Radically realistic reforms for the UK asylum system, and why.
I support everything in the UK civil society letter to the new Labour government about making the asylum system humane and workeable.
But, I think they feel constrained to seem ‘moderate’ to be credible, which means they’re reacting to the currently normal agenda and framing, but that agenda and framing is fundamentally unrealistic and immoral. I am not constrained to seem or perform ‘moderate’, so I’m arguing for radically realistic reforms, and explicitly arguing for their moral foundations, again.
In an objective sense, this is a radically conservative argument, because it’s aiming to conserve and restore the post-WW2 constitutionally democratic order based on universal human rights, and the moral-legal philosophy involved in the international human rights and humanitarian law treaties.
That legal philosophy is best expressed in, among others: the Preface to the ECHR, which was probably drafted by Jacques Maritain, who also wrote ‘Integral Humanism and the Crisis of Modern Times’ in 1936, before the war; the Preamble to the Universal Declaration of Human Rights; and the German Basic Law (constitution) article 1, which explicitly states that the correct logical order between state authority and the natural fact of intrinsic human dignity is that human dignity comes first, human rights are “recognised” (i.e. they exist before their recognition), and all state authority and legitimacy is contingent on respecting these in practice.
The legal philosophy in post-WW2 human rights international law treaties is a form of ethical naturalism, which is exactly contrary to the unrealistic subjectivisation of social ontology and social epistemology which is the entry point into Romantic Nationalism, of which Nazism was a sub-type.
The stakes of this argument and its opposites are very, very high. It may seem abstract, but if we can’t abstract away from the whole system we’re living in to reflect on it as though from an outside perspective, we’re lost. Abstract reflection is absolutely vital to avoid falling into catastrophes by going along with what’s socially normal without stopping to really think.
If we don’t consistently act on beliefs in inherent human dignity and universal human rights, the implications and consequences are extremely severe, and ultimately the effects damage and degrade common goods for all of us, directly or indirectly, not just for the victims now, mostly refugees.
We should be starting from the real problems, out there in the world, not starting from what’s conventionally normal policy-speak among politicians now. The real biggest common/ public problems within this topic are: the unprecedented number of people globally forcibly displaced now, 130m, which has more than doubled since 2015 when the mass influx started; the ever increasing violence and normalisation of violence against people migrating by Western governments, mainly ‘Liberal’ politicians, to keep people who are mostly refugees out “by any means necessary” (Donald Tusk, the European Council President, said this repeatedly in December 2015), by commissioning extraterritorial refoulement by third-party agents, coordinating pushbacks and pull-backs, all of which is clearly illegal; the competition to avoid responsibility by governments making their countries’ asylum procedures and reception systems ever worse, more punitively deterrent, which is undermining the whole of constitutional human rights.
The relatively tiny number of people entering the UK by irregular means to seek asylum is not really a big public problem. We could easily integrate that many people and provide decent asylum procedures and reception conditions, if we just didn’t try so hard to be inhospitable and hostile.
Even absolutely inadequate but relative improvements should be welcomed, supported and fought for, but we can and should do much better. To act responsibly, first we have to fully accept reality, however displeasing it is to the prejudices and consumer sentiments of voters.
Reality of this situation is that there is a huge number of people seriously needing international resettlement now; only tiny token numbers of people are allowed to come via legal routes to genuinely safe countries; we are responsible both because of our basic shared humanity and secondarily because our choices have contributed to their needs now; we live in countries with the largest capacities to socioeconomically integrate people in need of resettlement, but we are accepting the tiniest shares of responsibility for them. Most of the reception and integration burdens of hosting refugees are put on former transit countries who have far less capacity and far bigger numbers of refugees and asylum seekers. Their ‘irregular entrance’ is mostly entrapment into committing a (trivial) crime in order to delegitimise their asylum claims, which is legally non-penalisable anyway as they are likely to be in need of international protection.
According to the legal philosophy on which the post-WW2 constitutionally democratic order was founded, our responsibilities to each other in principle are infinite, but obviously our capacities to respond are very finite. Levinas discussed this absolute disproportion between our ethical obligations and our finitude or mortality. Like in the old rabbinic saying: “you are not obligated to complete the work, but neither are you free to abandon it”.
