I. THE REGIONAL PROCESSING CENTERS PROPOSED BY THE UNITED KINGDOM VIOLATE HUMAN RIGHTS AND REFUGEE PRINCIPLES
The U.K. proposal seeks to “reduce the incentive” for asylum seekers, refugees and other migrants to move to Europe.15 Rather than receiving direct protection from the United Kingdom, asylum seekers, refugees and other migrants would be sent to a third country. The goals of the plan would be to keep refugees closer to home so that when “the situation improved in their country of origin” they could be returned there. Rejected asylum seekers would be “returned to their countries of origin” immediately, through “raising awareness and acceptance of state responsibility to accept returns.”16
Recognizing that the countries hosting processing centers are likely to have resource constraints and poor human rights records, the U.K. has warned that “[g]enerally the further [the processing center host countries are] from Europe, the greater the challenge of providing such protection and moving people back to regions of origin”17 The provision of international protection would be narrowly limited to include only those asylum seekers, refugees, and other returned migrants within the physical boundaries of the processing center. Outside these boundaries the refugees and other migrants sent to the processing center would be subject to the treatment that befalls any non-citizen living in Albania, Croatia, Iran, Morocco, Northern Somalia, Romania, Russia, Turkey, or Ukraine. At the same time, however, the U.K. is wary of making conditions in the processing centers meet too high a standard. Otherwise, the proposal warns, “they could act as a pull-factor for local people.”18
The U.K. proposal calls for improving “protection in source regions” for refugees, and to “prevent the conditions which cause population movements,”19 both of which are laudable goals. However, the proposal’s immediate purpose is to ensure that many refugees “remain in the regions close to their country of origin.”20 Therefore, in the short term, the proposal promises to overwhelm underdeveloped and poorly resourced countries, many of which already host thousands of refugees, with a new and unfairly distributed burden of Europe’s refugees.
Shifting refugees from the U.K. or elsewhere in the E.U. to poor countries shatters notions of burden sharing upon which the international refugee protection system was established. The Preamble to the Refugee Convention underlines the “unduly heavy burdens” that sheltering refugees may place on certain countries, and states “that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation.” Numerous United Nations High Commissioner for Refugees (UNHCR) Executive Committee (ExCom) Conclusions21 also reiterate the need for international responsibility sharing to assist host countries in coping with large refugee influxes.22 In its Communication on the U.K. proposal, the European Commission makes the fundamental point that “any new approach should be built upon a genuine burden-sharing system both within the E.U. and with host third countries, rather than shifting the burden to them.”23
The U.K. proposal threatens two fundamental human rights. The Universal Declaration of Human Rights, widely considered customary international law,24 establishes that everyone has to the right to seek and enjoy in other countries asylum from persecution.25 Individuals within the jurisdiction of the U.K. should thus be able to approach that government in order to seek such protection. Instead, the U.K. has stated that transfers to processing centers could act as a deterrent to abuse of the asylum system,26 but its proposal for such external processing threatens to act as a deterrent to the exercise of the right to seek asylum itself. Transporting asylum seekers and migrants to processing centers outside U.K. territory, and possibly outside the E.U., would severely impair their ability to seek protection from the U.K., which would undermine their right to seek asylum.
Human Rights Watch also fears that the U.K. proposal will violate the right of refugees not to be returned to a country where their lives or freedom are threatened (the principle of nonrefoulement), whichis the cornerstone of international refugee protection. The principle of nonrefoulement is enshrined in Article 33 of the Refugee Convention as well as being a fundamental principle of international customary law. Article 33(1) of the Refugee Convention states that:
The U.K. proposal acknowledges the binding nature of the principle of nonrefoulement for refugees as well as Article 3 of the European Convention on Human Rights (ECHR), which prohibits the return of anyone (including migrants) to a place where he or she might be subject to torture, inhuman or degrading treatment.27 However, the proposal lacks a detailed discussion of what safeguards would be employed to ensure compliance with these prohibitions. This lack of detail was noted by the European Commission in its Communication.28
Refoulement can occur when a refugee is returned to any place where his or her life or freedom is at risk because of persecution, be it the refugee’s country of origin or any other country. Many of the countries under consideration for hosting processing centers have records of serious human rights abuse against non-nationals in their territories (discussed in Part II, below). Moreover, many of them routinely deport non-nationals without adequate procedures to determine whether the individual fears persecution. UNHCR has repeatedly stressed that “the 1951 Convention prohibits not only direct refoulement to the country of origin, but also indirect, or ‘chain’ refoulement to third countries that in turn will refoule to the country of origin.”29 Finally, while some of the countries under consideration are struggling to establish means by which Convention refugees can be protected against refoulement, none of them have established adequate procedures to ensure that migrants are protected from return to a place where they will suffer torture, inhuman or degrading treatment in accordance with article 3 of the ECHR.
