STATELESSNESS:
the quiet torture of belonging nowhere
A book about people who are not accepted in any country, their lives, the solutions
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Statelessness: the quiet torture of belonging nowhere
Coventry Peace House
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Contents Preface
Published June 2008 by Coventry Peace House, 311 Stoney Stanton Road, Coventry, CV6 5DS Printed in the UK
i
Introduction
iii
1 Global statelessness Overview International law
1 14
2 Life In Britain The asylum process Destitution Detention Criminalisation Deportation Alternative process Human rights
21 23 25 26 31 39 45
3 The power of the state History Immigration control Borders Nationality and ethnicity
55 59 62 68
4 What is being done about statelessness? International action Action in Europe Action in Britain
77 86 88
5 Conclusion and course of action
103
Bibliography
107
Addenda
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i
Preface This book has been written to give a voice to some of the excluded people who are not accepted in British society and cannot go to any other country. They are stateless. It also looks at groups of people throughout the world who are deprived of normal life because no country will accept their right to exist within their borders. We need to change both the attitudes and the laws which allow this situation to exist. It is a gross violation of human rights. This is not a comprehensive journal. It is written by people who have found out about statelessness from stateless people themselves whom we have been privileged to know. It is a beginning. We welcome others who can tell us more, please update us with developments and join our campaign. We apologise to the many people who are doing excellent work whom we failed to include. Our special thanks go to Amen, Tony, Sarah, Andy, Catherine, David, Mary, Mohammed, Jerome, Gabor, Caroline, Omar, Elettra, Penny, James, Adil, Linus, Basheer, Koel, Darren, Cathy, Beth, Yossef, Alicja, Nawab, Andrea, Alan, Rashid, Martin, Indrani and all those who support us.
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Introduction Migration is a crucial issue of our time. It is not new. People have always travelled but in the last 100 years there have been more and more restrictions placed on migration and today in Britain the issue of migrants is in the news on a daily basis. Whether people are ‘forced’ migrants ie. refugees, or ‘economic’ migrants, they are usually fleeing war, persecution or poverty. People who are happy, healthy and safe do not need to leave their country. Climate change already affects millions of people, causing natural disasters such as the cyclone in Burma and food shortages through drought and flood. The effects of climate change will continue to develop, making the world more and more unequal in terms of wealth and more unstable as competition for resources produce greater tensions. How we relate to each other as global citizens is pivotal to the future of the world. How we respond to migrant needs is a good test of that. This book looks at how we respond to people in Britain who have come here in search of safety and have been refused but cannot return. It is set within a European and a global context. It looks at big refugee camps in Bangladesh and lone individuals on the streets of Coventry. It looks at international conventions and domestic law and the actual processes around those agreements. It looks at the harsh abuse of human rights for the excluded people who are stateless wherever they are.
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Though largely hidden, statelessness is being addressed in some measure by organisations like UNHCR (United Nations High Commission for Refugees) and by various refugee and campaigning bodies like the Joint Council for the Welfare of Immigrants and Still Human, Still Here. There is still a lot to be done and the book recommends actions for change by the British government and by the individual reader. A good place to start is by learning more about the issue…………..
1 Global statelessness Overview UNHCR (United Nations High Commission for Refugees) is the major agency working to reduce statelessness worldwide. The following overview of global statelessness is taken from their website: Nationality is a legal bond between a State and an individual, and statelessness refers to the condition of an individual who is not considered as a national by any State under its domestic law. Although stateless people may sometimes also be refugees, the two categories are distinct. Statelessness occurs for a variety of reasons including discrimination against minority groups in nationality legislation, failure to include all residents in the body of citizens when a State become independent (State succession) and conflicts of laws between states. Statelessness is a massive problem that affects an estimated 15 million people in at least 60 developed and developing countries. Statelessness also has a terrible impact on the lives of individuals. Possession of nationality is essential for full participation in society and a prerequisite for the enjoyment of the full range of human rights. While human rights are generally to be enjoyed by everyone, rights such as the right to vote and the unrestricted right to enter and reside in a State
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may be limited to nationals. Of even greater concern is that many more rights of stateless persons are violated in practice: they may be detained for the sole reason that they are stateless, denied access to education and health services, or blocked from obtaining employment.
The definition above refers mainly to people known as de jure stateless – that is stateless in law. There are also people who are de facto stateless who cannot establish their nationality or who have no effective nationality. Sometimes nationality is taken to mean citizenship. Ethnicity is a different form of identity and refers more to family and cultural heritage. The following case study is an example of de jure statelessness in Bangladesh.
Statelessness and the Rohingya A case study by Darren Middleton The Rohingya are a Muslim minority numbering some
725,000
and
inhabiting
North
Arakan
(Rakhine) State in Burma, adjacent to Bangladesh (Lewa, 2008: p. 40). In Burma, the Rohingya are denied effective citizenship and experience severe restrictions on their freedom of movement and are subjected to various forms of extortion and arbitrary taxation, land confiscation, forced eviction and house destruction, marriage restrictions and forced labour on roads and military camps (Amnesty International, 2004; Human Rights Watch, 2000). The Burmese government does not view the
Rohingya as citizens but rather as illegal immigrants from Bangladesh (UNHCR, 2007a: p.37). In 1991/92, some 250,000 Rohingya arrived in Bangladesh, with the Government of Bangladesh (GoB) granting prima facie refugee status then favouring swift repatriation; between 1993 and 1997 some 236,000 refugees were repatriated amid accusations of coercion (UNHCR, 2007a: p.12). Approximately 26,300 remain in two UNHCR administered refugee camps, in Kutupalong (10,000) and Nayapara (16,000). UNHCR have long operated a care and maintenance programme for registered refugees in the camps, who live without freedom of movement, without permission to work and with only limited access to education. However, those in the camps represent only a small proportion of the total Rohingya in Bangladesh. A significant number previously repatriated have subsequently returned to Bangladesh, known as ‘double backers’ or ‘reverse cases’. Bangladesh has not ratified the 1951 Convention and the GoB has refused to recognise as refugees any Rohingya arriving after 1992 and has prohibited their access to the official camps. The GoB estimate that there are between 100,000 and 200,000 Rohingya living ‘illegally’ in the community (UNHCR, 2007: p.8). In the area surrounding Teknaf town, Rohingya living in the community have been evicted into a makeshift camp where approximately 8,000 live in squalid conditions without any assistance, with the exception of basic health services from Médecins Sans Frontières (MSF) (MSF, 2007). The makeshift camp is sandwiched between a busy road and the Naf River, so that children suffer in road accidents with passing vehicles and an estimated 10 per cent
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of shelters are affected by water at high tide, whilst during the rainy season MSF estimate that 79% of shelters flood (ibid). Related to dangerous water, sanitation and hygiene conditions, MSF have identified health problems of respiratory tract infections, diarrhoea and worms; plus malnutrition (ibid). After lobbying by the international community, the GoB has agreed to relocate the makeshift camp to a safer site (UNHCR, 2007a: p. 36); this relocation is expected shortly. Whilst I was an intern at the Refugee and Migratory Movements Research Unit (RMMRU), working with Rigan Chakma, we undertook fieldwork in the makeshift camp. We conducted semi-structured interviews with 19 Rohingya, including eight women. We found that people valued the relative peace, safety and security that the makeshift camp offers. However, interviewees experienced severe difficulties with meeting basic needs of food, shelter and water. Their key demand was to be registered as refugees. Interviewees revealed a strong emphasis on return migration, but essential before this could be considered would be substantive change in Burma with the Burmese government willing to accept the Rohingya as citizens. A durable solution for the Rohingya will ultimately involve restoration of the link between state and citizen. UNHCR’s mandate includes preventing and ending statelessness around the world, and Burma has the largest UNHCR program of assistance to stateless persons (UNHCR, 2007b). Following a five year effort by UNHCR, identity documents are now being provided to an initial 35,000 Rohingya in Burma, with more to follow. UNHCR have found that the Burmese government prefers to call the Rohingya ‘residents of Rakhine state’ rather than ‘residents of
Myanmar’, as it does not wish to imply that they have the right to live anywhere in the country (ibid). The GoB has consistently advocated repatriation as the only available durable solution for the Rohingya, refusing to consider any notion of local integration, citing the severe social and economic challenges it faces caring for its own citizens (UNHCR, 2007a: p. 8). However, only three refugees requested repatriation in 2006 and UNHCR does not currently promote voluntary return to Burma due to the continued protection risks (ibid: p.36). The strategic use of resettlement for camp based refugees commenced in 2006, with Canada resettling an initial 23 refugees and a further 79 in 2007, whilst both New Zealand and the UK have confirmed that they will resettle Rohingya refugees from Bangladesh in 2008 (Phiri, 2008: p. 35). However, resettlement is expected to remain as a solution for only a very small number of registered refugees. According to UNHCR, the GoB has recently demonstrated an increased openness to working with international partners in resolving what has now become one of the most protracted refugee situations in the world (UNHCR, 2007a: p.8). UNHCR have advocated that the need for a comprehensive strategy for Rohingya refugees encompassing self reliance pending voluntary repatriation and resettlement has become acute (ibid: p.36). Key UNHCR targets for 2008/2009 are: increasing the capacity of registered refugees in the camps to meet their own socioeconomic needs and reducing their dependency on food rations; and the establishment of a joint UN development programme to support large numbers of both registered and unregistered
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Rohingya (UNHCR, 2007c: p.229). A community development initiative was launched in 2006 by ten international agencies, aiming to improve key development indicators in the Cox’s Bazar district, where 50% of the local population live in extreme poverty, 75% of children under 5 are underweight and access to drinking water is well below the national average. Cox’s Bazar district is an area heavily populated by Rohingya. The project aims to enhance the absorption capacity of local communities vis-à-vis ‘self-settled’ Rohingya and eventually camp based refugees once restrictions on movement outside the camp are relaxed. UNHCR views the project as a pragmatic response to the protection gaps facing Rohingya outside the camps (UNHCR, 2007a: p.15).
References
UNHCR (2007a) Bangladesh: Gaps in the Protection of Rohingya Refugees posted on www.unhcr.org UNHCR (2007b) Myanmar: UNHCR Promotes First Significant Steps Towards Citizenship for Disenfranchised Minority UNHCR News Stories, 23rd July, posted on www.unhcr.org UNHCR (2007c) UNHCR Global Appeal 2008-2009 posted on www.unhcr.org
Darren Middleton has worked with refugees in Coventry for the last eight years. During a recent sabbatical he was an intern at the Refugee and Migratory Movements Research Unit in Dhaka, an internship under the auspices of the Development Research Centre on Migration, Globalisation and Poverty at the University of Sussex. Rigan Chakma
Amnesty International (2004)
of the Young Researcher’s Forum worked as a
Myanmar, the Rohingya Minority: Fundamental Rights Denied
research assistant in the makeshift camp.
AI Index: ASA 16/005/2004, posted on www.amnesty.org Human Rights Watch (2000) Burmese Refugees in Bangladesh: Still no Durable Solution 12(3), HRW Index No.: C1203, posted on www.hrw.org/reports/2000/burma/ Lewa, C. (2008) Asia’s New Boat People Forced Migration Review, 30, pp. 40-42, posted on www.fmreview.org MSF (2007) Tal makeshift camp: no one should have to live like this. The Rohingya people from Myanmar seeking refuge in Bangladesh MSF Briefing Paper, May 2007, posted on www.msf.org Phiri, P. P. (2008) Rohingyas and Refugee Status in Bangladesh Forced Migration Review, 30, pp. 34-35, posted on www.fmreview.org
The circumstances leading to the Rohingya being stateless cover several issues. An important factor is that the British colonized Burma in a series of three wars beginning in 1824 and administered Burma as a province of India, thus migration to Burma was considered an internal movement. The Burmese government still considers, however, that the migration which took place during British rule was illegal, and it is mainly on this basis that they refuse citizenship to the majority of the Rohingya. They consider them not to be an ethnic group of Burma. Problems with the Islamic religion are also an important factor for the government.
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million people who fall under the category of ‘perpetual refugees’. At over three million, Palestinians top the list. They have been in camps for so long – over 50 years – the UNHCR does not even include them in their overall figures. And over 1 million Afghanis have been in Pakistan for 26 years. Even being stateless for a short time in a refugee camp is a very difficult experience and there is no knowing when it will end. The following report from the UNHCR website dated 15th February 2008 describes clearly the problems which can occur in getting to a camp in the first place.
Refugee camps As can be seen from the experience of the Rohingya, refugee camps which are set up as temporary shelters often become permanent homes for people. The website ‘millionsoulsaware.org’, which raises international awareness on important social issues through the internet, currently features 700 refugee camps worldwide on an interactive site. They explain how ‘perpetual refugees’ have no safe home to return to, or cannot be resettled in other countries due to the restrictive asylum policies of other nations. Aid workers call this protracted stay ‘warehousing’ and define it as ‘populations of 10,000 or more restricted to camps or segregated settlements, or otherwise deprived of basic rights five years or more.’ Globally, according to USCRI (U.S. Committee for Refugees and Immigrants) there are an estimated 7.8
Armed group prevents relocation of newly arrived refugees in eastern Chad ABECHE, Chad, February 15 (UNHCR) – The UN refugee agency was on Friday trying to resolve the plight of thousands of Sudanese refugees stuck just inside eastern Chad after armed men refused to permit their relocation to camps. Some 8,000 people have crossed into Chad over the past week to escape deadly militia attacks on their homes in Sudan’s West Darfur region. When UNHCR and its partners tried on Tuesday to begin moving the refugees to one of the 12 camps the agency runs in eastern Chad, the unidentified gunmen prevented the relocation, giving no reason for their action. UNHCR has several trucks ready to begin the relocation and is awaiting a greenlight from the central authorities. The refugee agency is worried about the health and safety of the refugees; at least one person has died from the cold conditions at night in the past 48 hours.
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The joint UNHCR-led humanitarian mission on Tuesday, which had located scattered groups of very poorly refugees in the border area of Birak on Sunday, found 179 refugee families (about 1,000 people) ready to be picked up in Figuera as earlier arranged. The plan was to start moving the first group to Kounoungou camp in Guereda, some 90 kilometres to the north-west, but the refugees – 70 percent of them women and children – were prevented from boarding the trucks by the armed men. The team pledged to come back within a few days with relief supplies. The UNHCR-led mission then moved on to another location to collect refugees but found they had moved away, scared by rumours of imminent attacks by janjaweed militia. ‘The humanitarian situation of these people is disastrous,“ said Jorge Holly, head of UNHCR’s field office in Guereda. ‘These people are terrified. Our team found a large number of unaccompanied minors and separated children among them. Women reported having been raped in Darfur.’ Many of the new arrivals around Birak were already internally displaced in West Darfur and had been living in camps for internally displaced people (IDP). The UNHCR office at El Geneina in West Darfur is reporting that many IDP families who did not flee to Chad are reporting missing children in the area of Sirba. ‘With the help of ICRC [International Committee of the Red Cross] on both sides of the border, we will do our best to reunite them with their families as soon as possible.’ Holly said. In Darfur, several inter-agency missions undertaken this week have been able to confirm that thousands of people were displaced in the Sirba, Seliah and Abu Suruj area after air and ground attacks last weekend. The
population of the three villages located 50-70 kms north of El Geneina had fallen from 30,000 to around 6,500. Homes had been torched and livestock stolen, the teams found. Humanitarian agencies have delivered food and nonfood assistance to those remaining in these villages. UNHCR has this week provided relief aid to people who fled from Abu Suruj to Armankul village due to the fighting, including some 1,500 refugees from Chad. Additional inter-agency missions are planned in the next few days to other villages. Meanwhile, another UNHCR team on Thursday visited the eastern Chad border area of Koruk, where several thousand refugees are scattered. The team found some refugees who had managed to flee with food, animals and household items, but other groups had nothing. Some families reported being attacked and robbed by janjaweed on their way to Chad. There are an estimated 8,000 newly arrived refugees in the Birak and Koruk areas. ‘We face some tough logistical challenges in getting the refugees quickly away from the border and are planning in the meantime to concentrate the new arrivals in two to three locations to make giving immediate assistance easier. MSF-Suisse, ICRC as well as UNHCR and its partners will be present. UNHCR’s Pagonis said in Geneva. Basic items like sleeping mats, blankets, jerry cans and soap will be distributed and tents set up to provide basic shelter this weekend. The World Food Programme will hand out food. Before this latest influx of refugees, UNHCR and its partners were caring for 240,000 refugees from Darfur in the 12 camps in eastern Chad.
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African colonialism Most of the current borders in Africa were arbitrarily established by colonial powers and so when countries gained their independence they had lots of different ethnic groups within them. This has caused problems over who can and who cannot vote and citizenship has been used as a political weapon. In the Democratic Republic of Congo for example, people from Rwanda including those whose land was annexed by Belgium in 1910, known as Banyarwanda, have been repeatedly granted and deprived of Congolese nationality. In the Cote D’Ivoire, the issue of nationality was a major factor in the armed conflict which split the once prosperous West African country in 2002. Case study: Middle East The Bidoon, who are scattered across the Gulf States, became stateless when Kuwait became independent in 1961, followed by Bahrain and Qatar and the formation of the United Arab Emirates in 1971. The area was a major trade route and many people moved back and forth. There used to be no borders and no birth certificates and so when the Gulf States set up their registration systems many people originally from Iran, Iraq, Syria, and Saudia Arabia got left out and became known as the Bidoon. Their name means ‘without’ in Arabic. At first their lack of registration was no problem but as the huge number of migrant workers came to the area to service the rapidly expanding economies of the oil rich Gulf States, the indigenous population became the minority and the issue of citizenship became extremely sensitive. This was complicated
when the loyalties of the Bidoon were called into question when Kuwait was invaded by Saddam Hussein in 1991. Estimates of the numbers of people involved are 91,000 in Kuwait, 70,000 in Saudia Arabia and 15,000 in the UAE. All of the States are concerned about the issue and some movement has occurred with Bahrain naturalising 2,090 Bidoon in 2001 and the UAE naturalising 1,294 in 2007. Source: ‘The strange, hidden world of the stateless’, a report by UNHCR, September 2007
Personal and family So far in this section we have looked at how groups of people rather than individuals become stateless. There are also many other forms of de jure statelessness which affect individuals such as when a child has not been registered at birth or when there is a conflict of different laws because a child is born to parents from different countries. Sometimes nationality is jus soli – where you were born and sometimes jus sanguinis – nationality through descent. This may lead to statelessness when two nationalities contradict each other. Many states still discriminate against women who cannot transmit their nationality to their children and sometimes women are left stateless when they have moved country to marry and the marriage breaks down or the partner dies before they are given any rights. De facto statelessness also affects the individual in a global context. For example a boy soldier who flees conflict and cannot return because he will be killed faces statelessness. He may be lucky enough to get to a country where he can
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be granted asylum but he is more likely to get to a neighbouring country where those processes do not exist or he may not be believed in a country which does have the process. Women who have been raped are in a similar position. In many countries women are ostracised if they have been raped, so if they flee, there is no prospect of survival should they return. This is why rape is systematically used as a weapon of war – it destroys communities.
people although the people were not as trapped as they would be today. Travel was actually easier. After the second world war the Universal Declaration of Human Rights 1948 states in Article 15 that: 1. Everyone has the right to a nationality 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality Other articles also affect the reality of life for refugees such as Article 23. 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. or Article 21. 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Although only a declaration this is known by many people throughout the world and is still used as a measure in law.