Basically, we are responsible to each other because we are human beings, unconditionally. If and how much we have also contributed to the conditions in which other people’s needs for resettlement and hospitality arose (e.g. by doing business with and supplying external legitimation to the dictatorships which commit most of the political violence that causes most people to flee) is a secondary factor in determining the extent of our responsibility to people in need of resettlment, in genuinely safe, free and hopeful countries. In addition to the primary, unconditional responsibility to each other as humans, we are also responsible for much of the forced displacement now, because of our choices of commission and omission.
When we’ve chosen to sacrifice a nation (e.g. Syrians) to appease a tyrant (Assad) and his international patrons (Iranian and Russian regimes) supposedly to avoid international conflict or terrorism, doing almost nothing to limit their mass atrocities, and even intervening actively to stop e.g. the Syrian pro-democratic opposition from getting any potentially adequate air defense weapons til far too late, because our leaders considered the fall of the regime to the Syrian majority could risk the stability of their political arrangements in the region (mainly with Israel), we are culpably responsible for their forced displacement. If Western governments had not supplied external legitimation and money to the Assad regime, ignoring and overriding the non-consent of his subjects, we probably would not be in this situation of most Syrians forcibly displaced. Compromising on democratic principles in ‘foreign affairs’ has consequences, and those consequences usually don’t stay foreign to us.
It may be objected that the number of people forcibly displaced globally includes the number of Internally Displaced Persons (IDPs), meaning they are still inside their country of origin, so technically legally not ‘refugees’ because one of the criteria is that people have left their country of origin. Why I include them and refer to all forcibly displaced people is because the number of people conventionally recognised as ‘refugees’, legally conditional on them being outside their countries of origin, is artificially and violently kept lower than it would be if they were really allowed their rights. The widespread and systematic policy by the rich White-majority, internally democratic states of commissioning extraterritorial refoulement by refusing admission at the frontier, to forcibly keep IDPs from leaving their countries, keeps many people as IDPs who would be ‘refugees’ if they were not violently refused admission at international frontiers. While this is so, there is no way of knowing how many of them would leave if they could. It’s more reasonable to assume that, if their right to leave any country including their own and to not be refused admission at a frontier when they present as on first appearances in need of international protection (effectively equals a right to enter, if/when …), probably most of them would leave their countries and then become legally ‘refugees’.
The proportion of people globally living under authoritarian kleptocratic regimes is increasing. The rate of political mass violence is increasing. The economic and ecological factors for increasing inter-group conflicts are increasing. Violent externalisation of border control makes the risks worse. It’s unlikely that climate crisis forced migration as a solitary factor will cause much more forced migration soon, but in complex combinations with other factors it’s very likely to accelerate forced displacement.
So far, at least since late 2015, rich White-majority internally democratic states are reacting mainly by trying to minimise their shares of responsibility. They compete among themselves to avoid responsibility by making their asylum procedures and reception conditions more punitively deterrent, and they cooperate in commissioning violent extraterritorial refoulement by dictatorships and armed gangs who they give coastguard uniforms and equipment to (effectively military gear), to keep refugees out & as far away from their borders as possible, to preclude asylum requests.
Involved in the rhetoric for externalisation of border control and responsibilities for forcibly displaced people is an inversion of the logical order between procedural laws and substantive or human rights laws. The purpose of border procedures is to reasonably proportionately balance different valid human rights claims, those of people inside and outside. It makes no sense logically to make ordinary border procedures more important than extraordinarily serious human needs to enter. When we do this move rhetorically and in actual policies, it is arbitrary and normalises arbitrariness, which leads into the whole authoritarian imaginary.
The ‘illegal’ in the now normal phrase ‘illegal migrants’ comes from the legal convention that entering or staying irregularly is penalisable unless someone does it in order to claim asylum and if their claim is not manifestly unfounded (Article 31 of the Geneva Convention on Refugees, 1951). Crossing borders and not claiming asylum in previous countries on people’s routes is an issue of admissibility — about which state is responsible for the person’s asylum application, but it has nothing to do with eligibility — about whether their claim for asylum is factually and legally valid. Many governments and politicians persistently confuse these terms, and they’re so persistent at muddling them up that I can’t believe it’s not intentional.
Quite obviously, the “strategy” involving supplying money and guns to dictatorships and armed gangs for ‘migration control’ is likely to make the real problems even worse in the long-term, probably multiple times bigger. Yet it is a consensus position among mainstream elite Neoliberals that “there is no alternative” but to try to appease the far-right (who they call ‘populists’ euphemistically, to shift blame and diminish perceived judgement on themselves) by enacting policies effectively denying the right to asylum, even though at the same time the outcome variables they’re concerned about are getting worse not better, in the opposite direction to what’s expected if their causal link assumption (‘mass irregular migration causes far-right support to increase’) were true. Really it’s their mainstreaming and normalising of the far-right moral imaginary which causes that.