The U.K’s plan violates Article 31 of the Refugee Convention, which requires
The U.K. has stated that its plan is to prevent asylum seekers from “arriving illegally;”30 however, Article 31 requires that no penalties should be imposed on refugees who enter illegally. The U.K. plan to forcibly transfer refugees to third countries for detention and processing constitutes a “penalty,” because it “unnecessar[ily] limit[s] the full enjoyment of rights granted to refugees under international refugee law.”31
Holding asylum seekers and refugees in processing centers would penalize them if their time in custody amounted to arbitrary and indefinite detention.32 Detaining asylum seekers and refugees violates UNHCR’s general principle that “asylum-seekers should not be detained.”33 According to the United Nations Human Rights Committee, detention is arbitrary where there is no basis in law and where the confinement is characterized by inappropriateness, injustice, lack of predictability, and disregard for due process of law.34 While Article 5 of the ECHR allows for detention of unlawfully present aliens pending deportation, recognized refugees could not be detained since they would be lawfully present in the country. The U.K.’s proposal envisions keeping refugees in the centers for an extended period of time while resettlement places or voluntary return is explored. In fact, if there are no resettlement places for recognized refugees, they could be detained indefinitely.
Holding asylum seekers and refugees in processing centers would also penalize them in violation of Article 31 by placing restrictions on their freedom of movement rights. The Refugee Convention affords refugees the right to freedom of movement, subject to any restrictions applicable to aliens generally in the same circumstance.35 UNHCR has stated that “freedom of movement is the rule under international law and restrictions should be the exception.”36
The processing centers as envisioned in the “new vision” proposal also threaten to violate the requirements of Deliberation No. 5 of the Working Group on Arbitrary Detention, which requires that a maximum period for the detention of asylum seekers or other migrants should be set by law and custody may in no case be unlimited or of excessive length.37 In addition, the asylum seekers or other migrants would have to be informed of the grounds for detention in writing, and they should be able to apply to a judicial authority to decide on the lawfulness of the detention and, where appropriate, order their release.38 Asylum seekers or other migrants should have the ability to communicate with the outside world, including a lawyer and a consular representative.39
The European Commission Communication on the U.K. proposal makes the important point that “it needs to be clarified by which procedural rules (E.U. or national legislation) such centers or zones would be governed.”40 The proposal addresses the issue of procedures in two sentences, stating that the centers “could be managed by the IOM [International Organization for Migration], with a screening system approved by the UNHCR,” and it goes on to state that “decisions taken in [the processing centers]” must “not expose applicants to inhuman or degrading treatment.”41
The U.K. proposal’s brief discussion of procedural issues raises serious concerns. The UNHCR has raised questions about whether it should be involved in these procedures, stating that running status determinations is “neither necessary nor in line with the traditional functions of [its] office.”47 However, status determinations approved by UNHCR should adhere to guidelines and procedures to which it holds governments accountable. These include the Handbook on Procedures and Criteria for Determining Refugee Status (Refugee Status Determination Handbook), based upon the conclusions of UNHCR’s Executive Committee,48 and its Training Module on Interviewing Applicants for Refugee Status (Status Interviews Training Module).49
Unfortunately, in many of the places where UNHCR has been involved in status determinations, its procedures have fallen far short of these standards. In Kenya, Malaysia, Thailand and Indonesia, Human Rights Watch has found that applicants had information in a language they did not understand, or no information at all about the procedures they were about to undergo in violation of UNHCR’s ownRefugee Status Determination Handbook, which states that applicants for refugee status should “receive the necessary guidance as to the procedure to be followed.”50
Human Rights Watch concluded that UNHCR interviewers in Nairobi and Indonesia did not spend enough time with the asylum seeker to fully understand the facts of the case. Human Rights Watch also found that asylum seekers were unable to communicate all the details of their stories because they were asked to stop or edit themselves by UNHCR protection officers or translation staff. Such incidents are in violation of the standard established in the Refugee Status Determination Handbook that the examiner should “ensure that the applicant presents his case as fully as possible and with all available evidence.”51
UNHCR’s training manual recommends that the person conducting the interview read back notes to the asylum seeker in order to ensure accuracy.52 However, few refugees interviewed by Human Rights Watch were provided with such an opportunity. UNHCR’s guidelines recognize the value of independent legal assistance, including independent information about conditions in a refugee’s country of origin, for those applying for refugee status with governments, but this information and representatives are either categorically not allowed (Nauru, Malaysia) or rarely allowed (Thailand, Kenya) into status determinations run by UNHCR. Finally, rejected asylum seekers in Kenya, Thailand, and Malaysia do not receive written information about the reasons for their rejection, apart from pro forma letters indicating that their case has been rejected for failure to fulfill eligibility criteria. Furthermore, an applicant’s appeal is often reconsidered by the same UNHCR office that made the initial decision.
