Explaining the legal philosophy behind why asylum and migration laws are setup the way they are now vs. the UK government’s attack on refugees rights.

I deleted my 1am rage post about this and decided to explain the legal philosophy behind why the law is the way it is now in the simplest terms I can instead, and deliberately without much legal referencing so that I hope people will realize that these legal provisions are not just conventions or technicalities but have been made for good reasons.

This is the Prime Minister’s tweet about the government’s legislative proposals: https://twitter.com/RishiSunak/status/1633158789103747072

My tweet thread got out of sequence but it’s here: https://twitter.com/KesterRatcliff/status/1633385282832588800

>If they’re entering “illegally” doesn’t that suggest they’re already “banned”?

Nope. Article 31 of the Refugee Convention 1951 non-penalization of irregular entrance in case a person does it in order to claim international protection and their case is not manifestly unfounded.

Irregular entrance is illegal, but it’s also illegal to penalize someone for it if they do it for this reason. Practically how it usually works is: if the person registers an asylum application within a month, and at least on first appearances it could be valid, then the moment they’ve completed first registration the irregular entrance charge is automatically voided.

(UNHCR explanation of Art.31 http://www.unhcr.org/3bcfdf164.pdf)

And that’s because, fundamentally, administrative procedural law derives its legitimacy from human rights law, as ultimately the purpose of all procedural laws is to uphold and balance different human rights claims in a reasonably proportionate way.

So a relatively trivial procedural law violation cannot logically justify overriding a fundamental human right. Logically, it’d be like dismissing a murder charge because the victim had driven through a red light at a road traffic junction earlier that day. It’s nonsense.

And the state arbitrarily reversing the logical order of priority between different levels of law (civil tort law < administrative law < criminal law < human rights law) implies fundamentally undermining the principle of legal rationality, which affects everyone and everything.

The administrative procedural laws about international borders exist in order to protect other people’s human rights, but most of those are relative (i.e. should be balanced proportionately with other human rights) & that’s why irregular entrance isn’t always legally penalizable.

Such as: preventing criminals from escaping justice by crossing an international border and protecting citizens from those risks, managing public health infectious disease risks such as during the covid19 pandemic, & managing taxation fairly so that public services can be funded.

Border procedures do have some legitimate reasons based on human rights law. But making irregular entrance cancel the right to asylum, the right to access justice, the right to protection from enslavement and associated cruel inhumane or degrading treatment, is not legal or logical.

>My point is they’re either not illegal now, or they’re already illegal and thus already ‘banned’. It can’t be both, as this govt claims.

There is no such thing as an illegal person in any constitutional democratic legal system. That would mean outlawry which was a dead letter law for a long time and finally removed from UK law in the 1930s. Irregular entrance or stay is a relatively trivial administrative law violation.

It’s absurdly disproportionate and arbitrary to make a usually harmless administrative law illegality override a bunch of fundamental human rights. If the state can act so arbitrarily and get away with it that threatens the whole of the common goods of justice and rule of law, for everyone.

In order to make those legislative changes you would have to withdraw from just about all international human rights laws and fundamentally change the constitutional legal philosophy of the UK since WW2, because logically if you deny those rights you have to deny fundamental principles.

Another irony of this outrageously immoral and fundamentally unconstitutional attack on refugees’ rights and by implication the whole system of rational and human rights based law for everyone is that it’s presented as a nationalist move and human rights law as an EU imposition.

One of the main drafters of the European Convention on Human Rights 1950 was Sir David Maxwell-Fyfe, a very senior British judge who had just completed hearing many of the Nuremberg trials. The ECHR was largely a British proposal and it is as far as can be from naive idealism.

It came out of the context of the international criminal prosecutions of Nazis responsible for mass atrocities. The idealism in it is not because they were ‘tofu munching wokerati’ but because they’d just seen what can happen without such constitutional legal constraints on majority popular will.

Also: the right to non-refoulement (Art.33 Refugee Convention 1951 and ibid. international law) is a ‘jus cogens’ = a cognizable law, which means international judicial consensus says it is so essential to justice that any reasonable person can recognize it even without its legislative provisions.

