The immigration laws in the UK are becoming more stringent, and people are losing faith in the significance of what the law permits and forbids. The UK government’s refoulement (forced return) policy, a political arrangement to send asylum seekers from the UK to Rwanda to have their claims investigated and approved there, was ruled illegal by the UK Supreme Court last month in R v Secretary of State for the Home Department. It did so on the narrowest, most substantial legal justification conceivable: the prohibition of refoulement in international law. International law forbids sending someone back to a situation where they run the risk of torture, cruel, inhuman or humiliating treatment, or other serious harm.
This widely accepted standard is the cornerstone of the 1951 UN Convention relating to the Status of Refugees (UNCSR) and the international legal system governing human migration. The government so blatantly broke this agreement that the Court felt compelled to state so. The UK government has indicated that it will merely legislate Rwanda’s status as a safe third country. Additionally, it will withdraw from several international agreements that require it to uphold the non-refoulement principle. This will let it ignore the law and its bothersome requirements.
The UK’s externalization of asylum
British Prime Minister Rishi Sunak may have made these remarks as a political ploy ahead of the country’s next election. After all, immigration control has been one of the most contentious political issues of our day, if not the most. As an electoral tactic, it has successfully fanned xenophobic concerns while offering no substantive answers to the migration problems in the UK’s asylum externalization.
Some could argue that this kind of deliberate illegality is nothing new. Liberal-democratic constitutional governments have long been known for their flaws. These include extreme hypocrisy, breaking norms, weaponizing migration ideals and dehumanizing migrants’ standards — the same ones they are obligated to uphold. This may occur visibly or more covertly. It has mainly been the case when they deal with people who, in their view, belong beyond the purview of their legal frameworks.
When we take a broader view of the UK situation, we see that the asylum and immigration mess results from more extensive issues. These may also be seen in the EU’s agreements with Turkey, Libya and Tunisia. Further, the issues appear in the EU’s attempts to distance itself from the violations of human rights, drownings and other tragedies that occur within its borders.
After the Supreme Court rejected the Rwanda plan, Suella Braverman, the sacked home secretary, increased the pressure on Sunak to disregard human rights legislation. Recognizing that there is little hope of halting the boats within the current legal framework, Braverman has asked for revisions to her own Illegal Migration Act to resuscitate the Rwanda deportation system. Braverman’s politics are not limited to the UK; they are prevalent throughout Europe, Oceania and the Americas.
Erica Feller, a former United Nations High Commissioner for Refugees (UNHCR) Assistant High Commissioner for Protection, highlighted the broader threat such politics pose to refugee protection. Refugee protection is a global concern and a common trust. It means that it is a shared responsibility, not an individual one. Unless it is shouldered widely, it may be borne by none as a normative standard.
Until recently, the duplicity of these liberal-democratic states was accompanied by a persistent (though flimsy) conviction that the law’s constraining force was still necessary. The law has always been put to the test, twisted and molded, and its principles have been stretched, distorted and abused. But there was still an underlying belief in the liberal legal orders that the law’s prohibitions and authorizations would matter. They would play a crucial role in how we treat others and ourselves.
To guarantee states’ commitment to some hard-won European refugee protection principles, this role was used for executing governmental authority and as an instrument for setting its lawful boundaries. In my view, some of the democratically elected political leaders, as well as the UK’s public opinion and their electors, have lost this dual understanding of the law’s purpose. Rather than being seen as an essential component of effective governance, the law’s regulating and restraining role seems increasingly to be a barrier and blow to it. This is especially true in immigration control, where legislative limitations on the government’s authority are being violated or legislated over.
Sunak is, in fact, in excellent company. The Italian government’s detention has likewise demonstrated a great deal of passion for disobeying the boundaries of the law, and it reacts angrily to courts’ attempts to enforce them. To some extent, the EU has also started to play the same game. The regulatory power of the law is diminished each time enduring legal precepts are codified into new procedures and reception directives.
Good governance vs. immigration control
This rejection of the law as a tool of authority, limiting force and regulatory ideal seems to stem partly from the definition of good government being established within the framework of immigration control. A liberal constitutional framework prohibits good government from being defined by convenience or efficiency, nor can it include any governmental goal that most people find acceptable. In the age of globalization, liberal constitutional democracy has been under attack from the inside. The perspectives of illiberalism, populism and authoritarianism have attacked it further. We demand that normative standards of freedom, equality and human dignity constrain the goals and actions of the government. That is the yardstick by which we judge, or ought to consider, the goodness of each government action and its underlying goal.
It is worth emphasizing that we did not choose these principles randomly. Despite potential hypocrisy in liberal legal systems and their problematic application, we deliberately incorporated these principles into our constitutions. We have seen firsthand the devastation that results from simultaneously deregulating political power and concentrating it in the hands of a minority.
For immigration control, however, good governance is defined in a way that denies the cultural, ethnic and religious richness and diversity that characterize our political communities. Governments like the UK’s even view that as a threat. The pursuit of universal equality and human dignity is no longer what good governance means in this regard. Instead, the purpose of government is to serve “us” at all costs. It makes no difference whether this cost comes in the form of invaluable human lives lost or a more intangible cost to the values by which we live — this is ultimately the price we must pay to protect what is right, and “right” is now what benefits us rather than the ethereal concepts of equal human dignity.
This form of ethnonationalist thought has probably never wholly vanished from the political and judicial spheres following World War II. Instead, it has consistently existed in the background, patiently awaiting an opportunity to resurface in the European shared political consciousness since the first European migration crisis was heralded.
The fallacy of Anglo-American human rights principles
Since then, ethnonationalism has undoubtedly grown in visibility, audacity and boldness in the demands it makes of the government. Along with it, we have witnessed the rise of a new kind of deliberate illegality, a rejection of the law, which is viewed as both a regulatory ideal and a tool of political power. This logic leads to inhumanity and human suffering, as seen in the recently revealed immigration program by former US President Donald Trump. His commitment to resurrecting and extending programs like family separation, Muslim bans, mass deportations, militarized borders and enormous mass detention camps is consistent with his criticism of the law as a restraint on governmental power.
Sadly, Germany has also shown itself to be vulnerable to the perils of similar reasoning. German Chancellor Olaf Scholz remarked that the nation should finally stand firm in deportation — that Germany being tough does not make it heartless. Scholz would do well to embrace the law as a restricting factor and a tool for policy-making, even if it happens to forbid the exact toughness he aims to impose. This would prevent inhumanity from becoming the pattern for Germany’s immigration policies.
Will the Rwandan deal be stopped?
The UK Supreme Court has declared its own government’s “cash for humans” agreement with Rwanda to be highly unethical and illegal. The continuous attempts to externalize asylum and indefinitely detain asylum seekers are violations of non-refoulement and the UNCSR. Thousands of torture survivors are stuck in the massive asylum backlog, unable to reconstruct their lives or recuperate. The UK government should concentrate on eliminating this backlog before enacting cruel policies that violate their moral and legal obligations.
The agreement was fierce and misguided, especially because Rwanda has a history of grave human rights abuses. These include torture, arbitrary incarceration and the suppression of free speech. The arrangement with Rwanda and the Illegal Migration Act ought to be scrapped by the new home secretary, James Cleverly. Only then will decency prevail.
[Lee Thompson-Kolar edited this piece.]
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
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