The International Organization for Migration (IOM), an intergovernmental organization based in Geneva, serves its member states and is not accountable to the U.N. General Assembly.53 The IOM has stated that it is not bound by any international human rights treaties and is exempt from its member states’ international legal obligations, including the prohibition against refoulement.54 Human Rights Watch examined IOM’s operations in Indonesia, and found that asylum seekers felt the organization over-emphasized return. The pressure to return to their home countries was exacerbated by the organization’s failure to assist asylum seekers and refugees in Indonesia with tracing their families, which placed them under pressure to return prematurely, even when they continued to fear persecution.
IOM has expressly stated that it has no mandate for and is not concerned with legal protection per se.55 Because IOM has not accepted a rights mandate there is the potential that asylum seekers, refugees and other migrants will not be afforded appropriate procedural safeguards. In past research in Indonesia and the Pacific, Human Rights Watch noted IOM’s reluctance to fully commit to a rights-based approach. In particular asylum seekers in facilities managed by IOM in Indonesia told Human Rights Watch researchers that they felt they had not been provided adequate information about the status of their case and had been living in substandard conditions with inadequate medical treatment and no access to education facilities for children. Incidents such as these highlight the fact that IOM’s current practices in the field fall short of international standards. In fact, IOM recognizes that the organization “should contribute more actively to the promotion of migrants’ rights.” 56
The U.K. government seeks to divert accountability to the international organizations that would administer processing centers, in this case, IOM57 and / or UNHCR as well as to the countries hosting the centers. The European Commission Communication posed a question that implicitly recognizes the U.K.’s goal of avoiding jurisdictional responsibilities: “[c]ould they [asylum seekers] be kept as such outside the scope of the jurisdiction of the destination countries [e.g. Britain]?”
The U.K. government appears to believe that some redirection of responsibility could be achieved through tri-partite agreements between “destination, transit and origin countries.”58 However, even when the United Kingdom or other participating governments attempt to shift accountability to third parties, they retain an affirmative obligation to protect persons transferred to processing centers, otherwise, they may be complicit in abuses that occur.59 Asylum seekers, migrants, and refugees must be protected against refoulement both to and from processing centers, and be provided with adequate human rights safeguards.60 Moreover, the European Court of Human Rights has recognized that governments have an affirmative obligation to protect asylum seekers or other migrants from torture or other “inhuman or degrading treatment or punishment,” when sending an asylum seeker or any other migrant to a third state.61
According to the Draft General Comment on article 2 of the ICCPR by the Human Rights Committee, the body that monitors international compliance with the ICCPR, “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”62 The Draft General Comment further states that “the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons.”63 Since the processing centers would be set up at the behest of the U.K., Human Rights Watch believes that they would be “within the power and effective control” of the U.K. government. As a result, the U.K. may be responsible for any violations of the ICCPR that occur in the centers. The U.K. would also be responsible to guarantee the rights in the ECHR, in accordance with Article 1 of that treaty, to “everyone” within the centers.64 Given prevailing conditions in the countries already under consideration, discussed below in Part II, the U.K. may be liable for extremely serious abuses.