(‘Non-refoulement’ basically means not forcing a person who is on first appearances in need of international protection back to or into any other country where they would not be safe. It also covers: refusal of admission at the frontier to a person in such circumstances, which implies a right to enter (needs for international protection have 3 categories*: refugee status (for well-founded fear of persecution), subsidiary protection (subsidiary to ECHR Art.3, for realistic risk of indiscriminate serious harm), and humanitarian protection for other serious reasons (e.g. for emergency life-threatening medical needs which cannot be accessed without admission to the state in question’s territory, or being a victim of slavery); ‘chain refoulement’ by forcing the person to a country where the authorities might refoul them or not allow them access to genuinely fair asylum proedures equivalent to those provided for in the Refugee Convention 1951; and ‘extraterritorial refoulement’ which means commissioning or instigating third-party agents to commit refoulement outside the territorial jurisdiction of the state in question. The legal criterion of responsibility for non-refoulement is not which state’s territory (or in international waters) it occurs in, but whether the state in question has “effective authority or control” there. UNHCR’s explanation http://www.unhcr.org/4d9486929.pdf.)

The jus cogens status of non-refoulement implies that it’s impossible to legislate it away. Any decent judge who’s not bent by political bias or threats to the judiciary’s independence can only rule that even if parliament were to try to legislate away the right to non-refoulement it is still legally cognizable.

Unless you do away with the whole idea of a rational legal system based on a universally human reasonable sense of natural justice. Doing so means regressing to authoritarian arbitrariness. That would ultimately affect everyone, not just the government’s currently scapegoated out-group.

Added later

>We are not talking asylum seekers here. If they were asylum seekers, they would seek, and be given asylum in the first safe country they reached

That’s absolute bullshit, because admissibility, about which state is responsible for a person’s asylum claim, logically and legally has nothing to do with eligibility for asylum. One thing is about where the application should be lodged and the other thing is about whether it is valid.

Admissibility rules are a part of administrative procedural law. They’re a means of implementing a reasonably proportionate balance between different human rights’ claims.* But an administrative law violation cannot logically overrule a fundamental human rights law. It’s nonsense.

(*To the extent which they’re legitimate, but I don’t believe many of the European (incl. UK) admissibility laws about asylum procedures are. Triaging the needs vs. capacity for asylum procedures by limiting second and Nth applications in different countries so that their procedural systems don’t get overloaded and backlogged to an extent which would violate the right to access justice and a legal remedy by unreasonable delay seems to me the easiest to think of legitimate reason for some admissibility rules to exist. But the fairness of that depends on different states commonly judging by the same eligibility criteria and applying the procedures fairly, which is supposed to be what the ‘Common European Asylum System’ set of 6 EU legal directives was for, but it doesn’t actually work because there’s almost no legal enforcement against systematic procedural law violations by states. Particular appeal cases often win, but the rulings don’t effectively correct systemic injustices in the way that the states apply the rules.)

But on the other hand, many European governments seem to be deliberately sabotaging the efficiency of their asylum procedures systems, by making blatantly unobjective and unfair initial administrative decisions that will be overturned if judicially appealed, not using the expedited procedures for manifestly well-founded claims, cutting experienced and legally qualified staff and hiring people with no legal expertise to make decisions on matters of life-or-death gravity, etc., in order to compete with other states to punitively deter applicants and avoid their responsibilities.

> It was never illegal to arrive on our shores by boat and claim asylum.

The practical effect is the same but precisely legally irregular entrance is illegal but it’s also legally non-penalizable in the context of when a person does it in order to claim international protection and if their claim is not manifestly unfounded http://unhcr.org/3bcfdf164.pdf

It’s non-penalizable because the motive for breaking the administrative law about border procedures in such cases is for a categorically more serious reason than the reasons which border procedures exist for. So it’s rationally necessary because of the logical order of priority between levels of law.

>That’s why he is changing the law.

Laws exist in a system, not just particular bits. The bits are connected logically and there are reasons why they have been conventionally setup this way. If you change laws like this it affects the whole legal system for everyone, in some fundamentally degrading ways.