by Kathryn Allinson, Lecturer in Law, University of Bristol
Afghans constitute the second largest refugee population in the world with 2.6 million Afghan refugees registered globally. After almost continuous armed conflict since 1978, many of these individuals are in a ‘protracted refugee situation’ having been in refugee camps for over 40 years without access to what the United Nations High Commissioner for Refugees (UNHCR) calls ‘durable solutions’ (resettlement, return or local integration – see UNHCR Global Trends Report 2018 p.22 and 27). However, the recent escalation in the crisis in Afghanistan has seen the numbers of people being displaced reaching over 330,000 since the start of this year, according to UNHCR. Numbers of newly displaced persons are expected to rise to 500,000 over the coming weeks.
In response, the UK government have announced a new Afghan Citizens’ Resettlement Scheme. This commits to welcome up to 5,000 Afghans to the UK in the first year, with up to a total of 20,000 in the long-term. Boris Johnson has claimed this is amongst the most generous schemes in the UK’s history (read Kenan Malik’s interrogation of this claim here). Under the scheme, priority will be given to women and girls, and religious and other minorities. In addition, the government is committing £30 million to Afghanistan’s neighbouring countries to help those who choose to leave Afghanistan during the crisis.
Whilst the scheme is better than nothing, it diverts attention from the UK governments Nationality and Borders Bill which represents the governments true policies towards refugees and asylum seekers. The Bill, which is currently before Parliament and a new draft is expected in the coming weeks, penalises those who enter the UK ‘illegally’ (i.e. without leave under Section 24 of the Immigration Act 1971). It sets outs that such individuals will be penalised in their asylum claims. If they are successful, they may only be granted temporary status, not a right to settle, despite being recognised as refugees. Further, they will suffer an increased penalty for entering illegally and may be sentenced for 4 or 5 years imprisonment. This is in direct contravention of Article 31 of the 1951 Refugee Convention (and this is acknowledged in Parliamentary briefings). Clause 34 defines the terms “coming directly” and “present themselves without delay” used in Article 31(1) restrictively in order to broaden the scope of penalisation.
The offer to resettle 5,000 people, out of the 330,000 displaced persons from this year alone, will be a drop in the ocean of the support required to address the refugee situation from Afghanistan. There will be thousands of people seeking refuge across the region and some will make the perilous journey to Europe, and eventually to the UK. If the Bill passes in its current form, this will mean that Afghan refugees who arrive in the UK, outside of the scheme, risk being criminalised and their asylum claims will likely be rejected. It drastically limits the mechanisms for people to seek protection in the UK outside of government approved schemes. The Nationality and Borders Bill poses a huge threat to refugee rights in the UK.
In addition, the Bill undermines the obligations of non-refoulement under international refugee and human rights law. Article 33 of 1951 Refugee Convention provides that ‘no one shall be sent back to a state where he or she is at risk of persecution.’ This principle of non-refoulment is thus protected in international refugee law but is also a non-derogable obligation under international human rights law and considered to have customary law status. However, if Afghan’s are denied protection in the UK under the New Bill, then the UK government will be seeking to return them to Afghanistan in direct contravention of this principle. The UNHCR have issued a non-return advisory opinion demonstrating the reality of the threat of refoulment should Afghan’s be returned.
The £30 million promised to neighbouring countries may well represent an admirable contribution to aid those countries in responding to the increased numbers of refugees. The Global Compact on Refugees calls for greater burden sharing and part of this is more equitable support from States outside the region of displacement to countries of asylum, like Iran and Pakistan (see page 12). However, Iran and Pakistan have supported the majority of Afghan refugees in protracted displacement for the last 40 years whilst offers of funding to support them have been falling. Until May of this year UNHCR’s financial appeal for Afghanistan was only 24 per cent funded. With a sudden growth in movement, the limited offering of resettlement places coupled with a sudden outpouring of funds demonstrates the desire of countries, like the UK, to ensure that refugee flows do not meet their shores. Financial support to neighbouring countries ensures refugees are encamped within their region. These policies of externalisation have been demonstrated across Europe in recent years, with pushbacks to Libya in the Mediterranean and the EU-Turkey deal.
Finally, there is no coherent plan for addressing the Afghan refugee crisis. Contrary to the commitments made with the Global Compact on Refugees (See section 3) and found in the 1951 Refugee Convention (articles 35 and 36), States, including the UK, continue to make unilateral offers of support failing to cooperate to share the burden of addressing this large-scale flow of refugees. As experience has taught us, ad-hoc arrangements do not result in sustainable solutions to such situations. This is precisely the situation the Global Compact was written to address, yet States continue to ignore the framework and calls by UNHCR to address the crisis together.
In the short term, the UK government must expand eligibility for family reunion enabling family members who have relatives in the UK to travel safely to join them. Further, the Home Office must suspend any returns of people to Afghanistan, and quickly decide all asylum claims from Afghans who have arrived in the UK independently, including reviewing claims by those who have previously been refused, to avoid breaching non-refoulment obligations. In the longer term, the Borders and Nationality Bill must be re-drafted to ensure that individuals with a legitimate claim to asylum can apply for refugee status, and protection, without the threat of criminalisation or penalisation based upon their method of entering the UK, in line with international refugee law.