International law So what international laws are there to address the issue of statelessness? Between the two world wars there were a number of international agreements to address refugees and stateless
In 1949 with millions of refugees and stateless people lost in a shattered Europe the United Nations appointed a committee to ‘consider preparing a revised and consolidated convention relating to the international status of refugees and stateless persons.’ Thus a Convention Relating to the Status of Refugees was adopted in 1951, and now has 147 signatories. It guaranteed basic rights like elementary education and healthcare for refugees in the country where they seek
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shelter. Unfortunately, it did not include any content relating to stateless people unless they were also refugees. A new convention was needed and in 1954 the Convention about Status of Stateless Persons was adopted. It is very similar to the Refugee Convention in that it guarantees certain basic rights to stateless people in their country of refuge, such as healthcare, elementary education, and rights of the same standard as those awarded to any other non-citizen resident in that country. It defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law’, ie. de jure stateless. To complement this legislation for existing stateless persons, a convention was also adopted to prevent future statelessness – the 1961 Convention on the Reduction of Statelessness. This provides substantive rights such as those that would help children born of stateless people acquire a nationality, to prevent states depriving citizens of nationality on arbitrary discriminatory grounds; 34 states were party to the Convention. There is also the 1997 European Convention on Nationality which provides for the acquisition of nationality for ‘stateless persons and recognised refugees lawfully and habitually resident on its territory.’ (Article 6). However . . . Not many states are party to the 1954 and 1961 Conventions, unlike the Refugee Convention which has 147 accessions.
The statelessness conventions deal only with de jure stateless people. The 1961 Convention recommends that States consider extending the same rights to de facto stateless people, but this is not a binding legal mandate. If you are unable to prove you are de jure stateless, and are unable to prove you qualify as a refugee, then the international legislation on refugees and statelessness is not much help. You are not entitled to the protections of either the Refugee Convention, or the statelessness conventions. Likewise, the European Convention provides the possibility of nationality for legally resident stateless persons, whilst still requiring proof of stateless or refugee status. This can be hard to obtain. Within Europe, there is no harmonised response to the existing legislation. France, Italy and Spain are the only countries to have a dedicated procedure to recognise statelessness which can lead to residency. In Spain this can be permanent residence, in Italy it is for two years, whilst in France it is a one year temporary work permit which can be renewed, and after three years the holder and family can receive residence permits for ten years. For countries where a minority ethnic group are stateless, it is even harder to utilise international law because of the level of hostility against them which is often tied into historical disempowerment, as in the case of the Rohingya described at the beginning of this chapter. In this case neither Burma nor Bangaladesh had signed the 1954 convention.
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In general if people are accepted as nationals of a country it is usually after a long legal process or intervention from other agencies like UNHCR. The message worldwide is not one of welcome but one of rejection. Sources Carol Batchelor (1998), Statelessness and the Problem of Resolving Nationality Status, pp. 16-17 and The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonisation, (2003)
2 Life in Britain This chapter deals with what is happening in this country. It has a lot of case studies as that is the clearest way to explain the systems people experience and the reality of daily life for stateless people in Britain. It also gives some stateless people a voice. Britain is a signatory to the 1954 Convention relating to the Status of Stateless Persons but seems reluctant to act on it and has not incorporated it into domestic law. Most of the stateless people in Britain are de facto stateless.
How people become stateless in Britain There are probably thousands of stateless people in Britain. It is difficult to assess the exact number because they are hidden, they are mostly without rights (e.g. don’t appear on a census) and the government have no systems to recognise them and therefore record them as stateless. They live a life in the shadows. So where have they come from? Many are people who came here to claim asylum, were refused and cannot be deported, either because they are so fearful of being returned that they have gone underground or because their country refuses to have them back.
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December 2007 there were 462,745 applications for asylum in Britain. Of those approximately 30% were eventually given permission to stay here, leaving about 320,000 refused. Removal figures are not available before 2004 and so it is impossible to estimate how many of those may still be here (54,345 asylum applicants were removed in the four years from January 2004-December 2007). For the reader who is not familiar with the asylum system a brief outline may put this in context.
The asylum process
Others may be people who have come here with student visas or tourist visas and are unable to return but have not claimed asylum. Others may have come here as wives of British men but the marriage broke down before the wife had gained nationality and she is unable to return. Others will have been trafficked or have never made themselves known to immigration. This book concentrates on those who came here to seek asylum. But any measures to positively address statelessness will help all those who are stateless. Home Office statistics show that from January 1999 until
Over the last decade there have been Asylum Acts every couple of years and since the UK tends not to repeal legislation the Immigration Acts 1971, 1993 and 1997 are also still in operation. There is also other legislation on human rights, race relations, anti-terrorism, crime and security which all affect asylum policy and process, as well as European legislation. Here is a very simplified explanation of the process. The current process is known as the New Asylum Model, although ‘New’ is now officially dropped. The legal process and the support process both now come under the UK Borders Agency. When an asylum seeker enters the country as long as s/he applies for asylum as soon as is reasonably possible s/he will be given accommodation and a basic allowance (currently £33.39 for a single adult between 18 and 25) while the case is being heard. S/he will also be allocated a case owner who will be the point of contact from the start right through to the end. UK Borders Agency aim to deal with the case quickly. In the
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third quarter of 2007, 43% of applications had initial decisions within two months of arrival.
discretionary leave to remain until s/he is 17 – when s/he has to reapply for asylum.
Some people are detained on arrival and then the process is even quicker. At Yarl’s Wood and Harmondsworth an applicant is interviewed on the second day of detention, served a decision on the third day and is then given two days to appeal.
The 70% of applicants who are not given permission to stay are told to return to their country and given the contact details of IOM – the International Organisation for Migration, who help in that process. Families continue with accommodation and support but single people and couples are evicted from their accommodation and their allowance is cut off. If they agree to go back via voluntary return, or if they find new evidence for a fresh asylum claim they can apply for ‘Section 4’ support which will be in the form of accommodation and vouchers. It may take several weeks to process. Most people are too frightened to go back – they would not have come here in the first place if they didn’t need to.
Those who are not detained are given longer to appeal but in order to qualify for legal aid they have to be judged to have a 40% chance of success. Most private solicitors have stopped doing refugee work because they are only allowed five hours in total to work on the case and legal aid rates have not increased for many years. It is therefore mainly the ‘not for profit’ solicitors who help asylum seekers and they are greatly overstretched. If an appeal is lodged the applicant will continue to be supported until s/he has been refused. During the asylum process, s/he is not allowed to work and not allowed access to English classes unless the case is still undecided after six months. If s/he is accepted at the initial decision stage or at appeal s/he will have to leave the accommodation and the allowance will stop after 28 days. If permission to stay is granted it would be for a maximum of five years. No longer an asylum seeker, the refugee is now allowed to work and has access to the ordinary benefits system. Unaccompanied asylum seekers – those under 18 – are supported by the Social Care department of the local authority in which they claim asylum. There is often a dispute between the UK Borders Agency and Social Care as to the age of the young person. S/he will be given
Refused applicants have to sign at the regional Immigration Enforcement Unit on a regular basis so that the UK Borders Agency can maintain contact with them. It may be monthly, weekly, or in some cases twice weekly. It is also here that they are served the result of their appeal. It is a frightening place as there is always the possibility that you will be detained while you are there.
Destitution It is very hard to live without a home and without money and to be entirely dependent on friends, if you have them. The fact that someone who has been refused asylum chooses to stay destitute rather than sign up for voluntary return says a lot about how frightened they are of return. They are de facto stateless.
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Mohammed, a quiet and friendly man, explains what happened to him and why he cannot go back to Iran. In 2007 with 2,210 applications, Iran was second only to Afghanistan in the number of people claiming asylum in Britain. His reasons for claiming asylum were social dissent rather than political. The fear of return is the same. en the police arrived. In I was at a party in Iran wh e parties with men and Iran you are not allowed to hav ckly through a window women together. I went out qui parents we decided that I and later at home with my y as I would be sent to should get out of the countr . I found out that my prison if the police found me also at the party was friend who is a Bahai and was very difficult. On the later killed. The journey was Greece four people travcrossing between Turkey and their inflatable dinghy elling with us drowned when in Greece I was put in overturned. When I arrived ause I had no papers. prison for three months bec money to people to take Twice on the journey I paid just disappeared. In the me to Britain but then they g onto the axle of a big end I got into Britain by clingin May 2005. I claimed asylorry for five hours. It was r months. I gave a soliclum and was refused after fou appeal was also refused. itor £150 to appeal and that e been without any supFor nearly three years I hav with friends. Some of port, just staying where I can nds. In one house somethem turned out not to be frie money. My father has one tried to strangle me for Iran as the police have warned me not to go back to es looking for me. I know been to the house lots of tim elbow would alone cause the spiders web tattoo on my are not allowed tattoos a lot of problems for me. You led off with acid. in Iran. The skin would be pee
Even if Mohammed did sign up for voluntary return he would not be able to go back because he has no birth certificate or passport.
Detention In September 2007 the London Detainee Support Group produced a report about undocumented and detained Iranians. Our evidence suggests that removals of Iranian nationals without a passport or birth certificate are not possible. We are concerned at the effects on these detainees of long-term detention with no apparent prospect of removal. Based on information provided to our clients, it is clear that that EU letters, issued by the Home Office to serve as temporary identification for the purpose of removal, are not being accepted by the Iranian authorities. Likewise, the Iranian Embassy will not issue emergency travel documents, unless they are provided with a passport or birth certificate. One detainee was informed by the embassy that he needed to bring two witnesses with Iranian passports, and that the documentation process would then take two to three years. Since January 2005, LDSG has been in contact with 15 undocumented Iranian detainees, who have spent significant periods in detention awaiting attempts to document them for removal. As far as LDSG are aware, on no occasion has Immigration succeeded in documenting these clients, and none have been removed. Six of these clients remain in detention, five have been released on temporary
25
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admission, and four were granted bail by the Asylum and Immigration Tribunal (AIT). These detainees have spent a total of over 15 years in detention, or an average of 12 months each. Individual detainees were detained for totals of 29, 27, 26 and 21 months. Whilst in detention, one detainee attempted to hang himself with a cable, and two cut themselves repeatedly with razors.
highest that year, he was unable to get an appointment with the Medical Foundation for the Care for Victims of Torture who could have verified his torture which almost certainly would have won his appeal. Refused and destitute he could not return to Chad. He was de facto stateless. He falsified his document which said he could not work and managed to find employment from July 2003 until September 2005 when he was arrested in a raid on the Walker’s crisp factory. His colleagues working with other people’s documents were imprisoned but he was sent straight to a removal centre as he had committed the lesser offence of altering his own papers.
27
Criminalisation As long as a refused asylum seeker is signing at the Immigration Enforcement Unit as requested s/he has a right to be here. However s/he can be criminalised in an effort to survive by falsifying documents to obtain work or to make a new claim in a different name. This is well illustrated by these two people. Adil is from Chad. As a student he had joined the opposition party following the murder of his uncle. Caught writing letters about the government he was imprisoned and tortured. He was released when his cousin bribed the prison guards and he escaped to Britain in 2002. He was refused asylum and lost his appeal. Because asylum applications were at their
He was returned to Chad a month later but they refused to accept him, beat him severely round the head and put him back on a plane. The beating resulted in loss of hearing and cancer. On arrival he was put back in detention and then released on bail in November 2005, with no support. Following three months in hospital and a lot of pressure on Social Care, Adil was given accommodation and support because of his health needs. Despite a fresh claim, he has still not been granted asylum nearly three
I am an sick all with D i s c u s s i o n s w i t h P a l ethem!s+ tWhenisomeone n ifindsaoutn sasylumiseeker n I feelB rday.i+ tWe areafediup n
Conditions are very bad in Gaza but sometimes my family send money to me. I should be helping
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years after Chad refused to take him. He said ‘I haven’t had contact with my family for six years because I don’t want to put them at risk. I really miss them. Social Care are keen to move me out. They keep asking for hospital reports. I will be back on the street again soon. When will this end?’
was given four years leave to remain but in May
29
2003 he was found out, arrested and imprisoned for 15 months. He spent seven months in prison and a further two months in Dover removal centre and was then released with no support in March 2004. He signed with immigration every week as requested until 2006 when his friends moved. He
The penalties for working with false papers are increasing. Susan, a prison visitor in Liverpool, explained ‘they used to give people four months and then it went to six and then eight and recently they have started giving people a year’s imprisonment for working.’
wrote to the Home Office three times asking for a
Prison conditions are harsher than in removal centres but those who have been in both say they prefer prison because you know when you can come out. In detention centres there is no sentence and so you don’t know if you will be there for a month or two years.
Oakington removal centre. On 16 March 2007 a
When Basheer was refused asylum he eventually claimed again as a different person from a different country.
new signing address, but he received no reply. In January 2007 he was stopped by traffic police as he was walking along the street. When they searched his records they discovered he was marked as an absconder and he was detained in deportation order was served on Basheer and on 19th March he was released on bail. He has been signing every week at the Midlands Enforcement Unit since then. He lodged a new appeal in August 2007 which was refused in January 2008. I’m a human being, not a stone. I’ve been here eight years. My case has been exhausted for seven years. It is very hard living in this country with no status. I never hurt anybody – I didn’t do
Basheer is from Palestine. When he was studying
any violence. I never stole anything. I’ve got a
physiotherapy in Pakistan in 1995 he wrote an arti-
criminal record because I applied for asylum in
cle in a student magazine about a fellow student
another name as the only way to survive – I was
widely believed to be a double agent. Years later he
without any support and no papers to work. I
was visited by Palestinian intelligence and threat-
want to ask the Home Office ‘What makes me a
ened. Feeling his life to be at risk he fled to England
criminal?’ I don’t fit a criminal profile. How did I
in March 2000. In March 2001 his claim was
get that name? Who is really to blame? I’m not
refused and by November 2001 his appeals were
the only one to have experienced prison and
exhausted. Evicted from his accommodation and
detention. I’m not the only one to be called a
cut off all support, he was helped by friends until
criminal because of the bad and careless judge-
December 2002 when he made a fresh claim in a
ment of the Home Office. I’ve been here eight
different name and as an Iraqi. In March 2003 he
years. How long must I wait to live as a human
woulds go there.i + n How longB are we Life D i s c u s s i o n s w i t h P a l ebeingsandtnotijustna number, i awe n rgoingi totlivealike ithis.n
our life, with our situation. + If another country would take us, would treat us like a human
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being? How long does it take the Home Office to
Deportations to Palestine
31
wake up and realise the big mistake done to me – and to the British public who paid for my prison and detention. If I had the right decision in the first place and was granted leave to remain, none of this would have happened. I am a good person and want to contribute to this community. Instead I am nobody – I am like a shadow. I’ve been without my family for eight years and now they are all in different countries. We will never be together again. That stresses me all the time. At night I find it hard to breathe. I am very scared
The Home Office do not appear to be deporting Palestinians like Basheer. Palestine is not mentioned on any of their available tables (2004-2007) about removals and voluntary departures. This may be due to the fact that Britain does not recognise Palestine as a state and therefore most Palestinians are recognised as de jure stateless. Despite this they are still not given any rights here. In a Home Office document published in July 2007 entitled Nationality, Routing and Documentation Aid, it states:
that this will cause me a heart attack or stroke. Why am I still in this position? You call for human
re: Palestine Authority (Gaza, West Bank)
rights around the world. You call this human
Travel Document required: Other
rights?
Travel For persons admitted on Palestinian Authority o the Jerich and Gaza of nts reside to Documents issued ates Deleg al Gener ine Palest the attend individual must verbe to ents docum nt releva for n perso Office (London) in ant applic the by sent be then must ents ified. These docum the at ction produ for ine Palest in er to a family memb Travel ency Emerg an which after r, Interio Ministry of the to the Document will be issued. The ETD will then be sent Unit) Data e Secur m (Interi ISDU for facility UK. There is no ETD. an for Office ates Deleg al to apply to the Gener
Basheer makes reference to the bad decision making process which has left him destitute and stateless. This has been of grave concern for some time. Amnesty International produced an excellent report in 2004 called Get it Right. How Home Office Decision-making Fails Refugees. In March 2006 UNHCR produced its third update report on Home Office decision making and found ‘lack of understanding of the concept of persecution …. failures to properly consider relevant evidence.’ Very recently, The Independent Asylum Commission’s Interim Findings, Fit for Purpose Yet? concludes: ‘A ‘culture of disbelief’ persists among decision makers. Along with the lack of access to legal advice for applicants this is leading to perverse and unjust decisions.’
re Palestine (stateless) for return to a 3rd country TD required: Other STATELESS issued For Stateless Palestinians holding Travel Documents valid longer by 3rd countries eg. Egypt & Syria, which are no round backg for return, ISDU should be provided with full Travel information, bio-data etc, together with the and ble) availa Document (or details of it if original is not ISDU will contact the country concerned.
food. i + All can. D i s c u s s i o n s w i t h P a l ea bedsortgiveime n aI have nto sgive is friendship. i n We support B reachiother t asabestiwen
is getting harder every day. + I want to live with dignity. I don’t want to ask people to give me
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On its web site the Home Office states: We have received a Freedom of Information Act 2000 (FOIA) request seeking clarification of current IND (immigration nationality directorate) policy when issuing 1951 Convention travel documents to those who are considered stateless and those considered to be of doubtful nationality. The request also sought clarification of whether IND recognises Palestine as a nationality. 1.
In the case of persons who are stateless, is it IND policy to describe persons as such in their 1951 Convention travel document?
2.
Does IND consider that a person can have the nationality of Palestine?
3.
In what circumstances does IND describe nationality as ‘doubtful’ in a 1951 Convention travel document?
Refugees who are stateless will normally be described as such in their 1951 Convention travel documents. However, there is no particular requirement, under either the 1951 Convention or under the 1954 Convention relating to the Status of Stateless Persons, and a different description may better suit the circumstances in a given case. Currently, for instance, we consider it appropriate to take a different approach in the case of Palestine. Usually, stateless cases involve people who are simply not recognised as citizens by the state or states which might be expected to take responsibility for them. By contrast, in Palestinian cases there is no such state, but there is instead a territorial authority whose
international status is uncertain. No doubt you are aware that the United Kingdom does not recognise Palestine as a state, even though travel documents issued by the Palestinian Authority and UNRWA indicate the holder’s national status to be ‘Palestine’. Consequently, the UK does not consider that a person can have ‘the nationality of Palestine’.
33
On the other hand, the UK recognises that the international status of Palestine is not yet clear. An extract from the Foreign & Commonwealth Office website entitled ‘West Bank (Including East Jerusalem) and Gaza Strip’ states in Section (d) that: ‘Her Majesty’s Government do not recognise [the] territories which comprise the West Bank (including East Jerusalem) and the Gaza Strip, and which are occupied by Israel, as an independent state. Their permanent status has yet to be agreed. In the view of HMG the status of the whole of Jerusalem remains to be determined’. IND describes a person’s nationality as doubtful where an officer dealing with a claim has reason to doubt that the claimant has the nationality they say they have. Although Palestine is not recognised as an independent state by the British Government, the Travel Document Section (TDS) regularly receives applications from persons claiming to be Palestinian. Not all Palestinians claim to have Palestinian nationality; some describe themselves as ‘stateless Palestinians’. However, given the need for a consistent approach and given that the status of Palestine is doubtful at present, the nationality of all people claiming to be Palestinian is recorded in the travel document as ‘doubtful’.
