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  • Anoushka Anand

UK’S New Refugee Plan – A Violation of the Principle of Non Refoulement?

Introduction

The cornerstone of contemporary international refugee protection law is the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention). It finds its foundation in Article 14 of the 1948 Universal Declaration of Human Rights, which declares that everyone has the right to seek and receive shelter from persecution abroad. The Refugee Convention also emphasises non-refoulement, which is the principle prohibiting sending refugees or asylum seekers back to a nation where their lives or freedom are in danger. However, the United Kingdom’s (UK) new law - the Nationality and Borders Act, 2022 severely undermines the right to seek asylum in several ways. This piece seeks to establish that despite being a party to the Refugee Convention, the UK plans to transfer asylum seekers to Rwanda. Furthermore, it voices grave concern that the nation's asylum partnership arrangement breaches international law and could hurt those seeking international protection in ways that are both potentially irreversible and dangerous.


I. Conceptualising Refugees and Persecution

Refugees by definition are victims of human rights violations. According to Article 1(a) (2) of the Refugee Convention, the term ‘refugee’ applies to “any persons who, owing to a 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”. Although ‘persecution’ is not defined in the Refugee Convention, Professor James Hathaway defined it in terms of ‘the sustained or systematic violation of basic human rights demonstrative of a failure of state protection’. ‘A well-founded fear of persecution’, according to him, exists when one reasonably anticipates that the failure to leave the country may result in a form of serious harm which the government cannot or will not prevent.[1] Moreover, persecution encompasses harassment from state actors as well as non-state actors.


II. A Neo-Colonial Plan

One of the most serious problems that has been plaguing the international community is of the displacement of refugees, resulting inthe unending attacks on their human rights. There is thus a strong link between the refugee crisis and human rights concerns. Human rights violations are not only a primary source of mass departure, but they also make voluntary repatriation impossible for as long as they exist. Minority rights violations and ethnic clashes are also common within the broader spectrum of refugee settlement problems. Thus, there is an urgent need to gather more effective ways to protect and assist these particularly vulnerable groups. Unfortunately, even today, there are governments which are far removed from humanity – with the government of the UK being a recent example.


On April 27, 2022, the UK Parliament approved the controversial Nationality and Borders Bill to bring about sweeping reforms in its immigration and citizenship system. By a vote of 212 to 157, the "Anti-Refugee Bill," which would make it illegal to enter the UK without a visa and give the government the power to revoke someone's British citizenship secretly, was approved. It implies that those refugees who try to enter the nation in an unofficial manner risk facing imprisonment.


Additionally, the Boris Johnson government unveiled its plan to send some asylum seekers from the UK to Rwanda on a one-way ticket along with the Prime Minister stating that the £120M scheme would "save countless lives" from human trafficking. The British Royal Navy would take over operational command of the English Channel from Border Force as part of the new strategy, with the objective that no boat makes it to the UK undetected. It also gives the UK authorities the power to punish people who enter the country illegally, including life terms for anybody piloting the boats.


Thus, instead of operating a fair asylum system, the government’s response comes as an unethical plan which would probably put the safety and rights of the refugees at risk, especially with the record of Rwanda in breaking human rights. There was a widespread criticism of the same by the international community, including Humans Right Watch, which called out the government for choosing to act with cruelty and neglecting their obligations towards those fleeing war and persecution.


III. Violation of Non – refoulement?

​One of the central protections that international law provides to refugees is the right against non- refoulement, which, in the most layman terms means the right not to be forcibly returned or expelled to a situation which would threaten one’s life or freedom. This principle finds expression in various international law instruments such as the Refugee Convention as well as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The most forward and promising provision regarding refoulement is that it applies not only to recognized refugees, but also to those who have not had their status formally declared.The pertinent question that arises at this juncture is whether the UK’s plan to send its refugees to Rwanda is a breach of the principle of non – refoulement.


Two features of the principle of become pertinent in this case. First, it has been established that prohibition of refoulement is applicable to any form of forcible removal, including deportation, expulsion, extradition as well as informal transfers. This is evident from the wording of Article 33(1) of the Refugee Convention, which refers to expulsion or return (refoulement) “in any manner whatsoever”. Second, the principle applies not only in respect of return to the country of origin or, in the case of a stateless person, the country of former habitual residence, but also to any other place where a person has reason to fear threats to his or her life or freedom. At this point, it is important to note that, as stated earlier, Rwanda has had a track record of human rights violations including extrajudicial killings, deaths in custody, unlawful or arbitrary detention, torture, and abusive prosecutions, particularly targeting critics and dissidents. Such violations were also seen with respect to refugees. In 2018, the police shot dead 11 refugees during a food riot in Rwanda. The aforementioned makes it evident that the safety of the refugees is far from guaranteed in Rwanda, and by transporting the refugees to Rwanda, the UK government would be breaching the principle of non-refoulement.


While the government of UK has defended its stance by stating that an “offshoring policy” is allowed according to its international obligations, a view at other attempts of such policies by different governments indicates that they are not fruitful and are infact, counterintuitive for the refugees. For example, between 2014 and 2017, a similar Migration Agreement between Rwanda and Israel is claimed to have led in substantially all of the 4,000 persons estimated to have been brought there fleeing the nation very quickly. Similarly, Australia’s offshoring plan was a failure with at least 10 people having taken their lives while being held in the offshore processing centres. Thus, with no known successful offshore strategy elsewhere in the world, and many human rights violations as a result of such policies, the UK's approach is fraught with danger.


IV. Conclusion - A Different Approach

The problem of refugees is a complicated and stubborn one, which requires a harmonious approach by international agents, the governments as well as the citizens. It is evident from the discussion that it requires more dedication and humanity on the part of the decision makers to promote and protect the basic human rights of refugees and provide them with a safe asylum. It is paramount for refugee-receiving states to retain their commitment to refugee protection and promote tolerance for differences. In the backdrop of this, the UK’s plan for refugees suffers from a lack of empathy and does not account for the reality of the refugees’ situations. Since the UK has a legal obligation under the Refugee Convention to uphold the principle of non-refoulement, it needs to ensure that a range of practical and human rights-based protection mechanisms are in place for the refugees. Instead of “offshoring” the refugees, the UK should establish mechanisms for entry and stay for those migrants who are unable to return, in order to ensure the principle of non-refoulement. Additionally, administrative and legislative mechanisms should be set up to grant legal status to migrants who cannot return, in the form of temporary, long-term or permanent status.

Taking care of refugees is a core component of the human rights paradigm and thus, it is of utmost importance to come up with radical solutions through global cooperation. This includes setting up strong refugee systems like allowing people to apply for asylum, treating their refugee claims fairly and resettling the most vulnerable of all – not just in the UK, but across the world.




[1] James Hathaway, “Fear of Persecution and the Law of Human Rights”, Bulletin of Human Rights, 91/1, United Nations, (New York, 1992), p.99, quoted in Brian Gorlick, ‘Refugees and Human Rights’, Seminar (March 1998), P.23.

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