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Reader in Law
University of Essex
Copyright © 1997 Geoff Gilbert.
First Published in Web Journal of Current Legal Issues in association
with Blackstone Press Ltd.
Refugee lawyers live in two worlds, implementing through domestic courts and tribunals under national legislation and rules the rights established for refugees in international law, which are not themselves justiciable before any "International Refugee Court". The position should be contrasted with that applying to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in the United Kingdom: the ECHR is not part of the law of the United Kingdom, but where a person within its jurisdiction asserts her/his ECHR rights have been infringed having exhausted domestic remedies, then s/he can seek satisfaction in Strasbourg; the 1951 Convention Relating to the Status of Refugees is part of English law and may be referred to in domestic courts, but if the applicant for refugee status fails in her/his claim, then there is no supranational tribunal before which s/he can have her/his rights in international law determined. Thus, when domestic legislation effectively restricts the rights of those seeking refugee status, there is no way of challenging whether the United Kingdom has failed to meet its international obligations under the 1951 Convention before some "International Refugee Court".
Blackstone's Guide to the Asylum and Immigration Act 1996 by Leonard Leigh and Chaloka Beyani states in its Preface (p vii) that:
"[this] book is an attempt to explain the provisions of the Act and certain related legislation for the benefit of those who work in the field. It is not concerned to criticise policy: that is for another forum."
Those wishing for a criticism of policy toward refugees need look no further than Guy Goodwin-Gill's The Refugee in International Law (1996). Although (happily) not confined to a study of United Kingdom laws, most of the refugee issues raised by the Asylum and Immigration Act 1996 are discussed by Goodwin-Gill and set in the context of practice in various other countries. Nevertheless, Leigh and Beyani do not wholly ignore the background against which this new Act should be placed and references can be found to the Schengen Agreement, the Dublin Convention,(1) as well as cases under the United Nations Convention Against Torture(2) and the ECHR. Primarily though, the book competently and clearly reviews the new Act in pages 1-30 and then provides in pages 31-145 all the relevant legislation, as amended by the 1996 Act - for that alone, it is essential for all those working in this field.
The 1996 Act had three main objectives: to change asylum procedures so as to deal more quickly with allegedly bogus claims; to combat immigration racketeering, in part through new offences; and, to restrict the social security and other economic rights previously available. With respect to the first objective, the Act is most widely known for establishing the 'White List', that is, countries designated by the Home Secretary as ones in which there is, in general, no serious risk of persecution - so-called, safe third countries. While one has to turn to a book like Goodwin-Gill's for a thorough analysis of all the implications of this approach, Leigh and Beyani have not merely paraphrased the statute in their commentary. They look into the correlation between the new test of "in general no serious risk of persecution" (s 1) and Article 1 of the 1951 Convention's "well-founded fear of persecution", the issue of internal flight and the obligations owed to those who fear torture if returned. Similar attention to surrounding issues is found in the coverage of: the change in the appeals process; the new immigration offences and penalties; and the restrictions on rights to benefit. With regard to appeals by claimants for refugee status, the book provides the text of the new Asylum Appeals (Procedure) Rules 1996 (SI 1996 No.2070.) along with commendably clear, but brief, comment (pp 13-20). Only once was a point made which ought to have been expanded upon: the claim that to avoid fast-track procedures for appeals an applicant would have to show that Convention-based persecution by a non-State actor was either encouraged or connived in by the State (p 7), does not adequately explain why an inability on the part of the State to control the non-State actors would not also qualify (cf. Goodwin-Gill 1996, pp 70-73).
Given that all this is covered in thirty pages, one could not ask for a better short guide to the 1996 Act. One's only grumble is that this brevity prevented the authors from recounting that where a woman entering the United Kingdom via Waterloo station did not make her claim for refugee status there, but waited three hours before claiming in Croydon, her right to benefit was denied. Such practice highlights the mean-spirited nature of this government's attitude to refugees. Notwithstanding the limits on space, Leigh and Beyani neatly summarise the 1996 Act in one sentence.
"There is a danger that the underlying philosophy of the 1996 Act is likely to reinforce the trend of irregular movements and the avoidance of international obligations to determine the status of asylum seekers." (p 4).
Goodwin-Gill, G (1996) The Refugee in International Law
2nd edition (Oxford: Oxford University Press).
Foonotes
(1)Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Community 1990. Back to text.
U.N. Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 7 EHRR 325 (1985).
Back to text.