The U.K. or other European governments may be complicit in violations of human rights law where countries hosting the processing centers are unable or unwilling to afford asylum seekers adequate protection. It is a general principle of international law that a state may not avoid its international obligations by allowing a second state to commit acts that would be prohibited if committed by the first state. Article 15 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts of the International Law Commission states that
International law also extends responsibility for internationally wrongful acts to the conduct of non-state entities, such as the IOM or the UNHCR when those entities exercise elements of governmental authority.66 Even if the entity exceeds its authority or contravenes instructions, its conduct is considered an act of the state under international law if it is acting in a governmental capacity.67 If destination countries choose to contract with international organizations they will not escape international responsibility for human rights violations associated with these organizations’ conduct simply by delegating their duties regarding refugees to non-state or intergovernmental actors. E.U. countries will still be responsible for the individuals they return.
15 Blair-Simitis Correspondence at para. (1) (ii).
16 Blair-Simitis Correspondence at para. (1) (iv).
17 Blair-Simitis Correspondence at para (1) (iv).
18 Blair-Simitis Correspondence at para (1) (iv).
19 Blair-Simitis Correspondence at para. (1) (i), (ii).
20 Blair-Simitis Correspondence at para. (1) (ii).
21 The Executive Committee of the High Commissioner’s Program (“ExCom”) is UNHCR's governing body, of which the United Kingdom is a member. Since 1975, ExCom has passed a series of Conclusions at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. While the Conclusions are not legally binding, they do constitute a body of soft international refugee law. They are adopted by consensus by the ExCom member states, are broadly representative of the views of the international community, and carry persuasive authority. Since the members of ExCom have negotiated and agreed to their provisions, they are under a good faith obligation to abide by the Conclusions.
22 Between 1979 and 2000, the ExCom passed fourteen Conclusions citing the need for international responsibility-sharing to assist host countries to cope with mass influxes of refugees. The Conclusions also stipulate the fundamental obligation of first countries of asylum to keep their borders open to refugees and to provide them with full refugee protection on at least a temporary basis, while being assisted in meeting that obligation with financial assistance from other governments.
23 Commission of the European Communities, Communication from the Commission to the Council and the European Parliament, June 3, 2003 (COM(2003) 315 final), p. 6.
24 International customary law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation.
25 Universal Declaration of Human Rights, Article 14.
26 Blair-Simitis Correspondence at para. 2.
27 Blair-Simitis Correspondence at para. entitled “legal framework”.
28 Commission of the European Communities, Communication from the Commission to the Council and the European Parliament, June 3, 2003 (COM(2003) 315 final), p. 6.
29 UNHCR Position on Readmission Agreements, 1994, para. 3; UNHCR Note on Treatment at Port of Entry, 1991, para. 3.
30 Blair-Simitis Correspondence at para. 3 under heading “background and aim.”
31 UNHCR Division of International Protection Internal Memo, May 2002, quoted in Guy S. Goodwin-Gill, “Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-penalization, Detention, and Protection,” UNHCR Global Consultations, October 2001, fn. 15, at http://www.unhcr.ch/cgi-bin/texis/vtx/home.
32 See UNHCR, "Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers," February 1999, p. 1, at http://www.unhcr.ch/cgi-bin/texis/vtx/home. (Revised Guidelines).
33 UNHCR Revised Guidelines.
34 See Womah Mukong v Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991, August 10, 1994.
35 See Refugee Convention, Article 26.
36 See UNHCR, Policy on Refugees in Urban Areas, December 12, 1997, para. 3.
37 U.N. Human Rights Committee Working Group on Arbitrary Detention, Deliberation No. 5, Principle 7.
38 Ibid, Principle 8.
39 Ibid, Principle 3.
40 Commission of the European Communities, Communication from the Commission to the Council and the European Parliament, June 3, 2003 (COM(2003) 315 final), p. 6.