D i s c u s s i o n s w i t h P a l efather s hast died i while n iI haveabeennhere.s I wouldi also n like toBhelprolderipeople. t a+ I icamenin
+ I am dying to have children. I am nearly 41. I would love to give something to children. My
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Although this document refers to IND (now UK Borders Agency) and is dated 2005 it was not updated as at 26th April 2008 and so is taken to be still valid. It describes a different kind of stateless. The effect on the individual of not being returned and left without support is the same.
Other countries where return is virtually impossible Eritrea, Ethiopia and Liberia are three countries where return is virtually impossible without the right documents. In both cases there has been a lot of movement across their borders. With Liberia there was a lot of cross border movement during the civil war so a person’s nationality is often unclear, especially since it is often the case that they don’t appear on birth registers and have no papers or travel documents. Eritrea had a similar movement of people from and to Ethiopia. The Eritrean embassy requires three witnesses to confirm that someone is an Eritrean national. David is from Liberia. January 2005. I was a I came to England on 16th rles Taylor, the rebels soldier in Liberia under Cha – were again fighting from Guinea – the Lurd Forces (in Clara town) twice us. They came to my house – I had to escape. If they looking for me as the enemy have cut off my arms. had caught me they would ted short sleeves or They asked people if they wan land I claimed asylum long sleeves. When I got to Eng to Oakington detention at the airport. They took me t me to Ipswich. My centre and after ten days sen I couldn’t pay for an asylum claim was refused.
appeal. Although I was evicted I was getting back into the house every night as I had nowhere to sleep. Early morning on 18th September three immigration officers and three police officers came to my house and took me to a police station for 48 hours and then Harmondsworth removal centre. I was there a month and got taken to the airport in the night to board a plane. The way they were handling me and pushing me inside, the pilot said he was not going to take me. They left me in a cold empty room until nine o’clock the next morning and then took me to Tynsley House Removal Centre . I was there a month and they came in the night again and told me I was going to Liberia. They hand cuffed my hand, took me to the plane and sent me to Liberia. Liberian immigration asked them if I had killed someone in England or sold drugs. They said no. Then immigration said – take him back then, he’s not from Liberia. When I got back to Heathrow they said I had to claim asylum again and bring evidence. I had no evidence and said ‘my old claim says it all’. They took me back to Tynsley House for another eight months and then I was released on bail on 4th April 2006. Now, more than two years later I am still without any support at all. To start with I was signing at Solihull twice a week. One day they said they were going to arrange a phone interview with the embassy the next week. I didn’t eat all week because I knew they might detain me again. The Liberian embassy refused to acknowledge I was from Liberia. I now sign every month. How many years must this destitution go on?
35
D i s c u s s i o n s w i t h P a l erefused. s tMy asylum i ncaseihereawasnrefused. s In Palestine i nyou have Bto berparti oftHammas a ori Fatah. n
September 2002 from Gaza. I was part of a group who wanted me to be a suicide bomber. I
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Other effects of destitution Even though they receive no financial support, refused asylum seekers are still expected to sign with Immigration. Sometimes people jump buses or trains to get to important appointments and end up with a criminal record. Others are tempted to shoplift to survive. If they have given up the struggle to sign and they are caught by the police in these minor acts they are likely to face prison and then detention and possible deportation. It is surprising that more people don’t resort to crime. By far the most common crime is deception by falsifying papers to work or to claim asylum again, but not to defraud individuals or cause harm. Women often end up in abusive relationships, including as prostitutes. Survival sex is an apt description. They keep very well hidden and so cannot get the support which other sex workers may receive like health checks, condoms and helpful information. Men also engage in survival sex. Health is an issue because of overcrowding, poor nutrition and poverty. Thus diseases like tuberculosis are becoming more common again. HIV and other sexually transmitted infections are also likely to increase in this environment. It may well be the threat to public health which is the factor which stimulates the Government to act in reducing destitution. It could do this effectively by allowing people to work legally and also by identifying and acting on statelessness as it has committed to do by signing the 1954 Geneva Convention.
Hope is 20. She fled to Britain from Liberia when she was 17. She was detained on arrival for 10 days and then released with no support. Her asylum claim was later refused and for the past two years Hope has been staying with a man who offered to help her. She has stopped signing with Immigration.
37
working and you It’s not easy when you’re not as well. It’s very don’t have a place to live in a Somalian man of hard. I’ve been staying with been doing his 70 who took me in. I’ve asked me to leave. housework. But now he has only way I can I don’t have a place to go. The have a baby. But I get somewhere to live is if I baby would be don’t want a baby now – the y. I want to have illegal – it’s not fair on the bab ers. I know I’m a baby when I’ve got my pap this country, one going to have my papers in my problem. day. I believe God will solve
Mental health is also affected by destitution. Asylum seekers are already dealing with huge issues of loss, and often torture and other trauma. The journey here can also be very frightening. When they are not believed this has a profound affect, as they had been anticipating safety and understanding. Destitution demonstrates complete rejection. The despair they can feel is exacerbated by fear of forced deportation. Peter from Nigeria has a mother from Cote D’Ivoire and a father from Nigeria. Neither country will accept him. He has been destitute since he was released from a removal
nothing end upr in a mental D i s c u s s i o n s w i t h P a l eI ams50 tand have in i andahatenthesworld. I don’t i nwant to B i t hospital. a i I don’t n
There is no other way. The group gets you work, everything. + I don’t want to reach a point when
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centre over three years ago. He signs with Immigration every month and works illegally for very little money delivering pizzas in order to survive. High penalties for employers who employ people who do not have the correct documentation have made it very difficult to find work. The penalty per employee has recently risen to £10,000. Small cash-based businesses like food takeaways and car washes tend to be the ones who are able to take those risks. There is clear exploitation when there is destitution but conversely without some money people would starve. Peter describes how he feels now after three years with no rights. My life is hard. I am 33 now . I want a wife and children but I dare not get close to anybod y as it would be unfair of me :to start a relationship wit h anyone and then tell the m I have no status, no security, very little money. It would be unfair on children because I might be taken away fro m them. I have been returned to Cote D’Ivoire and they refused to let me in. I have had three rejections from the Nigerian embassy. What am I supposed to do? I live life on the edge all the time. Always fearful of being put back in detention, always wary about getting close to anyone. It is getting hard to carry on.
Claiming asylum when there is no alternative process
39
The UNHCR publication Nationality and Statelessness: A Handbook for Parliamentarians, urges governments to develop procedures to identify and address statelessness. ‘Stateless persons may, in fact, be obliged to channel their application through the asylum regime simply because there is no other procedure available to them’. This is what happened to the following two stateless people. They had both left their country as young children and lived in a variety of other countries. Now, separated from their families, no country will take them back. Because there is no procedure to recognise statelessness, they both invented stories as refugees. I am now 26. I was born in Cuba, in Santiago de Cuba. My father had left when my mother was pregnant and she struggled to bring me up on her own. When I was 5 she died of breast cancer and her brother, my uncle, looked after me. I didn’t go to school. We lived on a plantation in the country and sold fruit in the ports. I helped my uncle. When I was nine we jumped a ship, hoping to go to Miami where we would have been allowed to live. Miami take in a lot of people from Cuba. In fact it went to France. In France we managed to sneak off the ship unnoticed and soon found friendship and work with a gypsy community who had been living in Spain and therefore spoke our language. When I was 12 we went to Spain because we had got word that my father was there. We tried to find him in Spain but discovered instead that he
like other We getr tired.. I get D i s c u s s i o n s w i t h P a l eto contribute s t ito thencommunity ian s refugees i nhere. + B i +tSometimes ain
want to become desperate. I want to keep my self respect. I don’t want to be a criminal. We want
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had left and gone to Miami nearly four years earlier. I was very disappointed. Apparently he is a doctor. We went back to France. When I was 15 my uncle went to Miami on a false passport, promising to send for me quickly. I have never heard from him since. I worked in France doing odd jobs for the next two years and then went back to Spain. While I was there I met some people from Guinea who suggested I went to England so that I could get papers by claiming asylum. They told me a story to tell about Guinea and since I spoke Spanish and some French I felt I could get away with being from their country. In December 2004, when I was 23 I paid a lorry driver to bring me to England. I was immediately put in detention for three months and then released when I had claimed asylum. I was given NASS support. At that point I learnt English and I learned how to read and write. However my story was not believed and I was refused asylum. The appeal was also refused. I was evicted from my room and cut off support, destitute once more with no papers and no right to work. This is how I had been all my life. I was at least experienced in coping with destitution. I managed to get some agency work using someone else’s name (with their paid-for permission) but was caught out by the agency and taken to the police station. It is much harder to work illegally here than it is in France and Spain. The police seemed to understand when I explained that I was working illegally to survive as I didn’t want to rob people; that it was much better to work. They sent me straight to detention rather than charging me and putting me in prison first. After two months in detention Immigration arranged a flight to Guinea. At
this point I confessed that I was Cuban and told them my real story. They said it was too late; that this might also be a lie and deported me anyway.
41
When I arrived in Guinea the security escorts went to a bar and left me alone with Immigration. I was frightened. The Immigration officers handcuffed me and then hit me several times. I told them that I was from Cuba, not Guinea. After a while they got someone from the Cuban embassy who was helpful and offered to take me to the embassy until they could send me back to Cuba. However Immigration in Guinea insisted I go back to Britain straight away and I was put on the next flight. In Britain I was detained again and told I would spend a long time in detention for lying. They tried to get me deported to Cuba but I had no papers to prove I was from Cuba and the embassy refused me. I was released after 11 months in detention. I am free now but destitute again. I am stateless. Ali is from Chad. He left Chad with his father when he was six and moved to Italy. He is now 36. He was arrested at Heathrow airport when he had a few hours stop over on the way to Canada in May 2006. He was detained and subsequently claimed asylum. He was refused asylum and sent back to Togo where he had said he was from. He knew about Togo from a friend who had been granted asylum so used his story. Togo refused to accept him. He was sent back to Togo a second time before being released on bail. He is now destitute. He has no documents to prove he is from Chad and is unlikely to be able to trace anyone who may know him after all this time away. He had not previously said he was
D i s c u s s i o n s w i t h P a l ehavesonlythadi£1nin myipocket a allnweek.sI eat with i friends. n It’sBa veryrhardi life. t Weasleepi onnthe
work for a week – cash in hand in shops or restaurants. We work all day for £10. Many times I
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from Chad because he didn’t want to explain the truth of his story. His father died in an accident when he was eight and he was then sexually abused by his father’s gay partner until he ran away
At least staying with friends when I can I am not in danger of being picked up and put in detention again. I am only at risk when I sign.
when he was ten. He fled to France where he lived as a street child. He never went to school. He later had a girlfriend who taught him to read. Throughout his childhood and adult life he has made friends which is what has kept him going. With no parental support he relied on peers. It is his friends now who are his lifeline.
Why not agree to go back to get support? It is interesting that so many people who are de facto stateless do not sign up for return via IOM and get Section 4 support. At least they would have accommodation and vouchers, and since it is clear that their country won’t accept them, they are not at risk of being returned. When asked, the following reasons have been given: I would have to sign a statement saying I withdraw my claim for asylum. My claim is valid. I don’t want to say that it isn’t. That isn’t true. I would probably have to wait a long time for Section 4 support and then it would be in a different town away from here and I would have to leave again after three months. It is not worth it. It would make me feel even less in control of my life.
I have stopped signing and so if I applied to go back they would probably detain me as an absconder. It is not worth the risk. I don’t want to apply for Section 4 support because it is embarrassing. Everyone will know I am an asylum seeker when I go to Asda with vouchers. And I can’t buy anything from anywhere else. My self respect is very important. We don’t want anyone to humiliate us.
Applying for asylum based on being stateless Some people do put in a fresh claim for asylum on the basis that they are de facto stateless. The experience of solicitors who have done this is that it doesn’t work unless there are lots of other deciding factors like having a child who is born in this country. The reluctance of the British Government to recognise statelessness in its own country might be for four reasons. Firstly most people, including MPs, are unaware of the fact that there are people in this position in Britain. There is therefore no pressure on the Home Office to follow the 1954 Convention on Statelessness
the fines they D i s c u s s i o n s w i t h P a l eof thes newt European i n workers i a andnbecause s employers i nare frightened B rbecause i tof a in
sofa or the carpet – sometimes outside. It’s very hard. It’s much harder to get work now because
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Secondly those who are aware fear that if they set up a system to identify and address statelessness they would be overwhelmed with applicants. Thirdly one of the common reasons for refusing asylum is that the interviewer or immigration judge does not believe someone is from the country they say they are from (although this was true of Tony and Ali, it is not usually true). This would no longer be able to be used as it would prevent deportation to the country the applicant says they are from. Whoever received that determination would be effectively statelessness. The appeal determination for Hope, mentioned previously includes: I am not satisfied even to the lower standard of proof that the appellant is a minor as she claims, nor am I satisfied that she is of Liberian nationality. I am not in a position to determine her true nationality. This should be undertaken by the Home Office, who are best placed to do this.
The most overwhelming reason which the Government would give, however, is that recognising statelessness would be a ‘pull’ factor; that it would encourage thousands of stateless people to come to Britain. Present Government policy is clearly based on the ‘push’ factor. The issue of pull factors is a major finding in a report entitled Forgotten without Reason, written for the Hungarian Helsinki Committee about the protection of non-refugee stateless persons in central Europe. Gabor Gyulai, who wrote the report in 2007, concludes: ‘Spain is the only EU member
state that defines concrete rules for statelessness determination and ensures a specific legal identity to stateless persons in a separate sub-legislative act. In addition, this is the European country where the rights granted to stateless persons are the closest to the standards set by the 1954 Statelessness Convention. It is important to emphasise that reaching higher protection standards in the case of stateless persons and fully recognising the importance of this question will not create a significant ‘pull’ factor for migration or result in a mass influx of stateless persons, as the Spanish example clearly shows.’
45
This is particularly significant because Spain is a gateway from Africa.
Human rights There is a common perception among the public that people who have been refused asylum should be sent back. In reality people may have a very clear need for asylum and still be refused. It is also very difficult to send people back to the troubled countries they have fled. Those caught in that trap of being nowhere – refused here and unable to return – deserve the right to live an ordinary human life. They should be identified as stateless and given nationality and along with that the right to work and live as human beings, contributing to society and free of the fear of detention. The lack of a process for this is an abuse of human rights. We end this chapter with the United Nations’ Universal Declaration of Human Rights (1948). Look particularly at articles 1, 3, 5, 9, 13, 14, 15, 16, 23, 25, 26.
I am 40 D i s c u s s i o n s w i t h P a l eIf myscountry t igetsnsortedi outa– I’llnbe there s theinextnday. + B rnow.iI’vetgotano future, i nno
might receive. + We don’t ask for citizenship. We just want to be able to live like human beings.
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THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Article 3
Article 1
Article 6
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Everyone has the right to recognition everywhere as a person before the law.
Article 2
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
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Everyone has the right to life, liberty and security of person. Article 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 7
Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
and D i s c u s s i o n s w i t h P a l ewaiting. s t+ iI don’tnknowi aasinglenPalestinian s who i has nbeen accepted B r– apart i tfromafamilies in
wife, no children, no place to live. + We’ve got nothing. I don’t want to spend the rest of my life
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Article 9
Article 13
No one shall be subjected to arbitrary arrest, detention or exile.
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
Article 10
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11 (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
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Article 14 (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations. Article 15 (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16 (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
To feel D i s c u s s i o n s w i t h P a l epeople s tto think i nabouti what a nwe are s thinking i nabout. B r what i tweaare ifeeling. n
one doctor. How long are they keeping us here for? I feel like I’m paralysed. + I want
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(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 21
Article 17
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(1) Everyone has the right to own property alone as well as in association with others.
(2) Everyone has the right of equal access to public service in his country.
(2) No one shall be arbitrarily deprived of his property.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23
(1) Everyone has the right to freedom of peaceful assembly and association.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) No one may be compelled to belong to an association.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
Article 20
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(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25 (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children. Article 27 (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 26
Article 28
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
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Article 29 (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30 Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
3 The power of the state This chapter provides an opportunity to reflect on the power of the state. Having explored statelessness from a global and a British perspective and read the first hand experiences of those affected by statelessness, it is a good time to question the way our society has evolved in the hope that we can find ways to live together in a more human way.
The history of the state This is a very brief overview of how states have developed. There have been states of a sort since the beginning of recorded time. Archeological remains from 6000BC and pictorial records from 4000BC show states as exerting power and control within territorial boundaries. As well as people and territory, trade is another fundamental feature of a state as is ideology which may include religion. The very early naturalist philosophies (religions) of Dao and Paganism focus on the way human relationships respect and interact with the other than human world of nature and the cosmos. Judaism and Buddhism also go back a long way and serve to show people how to live together.
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Christianity began two thousand years ago and Islam fifteen hundred years ago. They have both impacted on the formation of states and also on inter state relationships leading to the invasion of other states to ‘convert’ them as in the crusades and even colonialism. Many of the world religions have been used to legitimise state action. A similar rationale is used today to justify invasions, like bringing democracy to Iraq.
Confuscian public discourse. Warring emperors used different approaches depending on their personal or military advisors’ preferences.
Religion or ideology is rarely the whole motive however. Trade and natural resources are very often at the heart of invasion and the present scarcity of water and oil is generally seen to be a major factor in foreign policy, if hidden beneath a cloak of concern for the people.
Machiavelli (1469-1527) and Hobbes (1588-1679) evolved the central role of power for one state leader. For Machiavelli, the ‘prince’ must judiciously mix a show of dignity, virtue and law with menace and deception in relation to his subjects. Hobbes, answering to the English civil war of the 1640’s, focusing in on human nature, suggested that the miserable consequences of unchecked human passions form a need for an overarching sovereign capable of enforcing laws against the natural reality of war of all against all. Both of these views support the stance in international relations today that asserts that all states must protect their strategic interests against a possible attack from other states.
This is all relevant to statelessness because it demonstrates the huge power which states assume. This manifests itself not only outwardly in its relationship with the rest of the world but also inwardly in terms of its relationship to its citizens. So how did this power evolve? Early states used power for the elite. The slave economies of antiquity such as Egypt which date back 4,600 years were based on some ethnic groups oppressing other ethnic groups. It is generally thought democracy was born with Plato and Aristotle and developed in Greece between 800 and 320 BC. However participation by the people was reserved for a small male social and economic elite who enjoyed privilege on the back of the slave economy. From 2000 years ago until 200 years ago, the Daoist way of being in China merged with a legalist/Buddhist/
The modern state system has been emerging in Europe over the last 400 years. Revolutionary thinkers recognised that people had rights and responsibilities and wrote political, sociological and philosophical tracts which were influential in shaping society.
As time went on Rousseau (1712-1778) described the social contract, where people as citizens shared in the sovereign’s power. Bentham (1748-1832), sharing this train of thought, suggested that people owe the king a general obedience, if they are governed in a way subservient to their happiness. Here the idea that punishment for those going against the whole of society’s happiness was legally formed. The nature of law is very important in the formation of state authority. What was acceptable
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behaviour by citizens was decided by the rulers and their governments. Laws were codified, in essence so the powerful could control the people, although laws did create space for civil society to influence state decisions. Moving on through the 19th century, Lenin (1870-1924), using ideas from Marx and Engels’ Communist Manifesto, thought the capitalist market system that emerged from the European states exploited people so they gradually become accustomed to the rules that were provided by their leaders. This made them subordinate without coercion or force. These theories all impacted on the way states developed and we can see their influence today. We may like to think that in Britain we now live in a democracy where everyone is answerable to the same law, but most people are sceptical of how fair our society really is. One huge legacy that hangs over us is the slavery and exploitation which existed for centuries and the fact that until recently women were kept out of all spheres of influence. It could be argued that racism is at the heart of hostility to others. There are many models of society which are co-operative and welcoming which we have not mentioned here. We have looked more at how the current state has developed rather than how it might be better. The western model has imposed itself in many places. Africa and India before colonialism were very different. The current need to look again at how we relate to our environment because of climate change may take us back to the very early theories of Dao and paganism from which we have much to learn about living in harmony rather than seeking control.
