Current Issues of UK Asylum Law and Policy

Frances Nicholson, Patrick Twomey

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429873423
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Social Policy
• Index: Politics & International Relations

Published in 1998. This title brings together 18 essays by a selection of experts in the area of refugee and asylum law and policy. Each essay examines an issue of contemporary interest to those working in the refugee field in the UK. They have been selected from papers presented at a highly successful conference on Refugee Rights and Realities which was held at the University of Nottingham in November 1996, organized by the Human Rights Law Centre at the University and funded by the Airey Neave Trust. The essays are organised into two sections. The first covers issues of legal process and policy ranging from the development of asylum law and policy in the UK to the country's obligations under international law. Special emphasis is placed on the most recent developments surrounding the 1996 Asylum and Immigration Act. The second section provides the context for a more detailed examination of the social, health and welfare issues relevant to refugees and asylum seekers. These range from access to health care, housing rights and the education of refugees in London to questions of language and of race relations.

SECTION I

LAW, POLICY AND THE
DETERMINATION PROCESS

1 The Case of UK Asylum Law and Policy: Lessons from History?

DALLAL STEVENS

This country has a proud and consistent record in its treatment of refugees. We will take no lectures from anyone about our willingness to protect those people in real danger of persecution. Our humanitarian record is second to none.¹

In the United Kingdom, the 1990s have witnessed unprecedented legislative activity in the asylum field. The emergence of two statutes in three years in an area which, until recently, remained remarkably untouched by legislative interference reflects a major change in attitude towards asylum seekers.

Throughout the parliamentary debates on both the Asylum and Immigration Appeals Act 1993 and the Asylum and Immigration Act 1996, government and opposition spokespeople were at pains to proclaim the UK’s long-standing humanitarian record in relation to asylum seekers and refugees. This chapter considers the accuracy of such claims, and seeks to place the current debate on asylum law and policy in an historical context. It briefly charts the development of UK asylum policy and anticipates some contemporary issues which have proved particularly problematic.

Historical Background

13th to 18th Century

There is evidence to suggest that England was acting as a country of refuge from as early as the 13th century. Until the late 18th century, however, the word “refugee” had not become a generic term; rather, individuals fleeing from persecution or oppression were viewed, alongside other foreigners, as “aliens”, with nothing to distinguish the normal migrant from those with cause to escape their countries of origin. Between the 13th and 16th centuries, this latter group consisted in the main of victims of religious intolerance. Historically, the large-scale movement of peoples on the basis of religion did not reach its peak until the 16th century and the break with Rome. For England, one of the largest of these religious refugee groups were the Protestant Huguenots who began arriving on English soil from 1559, following the death of Henry II of France and the outbreak of 30 years of civil war.² The Spanish rule in the Netherlands under the infamous Duke of Alva also gave rise to a wave of Protestant exiles; but perhaps the best known example of oppression of the Protestant minorities on the continent which led to a flow of asylum seekers to England was the St Bartholomew’s Day massacre in Paris in 1572.³

English generosity towards religious “asylum seekers” did, however, have its limits. For example, it is recorded that in excess of 15,000 Jews were expelled from England in 1290.⁴ Even in the case of Protestants, where it was politically expedient for England to welcome any person claiming to suffer at the hands of Catholic rulers, occasional expulsions were not unknown. Extremism was regarded with great suspicion. In 1561, Queen Elizabeth ordered the Anabaptists to leave the country within 20 days or face imprisonment and confiscation of their belongings.⁵

From the 16th to the 18th century, England saw significant increases in its alien population. While many were “refugees” or “asylum seekers”, many were not. The arrival of aliens was tolerated particularly where, as in the case of the Huguenots, it was considered that they brought with them useful skills which could be passed on to the indigenous population. While the ruling classes may have been satisfied with the advantages which migrants brought, the latter’s superior skills or their failure to assimilate did occasion some resentment within the local population, particularly amongst artisans who viewed the new arrivals as a threat to their livelihood. Any suggestion of widespread tolerance in this period therefore has to be cautiously advanced.

