Why plans to remove African migrants are legally and mo...

Why plans to remove African migrants are legally and morally flawed.

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Blog Human Rights

Dr Helen O’Nions, Nottingham Law School

The International right to seek and enjoy asylum found in the Universal Declaration of Human Rights is now under considerable threat. EU leaders are thrashing out a plan to deport African migrants and to encourage departure states to strengthen their border control. Part of this plan includes an initiative suggested in 2003 by Tony Blair to outsource refugee processing beyond the relative safety of Europe’s borders.

Blair’s ‘New vision for Refugees’ was rejected by the majority of European leaders, the UNHCR and the European Commission for reasons which, if anything, have gained weight in the last decade as several African states have been exposed as failing to protect basic human rights in ways that could constitute persecution for the purposes of the definition in the International Refugee Convention. The allegations of torture, indefinite detention and compulsory, indefinite military service in Eritrea have been well-documented. In its 500 page report, the UN Committee of Inquiry identified the absence of the rule of law and accused the Eritrean government of crimes against humanity. Nevertheless, some European state representatives appear to have covertly entered negotiations with the Eritrean president to secure the return of ‘economic migrants’.

Whilst Eritrea may be an extreme example, torture by state authorities is common in other African countries. Last year Amnesty International commented on the use of torture in the Nigerian prison system.  Despite efforts to legislate by the House of Representatives there is still no effective law criminalising torture in the Nigerian penal system.  Amnesty International have also reported on torture of detainees, including children, in Mauritania. Torture has also been widely documented in detention centres in Libya where political instability prevents any effective accountability. This is not an exhaustive list by any means but it surely indicates that deportation is likely to lead to refoulement contrary to the Refugee convention and accepted universal human rights standards.

Returning to Blair’s vision. A key element of his proposal was the creation of Regional Protection Areas in their source region, particularly in the Southern Mediterranean. However Blair recognised the inherent risk that human rights would not be protected where conflict and poverty are often the norm. In their rejection of his proposals, the European Commission expressed concern that burden-sharing in refugee management would become burden-shifting, diluting accountability and potentially risking refoulement (Commission Communication ‘Towards more accessible, equitable and managed asylum systems’ COM(2003)315 final).

Blair also acknowledged the difficulty of persuading countries in source regions to allow Regional Protection Areas to be established. Both of these challenges are evident today. Human rights are not sufficiently protected in the Southern Mediterranean and consequently refugees would face an uncertain and unstable future. The right to seek and enjoy asylum would be severely compromised. Further, in reality the ‘persuasion’ of receiving governments will only be achieved through the allocation of substantial resources. Billions of euros and the promise of accelerating EU membership negotiations have so far been offered to Turkey to help them support an estimated 2.2 million Syrian refugees living precariously in camps. It seems probable that Turkey’s own human rights record will move down the accession agenda, potentially undermining the European Union’s founding objectives of creating a Union characterised by respect for human rights, equality, democracy and the rule of law (Treaty of the European Union, art 2).

Whilst it is highly unlikely that Eritrea and Libya would be selected as partners for refugee management initiatives, it is difficult to see where the EU will target their attention and resources. Morocco has also been accused of torturing detainees by a recent Amnesty International investigation. The report identified the political commitment to a liberal, democratic and tolerant society which is likely to be music to the ears of proponents of cooperation. However, having scratched beneath the surface there were significant human rights abuses which were not taken seriously by the state. Most worryingly in some cases, slander and false reporting laws were used to prosecute victims of torture who raised their complaints with the authorities. Under these circumstances Moroccan cannot be deemed a suitable partner.

If morally the case for outsourcing refugee management is questionable, legally it is equally problematic. European human rights obligations, including the absolute prohibition against torture or inhuman and degrading treatment, make it impossible to remove a person without first examining their claim for asylum (Gebremedhin v France 2007). They also make it impossible to escape responsibility for the actions of a receiving state where there is information available to suggest that the receiving state does not or cannot protect the deportee from further human rights violations (MSS v Belgium and Greece 2011; Hirsi Jamaa v Italy 2012). The only way summary deportation could be legally compliant would be if the European Convention on Human rights, which protects the fundamental rights of all those living in Europe, was substantially revised. The right of a refugee to seek asylum in a country of safety is thus of interest to all of us who seek to live in relative security and safety.

Dr Helen O’Nions is author of ‘Asylum: A Right Denied’ Ashgate 2014.
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