Part of the control of the state has been about controlling who comes in and who leaves. For example in 1070 Jewish bankers were invited to Britain because capital was needed. In 1290 they were expelled because a banking deal was done with the Vatican.
British immigration control in the 20th century There have been a great many laws passed concerning immigration in the 20th century. Here are a few of them. The 1905 Aliens Act passed by the Conservative Government was the beginning of modern immigration control. The 1905 Act was difficult to enforce but led to further legislation during and after the first world war. Passports for international travellers did not become compulsory until 1915. In 1948 when Britain needed workers after the Second World War the Nationality Act gave subjects of the British Empire the right to enter freely. Since then a series of Acts have made it harder to get into the country. The Commonwealth Immigration Act of 1968 for example imposed controls upon holders of British Passports unless they had at least one parent or grand parent who was British or naturalized in Britain. The 2006 Immigration, Asylum and Nationality Act took away indefinite leave to remain and replaced it with five years leave to remain for refugees. Changes coming in October 2008 will seriously restrict marriage for refused asylum seekers, which already requires that they go back to the country they fled in order to come back as a spouse.
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Immigration control within Europe
He or she can justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully;
Conversely, within the rest of Europe, border controls have been reducing. The controls against people from outside Europe however have increased. This has all been achieved by the Schengen Agreement which was first put forward in 1985, and finally put into practice in 1995. Other states have since joined but Britain has refused to sign, apart from the police and judicial co-operation clauses. Basically the Schengen Agreement:■
Abolishes internal border controls but severely strengthens borders against ‘Third Country Nationals’, especially refugees.
■
Effectively removes the right for citizens of previously colonised countries to return to their countries of colonisation.
■
The external borders are co-ordinated by the European Union’s Frontex agency, and subject to common rules.
■
According to the Schengen Borders Code, the conditions applying to third-country nationals for entry are as follows: The third-country national is in possession of a valid travel document or documents authorising them to cross the border; the acceptance of travel documents for this purpose remains within the domain of the member states; He or she either possesses a valid visa (if required) or a valid residence permit;
There has not been issued an alert in the Schengen Information System for refusal of entry, and He or she is not considered to be a threat to public policy, internal security, public health or the international relations of any of the Schengen states. ■
The Schengen Information System (SIS) is a vast database system comprised of records of people’s identities and lost or stolen objects such as passports, which are entered by Schengen member states and which are then accessed by the other state agencies. At the end of 2001 there were 10,541,271 records held on the SIS, a large number of whom were asylum seekers.
■
The 1988 Strategy Paper on Asylum and Immigration Policy presented by the then Austrian EU presidency stated that control must cover ‘every step taken by a third country national from the time he begins his journey to the time he reaches his destination’. The paper outlines clearly the extent to which non-EU nationals are to be harassed and spied upon, it recommends ‘security nets in areas whose geographic or transport characteristics mean that they are
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particularly exposed, spot checks in the hinterland, unprompted by suspicion, and intensive cooperation on the part of the authorities beyond the sphere of competence of the individual State’.
Borders It is interesting that the Schengen Agreement has made it much easier for people to travel within Europe and it works. It is clearly worrying that it also erects higher barriers against people from outside Europe. The lesson of reducing barriers though is one to learn from and replicate. There are many millions of people who are now freely moving around Europe, people with different backgrounds and aspirations, different cultures and different religions. And it works! As an island Britain has a natural border with the sea. It is all too easy to be frightened of other people and go along with the concept of immigration borders being inevitable and vital in keeping out dangerous people like terrorists. If you advocate a no borders policy people think you are not living in the real world. And yet if it works for Europe there is no reason why it should not work everywhere else. Fear keeps us apart and fuels wars. If we are to work together throughout the world to address climate change we need some new inspired thinking and we need to cultivate trust. In Africa there are also developments to facilitate travel between countries. James Kiven from Cameroon explains: Cameroon is a member of the Economic and Monetary Community of Central African States known by its French acronym CEMAC. On the 21st July 2000 the
member states which are Cameroon, Gabon, Chad, the Central African Republic, the Democratic Republic of the Congo and Equatorial Guinea, signed the CEMAC Passport Rules No. 1/00/CEMAC-042-CM-04 to enable citizens of member states to travel, live and work within the region without restraint. However, the innovations expected under this initiative are still pending implementation. According to the Principal Administrative Officer and Senior Adviser at the Presidency of the Republic, Cameroon, the delay in implementation is due to apprehensions regarding ‘the security risk the sub-regional passport seems to portend, on account of the persistent civil strife and wars in a few CEMAC states like the CAR and Chad, mutual suspicions and misunderstanding between some member states and some sluggishness in the drafting of implementation instruments.’ Consequently travelling to other CEMAC states remains very difficult and occasionally a valid passport may not even be of much help.
James also outlines the changing travel restrictions from a former colony to Europe. Like citizens of other former French colonies and trust territories, Cameroonian citizens could travel to France almost without any procedural restrictions. At independence in 1960, the situation changed with more and more people being denied travel visas or permission to stay in the former colonial metropolis. Within the last decade or so, even tighter measures have been taken to discourage the inflow of immigrants from former colonies including Cameroon.
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Three reasons account for these changes in travel experience from Cameroon to France. 1. Former colonies and trust territories were governed as part of France. In more direct terms, Cameroon like other French African countries was an overseas province of France. Thus independence conferred on Cameroonians a new status, that of foreigners subject to the requirements for travel between sovereign states with diplomatic relations. 2. France needed labour for its munitions industries in the interwar years and reconstruction after the Second World War. Thus houses for example were built by SONACOTRA (Societe Nationale de Construction pour le Logement des Travailleurs), a government agency to accommodate immigrants without any space for family members who were not expected to accompany the prospective labourers even if they were married. The period 1946-1975, which has been called ‘les trente glorieuse’ (the prosperous thirty), witnessed the highest rate of migration to France from Africa. The immigrant population during this period doubled, from 1.7 million in 1946 to 3.4 million in 1975. 3. Last but not the least was the economic depression that came with the rise in oil prices in the mid 70s. The recession that followed the oil crisis brought an end to ‘les trente glorieuse’, making the huge and profitable business immigration that was then handled by the Minister of State for Migrant workers meaningless. This led to a transformation of immigration from economic matter to a social and political problem as poverty and misery struck
the areas inhabited by migrants raising fears that swelling numbers would breed crime and segregation. Consequently, the French government put a provisional ban on immigration which particularly targeted immigrants from former colonies in Africa in 1974. This ban was made permanent in 1977 and the then Minister of State for Migrant Workers, Lionel Stoleru tried to encourage the immigrants to return to their countries of origin with some financial incentives (l’aide au retour). As these measures failed, forced repatriations were explored. Thus the end of ‘les trente glorieuse’ marked a new phase in French immigration history. Immigration policy has since remained a very political issue. For Cameroonians travelling to France like other Africans from former French colonies, obtaining travel documents is increasingly difficult. Many applications are refused and an increasing number of Cameroonians already living in France find it difficult to regularise their stay and are usually called ‘sans papiers’.
Sources http://www.cameroon-info.net/cmi_show_news.php?id=14751 Juillard C. (2003), Sub-Saharian immigration in France: from diversity to integration, Universite Rene Descartes-Paris. http://www.well.ac.uk/cfol/lesannees.asp http://www.arts.auckland.ac.nz/students/ index.cfm?P=4737 Puzzo C. (2003), Instruments of British and French Immigration Policy in the 1970s: A Comparative Analysis, Contemporary European History, 12, 71-92, © Cambridge University Press
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World passport One inspiring idea which cuts across issues of states and borders is
sometimes powerful tool for the implementation of the fundamental
that of a world passport. This has been created by the World Government of World Citizens whose legitimacy comes from article 21 (3) of the Universal Declaration of Human Rights.- ‘ The will of the people shall be the basis of the authority of government...’
human right of freedom of travel. By its very existence it challenges
Their website www.worldgovernment.org states:
bearer, only his/her birthplace. It is therefore a neutral, apolitical
the exclusive assumption of sovereignty of the nation-state system. It is designed however to conform to nation-state requirements for travel documents. It does not, however, indicate the nationality of its
The mandate for the WORLD PASSPORT is Article 13(2) of the Universal Declaration of Human Rights:
document of identity and potential travel document.
Everyone has the right to leave any country, including his own, and to return to his country.
than the issuing agent. The World Passport in this respect has a track
The World Passport is a 30 page Machine Readable Travel Document (MRTD) with alphanumeric code line, scanned-in passport photo and ‘ghost’ security paper with embedded logo, the data page laminated, in seven languages: English, French, Spanish, Russian, Arabic, Chinese and Esperanto.
150 countries have visaed it on a case-by-case basis. In short, the
Each passport is numbered and each page contains the World Citizen logo as background. Two pages are reserved for affiliate identifications: diplomatic corps, organizations, firms, etc. There are nineteen visa pages. In the inside back cover, there is space for home address, next of kin, doctor, employer, driving license no. and national passport/identity number. The cover is blue with gold lettering. The World Passport represents the inalienable human right of freedom of travel on planet Earth. Therefore it is premised on the fundamental oneness or unity of the human community. In modern times, the passport has become a symbol of national sovereignty and control by each nation-state. That control works both for citizens within a nation and all others outside. All nations thus collude in the system of control of travel rather than its freedom. If freedom of travel is one of the essential marks of the liberated human being, as stated in the Universal Declaration of Human Rights, then the very acceptance of a national passport is the mark of the slave, serf or subject. The World Passport is therefore a meaningful symbol and
A passport gains credibility only by its acceptance by authorities other record of over 50 years acceptance since it was first issued. Today over World Passport represents the one world we all live in and on.
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Nationality and ethnicity Nationality can be seen as a goal for stateless people – a nation to call their own. However it is not actually what most stateless people seek. Citizenship and the right to vote is usually at the end of the list of essential needs although it is clearly part of an equal society. Safety is the first priority followed by the right to work, the right to marry and have children, and the right to take part in society without fear of detention. From those rights ordinary life can generally flow.
out its first chemical weapons on them. Iraqis (mainly Kurdish Iraqis) were the largest group to claim asylum in Britain in the last quarter of 2007 with 725 applications. All migrants, forced or economic, are by definition people with a high level of energy and people prepared to take risks. Migration stands for ‘a striving not to be a passive victim of circumstances’. If permitted, they contribute hugely to the society they live in. Kurdish people have no land to call their own but they do have an Autonomous Federal Entity. Roma people on the other hand live in lots of countries with no sense of a homeland. Wherever they go they tend to be rejected. They may be Czech or Slovakian but they will be Roma first. They are likely to keep it hidden. This chapter will end with a history of Roma people in Europe. It is taken from a report by the European Commission, Employment and Social Affairs Directorate, published in 2004 entitled The Situation of Roma in an Enlarged European Union. It is a lesson for us all.
People may be accepted as citizens of a country and that is great but they are unlikely to lose their own ethnicity. Kurdish people, for example, are grateful to get citizenship in the UK if they are able, but they will still be essentially Kurdish. In terms of community cohesion they are no threat to Britain – even though it was the British who drew their homeland out of existence after World War I and tried
Although the historical origins of Roma have at times been in dispute, it is now largely a matter of consensus – particularly on the strength of linguistic evidence – that the Romani people are descended from groups who left the Indian subcontinent towards the end of the first millennium C.E. Romani groups were noted in the European part of the Byzantine Empire by the 11th century and probably entered Spain from North Africa at around the same time. Areas located in what is today southern Greece were noted as centres of
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Romani settlement in the 14th and 15th centuries and it is thought that Roma lived throughout the Balkans by that time. Following a period of relative tolerance in the late Middle Ages, Roma were subjected to the first of a series of episodes of persecution in Europe. There is some consensus among historians that, prior to its long decline and the episodes of repression accompanying it, the Ottoman Empire was a more tolerant realm than Christian preenlightenment Europe generally, and that this tolerance extended to Roma. The relatively higher numbers of Roma in areas of Europe today, which formerly comprised Ottoman possessions, would seem to bear out this contention, although Ottoman authorities as a matter of policy discriminated against non-Muslims, and even within the Muslim community Roma appear to have been particularly discriminated against. Within the Ottoman Empire, Roma would seem to have fared worst in areas of the Empire considered relative backwaters, such as in areas today located in Romania, where local landowners and clergy enslaved Roma. Professor of Romani studies Dr. Thomas Acton has commented of Romani history in Europe in the 16th and 17th centuries: ‘When Romani people from Eastern Europe meet Romani people from North Western Europe today, it is the descendents of the survivors of slavery meeting the descendents of the survivors of genocide’. The Enlightenment brought with it a series of new approaches toward Roma. In the mid 18th century, the first in a series of efforts was undertaken
attempting to compel Roma to conform to the norms of the wider society. It is unclear to what extent these early orders were even obeyed at a local level, but in the subsequent two centuries Roma children have frequently been removed from their families by force and placed with nonRomani families, or placed in institutions, in an effort to rid them of what have been perceived as deviant traits, and to end the common existence of the ethnic group itself. The development of modern police practices brought with it the development of ideas of ‘Gypsy crime’, and with it, comprehensive police registers of Roma. Roma were targeted for race-based persecution during the Hitler regime in Germany, 1933-1945, and in Nazi-occupies countries. In a number of countries, the Romani Holocaust – referred to by some as the ‘Porraimos’ – was implemented by the armies of governments collaborating with the German-led effort to reshape the demography of Europe whilst in others the Romani Holocaust was implemented without the German prompting. In a number of areas, such as on the territory of today’s Czech Republic, most of the Romani community was killed during the war, either by being interned at German-run death camps, or by being incarcerated in domestically administered internment camps. In the post-war period in Central and Eastern Europe, efforts to forcibly settle Roma, and to end what were seen as anti-social traits, were redoubled. The governments of Poland and Czechoslovakia, for example, undertook extensive efforts to end nomadism among Roma, and to convert Roma to a homogenised ‘proletariat’.
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Intense assimilation efforts under state socialism produced both some of the first generations of Roma in the elite, as well as high numbers of Roma in state institutions, removed from their families. Its official discourse not withstanding, post-war state socialism did not succeed in eradicating racism. Some governments undertook policies of coercive sterilisation of Romani women, and schooling in many countries became segregated. The early post-World War II history of Roma in Western Europe appears remarkably similar to that in Central and Western Europe. In Norway, Sweden and Switzerland, for example, concerted efforts were undertaken to end the communal existence of Roma and related groups through measures including forced sterilisation of both men and women, as well as through the systematic removal of Romani children from families and their placement in state care. In recent years, the Swedish and Swiss governments have undertaken and made public comprehensive studies of the issue, and Sweden has made available compensation for victims. The impact of these policies continues to be felt today, however, and Roma as a group still suffer extensive trauma as a result. The post 1989 era in Europe has seen an outbreak of intense anti-Romani sentiment in both Eastern and Western Europe. In Eastern Europe, governments in some countries blamed Roma collectively for a breakdown in public order or for fears that a breakdown in public order was imminent. Systematic persecution of Roma took place in countries including Albania, Bulgaria, Germany. Hungary, Poland, Romania, Russia, Slovakia,
Ukraine and Yugoslavia. Racist movements have also arisen and targeted Roma for attack. In some countries, such as in the Czech Republic and Slovakia, violence against Roma remains at alarming levels. In general, criminal justice authorities have reacted inadequately to the dramatic rise in racially motivated violent crime and public officials have failed, or been slow, to condemn anti-Romani violence. In Western Europe, anti-Roman sentiment has frequently broken out following the arrival of Roma from Eastern Europe. Belgium, Finland, France, Germany, Ireland, Italy, the Netherlands, Norway, Sweden, and the United Kingdom have all featured episodes of public panic, fuelled by alarmist media reports of ‘gypsy invasions’ and similar. These measures have frequently been followed by racially discriminatory measures by local authorities, often including collective expulsions. In 1999, the Romani community of Europe suffered the worst catastrophe it has endured since World War II when, following the end of NATO military action in the Federal Republic of Yugoslavia and the withdrawal of Yugoslav forces from Kosovo, ethnic Albanians undertook a campaign of ethnic cleansing against Roma and other persons perceived to be ‘Gypsies’. Despite four years of UN administration in Kosovo, violence, including periodic grenade attacks and the regular destruction of property, has continued. Today, an estimated four fifths of the pre-bombing Romani population of Kosovo (probably around 120,00 persons) is displaced within Kosovo and in Serbia and Montenegro, or is in exile in countries bordering Kosovo or in the
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West. Most live in extremely poor conditions, whilst their arrival in EU states has raised important issues surrounding asylum and immigration. In the face of a history of discrimination and persecution, and despite centuries in Europe without any visible indigenous institutions, Roma have maintained a distinct identity. Communal solidarity is frequently affirmed and reinforced by close extended family bonds. Family celebrations feature prominently in social priorities. Cultural traditions are respected and adhered to diligently, and may include pollution taboos and, in some communities, autonomous systems of individual and community justice. Pollution taboos are traditional within many cultures but are also frequently associated with the development of strategies by marginalised groups to maintain identity against the forces of oppression and/or cultural assimilation. The Romani population in Europe today is estimated at around ten million people, although some observers put the figures even higher at twelve million. Precise demographic data is not, however, available due in large part to the stigma associated with the Romani identity and the reluctance of many Roma to identify themselves as such for official purposes, and the refusal of many governments to include Roma as a legitimate category for census purposes. Despite demographic uncertainties, there is little doubt that the total number of Roma in Europe is many times greater than the total population of a number of the Member States.
At present, anti-Romani sentiment is present in most, if not all, European societies and is extremely high in some countries. According to one recent survey, 79% of Czechs would not want Roma as neighbours. A poll conducted in 1992 by the Allensbach Demoscopic Institute indicated that 64% of Germans had an unfavourable opinion of Roma – a higher percentage than any other racial, ethnic or religious group. A survey conducted in 1994 by the EMNID Institute indicated that some 68% of Germans did not wish to have Sinti and Roma as neighbours. Mr. Trevor Phillips, the Chair of the United Kingdom’s Commission for Racial Equality (CRE) recently stated ‘As a Briton, I am ashamed of the way we treat Gypsies and Travellers, things need to change and they need to change now’. The treatment of Roma both in the European Union and beyond its current borders has become a litmus test of a human society. the treatment of Roma is today among the most pressing political, social and human rights issues facing Europe.
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4 What is being done about statelessness? Over recent years, there have been welcome political and legislative breakthroughs for large groups of stateless people across the world. However, there is still much to be done if the problem of statelessness is to be solved. This chapter starts by detailing the progress that is being made at strategic and practical levels, providing examples of real case studies of where gaining citizenship has changed people’s lives for the better. This international work concentrates mainly on people who are de jure stateless. We then look at the situation in Europe which includes both de jure and de facto stateless people. Lastly we explore what the British Government are doing and what the campaigning organisations would like them to do for de facto stateless people.
