What’s at stake in the UK government’s plans to ‘reform’ the asylum system is human rights as such
Just a little reminder, again, that what’s at stake here isn’t just the rights of asylum seekers and refugees, but also the whole culture of human rights as foundational for law and for legitimate state authority and institutions.
The whole of current refugee law (at least the primary law, not all of the case law is so consistent) is premised on the belief in inherent human dignity, universally, as a natural fact, which logically and ethically implies social duties to one another, which are called ‘human rights’.
If the government succeeds in abrogating the universality of human rights for the non-citizens in our state and non-producers in our markets, they implicitly also will succeed in undermining UK society’s cultural acceptance of human rights as foundational moral and legal philosophical beliefs.
To the extent that they succeed at doing that, it affects common goods for everyone, not just the rights of asylum seekers and refugees. That is the point of doing it, for them. The amount of attention they put on being spectacularly spiteful to refugees is flagrantly irrationally disproportionate to the real costs of asylum procedures and reception conditions, which are a tiny part of the public budget and really have very little non-financial social costs too. So, why they do it, must be mainly for the indirect, implicit effects of that discourse on the whole political culture of the UK, in order to influence it in a generally more arbitrary authoritarian sort of direction, away from its post-war foundational liberal humanistic democratic values.
Human rights are common goods, not just good for the particular individuals who are immediately directly affected by them right now. If we don’t successfully defend the public belief in and practice of human rights as such, as belonging to all humans universally because of the nature of what a human person is and what living together as human beings in a society means logically and ethically, then ultimately we will not have a political culture of rule of law or values-based democracy anymore.
Merely procedural democracy is not sustainable — it is too easy to hollow it out and make it into a perfunctory sham, like e.g. in Russia, if there isn’t a majority public belief in the values of democratic social and political life.
As I keep on repeating, the authors of the European Convention on Human Rights 1950 were very far from being naive idealists. One of the main drafters of the text, David Maxwell-Fyfe, had just finished being one of the main judges in the Nuremberg Trials of Nazi war crimes, so he had just sat through years of evidence on the worst atrocities that human nature is capable of; he was not a naive idealist. And yet he and Jacques Maritain, a Catholic humanist academic philosopher, co-wrote the draft which begins: “…Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend;”
It’s precisely and carefully worded. You cannot actually have a constitutional democracy which stands up on majoritarian procedures alone; it has to be based on both democratic values and procedures.
Democratic values are further defined in the EU constitutional treaty Art. 2.1 as: “The EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”
Abnegating the rights of persons belonging to any minority is usually done for the purpose of undermining the public belief in human rights as such — i.e. rationally based on the natural fact of inherent human dignity, not merely based on social convention or attribution or grant by any authority, and therefore absolutely inalienable and truly universal in nature.
German constitutional law is the clearest and best on this: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.”
To respect and protect human dignity and rights is the purpose and duty of all legitimate state authority and institutions. If they attempt to do otherwise, they cannot erase the natural fact of human dignity and the logical ethical inferences that are called human rights, but all they do in fact is undermine the moral legitimacy of the state.
Specifically what the government is proposing to legislate is that asylum seekers breaking admissibility procedures, which are about which state is responsible for their asylum claim, be treated as invaliding the eligibility of their asylum claims. That is just illogical. Admissibility and eligibility of asylum applications are distinguished in law because they deal with different matters in reality. Collapsing the distinction means not basing law on factual reality. It implies legitimising arbitrariness of de facto authorities, which is the opposite of legitimate democratic statehood in principle.
Also, the reasons why in reality many asylum seekers break current admissibility procedural laws are because the application of family reunification and asylum eligibility procedures is so inconsistent in practice across European states. If the ‘Common European Asylum System’ were actually common and really consistent in practice, then there would be no reasonable necessity for asylum seekers to break the admissibility procedural rules. Why so many judicial appeals against Dublin return decisions are upheld currently is because in reality there are serious violations of asylum seekers’ natural and inalienable human rights, as defined in UK and EU law, in many European countries now. Those laws are mainly considered ‘jus cogens’ by the UK and international judiciary— i.e. laws which naturally stand according to reason, which don’t necessarily depend on positive legislative formulations, and thus are irrevocable laws.
Until there is no reasonable human necessity to break the procedural rules for where, or in which state’s territorial jurisdiction an asylum application should primarily* be lodged, it is illogical and unjust to penalise asylum seekers for doing so; in constitutional law this principle is called the ‘clean hands principle’ or “Nemo auditur propriam turpitudinem allegans” — a case should not be heard, should not be accepted as admissible in court, from one who accuses another depending on the facts of his own guilt.
(*In cases of asylum seekers whose families are divided across European countries, they should, by law, lodge their asylum application in the first EU country they enter, but then it should be transferred to the country where their family members are already settled or further along in the procedures. This law currently only applies to close or dependent family members.)
Who is really guilty for asylum seekers’ breaking of admissibility procedural laws is primarily and originally European governments, because they do not apply family reunification, asylum eligibility and reception conditions laws consistently and justly now. So their case that accuses asylum seekers for breaking the procedural laws is dependent upon facts of their own guilt. Therefore it should be dismissed as an inadmissible, unjust claim. It does not deserve to be heard in any court of justice or to be discussed in public.
The whole ‘hostile environment’ policy aim and all its consequences are directly opposed to the purpose and legal limits set by Article 31 of the Geneva Convention on the Status of Refugees, 1951, which is on non-penalization of irregular entrance or stay when a person does it out of necessity to realize their basic human rights and freedoms. The UK was originally a principal negotiator for this convention, as for the ECHR too.
If you allow the abrogation of human rights to be done for anyone, you are hurting yourself, because human rights and rule of law are common goods.
It is a strange and distinctive logical quirk of populist political discourse that it dissolves individual personhood into the imaginary collective will of THE people (singular), and simultaneously is individualistically wilfully blind to common goods. That’s a wilful blindness to the reality of both personhood and human sociality. Nothing good ever comes from ignoring reality.
A genuinely democratic society balances the rights and freedoms of all individuals, not only citizens, nor only market consumers and producers, and the inherently common kind of goods, such as, human rights and a rational, fact-based, reasonably proportionate and logically consistent, kind of legal system. It is that which is really at stake in the government’s plans to degrade the UK asylum system, under the guise of ‘reforming’ it.
