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Newszine
16 October November December 1999
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Summer of 99: Round 1
While the vicious Immigration and Asylum Bill is being pushed through
Parliament two very significant court cases have seen defeat for the
Home Secretary and given some hope for fairness and justice in asylum
procedure in the UK.
In the first judgement, of 23rd July, the Court of Appeal ruled that
the Home Secretary had acted unlawfully when he ordered three asylum
seekers, whose claims were based on fear of persecution by forces
other than the state, to be returned to France and Germany, where
they had been refused asylum or travelled through before applying
for asylum in the UK.
Lul Adab fled to Germany in August 1997 from Somalia where, as a member
of a minority clan, she feared persecution from another clan, who
had already killed members of her family and abducted her once before.
Her application for asylum was refused within two weeks. She then
escaped to the UK where her asylum claim was also refused. The Home
Secretary requested Germany, under the Dublin Convention, to reconsider
Lul's asylum claim. When Germany agreed the Home Secretary stated
that he was satisfied that Germany was a safe third country for her
to return to. Hamid Aitseguer escaped from Algeria to France in January
1998 and then on to the UK where, on arrival on 9th February, he claimed
asylum based on the persecution he and his family experienced from
terrorist groups in Algeria. Three days later the Secretary of State
asked France to accept responsibility to consider Hamid's claim and,
after they agreed to do so, he refused Hamid's claim and decided to
send him back to France. Sittampalan Subaskaran is a Tamil from Sri
Lanka. He was refused asylum in Germany in 1997, appealed and then
left and claimed asylum in the UK. His appeal in Germany was dismissed
in his absence, because his fear was of persecution by Tamil Tigers
and not the state.
Three Appeal Court judges decided that because of Germany and France's
interpretation of the Geneva Convention, according to which they do
not recognise non-state persecution as grounds for asylum, it was
not safe to send those fearing such persecution back to those countries
because they would be sent back to their country of origin.
This ruling is a minor blow to the 1999 Immigration and Asylum Bill
according to which all EU countries are deemed safe for the return
of asylum seekers. A minor blow because the ruling will not affect
the Home Secretary's powers to return asylum seekers fearing state
prosecution to EU countries. The ruling, to an extent, undermines
the Dublin Convention which restricts asylum seekers to one application
in the EU in their first country of arrival.
However, this ruling will affect 218 applications for judicial review
pending at the Crown Office, 194 relating to Germany and 24 relating
to France. The judges also decided that this is an issue which may
be decided irrespective of the facts of these particular cases and
they have refused Jack Straw permission to appeal to the House of
Lords.
Summer of 99: Round 2
The second positive development came in another court case on 29th
July. The High Court gave a landmark ruling in three test cases which
they have described as the "tip of the iceberg of aggravated
refugees". The judges decided that prosecution and imprisonment
of asylum seekers travelling with false passports is in breach of
article 31 of the 1951 Geneva Convention: that states shall not impose
penalties on refugees on account of their illegal entry and presence.
Article 31 is built into international law as a safeguard based on
the experiences of those fleeing Nazi persecution.
The asylum seekers who defeated Jack Straw in this case are: Chouki
Adimi, who fled from terrorists in Algeria, Dylan Sorani, a Kurdish
asylum seeker who was tortured in Iraq, and Astrit Kazui, former bodyguard
of ex-Albanian president Sali Berisha, who fled after the president's
fall in 1997.
They and many other refugees in the UK have been treated as criminals
for years just because they used false papers to escape from persecution
and torture. They were usually advised by their legal representatives
to plead guilty in order to get shorter sentence and were jailed for
six to nine months, punishment longer than for actual bodily harm,
indecent assault or burglary.
The Home Office must now re-open the cases of those who are currently
serving prison sentences for this 'crime'. Lawyers are confident that
those who pleaded 'guilty' can still have their case re-opened based
on this ruling. The ruling will not stop the authorities detaining
without charge asylum seekers travelling with false documents (under
the administrative powers).
The judges strongly rebuked the Home Secretary for ignoring Britain's
obligations under the Geneva Convention. Lord Justice Simon Brown
said that this was 'plainly a most unsatisfactory state of affairs'.
The judge rejected the Home Office argument that article 31 obliged
an asylum seeker to claim asylum 'where first he may' and he rejected
the claim that asylum seekers lose any right to protection unless
they claim asylum at the port of entry.
These are additional blows to the Dublin Convention and the Third
Country Rule as well as to the 1996 and 1999 Immigration & Asylum
Bills. It is this policy of considering those who do not apply at
port of entry or at the first country of 'safety' to be bogus, and
those who travel with false documents to be criminals, which accounts
for the increase in Home Office statistics of refusals or 'bogus'
claims. These statistics in turn fuel racism and xenophobia towards
asylum seekers and make it easier for governments to erode legal protection
and welfare support for refugees in the UK.
These are important rulings not only because they come at a difficult
and hostile time for asylum seekers, but they also point a finger
at official neglect and avoidance of Britain's obligations under international
law. Article 31 has been part of the Convention since 1951, but each
year many people who had already experienced trauma went to jail,
not only because successive British governments ignored that article,
but also because no one, until now, challenged their decisions and
practice adequately. The same could be argued for the first case which,
in its essence, is based on the provisions of article 33 (also in
the Convention since 1951) which ensures that states shall not expel
or return ('refouler') refugees to the frontiers or territories where
their life or freedom would be threatened.
Two articles of the Geneva Convention and two court rulings within
a week made headline news but did not stop the racist rhetoric of
the "Dover clashes" and "floods of refugees".
Every revision of immigration and asylum legislation in the last decade
has reduced legal protection for refugees as well as restricting their
access to free legal advice. The new Immigration & Asylum Bill
goes even further by restricting freedom of movement and other support
for refugees. No matter how favourable, these rulings come too late
and will do little for increasingly hostile public perception of asylum
seekers.
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