International action UN High Commission for Refugees (UNHCR) Because the issues of refugees and stateless people are so often intertwined, the UN General Assembly tasked the UNHCR with overseeing and protecting the world’s stateless people as well as refugees. Although initially its work was mainly confined to eastern and central Europe,
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in recent years the agency has extended its activities to the rest of the world, and is now the lead international organisation working to actively promote the prevention and reduction of statelessness. Its role broadly covers the following areas: ■
Practical assistance
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Working with governments
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Disseminating relevant information
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Cooperating with other interested organisations
Practical assistance in the field In accordance with Article 11 of the 1961 Convention on the Reduction of Statelessness, UNHCR provides assistance to individuals by helping them to resolve their legal problems, obtain relevant documents and eventually restart their lives. An example of this work was outlined earlier in the case study of the Rohingya in Burma and Bangladesh. The work of UNHCR in setting up refugee camps at the point of need is also extremely important. Working with governments Part of the agency’s role is also to assist governments – to help prevent statelessness from occurring, to resolve those cases that do occur and to protect the rights of individuals. Between 2003 and 2005, UNHCR worked with more than 40 States to help enact new nationality laws and to revise older legislation to ensure its application would not inadvertently result in statelessness. Other work to address
the issue at a strategic level includes promoting accession to and implementation of the Convention, training and information sharing workshops for officials, and the publication of guidance documents such as the aforementioned Nationality and Statelessness: A Handbook for Parliamentarians, which aims to serve as a tool for decision makers when taking the necessary steps to reduce and eventually eradicate the problem.
Case study: EU-UNHCR workshop In 2007 the EU and UNHCR jointly funded a series of workshops focusing on statelessness in central Asia, where the dissolution of the Soviet Union, and subsequent civil conflict, left thousands of people without a determined nationality. According to official figures, there are at least 20,000 stateless people in Central Asia. Many have not replaced their old Soviet passports with documents issued by the newly independent states, and so face difficulties when attempting to travel, gain employment or register their children in school. The first workshop was held in the Tajik capital of Dushanbe, where officials shared information on the prevention and reduction of statelessness, and discussed the protection of stateless individuals. Delegates were advised that prevention can involve work to:
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register every child born on your territory, examine your nationality laws with a view to adopting and implementing safeguards to prevent the occurrence of statelessness resulting from reasons like the denial of women’s ability to pass on nationality to their children, renunciation of nationality without having secured another one, and the automatic loss of nationality during long residence abroad. The reduction of statelessness was best illustrated by the case of Kyrgyzstan and Turkmenistan, who resolved potential statelessness by naturalising over 20,000 Tajik refugees on their soil. Participants expressed interest in reducing statelessness by starting targeted information campaigns in areas with a high density of potential stateless people, to inform them of their rights and the relevant procedures to address their problem. V.Tan, UNHCR News Stories, April 2007
Disseminating relevant information The UNHCR also works to actively promote the prevention and reduction of statelessness through the dissemination of information, assisting in media campaigns to inform the public about their rights or changes in the law.
Case study: Sri Lankan media campaign The UNHCR worked closely with the Sri Lankan government on a media campaign to raise public awareness about the country’s citizenship laws, in an attempt to reduce statelessness. Tamil-language radio and newspaper adverts were used to inform the public about various procedures for acquiring citizenship, and posters with the same information have been distributed in tea-growing regions by the Plantation Human Development Trust, a quasigovernment body responsible for infrastructure, health and social welfare projects in tea estates. The campaign mainly targeted ethnic Tamils in central Sri Lanka’s highland plantations because most stateless people in the country are descendants of Indian Tamils brought to work in the tea estates between 1820 and 1840, when Sri Lanka was a British colony. Sri Lanka’s 1988 and 2003 Citizenship Acts were aimed at resolving the problem of stateless people, but some of the so-called ‘Hill Tamils’ continue to face problems in obtaining the documents necessary to enjoy full rights as citizens. This is UNHCR’s second large-scale programme to reduce statelessness in Sri Lanka. In 2003 and 2004, the agency carried out a similar media campaign to inform the public about the new citizenship law and procedures for acquiring citizenship. Mobile clinics were set up in plantation areas to provide people with information about the new legislation. It is estimated that more than 190,000 people gained citizenship during the course of the first campaign. UNHCR News Stories, 26 March 2007
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Cooperating with other interested organisations
and to alert them to the wealth of recommendations and best practices that can prevent statelessness.
UN-run programmes often rely on cooperation between internal specialised agencies. The main United Nations agencies working with UNHCR to address statelessness are: the Office of the High Commissioner for Human Rights; the United Nations Children’s Fund (UNICEF); the UN Population Fund and the United Nations Development Fund for Women (UNIFEM)
It also works with the many national and international NGOs such as Oxfam and Islamic Relief.
In solving prolonged situations of statelessness, UNHCR also sometimes works with the International Labour Organisation (ILO), the United Nations Development Fund (UNDP) and the World Food Programme (WFP) by jointly implementing housing, education or income-generating programmes to help marginalised communities integrate or re-integrate into the national society. (UNHCR, Nationality and Statelessness: A Handbook for Parliamentarians, 2005)
of Daru-Kiunga and the government of Papua
Joint working and cooperation obviously extends beyond the boundary of the UN. Non-governmental organisations play a huge role and work very closely with UNHCR – both in the field as implementing partners, and during the development and planning stages. In 2005, UNHCR signed sub-agreements with 770 such partners. (ibid.) UNHCR also works closely with the Inter-Parliamentary Union (IPU) to raise awareness among parliamentarians about international legal norms relating to statelessness
Case study: Joint working in Papua New Guinea UNHCR completed a joint population registration exercise with UNICEF, the Catholic Diocese New Guinea, issuing birth certificates to young refugees in Papua New Guinea. As a result of this programme more than 1,700 refugee children have now received their birth certificates, in a country where only three per cent of the general population have their births registered. UN staff worked through the leaders of the community to help people understand what the registration was about and the importance of having a birth certificate. The right to a name and identity is one of a child’s most fundamental rights. Registration is also the first legal acknowledgement of a child’s existence and a crucial first step in attaining rights such as education, opening a bank account, finding a job or obtaining credit. A. Rummery, UNHCR News Stories, 2 December 2005
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It is interesting to note that the reasons UNHCR give as important for registration include opening a bank account and obtaining credit. Part of the reason that stateless people are excluded from society is that so much emphasis is now placed on being listed. Whereas this information may well be useful in ensuring the provision of adequate health, housing and education services, identification has become a huge issue in terms of access to money. The strong hold which banks have on people’s lives is worrying. Obtaining credit seems to have been taken on as an issue of human rights! In Britain there is still a suspicion of ID cards. If they are brought in, it will impact further on the exclusion of stateless people. Many libraries, for example, may become inaccessible to people without ID cards. Currently they are free, welcoming and useful to everyone and a place a lot of stateless people go to find out the latest news about their country. Other international organisations Alongside UNHCR’s work there are many other international organisations involved with the various efforts to help the world’s stateless people. Again they also focus mainly on de jure stateless. Their activities involve both practical work in the field and strategic efforts such as lobbying governments, publishing reports, campaigning and issuing recommendations. Three organisations involved with strategy and lobbying are described below, but it should be noted that this is just an example and not an exhaustive list of all international agencies involved in this field.
Amnesty International Within its remit to campaign on human rights, Amnesty International (AI) has published reports and issued specific recommendations on the issue of statelessness. For example, as part of a joint oral statement to the Commission on Human Rights 60th Session, alongside Friends World Committee for Consultation (Quakers), International Catholic Migration Commission and Jesuit Refugee Service, AI urged the Commission to: ■
Call on States to respect and protect the fundamental human rights of all non-nationals
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Call on States who have not already done so to ratify the 1954 Convention on the reduction of Statelessness and the 1961 Convention relating to the Status of Stateless Persons and to establish domestic mechanisms to identify stateless persons and to seek the assistance of the United Nations High Commissioner for Refugees in this regard
Amnesty is also a member of the ‘Still Human, Still Here’ UK campaign, which is discussed later in this chapter. Human Rights Watch Human Rights Watch is the largest human rights organisation based in the United States. It conducts factfinding investigations into human rights abuses, and publishes those findings to press for changes in policy and practice.
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A report published on the Human Rights Watch website, Nationality and Human Rights, suggested the following steps to tackle statelessness: ■
An international campaign for ratification international agreements on statelessness
of
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Campaigning by childrens’ rights activists for the implementation of existing norms in the Convention on the Rights of the Child to combat statelessness. Populations with long-standing claims to nationality in their country of residence whose children remain stateless require urgent attention.
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The UN High Commissioner on Human Rights should set in motion a study of the human rights dimension of discriminatory norms by which states determine who is a citizen and naturalise citizens.
Refugees International Refugees International is an NGO based in Washington, which acts for refugees, internally displaced persons, and other dispossessed people around the world. The central focus of the organisation is based on field assessment missions, where representatives assess the situation and recommend concrete actions for governments, international agencies and other NGOs.
Action in Europe Not all European states have signed up to the 1954 convention and fewer still to the 1961 convention. Those who have signed up to both are; Albania, Bosnia
Hercegovina, Czech Republic, Denmark, France, Germany, Ireland, Latvia, Netherlands, Norway, Slovakia, Sweden, and the UK. However signing up does not seem to significantly change practice. In his report for the Hungarian Helsinki Committe and UNHCR, Forgotten without Reason, Gaboo Gyulai finds that of the four countries he researched – Poland, Hungary, Slovenia and Slovakia – ‘Poland is interestingly the closest to meeting the standards set by the 1954 Statelessness Convention, to which it is not a party’ (the other three countries all signed the 1954 Convention). The standards set by the 1954 Convention include residence and legal identity, access to the labour market, access to education, access to public funds and a travel document. It must be remembered that the 1954 convention encourages but does not stipulate de facto stateless people to be treated similarly to de jure. In Poland, although the necessary ‘permit for tolerated stay’ is difficult to access, the right to work which then ensues is very valuable to people. The other major initiative which is of practical help is that of regularisation. This is sometimes called amnesty or legalisation. Again the practice across Europe is very variable. Different countries have divergent ideas as to what constitutes regularisation, ranging from a one year work permit to five year residence. They are usually open to all irregular migrants, and not just stateless people, but they often have difficult application criteria and procedures. Spain for example ran regularisation programmes in 1985, 1991, 1996, 2000, 2001 and 2005.
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The 2001 criteria was: presence in Spain before Jan 23rd 2001 and proof of incorporation into the labour market, family ties with Spanish citizens or foreign residents, no charges pending.
Action in Britain Existing government procedures In Britain there is already regularisation for people who have been here 14 years, but even that is not always easy to obtain. In 2003 the Home Office granted leave to remain to families who had been refused asylum and had come into the country before October 2000. In July 2006 the Home Secretary announced that there was an asylum ‘legacy’ of around 450,000 cases and the Home Office would clear this legacy within five years ie. by 2011. A special legacy directorate was set up to deal with this – now renamed the Case Resolution Directorate. It is not clear exactly what cases it covers other than those not processed under the (New) Asylum Model. Certainly the majority of cases dealt with so far have been families because, unlike single people and couples, families still receive Home Office support if they cannot be removed, even when appeals are exhausted. It is therefore cost effective to deal with these first – either through removal or allowing people to work. Some families have been deported and others given leave to remain. A case will be deemed to be resolved when either of those things has happened.
According to the UK Borders Agency the next group to be processed are those people who are still receiving support, those who are easy to deport and those who are dangerous. People who are stateless, and came to the UK before the New Asylum Model was used, stand to benefit from this eventually, if they are still signing with Immigration and can therefore be contacted. The Home Office have always been clear that they will contact people and people cannot apply for case resolution. If stateless people are to benefit, they need to be able to apply and need to be prioritised. Left to chance they are as likely to be forgotten as they are to be contacted. The Home Office have said they will treat a case as closed if they cannot contact the individual, but they will first make what they consider to be reasonable efforts to make contact. It is not unwarranted to suggest that reasonable efforts should include inviting people to contact them. How many people who come forward will depend on their reception. If they have stopped signing and come forward and get detained as an absconder, word will spread and others will stay underground. Although the Home Office are clear that this is not an amnesty, it has generally been well received. As mentioned in Chapter 2, Section 4 support in the form of basic accommodation and vouchers is also something which the Governenment offer to destitute refused asylum seekers, if they are prepared to sign up for voluntary repatriation. However a lot of people are fearful of this as
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explained earlier. At the time of writing the UK Borders Agency do seem to be widening the scope of Section 4 to include people released from removal centres and they are looking at the needs of pregnant women following reports on high rates of infant mortality.
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that the policy of making refused asylum seekers destitute is punishing refused asylum seekers, some of whom would be entitled to sanctuary but who received poor asylum decision
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that destitution is being used as an instrument of policy to force refused asylum seekers to leave the UK and dissuade others from entering
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that destitution has far reaching social consequences, including vulnerability to sexual exploitation, cessation of education and additional individual trauma
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that through destitution the Government is stigmatising refused asylum seekers and increasing negative public perceptions of already vulnerable people
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that the prohibition of work for those who cannot be returned is a waste of potential and revenue
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that refused asylum seekers are vulnerable to illegal working, exploitation, and criminal activity and becoming victims of crime
British organisations Although the previous section acknowledged some positive moves from the British Government, many people and organisations working with refugees in Britain are concerned and angry about the plight of destitute asylum seekers. Much research has been done and many campaigns are lobbying for change. Although the research and campaigns are not focussed explicitly on statelessness, most destitute asylum seekers are de facto stateless because they are either unable or too frightened to return to their country. Research and reports A lot of research has taken place into the effects of destitution. Here is information on two recent national reports Fit for Purpose Yet? This is a recent and influential report on the asylum system by the Independent Asylum Commission. Although its final conclusions will not be published until after this book is printed, its interim findings include:
The Case for Regularising Irregular Migrants This report by the Joint Council for the Welfare of Immigrants (JCWI) was published in July 2006. Their introductory paragraph reads Official figures suggest the UK has an irregular migrant population of up to 570,000 (Home Office 2005). It is varied in character consisting of among others clandestine or trafficked migrants, failed asylum seekers and overstayers. What they have in common is
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that they entered or remain in the UK in an unregulated immigration capacity. Living in fear of deportation, they are consequently without means to enforce their rights, and are one of the most disadvantaged and exploited segments of the population.
The report recommends that, subject to certain other criteria, people who have been in the UK for over seven years should be granted Indefinite Leave to Remain, with staged settlement for those who have been in the UK for between two and seven years.
Campaigns Strangers into Citizens campaign This campaign asks for a one-off regularisation. Organised by the Citizens Organising Foundation it proposes that irregular migrants who have lived and worked in the UK for more than four years be granted a two-year work permit. At the end of those two years, subject to conditions, they should be given leave to remain. This call for regularisation was expressed in a demonstration of 10,000 catering workers on 20th April 2008, when a speaker from the JCWI joined several MPs, including Jeremy Corbyn and Simon Hughes, in speaking out. No One Is Illegal This campaigning group argue that immigration controls are inherently institutionally racist and that regularisation
proposals from other groups have high criteria which will still leave many excluded. Still Human, Still Here Campaign In 2007 members of ‘Still Human, Still Here’ produced a mapping document to identify what is being done by agencies in the UK. The campaigns listed in this report are described below. There will also be many other campaigns, both local and national, which are not mentioned here. The ‘Still Human, Still Here’ campaign is dedicated to highlighting the poverty faced by thousands of refused asylum seekers who are being forced into destitution. Supporters of the campaign believe that the denial of any means of subsistence to refused asylum seekers as a matter of government policy is both inhumane and ineffective. The campaign brings together organisations that believe they can campaign more effectively with a common banner, coordinating resources, initiatives, skills and contacts. Members of the campaign include: ■
Amnesty International UK
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Archbishops’ Council of the Church of England
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Asylum Aid
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Asylum Rights Campaign
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Asylum Support Appeals Project
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Asylum Support and Immigration Resource Team
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Catholic Bishops’ Conference of England and Wales
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Church Action on Poverty
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Citizens Advice
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Immigration Law Practitioners’ Association
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Medical Foundation for the Care of Victims of Torture
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Migrants Resource Centre
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Joint Council for the Welfare of Immigrants
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Positive Action in Housing
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Refugee Action
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Refugee Council
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Refugee Legal Centre
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Scottish Refugee Council
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Student Action for Refugees (STAR)
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The Children’s Society
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Welsh Refugee Council
The ‘Still Human, Still Here’ campaign is calling on the government to: ■
End the threat and use of destitution as a tool of Government policy against refused asylum seekers.
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Continue financial support and accommodation to refused asylum seekers as provided during the asylum process and grant permission to work until such a time as they have left the UK or have been granted leave to remain.
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Continue to provide full access to health care and education throughout the same period.
Following up on these aims, the campaign has produced an alternative bill and amendment to Clause 17 of the UK Borders Bill. The effect of this would be that Section 95 mainstream asylum support would be continued for people refused asylum until they are granted status or removed from the UK. Amnesty International UK Following the publication of its report Down and Out in London (November 2006) Amnesty International sent its campaigning members a sample letter on the destitution of people refused asylum to send to their MPs. Supporters have also been encouraged to organise and take part in sleep outs to raise awareness of destitute asylum seekers. As part of the ‘Still Human Still Here’ campaign, Amnesty International UK has asked its supporters to lobby MPs for an amendment to the UK Borders Bill to continue mainstream asylum support for people refused asylum. Refugee Council’s Just.Fair Campaign The Just.Fair Campaign, launched in 2006, aims to end destitution for asylum seekers, stating that: Thousands of asylum seekers in the UK are being forced into destitution. They are not allowed to work. But this isn’t working. Refused asylum seekers are being left homeless, hungry and without hope by our government, but they aren’t going back.
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A series of sleep outs and vigils have taken place across the country to highlight the desperate situation faced by refused asylum seekers. In February 2007 campaigners slept outside Parliament and over the summer over twenty actions were coordinated in support of the ‘Still Human, Still Here’ campaign. The Refugee Council has recently launched a ‘Let Them Work’ campaign, in partnership with the TUC.
The campaign calls for: 1. Humanitarian Protection to be granted to people escaping ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’ (from article 15c of the European Union Qualification Directive). Last year, only 55 people were granted Humanitarian Protection because of very narrow criteria applied. 2. The government to maintain support and contact with refused asylum seekers, helping them to:
Refugee Action Destitution Campaign Refugee Action, campaigning with the ‘Still Human, Still Here’ coalition, states that: forcing people into abject poverty makes them less likely to return home. Their lives turn into a struggle for survival, with all energy going into finding places to sleep and food to eat.
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Understand why their asylum claim has been refused
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Give them time to think, prepare and plan ahead
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Ensure that they have fully explored all legal and migration options
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Where no other options are available, engage in humane, dignified and supported voluntary return, avoiding the need for detention or forced removal.
Church Action on Poverty’s ‘Living Ghosts’ campaign CAP launched its ‘Living Ghosts’ campaign in 2005. Since then it has had reasonable success in gaining the government’s attention, meeting with Immigration Ministers and various MP’s across Britain, forcing a public response from the Home Office and initiating a House of Commons motion.
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Various events have also taken place in support of destitute asylum seekers, including demonstrations, a pilgrimage, a vigil, sleep outs, conferences, and an endurance challenge of living on £5 and a food parcel. Asylum Destitution Support Network (Scotland) Article 25 Campaign Set up by organisations involved in the Asylum Destitution Support Network, this human rights campaign lobbies for an end to asylum destitution, calling for the government to end the policies that lead to destitution, to honour our legal and moral obligations towards those fleeing persecution, and to ensure that everyone has the right to a standard of living adequate for their health and well-being.
their insecure immigration status. Without a regularised immigration position, women cannot access safe housing or benefits to escape domestic violence. The result is that they are faced with a stark choice, leave and face destitution or stay and risk their lives. The campaign is calling for the government to: ■
Enable all women to have living expenses and have access to refuges and local authority accommodation pending a final decision on applications to remain in the UK.
