These conflicting obligations are at their most acute in dealing with refugees and people seeking asylum in this country. On the one hand, there are sophisticated and nasty racketeers engaged in immigration scams. They bring into Britain people hoping for a better life or a bigger income, but without any grounds for status as a refugee or for asylum. Some of these are victims of criminal rings that mislead them and then blackmail them by threatening to reveal their names to the police. There are few more pitiless crimes.
On the other hand, there are hundreds of genuine refugees, men and women who have been tortured for their beliefs, or hounded because of their religion or their ethnicity. Some of them have suffered because they have fought and campaigned for the very things we believe in, democracy and human rights. We only have to think of the courageous Chinese dissidents, the Nigerian activists who defied General Abacha, the students tortured in Pinochet's prisons, to know there are honourable asylum seekers we should willingly protect.
The Home Office inherited a shambles from the previous government, and that shambles has been made worse by the chronic computer glitches the Home Office has encountered. Tens of thousands of asylum cases are still awaiting determination, some of them more than five years old. Understandably, the Home Office will do anything to reduce the backlog to workable proportions by speeding up the processing of cases, even if that means cutting a few corners.
For the Home Office is also bound, like other government departments, by a web of international conventions that, once ratified, have the force of law. Primary among these in the case of refugees are the Geneva Convention of 1951 (The Refugee Convention) and the European Convention of Human Rights, which was last year incorporated into British law. These conventions were drawn up in the aftermath of Hitler's evil regime. They were inspired by a determination that nothing like that would ever be allowed to happen again. Human rights would be able to call upon a legion of democratic states for their defence.
Picking its way through this minefield, the Government has introduced yet another Immigration and Asylum Bill, the third major Bill on the subject in six years. Each has been more stringent than its predecessor. This one has just crashed resoundingly into the conventions intended to defend human rights. And the British courts have stoutly championed the conventions. The first judgment concerned three cases of refugees appealing against being sent back to Germany and France, both regarded in the new Bill as EU countries safe for refugees. The Home Secretary was about to return them there, but France and Germany do not recognise persecution by non- state organisations as proper grounds for asylum. Only a justified fear of persecution by the state is accepted as grounds for asylum in Germany and France.
In British courts, however, asylum seekers have won the right to stay when they feared persecution by non-state bodies, such as fundamentalist movements or guerrilla groups. The court took the view that refugees could not be sent back to their countries of origin, as was likely if they were returned to France or Germany, if they risked persecution or death.
The second judgment was even more radical in its consequences for the new Asylum and Immigration Bill. In the Divisional Court, Lord Justice Simon-Brown found that many asylum seekers had been wrongly imprisoned for carrying false documents, even though Article 31 of the Refugee Convention specifically declares that "contracting states shall not impose penalties (on refugees) on account of their illegal entry or presence" if their life or freedom has been threatened.
In an acid comment, the judges said that nobody had given the least thought to the UK's obligations under the Article. In future, they said, prosecutions for false documents should occur only where the offence was "manifestly unrelated to a genuine quest for asylum". The judges were a bit too harsh. In fact, in both Houses of Parliament, MPs and peers had raised exactly these questions long before the judgments were made. In the House of Lords, only last month, cross-bench and Liberal Democrat peers specifically raised the question whether some of the new Bill's provisions were incompatible with our international obligations. We were firmly told they were not.
The truth of the matter is that the international conventions are now an embarrassment to the Government. Refugees are not popular - though there was a strong public sentiment in favour of accepting refugees from Kosovo, a tribute to the power of television to reach our hearts. The denunciation of "bogus refugees", favoured by many politicians, mainly but not exclusively on the political right, has fed the image of Britain as a "soft touch", cheerfully, dishing out welfare benefits to dubious aliens.
The image is a parody of the truth. Britain, like other EU countries, prosecutes many asylum seekers just for being that. It is next to impossible for genuine asylum seekers to reach this country without false documents, since they have to persuade airline officers and truck drivers and captains of ships that they are legitimate passengers just to embark.
Yet if the documents are false, they open themselves to prosecution under the forgery and counterfeiting acts. Indeed hundreds of refugees simply passing through Heathrow on their way to the US and Canada have been arrested, prosecuted, found guilty and imprisoned in Britain for these offences. We detain without any time limit immigrants suspected of entering illegally. The rules of detention centres are strict; under the new Bill, breach of them may itself be a criminal offence. And then, of course, no potential host country will take the refugee, for now he has a criminal record.
There is no way out except looking at each case individually as quickly as possible. That may mean employing more adjudicators. It will mean a limit to the number of appeals anyone can have, but it is crucial that the appeals are properly conducted and have all the available facts. That is why there should be legal aid for those without means, so that their cases are properly considered.
What will not do is to disregard the international conventions, or to so interpret them that the safeguards they provide are meaningless. Such conventions may be tiresome to governments, but they are the building blocks of a civilised world. Britain must abide by them, and persuade her EU partners and others to do so too.Reuse content