold the human rights of asylum seekers attempting to enter their countries. They manage this by finding loopholes within the laws on refugees, however they ultimately cannot avoid the fact that they are violating people’s human rights in doing this.
It remains unclear what Australia’s – and soon, potentially, the UK’s – reasoning is for opting for costly offshore detention centres over housing individuals on the mainland for less.
They may argue this is for deterrence, but there is no evidence deterrence works. Attempting to outdo the harshness of the conditions asylum seekers are fleeing from seems a questionable goal for any democratic government.
The UK should refrain from following Australia’s lead and instead fulfil its obligations to asylum seekers by upholding their basic human rights.
Katy Adams is an MA Human Rights student at University College London, and regular blog contributor for the Migration team at Agora think tank. Follow Agora on Twitter @AgoraThinkTank
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