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Fast track applications to remain in the UK (process within two months) where there is prima facie evidence of domestic violence.
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Extend the domestic violence rule to all abused women with an insecure immigration status and introduce similar protection for trafficked women subjected to sexual and economic abuse and to domestic workers experiencing violence from employers.
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Provide adequate levels of legal aid.
All Wales Destitution Task Force The Destitution Taskforce is a strategic body working to coordinate attempts to tackle destitution in Wales, including front line support to alleviate the effects of destitution, fundraising efforts, research and information gathering, sharing best practice and campaigning for change. Women’s Resource Centre and Southall Black Sisters Campaign to Abolish No Recourse to Public Funds This campaign was launched in October 2006, focusing on black and migrant women who face domestic violence, many of whom are particularly vulnerable as a result of
The lack of adequate response from the government so far has led to a wide range of organisations to call for direct action, which most recently has included a demonstration in London and a public meeting with prominent guest speakers. Law Society’s ‘What Price Justice?’ Campaign The Law Society’s ‘What Price Justice?’ Campaign, launched in November 2006, is a response to the Government’s plans to reform legal aid. If implemented, this reform could lead to hundreds of practitioners giving
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up legal aid work, leaving many vulnerable clients unrepresented. The campaign’s central objective is to persuade the government to: guarantee an adequately funded legal aid system, ensuring quality representation and access to justice for all.
This aim is supported by many of the most influential lobbying organisations in the country, including Refugee Council, Shelter, Mind, NSPCC and Advice Services Alliance. This is closely connected to statelessness as insufficient access to legal help is often the reason why asylum claims are refused. City of Sanctuary Beginning in Sheffield, City of Sanctuary is a movement to build a culture of hospitality for refugees and asylum seekers. Their goal is to create towns and cities throughout the UK which are proud to be places of safety, and which include refugees and asylum seekers fully in the life of their communities. Although this campaign has broad aims, it is very important because it addresses public awareness of the issues in a very positive way. There is a lot of misinformation and a lot of hostility towards both forced and economic migrants from the general public and this needs changing, not only for its impact on the migrants themselves but also in shifting government thinking.
Campaign round-up Clearly there are a lot of campaigns addressing the asylum process and particularly destitution. The ‘Still Human, Still Here’ campaign is already a network of organisations. There are many more well known campaigns such as the National Coalition of Anti Deportation Campaigns and the No Borders Network which campaign for freedom of movement and equal rights for all. Some campaigns are radical and argue for the abolition of border controls, whilst others are pragmatic and suggest government changes which they think are achievable. Many campaigns support each other on demonstrations and particular projects. There is no campaign however which focuses solely on statelessness and therefore we have started one. As destitution continues to grow and the Government brings in harsher and harsher policies, so the campaigning increases. Working together we have the real chance of bringing change. Our campaign: Statelessness – the quiet torture of belonging nowhere Most of the people involved in writing this book have come into contact with lots of stateless people through the night shelter at Coventry Peace House. We were increasingly concerned by the enforced destitution, exploitation and criminalisation faced by stateless people in this country. Coventry Peace House decided to launch a campaign at the start of 2008 to raise awareness of the issue, to call for the
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government to address the issue and to help bring about change globally.
5
We wrote this book as the campaign starting point, to help us better understand the issue ourselves, and to raise public awareness. It was launched during Refugee Week in June 2008, in a park at night.
Conclusion and course of action
What we are doing
Article 1. Universal Declaration of Human Rights
The Stateless Campaign is committed to bringing to light the hidden issue of statelessness. We believe that everyone deserves the dignity of being recognised as a legitimate and worthy citizen, able to live with self-respect and contribute to society. Because of this, we want our campaign to become relevant at a national level. We are continuing to plan future campaign actions, including taking our recommendations forward to Parliament (through an Early Day Motion), lobbying MPs and arranging awareness raising events. Statelessness is an exclusion we cannot condone in our society. As human beings we have a responsibility to help each other. How you can get involved If you would like to help with the campaign or volunteer at any forthcoming events or send us money please get in contact via our campaign website www.stateless.org.uk or phone 02476 664616 or write to Penny at The Statelessness Campaign, Coventry Peace House, 311 Stoney Stanton Road, Coventry, CV6 5DS.
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
This book has highlighted that there are thousands of people who live in Britain who are completely excluded from society. We don’t see them begging on the streets. They are hidden. The purpose of this book was to give them a voice and also to alert people, who are concerned about human rights, to what is going on in our midst. It is unacceptable that the British Government pursue a policy of enforced destitution on those who have come here in search of safety. We have focussed particularly on those in Britain who cannot be sent back to their country because their country won’t take them. We have also looked at those who were refused asylum but are too frightened to return so are forced to live a life of exclusion here.
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The international picture of statelessness has also been explored, both within Europe and within the wider world where many ethnic groups are given no rights at all and refugee camps become permanent places of residence. There are some international conventions which guide us in what we should be doing. Many of these such as the Universal Declaration of Human Rights and the Convention Relating to the Status of Stateless Persons were drafted after the Second World War when we had experienced the horror of genocide and the destruction of whole communities. We seemed to have a clearer idea then of the sort of world we didn’t want and the kind of world we wanted to work together to create. It seems we have lost our sense of direction and our vision. We are in the situation now of allowing our Government to violate human rights on a massive scale. If we turn away and collude with this oppression, we lose our own humanity. We need to act.
b) If the Home Office have been unable to get the necessary entry papers within six months they should be given leave to remain. ■
To write new legislation which establishes a specific stateless status determination mechanism for both de jure and de facto stateless and offers an effective protection system for those recognised as stateless, as recommended in the 1954 Convention relating to the Status of Stateless Persons.
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To end the use of detention as a means of control for those seeking asylum or seeking protection as a stateless person.
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To grant refused asylum seekers the right to work until they leave the country. This should include existing refused asylum seekers as well as future refused asylum seekers. There should be no penalty for those who have stopped signing with Immigration and then come forward.
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To ensure refused asylum seekers have access to free health services and English classes
1. Lobby the Government ■
To remove the culture of disbelief and give asylum seekers a fair hearing with adequate legal support.
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To set up a clear process for those who have been refused asylum, but whose country refuses to take them back: a) If they are returned to their country and their country refuses to take them and sends them back, they should be granted leave to remain immediately on arrival.
2. Personally ■
Work on your own prejudices – we all have them!
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Welcome and value migrants you meet
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Share your understanding about these issues with family, friends and colleagues
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Challenge racism whenever you meet it.
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Bibliography
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Batchelor, C. (2003) The 1954 Convention Relating to the Status of Stateless Persons: Implementation Within the European Union Member States and Recommendations for Harmonization Beah, I. (2007) A Long Way Gone, Memoirs of a Boy Soldier Harper Collins: London Brown, C. & Ainley, K. 3rd edn (2005) Understanding International Relations Palgrave Macmillian: England Browning Politics – An Introduction Edited by Axford et al. (2002) 2nd edn Routledge: London and New York Clifton, C.S and Harvey, G. (2004) The Paganism Reader Routledge: London and New York European Commission (2004) The Situation of Roma in an Enlarged European Union Godrej, D. A Shrunken World New Internationalist, May 2008, Issue 411, pp. 12-14 Gabor Gyulai, (2007) Forgotten without Reason Hungarian Helsinki Committee
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Hourani, A. (2005) A History of the Arab Peoples, 2nd edn Faber and Faber: England Huggins, R. ‘Democracy and Democratization’ in Politics - An Introduction Edited by Axford et al. (2002) 2nd edn Routledge: London and New York
Scott, L. (2001) ‘International History 1945-1990’ The Globalization of World Politics Ed. Baylis and Smith Oxford University Press: England Stiglitz, J. (2002) The Globalization of Discontent Penguin Books: England
Heywood, A. (2003) 3rd edn Political Ideologies an Introduction Palgrave Macmillan: England
Still Human, Still Here (2007) Policy and campaign work on asylum destitution: Mapping what is going on and is coming up
Independent Asylum Commission (2008) Fit for Purpose Yet?
Taylor, P. (2001) ‘The United Nations and International Order’ The Globalization of World Politics Ed. Baylis and Smith Oxford University Press: England
Indigenous Peoples New Internationalist, Issue 410, April 2008, pp. 4-10 Joint Council for the Welfare of Immigrants (2006) The case for regularising irregular migrants Lynn, R.J. (1994) The Classic of Changes: I Ching Columbia University Press: USA Lynn, R.J. (1999) The Classic of the Way and Virtue: Tao-te ching Columbia University Press: USA Migration Information Source (2005) Why countries continue to consider regularization Migration Policy Institute: Washington DC
UNHCR (2005) Nationality and Statelessness:A Handbook for Parliamentarians UNHCR The Excluded: The strange hidden world of the stateless Refugees Magazine, Issue 147, September 2007 Václav, B. (2004) Journal of Early Modern History Volume 8, Numbers 1-2, 2004, pp. 31-45 (15)
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Websites Amnesty International www.amnesty.org.uk/asylum Asylum Destitution Support Network (in Scotland) Article 25 Campaign www.destitution.net Church Action on Poverty’s ‘Living Ghosts’ campaign www.church-poverty.org.uk/campaigns/livingghosts/ City of Sanctuary http://www.cityofsanctuary.com Home Office Website for Statistics http://www.homeoffice.gov.uk/rds/immigration-asylumstats.html
National Coalition of Anti-Deportation Campaigns http://www.ncadc.org.uk No Borders http://noborders.org.uk No One Is Illegal http://www.noii.org.uk Refugee Action http://www.refugee-action.org.uk/campaigns/destitution/ default.aspx Refugee Council’s Just.Fair campaign, www.refugeecouncil.org.uk/justfair Refugees International www.refugeesinternational.org
Human Rights Watch www.hrw.org
Still Human, Still Here www.stillhuman.org.uk
Law Society’s ‘What Price Justice?’ Campaign, http://www.lawsociety.org.uk/newsandevents/news/ majorcampaigns/view=newsarticle.law? CAMPAIGNSID=306046
Strangers into Citizens campaign, www.strangersintocitizens.org.uk
Leclerc, P., Q & A: The world’s 15 million stateless people need help http://www.unhcr.org/cgi-bin/texis/vtx/news/ opendoc.htm?tbl=NEWS&id=464dca 3c4 Accessed 4.7.08 Mydans, S. Will Oil Wealth Keep Cambodia Afloat, or Drown It? http://www.iht.com/articles/2007/05/03/asia/cambo.php Accessed 6 May 2007
UNFPA Organisation State of the World Population 2006 http://www.unfpa.org/swp/2006/english/chapter_4/ repatriation.html Accessed Sept 2007 UNHCR www.unhcr.org Wolf, N. Fascist America, in 10 Easy Steps http://www.guardian.co.uk/usa/story/0,,2064157,00.html Accessed May 2007
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Women’s Resource Centre and Southall Black Sisters Campaign to abolish No Recourse to Public Funds, www.southallblacksisters.org.uk Workers’ Rights and Regularisation Campaign www.jcwi.org.uk/campaigns/workersrights/ migrantworkersrights.html
Addenda I.
Immigration appeal – Eritrea and Ethiopia
ASYLUM AND IMMIGRATION TRIBUNAL Appeal No: KA (statelessness: meaning and relevance) Stateless [2008] UKAIT 00042 AIT Reported Date heard: 13/09/2007 Date notified: 14/05/2008 Before: Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Immigration Judge S J Hall Appellant The Secretary of State for the Home Department Respondents Determination and Reasons Representation For the Appellant: Mr. E. Fripp, instructed by South West Law For the Respondent: Miss T. Powell, Home Office Presenting Officer 1. Statelessness does not of itself constitute persecution, although the circumstances in which a person has been deprived of citizenship may be a guide to the circumstances likely to attend his life as a non-citizen. 2. The Refugee Convention uses nationality as one of the criteria of the identification of refugees: there is no relevant criterion of 'effective' nationality for this purpose. NOTE 1. This appeal has an exceptionally long history, which has been unnecessarily (although in the circumstances only fractionally) extended by us, for which we apologise. It raises a number of issues, some of which are difficult in themselves. The difficulty has been compounded by the fact that at various
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stages the Tribunal has not been very fully addressed on precisely the issues that need to be decided. 2. The question lying at the heart of this appeal, as in many others, is that of the appellant's nationality. He was born in Ethiopia of Eritrean parents. He claims that he has lost his Ethiopian nationality, because of his parentage; and he says that any claim that he might have to Eritrean nationality is ineffective because of the Eritreans' attitude toward those who come from Ethiopia. But it is not easy to establish any of those propositions, and none of them has yet been established in judicial proceedings that have not been successfully appealed. There is, in addition, a procedural difficulty which relates to the notice of the decision against which the appellant appeals and which unfortunately has the capacity of further prolonging the course of the process. 3. The appellant arrived in the United Kingdom on 22 September 1999. He had no travel documents. He applied for asylum. He was interviewed, nearly two years later on 23 July 2001. After another interval of nine months he was issued with a notice of refusal of leave to enter. In that notice the Immigration Officer proposed his removal to Eritrea. The appellant appealed. The appeal was heard by an adjudicator, who dismissed it. Having obtained leave to do so, the appellant then appealed to the Immigration Appeal Tribunal which adjourned the hearing on a number of occasions at the appellant's request. Following the commencement of the appeals provisions of the 2004 Act, the appeal to the Immigration Appeal Tribunal continued as a reconsideration before this Tribunal. At a hearing on 17 November 2005 the respondent conceded that the adjudicator's determination, sent to the parties on 3 April 2003, contained material errors of law and that a rehearing would be necessary. (If that is the case, it is very difficult indeed to see why the concession was not made years earlier.) The appeal was then reheard by a panel of this Tribunal, who dismissed it. There was an application for permission to appeal to the Court of Appeal, which was refused by the Tribunal, but renewed to the Court of Appeal, who granted it. The substantive appeal to the Court was then settled by consent, with an order that the appellant's appeal be heard again. 4. We should point out that in the statement of reasons submitted to the Court, it is said that the appellant's claim was "refused by the respondent on 26 July 2001", and that, by the time of the hearing before this Tribunal, the respondent "now proposed to remove the appellant to Eritrea". Both of those statements are correct, but both are misleading. The date given is the date of the letter giving the Secretary of State's reasons for refusing the claim, but, as we have said, the notice of the decision against which the appellant appealed was issued
some months later. And although the letter is written in terms suggesting that the appellant could and should be removed to Ethiopia, the destination specified in the notice of decision is Eritrea. The respondent has not sought to change it. This is a point to which we revert later. 5. The appellant's appeal has been run on Refugee Convention and Human Rights grounds. The advent of the Qualification Directive 2004/83/EC and the regulations made under it does not affect the substantive issues to be determined and we are therefore content to continue to look at the position under those two Conventions. 6. So far as the Refugee Convention is concerned, the appellant is a refugee if he has a well founded fear of persecution for one of the five "Convention reasons" in his country of nationality. It follows that his nationality has to be determined as part of the process of determining his status as a refugee or otherwise. If he has no nationality, his status has to be determined by his country of former habitual residence, which is certainly Ethiopia. It does not look as though he can have dual nationality, because neither Ethiopia nor Eritrea appears to permit dual nationality. But he may still have the Ethiopian nationality that he certainly had when he was born; and, if he does not have Ethiopian nationality, he may have become entitled to have Eritrean nationality. If he is stateless or if he has Ethiopian nationality, Ethiopia is the appropriate State of reference for the purposes of refugee status determination. But if he has, or is entitled to have, Eritrean nationality, Eritrea is probably the appropriate State. 7. We say "probably", because Mr. Fripp raises the issue of "effective nationality", which has featured in a number of other cases. It is said, in the writings of Hathaway and some others, and in the jurisprudence of some other countries, that refugee status is to be determined not by nationality or access to nationality as such, but by reference only to such nationality as may be "effective". It is argued that a nationality that is acquired, or that can be acquired, on a purely formal basis, but which gives no substantive rights to the person acquiring it, ought not to be considered as nationality for the purposes of refugee status determination. We have very considerable doubt whether we should adopt that notion. It appears to us to insert a quite unnecessary construct into the clear provisions of the Refugee Convention. If a claimant's nationality is such that it does not afford him protection from persecution for one of the "Convention reasons", he may be able to establish his refugee status by reference by that nationality: not on the basis that the nationality is "ineffective", but because, as a person of that nationality, he does not have
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protection from persecution in his country of nationality. In circumstances where dual nationality is permitted, the formal possession (or possibility of acquiring) a second nationality will operate in precisely the same way. If a person is at risk of persecution in one of his countries of nationality the possession (or the possibility of acquiring) nationality of another country will only prevent him from being a refugee if he is not at risk of persecution there or at risk of being returned to the first country from there. That, again, will depend on whether the second nationality is nationality of a country where he has a well founded fear of persecution: it does not depend on whether the nationality has an additional feature of "effectiveness". A person is stateless only if he has no nationality available to him. If a notion of effectiveness of nationality were to be incorporated into the definition of a refugee, it would, first, cause some individuals who had (or had access to) nationality to be treated as stateless, which is inherently undesirable. It would, further, cause the refugee status of a person who had a nationality to be determined not by reference to the State of which he was a national (that State having been excluded from consideration on the ground that the nationality was "ineffective"), but by reference instead to the country of former habitual residence. We cannot see that the Refugee Convention has any such intention. 8. Looking at the matter of the point of view of this case, if the appellant is, or is entitled to be, a national of Eritrea, his refugee status has to be assessed by reference to Eritrea. He cannot claim that it should be assessed by reference to Ethiopia, his country of former habitual residence, on the ground that he is stateless. He is not stateless if he is entitled to Eritrean nationality. If the position is that, although he is entitled to Eritrean nationality, he will be treated there in a way that amounts to persecution within the Convention, then he is, by reference to Eritrea, a refugee. If he cannot show that his treatment in Eritrea would amount to persecution for one of the "Convention reasons", he cannot show that he is a refugee: nothing is added by saying that that shows that his nationality of Eritrea would not be "ineffective". If he is not entitled to nationality of Eritrea, his status must be determined with reference to Ethiopia, either because he is a national of Ethiopia, or because he is stateless and Ethiopia is his country of former habitual residence. Although the question is the same in either case, the answer may be different: it may be that the risks in Ethiopia to Ethiopian nationals (albeit of Eritrean ancestry) are different from the risks to stateless persons of Eritrean ancestry. 9. Mr. Fripp's principal submission to us was that Eritrea should be excluded from consideration, because Eritrean nationality would be "ineffective" in the appellant's case. He also submitted that the appellant had been effectively
stripped of Ethiopian nationality. We cannot accept that if the appellant has lost his Ethiopian nationality he should be regarded as stateless if he is entitled to Eritrean nationality. A person who has an entitlement to a nationality should not be regarded as stateless. The incidents of the nationality to which he is entitled may have an effect on whether he is at risk of persecution, but they cannot make him stateless. 10. We should say that the evidence on the question whether the appellant is entitled to Eritrean nationality is very far from establishing anything. It appears that the position since 1992 is that a person like the appellant born of Eritrean parents is a national of Eritrea by birth. The appellant made, in 2004, what may described as a rather half-hearted attempt to secure documentation evidencing his Eritrean nationality, but decided to take the matter no further when he heard of the fees charged at the Eritrean Embassy in London and of the need to provide evidence from three individuals as well as his parents' birth certificates. 11. So far as Ethiopia is concerned, Mr. Fripp submitted to us that the appellant's status as a refugee was essentially settled by the decision of the Court of Appeal in EB (Ethiopia) v SSHD [2007] EWCA Civ 809. That was a case in which the evidence established that the appellant had had her Ethiopian nationality revoked by destruction of her identity documents whilst she was in Ethiopia. There was also evidence that the Ethiopian Embassy in the United Kingdom would not issue her with documents attesting Ethiopian nationality. There was accordingly no doubt that she was to be treated as a person who was not, and could not become, a citizen of Ethiopia. Although she had an Eritrean father, no real consideration appears to have been given to the possibility that she should be treated as a national of Eritrea. Her refugee status was determined by reference to Ethiopia, and the Court of Appeal decided, by a majority, that the material available to it was sufficient to establish that the deprival of her nationality was itself sufficient to establish a well founded fear of persecution in Ethiopia. A number of features of the case make it not entirely easy to understand how the decision in EB (Ethiopia) should be applied to future similar cases. All the members of the court appear to have thought in principle that, at any rate in the circumstances of that case, the question of whether the appellant had at the present time a well founded fear of persecution could be answered solely by reference to her experiences in the past. That is no doubt right in some cases, but it cannot be universally right. Further, Longmore and Jacob LJJ (but not Pill LJ, who dissented rather strongly) seem to have thought that the deprival of nationality of itself amounted to treatment which was, and continued to be persecution, without
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any inquiry of any consequences to such deprival. That, although no doubt merited on the facts of the particular case, is again surprising. Many countries have a long and honourable history of affording benefits to non-citizens. The Refugee Convention as a whole is structured around a predicate that the refugee will be in a country of which he is not a citizen. It simply cannot be suggested without more that life without citizenship is a life of persecution. 12. In any event, however, we do not think that it is right to say that the decision of the Court of Appeal in EB (Ethiopia) concludes anything that is certainly an issue in this appeal; and it is certainly not right to say, as Mr. Fripp did say, that the facts of the present case are in all material respects identical to those of EB (Ethiopia). Even if Eritrea were to be excluded from consideration, as Mr. Fripp submits that it should be, this appellant's experiences are quite different from those of EB. The evidence is that this appellant's father may have been deprived of his Ethiopian nationality, but the appellant himself, although arrested and detained briefly, was released on his assertion that he was an Ethiopian national. There is little or nothing in the appellant's account of his own history that could amount to a claim that the appellant has been an individual victim of a deprivation of citizenship. Indeed, Mr. Fripp appeared to concede before us that the appellant had Ethiopian nationality de jure, and was not able to point to any evidence that he had been stripped of it de facto. If he has been deprived of his citizenship in some way, it must be as the result of the operation of law. There is some evidence that some Ethiopian nationals of Eritrean background have been deprived of nationality, but it is very far from clear that such difficulties are universal and they may not at present be widespread; further, the appellant's own experiences during his arrest may show that the risk is substantially reduced in his case. As has been pointed out in other judgements in this appeal, if the Ethiopian authorities wanted to take action against him, it is surprising they did not do so when he was in their hands: the fact that they did not do so tends to show that there is little risk in his case. 13. For the foregoing reasons we reject both the principal matters put by Mr. Fripp in his skeleton argument. We are not prepared to decide refugee status on the basis of "effective" rather than actual nationality or access to nationality; and we are not prepared to say that the decision of the Court of Appeal in EB (Ethiopia) resolves this appeal. Given that the previous judgements have all been set aside, it appears to us that the appellant's position in relation to citizenship will need to be determined on up to date and reliable evidence of that position vis-à-vis both Ethiopia and Eritrea.