41 Blair-Simitis Correspondence at para. (2) and para. entitled “legal framework”.
42 Human Rights Watch, By Invitation Only: Australia Refugee Policy, Vol. 14, No. 10, December 2002.
43 Human Rights Watch, Hidden in Plain View: Refugees Living Without Protection in Nairobi and Kampala, November 2002.
44 Human Rights Watch, Living in Limbo: Burmese Rohingya in Malaysia, Vol. 12, No. 4, August 2000.
45 Human Rights Watch, By Invitation Only: Australia Refugee Policy, Vol. 14, No. 10, December 2002.
46 Human Rights Watch, Unwanted and Unprotected: Burmese Refugees in Thailand, Vol. 10, No. 6, September 1998.
47 See “Follow-up on Earlier Conclusions of the Sub-Committee on the Determination of Refugee Status, inter alia, with Reference to the Role of UNHCR in National Refugee Status Determination Procedure,” UN Doc. EC/SCP/22, August 23, 1982.
48 For an explanation of UNHCR’s ExCom, see note 21, above.
49 The Training Module states that it is to be used by “UNHCR and government personnel involved in refugee status determination procedures in the field.” In addition, the module advises decision makers that they “should never forget that being recognized – or not – as a refugee will have direct implications on the life and well-being of the applicant and his or her family. This places a heavy burden of responsibility on the person conducting the interview whether or not this person is the final decision maker.” See UNHCR, Training Module on Interviewing Applicants for Refugee Status, 1995, p. iii.
50 See UNHCR, Refugee Status Determination Handbook para. 192(i).
51 UNHCR, Status Determination Handbook at para 205 (i).
52 See UNHCR, Training Module: Interviewing Applicants for Refugee Status, 1995, p. 55 (noting that “a useful technique is to read back or go over those parts of the claim which remain unclear.”).
53 Originally the Intergovernmental Committee for European Migration (ICEM), it was founded in 1951 and has assisted eleven million refugees and internally displaced persons to return or resettle since that time.
54 IOM Legal Services, “IOM and Effective Respect for Migrant Rights,” November 1997 (stating that “[i]n international law, protection is based on a mandate, conferred by treaty or custom, which authorizes an organization to ensure respect of rights by States. . . .IOM has no such mandate, and thus is not concerned with legal protection per se”).
56 IOM Legal Services, “IOM and Effective Respect for Migrant Rights ,” November 1997
57 Blair-Simitis Correspondence at para (2).
58 Blair-Simitis Correspondence at para (1).
59 Legomsky, p. 44, stating “no state should be allowed to assist another state to do what international law would forbid the first state from doing on its own. Otherwise, the first state would be an accomplice to the misdeed committed by the second state.”
60 “UNHCR has repeatedly stressed that the 1951 Convention prohibits not only direct refoulement to the country of origin, but also indirect, or ‘chain’ refoulement to third countries that in turn will refoule to the country of origin.” Stephen Legomsky, “Secondary Movement of Refugees and the Meaning of Effective Protection,” UNHCR Global Consultations, p. 44, citing to UNHCR Position on Readmission Agreements, 1994, para. 3; UNHCR Note on Treatment at Port of Entry, 1991, para. 3.
61 See Chahal v. the United Kingdom (70/1995/576/662) (1996); Soering v. United Kingdom (1989), 11 EHRR 439; Explanatory Memorandum to Recommendation No. R (97)22, Council of Europe “Guidelines on the Application of the Safe Third Country Concept,” 1997, para. 11, athttp://www.cm.coe.int/ta/rec/1997/ExpRec%2897%2922.htm.
62 UN Press Release, Human Rights Committee, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant: Draft General Comment on Article 2” Oct. 29, 2002.
63 UN Press Release, Human Rights Committee, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant: Draft General Comment on Article 2” Oct. 29, 2002.
64 See X v. Federal Republic of Germany, European Court of Human Rights, 1197/61 (holding that Sweden was responsible under the ECHR for its agent’s treatment of a Pole living in Germany); Bankovic v. Belgium et al, European Court of Human Rights, 52207/99 (stating that a government is extra-territorially responsible “when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.”).
65 Draft Articles on the Responsibility of States for internationally wrongful acts, adopted by the International Law Commission at its Fifty-third Session (2001)(extract from the Report of the International Law Commission on the work of its Fifty-Third Session), Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10, (A/56/10), Ch. IV.E.1), at http://www.un.org/law/ilc/texts/State_responsibility/responsibility_articles(e).pdf#pagemode=bookmarks (ILC Draft Articles).
66 Article 5 of the ILC Draft Articles states that “the conduct of a person or entity which is not an organ of the State… but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.”
67 “The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.” Article 7, ILC Draft Articles.