This is, tragically, a realistic summary of the situation. The problem of increasing irregular entrance of people who mostly are refugees by small boats on dangerous routes is a relatively small sub-problem, and making it into the top priority problem is only about evading our responsibilities as much as possible. But evading responsibilities by externalising them beyond more ‘borders’ doesn’t really make them go away or decrease. All the commissioning of ‘migration control’ or extraterritorial refoulement and arbitrary detention of people who are mostly refugees does is increase the long-term risk factors for even more mass forced displacement.
The current mainstream ‘Liberal’ system of policies contributed to causing at least 64,500 people since 2014 to be missing presumed dead, according to IOM data https://missingmigrants.iom.int/ I used to cite the part of the data for the MENA region only, but the EC has expanded these policies so much now it doesn’t make sense to separate the data from MENA and the rest of Africa, and it’s basically the same assumptions and policies in the USA against prima facie refugees trying to enter from Central & South America.
It easily fits the legal definition of the crime against humanity of Extermination https://guide-humanitarian-law.org/.../3/extermination-1/
If you consider the political context that the Neoliberal centrists actually leading and implementing these policies don’t explicitly say they’re targeting these people in this way because they’re non-White or Muslim, but they’re reacting to and attempting to appease the far-right with these policies, who do identify their targets in those racial and religious terms. So why they’re targeting this group is effectively because they’re mostly non-White and Muslim, which means it’s at least plausible to consider it as the genocide crime of ‘inflicting conditions of life calculated to bring about physical destruction of members of the group’. However, it’s easier to prove that it’s the crime of Extermination, and the legal definition of that crime of even explicitly mentions targeting victims of shipwrecks as a group.
Practically, what I’d do differently is :
The Home Office asylum unit has been dishonest, cruel and incompetent for so long — honestly, also under the previous Labour governments but less extremely, and the judicial appeal success rates are so high, and so variable across the country, I think the only realistically adequate change would be to remove the legal competence for asylum decision-making from the HO and place it with a new specialised branch of the judiciary, like the family courts for family issues, because they both require more specialist contextual knowledge to make judgements accurately and fairly.
Also because asylum decision-making is really inherently a judicial kind of issue, not an executive kind of issue. The task is to find the facts and match them to the law, i.e. judgement; it’s not an administration kind of task.
The >50% judicial appeal success rates is that it shows that in most cases the HO’s asylum decision-making is legally irrational, because they’re so obsessively hostile and biased that they’re ignoring the facts and the law and concocting spurious reasons to reject. The judicial appeal success rates across the country also vary so widely they cannot possibly all be accurate, so this kind of decision-making should be transferred to judicial specialists.
I’d only leave the legal competence and responsibility for initial asylum claim registration and interim protection measures for specially vulnerable cases (separated or unaccompanied minors, torture, rape, slavery, shipwreck victims, seriously ill people) with the executive government.
To avoid violating people’s right to an effective legal remedy in a reasonable time proportionate to the seriousness of their issue, use Temporary Protection status as a quick, collective grant to people from countries of origin with >75% acceptance rate when individually assessed. Or, because the legal reason for it is mainly the right to an effective legal remedy, grant Temporary Protection as an interim legal remedy for all those who have been waiting unreasonably long already, wherever they’re from.
Apply the Manifestly Well-Founded expedited procedure properly. Currently, it’s (almost?) never actually applied. I think at least 20% of cases could be resolved this way fast by reviewing the case files and deciding positively on the independent documentary evidence already submitted. It would be a fast, relatively inexpensive, fair way to clear part of the backlog.
Asylum policies, whichever way we go — returning to universalist human rights or romantic nationalist authoritarianism and racist violence, indirectly affect the whole of political, legal and cultural systems.
Enacting the far-right’s policy demands disguised in “Liberal” vocabulary is not a smart strategy ‘to conserve the middle ground,’ it’s like dragging the Trojan Horse into the citadel, because it contains the whole Romantic Nationalist and Authoritarian moral hierarchy and imaginary worldview.
Merely ‘moderate’ reforms are not realistically adequate when the starting point is 7+ years of mainstreaming and normalising far-right ideas.