14. As we have said, the proposal is to remove him to Eritrea. Whether or not that is the country of which he is a citizen, he is entitled to resist removal there if removal to Eritrea would breach any of his rights under the Human Rights Act 1998. It is submitted on his behalf that if he is Ethiopian, then even if he has no well founded fear of persecution in Ethiopia, he will be ill treated in Eritrea as an Ethiopian. If he is stateless, it is said he will similarly be ill treated as a perceived traitor to the Eritrean State. The Consent Order of the Court of Appeal acknowledges that the previous Tribunal did not properly consider whether removal to Eritrea, as proposed by the respondent, would breach the appellant's human rights. That is a further matter which, if this appeal proceeds as it has done, will need to be considered, and on which evidence will need to be taken before a final judgement is reached. 15. We must return to the procedural aspects of this case. On hearing Mr. Fripp's submission that the appellant ought not in any circumstances to be regarded as effectively connected with Eritrea, Miss Powell, who appeared for the respondent, suggested that the appellant ought to be returned to Ethiopia. She said on the respondent's behalf that she intended to therefore change the destination. We directed that if that were to happen she was to lodge a new notice within 7 days and we would then consider whether, in consequence, the decision presently under appeal survived. Shortly after the hearing another Presenting Officer wrote to the Tribunal. The effect of that letter was not, at that time, entirely understood, and it is for that reason (for which we take responsibility) that the writing of this determination has been delayed: it is fair to say that we expected a new notice to be issued. The letter reads as follows: "Further to directions, I am writing to confirm the following: If the Tribunal find as a fact that the above appellant is an Ethiopian citizen, who can be removed to Ethiopia without facing a breach of his human rights, the SSHD will set removal directions to Ethiopia in pursuance of his powers under 10(1) of Schedule 2 to the Immigration Act 1971, as per the verbal undertaking given by Miss Powell at the hearing on 13th September 2007." With the greatest respect, that letter appears to indicate the worst of both worlds. If Mr. Fripp is right and Eritrea is to be excluded, and if the respondent is right in saying that the appellant has no well found fear of persecution or risk of ill treatment in Ethiopia, which is what the respondent has said ever since issuing the letter giving reasons for refusal, in July 2001, then a notice with a new destination will be issued. A decision to refuse leave to enter is one which, under the provisions of the Immigration (Notices) Regulations 2003 (SI 2003/658: see reg 5(1)(b)) is required to indicate the country of proposed
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removal. Previously, and because of the terms of the notice of the decision against which he is appealing, the appellant has run this appeal on the basis that, although he says that Ethiopia is the only country by reference to which his claim to refugee status should be assessed, he does not have to deal with the consequences of return to that country, because the Secretary of State did not propose to return him there. Having, by the terms of the notice, effectively confined the issues in the appeal to the legality of removal to Eritrea, we apprehend that the Secretary of State could not remove him to Ethiopia without more ado. It may be that she is not formally required to reissue the notice of decision with the new destination specified; but if she attempts to remove the appellant to Ethiopia following an appeal required only to deal with Eritrea it is highly likely that she will be challenged by way of Judicial Review. 16. So far as we are aware, it is not suggested in this appeal that the appellant can lawfully be removed if he establishes that he is a refugee. We have indicated above the issues which will have to be determined in the course of deciding if he is a refugee. If he fails to establish that he is a refugee, he is nevertheless entitled to succeed in his appeal if he establishes that what the Secretary of State proposes to do to him will breach his human rights. The clear present position is that the Secretary of State proposes to remove him to Eritrea. In practice, if she wishes to retain the option of removing him to Ethiopia, she needs to issue a new notice of decision specifying Eritrea and Ethiopia as alternatives, under reg 5(b)(ii) of the Notices Regulations. In any event, the appellant is entitled to succeed if he shows that the proposed removal will breach his human rights. 17. So far as procedure in this Tribunal is concerned, the position as we see it is that the order of the Court of Appeal, made by consent, establishes for the purposes of rule 31 that the previous Tribunal materially erred in law. It is clear that there will have to be a further hearing on the merits, and it is important, given the history of this case, that at that hearing all relevant matters are determined with as much finality as possible. It is for that reason that we have done our best to give our views of the legal arguments advanced by Mr. Fripp on the appellant's behalf and to identify the issues with which the Tribunal will be concerned at that further hearing. Given that there has to be another hearing, it may be that the Secretary of State wishes to take the opportunity to withdraw the notice against which the appellant now appeals (thus bringing this appeal formally to an end) and issue a new notice, naming all possible removal destinations, and carrying a new right of appeal. That is a matter for her, but, for the reasons we have given, without a new notice it is unlikely that even a new hearing will resolve with finality the issues raised here.
18. Whether as a continuation of the present reconsideration or in relation to a new appeal, the Tribunal will take this Note into account in deciding how to proceed to determine the issues which are relevant. We do not seek to impose any restrictions on the evidence which may be adduced, provided it is relevant; nor do we suggest that any previous findings of fact be regarded as inviolable. It is, however, in the highest degree unlikely that the Tribunal will entertain further submissions on the matters of law raised in Mr. Fripp's arguments before us and resolved by this note. C M G OCKELTON DEPUTY PRESIDENT © Crown Copyright
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II. Immigration appeal – Palestine II. IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) Neutral Citation No.: [2008] EWCA Civ 304 Case Number: C5/2007/1096 Date: 09/04/2008 Before: LORD JUSTICE MAURICE KAY LORD JUSTICE LAWRENCE COLLINS SIR WILLIAM ALDOUS MA (PALESTINIAN TERRITORIES) Appellant The Secretary of State for the Home Department Respondents JUDGEMENT ON APPEAL FROM THE ASYLUM AND IMMIGRATON TRIBUNAL [AS537092003] - Hearing dates : 16 and 17 January 2008 Ms Jane Collier (instructed by The Refugee Legal Centre) for the Appellant Mr Jeremy Johnson (instructed by The Treasury Solicitor) for the Defendant Error! Bookmark not defined. Lord Justice Maurice Kay : 1. This appeal is primarily concerned with the question whether a stateless person, whom the Secretary of State wishes to return to his habitual place of residence, is entitled to protection under the Refugee Convention or the European Convention on Human Rights and Fundamental Freedoms (ECHR) if there is a reasonable likelihood that, on such return, he would not be permitted entry by the authorities in that country. The appellant is a Palestinian Arab in his mid-twenties. He lived in Tulkarm in the northern part of the West Bank which has been occupied by Israel since 1967. He arrived in the United Kingdom on 29 June 2003 and claimed asylum. On 28 August 2003 the
Secretary of State refused his application on asylum and human rights grounds. The appellant appealed against that decision. The procedural history of his appeal has been complicated. 2. On 16 April 2004 an Adjudicator dismissed the asylum appeal but allowed the human rights appeal by reference to Article 3. In essence, the failure of the asylum appeal resulted from the rejection by the Adjudicator as incredible the account given by the appellant that he had been and would be persecuted by members of Fatah or the Palestinian Authority. However, the Article 3 claim succeeded because the Adjudicator considered that, on return, the appellant would be subjected to controls and restrictions by the Israelis. He said: " ............. Israel's treatment of Palestinians generally ............., whether or not they are terrorists or suspected terrorists, even if that is thought by Israel to be justified in the interests of state security, is in my view, on any ordinary definition of the word, treatment which is degrading of the Palestinian people within their own territory. It follows that I accept ............. that there is a real risk of the appellant, qua Palestinian, and especially as a young Palestinian male, being subjected to degrading treatment by the Israeli authorities if now returned to the West Bank." 3. The Adjudicator expressly found that the anticipated treatment "is clearly not such that it can be said to amount to serious harm and, therefore, persecution" but nevertheless considered that the necessary level of severity had been reached so as to amount to "degrading treatment" within the meaning of Article 3. 4. The Secretary of State sought permission to appeal to the Immigration Appeal Tribunal (IAT). I shall have to return to the pleaded grounds of appeal because, on behalf of the appellant, Miss Collier has raised a jurisdictional point about the subsequent appellate history. Permission to appeal was granted on 13 May 2004 but by the time that appeal came to be heard, the IAT had ceased to exist and the transitional provisions of and pursuant to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 transferred the case to the Asylum and Immigration Tribunal (AIT). Again, the detailed statutory provisions are relevant to the jurisdictional point and I shall consider them in that context. At this stage it is sufficient to record that on 17 March 2006 a panel of the AIT concluded that the determination of the Adjudicator contained an error of law and referred the matter for a second-stage reconsideration. The second-stage reconsideration took place before a different panel of the AIT on 15 November 2006. In a determination promulgated on 8 February 2007, it concluded that the appellant was not entitled to succeed by
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reference to the Refugee Convention, the Immigration Rules or the ECHR. On 24 April 2007 the AIT refused permission to appeal to the Court of Appeal but on 6 July 2007, Richards LJ granted permission on two grounds but refused it on four further grounds. Before this Court, Miss Collier has pursued the two permitted grounds and has renewed the application in relation to the grounds upon which Richards LJ refused permission. 5. By the time of the second-stage reconsideration by the AIT, the case had changed. It was made clear on behalf of the Secretary of State that the intention was to return the appellant to the West Bank via Jordan and the King Hussein Bridge. Paragraph 1 of the determination states: "It was the agreed position of both parties ............. that the appellant would have to pass through checkpoints manned by the Israeli authorities at the King Hussein Bridge and that, thereafter, he would have to pass through checkpoints - 'several' [according to the Secretary of State], 'numerous' [according to the appellant] - in order to travel back to Tulkarm." The AIT then record the agreed view of the parties that the issue was " .. whether there is a real risk that the appellant would be persecuted or subjected to ill-treatment under Article 3 ............. by the Israeli authorities on seeking entry through the King Hussein Bridge, and thereafter." The conclusions of the AIT 6. The primary conclusion of the AIT was that, as a Palestinian being forcibly returned from abroad, the appellant would not be allowed to re-enter the West Bank. He would get no further than the King Hussein Bridge, whereupon "he would simply have to turn back into Jordan". On the basis of the country guidance case of NA(Palestinians - Not at general risk) Jordan CG [2005] UKIAT 00094: "............. ethnic Palestinians, whether or not recognized as citizens of Jordan, are not persecuted or treated in breach of their protected human rights by reason of their ethnicity, although they may be subject there to discrimination in certain respects in their social lives in a manner which does not cross the threshold from discrimination to persecution or breach of protected human rights." 7. That disposed of the appellant's case on the facts as found. However, the AIT went on to consider it on the hypothetical basis that the appellant would be permitted to re-enter the West Bank. It concluded that he had not established that any mistreatment would reach the minimum level of severity necessary for
success under the Refugee Convention, the Immigration Rules or the ECHR. I now turn to the grounds of appeal. Issue 1: The jurisdictional point 8. At the time of the determination of the Adjudicator, the right of appeal to the IAT was only on a point of law and it depended on a grant of permission to appeal by the IAT: Nationality, Immigration and Asylum Act 2002, section 101(1). For permission to be granted, the pleaded grounds of appeal had to disclose an arguable error of law: Miftari v SSHD [2005] EWCA Civ 481. When the transitional provisions of and under the 2004 Act apply, it is common ground that (a) the AIT is required to deal with the appeal in the same manner as if it had originally decided the appeal and it is reconsidering its own decision; (b) the Asylum and Immigration Tribunal (Procedure) Rules 2005 apply to reconsideration of appeals; and (c) by rule 31(2) and (3) of the 2005 Rules, the AIT is first required to decide whether the Adjudicator made a material error of law: only if it is decided that he did, may the IAT proceed to second-stage reconsideration. All this is common ground. 9. Miss Collier submits that (1) the Secretary of State's grounds of appeal to the IAT did not disclose an arguable error of law on the part of the Adjudicator; (2) the AIT at the first stage did not find a material error of law but only an arguable one; and (3) there was no error of law on the part of the Adjudicator in any event. In order to consider these submissions, it is first necessary to refer to the original documentation. 10. The Secretary of State's grounds of appeal read as follows: "The Adjudicator has allowed this appeal under Article 3, purely on the basis that a young Palestinian male will be stopped at road blocks and thus be exposed to a real risk of degrading treatment from the occupying Israeli authorities. It is submitted that the Adjudicator's decision to allow the appeal under Article 3 is in error for the following reasons. If the correct approach had been followed he would have dismissed the appeal in its entirety. 1. The objective evidence mentioned by the Adjudicator at paragraph 22 of the determination details incidents of harsh treatment of the Palestinians by the Israeli authorities. It is not, however, evidence that all Palestinians are subjected to this treatment nor is it evidence that this appellant faces a real risk of harsh treatment, which reaches the standard required to breach Article 3."
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11. Two further grounds of appeal were then set out but, on behalf of the Secretary of State, Mr Johnson accepts that they did not assert arguable errors of law. 12. When the IAT granted permission to appeal, it did so on the basis that "the grounds of appeal are clearly arguable". 13. When the AIT engaged in the first-stage reconsideration, it expressed itself as follows: "Reasons for the Decision that there is an Error of Law in the Determination 1 ............. the Adjudicator found that there was not a real risk that the appellant would suffer torture or inhuman treatment at the hands of Israeli forces on the West Bank. The Adjudicator went on to find in the next paragraph that the restrictions on Palestinians amounted to degrading treatment and that returning the appellant to the West Bank would expose him to a real risk of degrading treatment contrary to Article 3 of the ECHR. 2. It is arguable that the treatment relied upon by the Adjudicator does not reach the level of ill-treatment required to engage Article 3. 3. The Adjudicator had found in paragraph 2 that the restrictions imposed on the Appellant did not amount to persecution within the meaning of the Refugee Convention. 4. The appellant had not put in a reply seeking to challenge that finding. The appellant submitted that if the restrictions on the appellant engaged Article 3, the Adjudicator should have found that the Appellant was also at risk of persecution. It was submitted that this was a Robinson obvious issue which should be pursued even though not specifically taken thus far. The [Secretary of State] did not oppose that course. 5. We therefore concluded that the Adjudicator had erred in his assessment of Article 3 or that he had erred in his assessment of the risk of persecution." Against this documentary background, I now turn to Miss Collier's submissions. (1) Did the grounds of appeal raise a point of law? 14. To this first question there is, in my judgment, a plain answer. Although Miftari requires the point of law to be apparent on the face of the grounds of appeal, it does not call for a particularly stringent process of construing the document. Such an approach would be inappropriate, not least because the
proposed appellant/applicant will usually be an asylum-seeker, often acting with only a modicum of professional assistance, rather than the Secretary of State. What is required is a fair and reasonable examination of the grounds of appeal to see whether a point of law is identifiable. I consider that, fairly and reasonably construed, the part of the grounds of appeal which I set out in paragraph 10, above, disclosed an assertion that the Adjudicator had not followed "the correct approach" because, if he had, he would have been bound to conclude that there was no evidence to support a finding of a real risk of harsh treatment of the appellant, having regard to the minimum level of severity required to establish a breach of Article 3. In other words, a perversity challenge was indicated. No doubt the pleading could have been clearer but I am satisfied that it was adequate. (2) Did the AIT find and sufficiently explain a material error of law at the firststage reconsideration? 15. The material parts of rule 31 of the 2005 Rules provide: "(2) Where the reconsideration is pursuant to an order under section 103A (a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and (b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand. (3) Subject to paragraph (2), the Tribunal must substitute a fresh decision to allow or dismiss the appeal." 16. Miss Collier's first attack on the reasoning of the AIT at the first-stage reconsideration is in the form of a submission that it amounted to no more than a finding of an arguable error of law, that being the language of paragraph 2 of the reasons. Her second submission is that, read as a whole, the five paragraphs of reasons reach no conclusion as to whether the legal error related to the finding of the Adjudicator that a breach of Article 3 had been established or to his finding that no persecution within the meaning of the Refugee Convention had been established. In other words, merely to refer to or imply an inconsistency does not in itself determine which of the inconsistent findings was right and which was wrong. She seeks to support these submissions by reference to authorities which have emphasised the importance of the AIT, at the first-stage reconsideration, identifying the legal error with precision so as to
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assist in the definition and clarification of issues for the second-stage reconsideration.
(3) Was the finding of an Article 3 breach open to the Adjudicator on the evidence?
17. Mr Johnson accepts that a first-stage reconsideration which finds no more than an arguable legal error has not decided that there was a material error of law and so does not unlock the door to a second-stage reconsideration, given the terms of rule 31(2). That is undoubtedly correct. However, his submission is that, when one reads the first-stage reconsideration as a whole, it becomes clear that, in the circumstances of this case, the AIT found an actual and not just an arguable material error of law. I find his submission to be utterly convincing. There is on the face of it (and Miss Collier does not really dispute this) a logical inconsistency between the findings of the Adjudicator on degrading treatment and his findings on persecution, torture and inhuman treatment, notwithstanding that the threshold test of the requisite level of severity is the same in each case. Where the legal error is inconsistency of findings, it will often be inappropriate for the AIT at the first-stage reconsideration to reach a final view as to which of the findings is sustainable and which is not. It may not be possible, without hearing further evidence at the second-stage reconsideration, to do so. In my judgment, this is just such a case. I am satisfied that, read as a whole, the reasoning of the AIT on the firststage reconsideration amounted to a finding of an actual and not just an arguable error of law. The error lay in the inconsistent findings but it was understandable and permissible for the AIT to leave the final decision as to which finding was correct and which was not to the second-stage reconsideration. That is what it meant when it described the case for the Secretary of State on Article 3 to be "arguable". The conclusion, as explained in paragraph 5 of the reasons, was that, one way or the other, there was an error. That is also apparent from the heading "Reasons for the Decision that there is an Error of Law in the Determination".
19. Miss Collier submits that, in any event, the finding of an Article 3 breach was open to the Adjudicator on the evidence. However, in view of my conclusions about the legal error found by the AIT, this issue does not require a decision in the context of jurisdiction. Nor does the converse point taken on behalf of the Secretary of State in a Respondent's Notice, namely that the breach finding was not open to the Adjudicator on the evidence before him. Accordingly, I now turn to the issues that arise on the footing that the AIT was properly seized of the matter at the second-stage reconsideration.
18. The authorities referred to by Miss Collier - Mukarkar v SSHD [2006] EWCA Civ 1045, DK (Serbia) v SSHD [2006] EWCA Civ 1747 and HF (Algeria) v SSHD [2007] EWCA Civ 445 - demonstrate the need to limit the scope of a second-stage reconsideration so that matters unaffected by the identified error of law are not revisited. However, they do not lay down an invariable rule that would prevent the AIT from approaching an error of logical inconsistency in the way adopted at the first-stage consideration in this case. In my judgment, that approach was permissible in the circumstances of this case.
Issue 2: statelessness 20. Where a stateless person is to be returned to his habitual place of residence, he enjoys the protection of both the Refugee Convention and the ECHR in relation to the decision to return him. Article 1A of the Refugee Convention provides: "For the purposes of the Convention the term 'refugee' shall apply to any person who ............. (2) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." Moreover, it is axiomatic that nationality is not a condition of protection under the ECHR. 21. The question that arises is whether a stateless person who will be denied entry on return to the country of his former habitual residence thereby becomes a victim of persecution. It was considered, but not decided, in AK v Secretary of State for the Home Department [2006] EWCA Civ 1117, in which Richards LJ said, obiter, at paragraph 47: "That line of argument is beset with difficulties. I am far from satisfied that there is a true analogy between a state's denial of entry to one of its own citizens and denial of entry to a stateless person (who, unlike a citizen, has no right of entry into the country), or that denial of entry to a stateless person can be said to constitute a denial of his third category rights of sufficient severity to
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amount to persecution (especially given the possibility of his exercising those rights elsewhere)." 22. The words of Richards LJ expressly informed the decision of the AIT in the present case and led to this conclusion (at paragraph 58): "In our judgment, in the event that a Palestinian Arab is denied re-entry to the Occupied Territories at the Israeli end of the crossing at King Hussein Bridge, this would not amount to persecution. Palestinian Arabs from the Occupied Territories are stateless and have no right of re-entry into the Occupied Territories, unlike a citizen. For the same reason, we do not consider that the denial of re-entry would in itself amount to degrading or inhuman treatment contrary to Article 3." 23. In support of her submission that the obiter view of Richards LJ and the conclusion of the AIT are erroneous, Miss Collier refers to a number of matters. First, she cites a number of Commonwealth authorities, including Altawil v Canada (Minister of Citizenship and Immigration) (1996) 114 FTR 211 (FCTD), Thabet v Minister of Citizenship and Immigration [1998] 4 FC 21 and Refugee Appeal No.73861, 30 June 2005, (New Zealand Refugee Status Appeals Authority). In my judgment, however, these authorities at their highest go no further than acceptance that, in some circumstances, to deny a stateless person re-entry may amount to persecution. They do not support the proposition that a denial of re-entry is in itself persecutory. Nor are they binding on this Court. Secondly, she refers to Goodwin-Gill and McAdam, The Refugee in International Law, 2nd edition, pp 69-70, where, drawing on the Commonwealth authorities, a "single test" approach is advocated, with "no substantial difference ............. between stateless and other refugees". However, this opinion is contradicted by Professor Hathaway: The Law of Refugee Status, pp 62-63. Thirdly, Miss Collier observes that things have moved in her direction as a result of the Qualification Directive (Civil Directive 2004/83/EC of 28 April 2004), Article 9 of which provides that acts of persecution within the meaning of Article 1A of the Refugee Convention must be sufficiently serious to constitute a serious violation of human rights or an accumulation of various measures "which is sufficiently severe as to affect an individual in a similar manner". Article 9(2) then states that acts of persecution can take the form of: "(b) legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner."
24. The Directive has been transposed into domestic law by The Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Miss Collier emphasises persecution by means of discriminatory administrative measures. However, absent a serious violation of human rights, I do not see how the Directive and Regulations take the matter further. The case is not comparable with the discriminatory treatment of the national in EB (Ethiopia) v Secretary of State for the Home Department [2007] EWCA Civ 809. 25. The Secretary of State relies on the decision of this Court in Adan v Secretary of State for the Home Department [2006] 1 WLR 1107. Although that case concerned the refusal of re-entry to a national, Mr Johnson submits that the following passage from the judgment of Hutchison LJ is of assistance when considering the position of a stateless person (at page 1126): "If a state arbitrarily excludes one of its citizens, thereby cutting him off from enjoyment of all those benefits and rights enjoyed by citizens and duties owed by a state to its citizens, there is in my view no difficulty in accepting that such conduct can amount to persecution. Such a person may properly say both that he is being persecuted and that he fears (continued) persecution in the future ............. However, even accepting that refusal to permit return can constitute persecution for a Convention reason, I would not myself accept that that would be so in the case of those who, like the applicants, are anxious at all costs not to return: how can they be said to be harmed by such a refusal?" Mr Johnson relies on this passage for two reasons. The first is that the rationale for equating a denial of re-entry with persecution is firmly rooted in "the rights enjoyed by citizens". The second relates to the final sentence in the passage which, Mr Johnson submits, fits the facts of the present case since, at all material times, the appellant has been "anxious at all costs not to return" to the West Bank. I shall return to that second submission. 26. It is now necessary to confront the question whether, in principle, it is persecutory without more, to deny a stateless person re-entry to "the country of his former habitual residence". In my judgment, it is not. The denial does not interfere with a stateless person's rights in the way that it does with the rights of a national. There is a fundamental distinction between nationals and stateless persons in that respect. It is one thing to protect a stateless person from persecutory return to the country of his former habitual residence (as the Refugee Convention does), but it would be quite another thing to characterise a denial of re-entry as persecutory. The lot of a stateless person is an unhappy one, but to deny him a right that he has never enjoyed is not, in itself, persecution. Stateless persons are themselves the subject of an international
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treaty, namely the Convention relating to the Status of Stateless Persons (1954). The United Kingdom is a party to that Convention but it has not been incorporated into domestic law and Miss Collier does not suggest that it protects the appellant in this case. 27. Since we heard oral submissions, counsel have drawn our attention to the International Covenant on Civil and Political Rights, Article 12(4) of which states: "No one shall be arbitrarily deprived of the right to enter his own country." 28. The Human Rights Committee established under Article 28 of the Covenant has opined that "his own country" is broader in scope than "country of his nationality" and embraces "at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien". It refers to "close and enduring connections": General Comment 27, Freedom of Movement (Article 12), 2 November 1999. Commentators have suggested the possible relevance of Article 12 in the context of Palestinians seeking to return to the West Bank: Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights, 2nd ed, 2004, para 12.37 and Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, 2nd ed, 2005, pp 287-288. Miss Collier seeks to rely on Article 12 in support of her submission that the AIT's consideration of statelessness was inadequate. In my view, however, this material does not advance the appellant's case under the Refugee Convention, nor does it provide a right enforceable by itself in the AIT. Moreover, even if the broader construction of "his own country" is correct, it is difficult to see how it can avail someone who has eschewed "close and enduring connections" and "special ties". As we have only had limited written submissions on this point, I am reluctant to say more about it in this judgment, save to observe that in Expatriate Civil Servants of Hong Kong v Secretary for the Civil Service [1995] 5 HKPLR 490, Keith J, sitting in the High Court of Hong Kong, held (at paragraph 26) that "his own country" in Article 12(4) "can only be the country of which he is a citizen as defined by that country's nationality". 29. I am satisfied that the AIT did not fall into legal error when it held that the denial of re-entry to a stateless person is not in itself persecutory under the Refugee Convention. Issue 3: the stateless person who will be denied re-entry 30. Having concluded that the appellant will be denied re-entry by the Israeli authorities, the AIT then considered the consequences and concluded that:
"he would simply have to turn back into Jordan [where] ethnic Palestinians, whether or not recognized as citizens of Jordan, are not persecuted or treated in breach of their protected human rights by reason of their ethnicity, although they may be subject to discrimination in certain respects in their social lives in a manner which does not cross the threshold from discrimination to persecution or breach of protected human rights." 31. As this finding was firmly based on the Country Guidance case of NA (Palestinians - Not at general risk) Jordan CG [2005] UKIAT 00094 and no evidence to the contrary had been adduced, it cannot be said that it was legally erroneous. 32. It is pertinent to observe that, before the AIT, there was something of an evidential vacuum in relation to the logistics of returning the appellant via Jordan and the King Hussein Bridge. Since the hearing in this Court we have been informed that no such arrangement has yet been made in this or any similar case, that any arrangement would have to involve cooperation with the Jordanian authorities prior to removal and that no decision has yet been reached as to whether the appellant would be escorted or unescorted. However, the fact that all this raises obvious hypothetical questions does not undermine the finding of the AIT. 33. At this stage, it is appropriate to return to Mr Johnson's second submission made by reference to the judgment of Hutchinson LJ in Adan. It is not a point that was ventilated before the AIT but it is advanced here on an a fortiori basis. It is put in this way: as the appellant has spent the years since arriving in this country resisting any effort to return him to the West Bank, how can he now say that it would amount to persecution or a breach of his human rights if he were to be denied re-entry? In the words of Hutchison LJ, he is "anxious at all costs not to return". Miss Collier's response is that even if Hutchison LJ's proposition is correct, it does not impact on the present case because there was no finding by the AIT that the appellant would not wish to return to the West Bank if the alternative was not remaining in the United Kingdom but was "turning back into Jordan". I am content to assume that there is something in this submission. To that extent, I do not intend to apply Hutchison LJ's proposition to the facts of this case and I shall reject Mr Johnson's a fortiori submission. However, this still leaves the finding of the AIT intact.
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Issue 4: persecution and/or harsh or degrading treatment on return to the West Bank 34. In a simple world, once the AIT had concluded that the appellant would be denied re-entry to the West Bank, the need to consider what would happen to him if re-entry were to be achieved would fall away. However, this is not a simple world. By his appeal to the AIT, the appellant was challenging the decision of the Secretary of State to return him to the West Bank. The effect of sections 84, 85 and 86 of the Nationality, Immigration and Asylum Act 2002 (as amended) is that the AIT remained obliged to address the situation in the West Bank. It did so. After a detailed consideration of the evidence, it concluded: "Whilst we have every sympathy for the plight of Palestinians caught up in this situation, we have nevertheless concluded that, considering all the factors cumulatively (that is, travel restrictions, treatment at checkpoints, economic situation, food insecurity, access to healthcare etc), the minimum level of severity for serious harm (or treatment in breach of Article 3) is not reached." 35. A number of proposed grounds of appeal seek to attack this conclusion. However, although the appellant was granted permission to appeal in relation to the issues which I have already considered, Richards LJ refused permission on these proposed grounds. Miss Collier has renewed the application for permission before us. Like Richards LJ, I do not consider that any of them has a real prospect of success, nor do I find any other compelling reason to grant permission. I shall deal with them as briefly as I can, prefacing what I have to say with the observation that, whereas the AIT was obliged by statute to consider the (in the event) hypothetical question of the situation in the West Bank, no such obligation applies to this court because any error of law, on the part of the AIT on this issue would not be a material error of law, having regard to the conclusion that the primary finding of the AIT (denial of re-entry) survives. (1) Dr George 36. The appellant relied on an expert report by Dr A George. A number of his opinions and conclusions were rejected by the AIT. It said: "There were ............. features of Dr George's report which led us to attach less weight to it that we would otherwise have. We also found that his opinion that the Northern part of the West Bank has become a particular focus of attention by the Israeli security forces is not consistent with the rest of the background evidence."
37. Those "features" included (i) Dr George referred to his expertise on the region as having been accepted with approbation by the courts without mentioning that in KK, IH, HE (Palestinians - Lebanon - camps) Palestine CG [2004] UKIAT 00293 the Tribunal had found his evidence to contain "the occasional sweeping generalisation"; and (ii) his use of the words "colonisation of the West Bank" was tendentious. 38. Miss Collier submits that by attaching less weight than they would otherwise have done to the report of Dr George the AIT fell into legal error. When rejecting that submission on paper, Richards LJ said: "The Tribunal dealt fully and carefully with Dr George's report and gave an adequately reasoned basis for accepting or rejecting relevant parts of his evidence in the course of examining the various factual issues. It cannot be said that the Tribunal erred in law in not attaching greater weight to his evidence than it did. The argument about ............. the word 'colonisation' attaches too much significance to what was a small point." 39. I respectfully agree. Where the AIT significantly rejected the evidence of Dr George, it expressed a preference for other evidence and gave proper reasons for so doing. (2) CAABU 40. The appellant also sought to rely on a report by the Council for Arab British Understanding which expressed the opinion that he would be subjected to inhuman and degrading treatment in the West Bank. The AIT concluded that that opinion was not consistent with other background evidence. It preferred the latter and stated that "the general tone of the language in which CAABU's opinion is expressed shows that the subjective and partisan view of the organisation on the political situation has been allowed to influence their decision concerning their opinion on the appellant's case". Is that approach arguably vitiated by legal error? In my judgment, plainly it is not. (3) Standard of proof 41. The point of law that Miss Collier seeks to advance is that the AIT "applied too high a standard of proof". I consider this submission to be utterly unsustainable. In paragraphs 45 and 46 of its determination, the AIT correctly set out the test as "a reasonable degree of likelihood or a real risk". The fact that in a 45 page determination there are occasional lapses into the subjunctive does not begin to give rise to a justified concern that it did not faithfully apply the correct standard.
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(4) The Qualification Directive and the Protection Regulations 42. In paragraphs 23 and 24 of this judgment, I referred to Miss Collier's invocation of the Directive and the domestic Regulations and I explained why, in my judgment, they do not assist the appellant because the requisite level of severity has not be established. I find no arguable, material, legal error by the AIT in relation to the Directive and the Regulations. Conclusion 43. It follows from what I have said that I would dismiss this appeal in respect of the grounds upon which permission to appeal was granted. I would refuse permission to appeal on the other grounds. Lord Justice Lawrence Collins: 44. I agree that the appeal should be dismissed for the reasons given by Maurice Kay LJ. In particular I agree that the AIT was not in error when it held that the denial of the right of re-entry to a stateless person is not in itself persecutory under the Refugee Convention. In this case the appellant is relying on the very fact that he may be excluded as a reason for not wishing to be given the right of re-entry. 45. Consequently the impact of general principles of international law and humanitarian law on the type of statelessness involved in this appeal does not fall to be decided. It was touched on in the submissions but was not the subject of full argument. In particular, in my judgment it would be necessary to consider why it is that residents of the West Bank are stateless, and the implications for the application of those general principles. 46. The appellant's father was from Tulkarm, and had gone to Kuwait to work. The appellant was born in 1982 in Kuwait, which does not bestow its nationality on the children of foreigners born there. 47. Prior to 1948 the nationality of persons living in Palestine under the British Mandate was regulated by the Palestine Citizenship Order in Council 19251942, which conferred something called Palestinian citizenship. They were not British subjects (R v Ketter [1940] 1 KB 787), but were similar to, but not the same as, British protected persons: Mervyn Jones, Who are British Protected Persons? (1945) 22 BYIL 122, at 127. The Supreme Court of Israel decided that Palestinian citizenship ceased as from the establishment of the State of Israel in 1948: Hussein v Governor of Acre Prison (1950) 17 Int LR 111; Naqara v Minister of Interior (1953) 20 Int LR 49.
48. After 1948, the West Bank was occupied by Jordan. In December 1949 Palestinians living in the West Bank were given the right to claim Jordanian citizenship. In April 1950 Jordan annexed the West Bank, which gave all Palestinians living there Jordanian citizenship. By Article 3 of the Jordanian Citizenship Law of 1954 Jordanian citizenship was conferred on any person (other than a Jew) who was a Palestine citizen before May 15, 1948 and resided in Jordan between December 20, 1949 and February 16, 1954. 49. The West Bank came under the occupation of Israel from 1967, but the inhabitants continued to have Jordanian citizenship until 1988, when King Hussein announced that Jordan was renouncing its claims to the West Bank, and that henceforth its inhabitants would cease to be Jordanian citizens. In AlKour v Governor of the Department of Inspection, Minister of Interior, 1991, in (1990-1991) 6 Palestine Yb Intl L 68 the Jordanian High Court decided that the effect of the decree was that a person who held a Jordanian passport issued in 1987 could be deported to the West Bank from Jordan. The basis of the decision was that the decree was an act of state, and a sovereign state had the power to determine who were its citizens. For limitations on the right to withdraw nationality and create stateless persons see Weis, Nationality and Statelessness in International Law, 2nd ed. 1979, pp 117 et seq. 50. The questions which might arise are (a) whether the traditional principle of international law that a state may deny entry to non-citizens applies in such a case; (b) whether Article 12(4) of the International Covenant on Civil and Political Rights is capable of applying. The United Kingdom and Israel are parties to the International Covenant and the International Court of Justice, in its Advisory Opinion on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, 2004 ICJ Rep 136 expressed the view (at paragraphs 102-111) that the obligations on Israel imposed by the International Covenant applied to the occupied territories. But these are difficult, controversial and politically sensitive issues which would have to be considered in the light of the legal and political background, and this court should only express a view on them with the benefit of full argument and in a case in which they arise for decision. Sir William Aldous: 51. I also agree. © Crown Copyright
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STATELESSNESS: the quiet torture of belonging nowhere
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