In the 17th century, one of the more significant events in terms of its impact on the flow of asylum seekers was the revocation of the Edict of Nantes in 1685 by Louis XIV and the subsequent expulsion of the Huguenots from France. Once more Calvinists were forced to seek refuge with their neighbours across the water, and once more they were apparently welcomed. It was, in fact, the arrival of these new-style migrants which occasioned the first usage of the term “refugee”, a word which remained reserved solely for the Huguenots until the end of the 18th century. Not until 1796 did usage of the term “refugee” extend to include “all such as leave their country in times of distress”.⁶

Despite the occasional order expelling a particular group once they were established in England, little was done by way of legislation to prevent the initial entry of aliens. With the onset of the French Revolution in 1789 and the wars with France from 1793 to 1815, some limited regulations were introduced. In 1793, an Act was implemented “for establishing regulations respecting aliens arriving in this kingdom, or resident therein, in certain cases”.⁷ The preamble to the Act is telling:

Whereas a great and unusual number of persons, not being natural-born subjects of his Majesty … have lately resorted to this kingdom: and whereas, under the present circumstances, much danger may arise to the publick tranquillity from the resort and residence of aliens, unless due provisions be made in respect thereof.

The importance of this early Act arises not only from the fact that it was the first major enactment of legislation concerning aliens, but also from its anticipation of a number of provisions which would be implemented in the 20th century: the power to refuse “aliens of any description” permission to land; registration of personal details with the Chief Magistrate by all aliens; the possibility of bail for any person who was “not within the description limited by [the] act in the different cases … mentioned”;⁸ and a right of appeal within six days.⁹ One of the main aims of the law was to ensure that aliens arriving after 10 January 1793 gave to the port officer a written declaration of their names, rank, or occupation as well as details of their place of residence while in the country. Failure to give such a declaration, or giving a false declaration, could lead to expulsion from the realm, transportation for life, or death if found within the realm after being sentenced to transportation.¹⁰ Masters of vessels were also required to declare on arrival the numbers, names and occupations of any “foreigners” on board their vessels. If they neglected to do so, they could be fined £10.¹¹ Such a provision, which placed the onus on the ship’s captain to police passengers, may be rightly described as a forerunner of the current carriers’ liability legislation. The Act went on to empower the King to direct by proclamation or by order in council that “aliens of any description” be refused permission to land if it were “necessary for the safety or tranquillity of the kingdom”.¹² Furthermore, regulations were introduced whereby restrictions could be placed on the movements of aliens around the country.¹³ As described, provision was made for various penalties for infringement, ranging from fines to capital punishment.¹⁴

The one issue which received no direct mention was that of asylum or refuge. It fell to later Acts, introduced to continue and amend the 1793 statute which had a life-span of only one year, to indicate whether any special treatment was to be extended to asylum seekers. The 1798 Act, for example, noted in its rather lengthy preamble:

[W]hereas the refuge and asylum which on grounds of humanity and justice, have been granted to persons flying from the oppression and tyranny exercised in France, and in countries invaded by the armies of France, … may … be abused by persons coming to this kingdom for purposes dangerous to the interests and safety thereof; … it is therefore necessary to make further provisions for the safety of this kingdom with respect to aliens, and particularly to the end that a just distinction may be made between persons who either really seek refuge and asylum from oppression and tyranny, … and persons who, pretending to claim the benefit of such refuge and asylum … have or shall come to … this kingdom with hostile purposes.¹⁵

Despite this preamble, no further clauses were specifically aimed at refugees. It is interesting to note that in 1798 legislators were already beginning to talk of “abuse” of the asylum process, a term now widely used to justify the implementation of restrictive asylum laws.

The 19th Century: A Period of Liberalism?

Though the measures introduced towards the end of the 18th century were of some value while the UK was at war with France, their use diminished after 1815, and the expulsion provisions were not generally enforced, despite repeated repeal and reintroduction in amended form until 1826. Thus, between 1793 and 1800, 436 aliens were removed from the kingdom, but in 1801–15 only 218 were removed, and in 1816–23 the figure was down to 17.¹⁶ In 1826, an Act for the Registration of Aliens appeared on the statute book (containing some similar provisions to the 1793 Act),¹⁷ to be repealed and replaced by an Aliens Registration Act of 1836.¹⁸ The main feature of the 1836 Act was its durability: unlike most other acts of its kind, it had no limitation of duration clause, and remained on the statute book until repeal in 1905.¹⁹ It provided for compulsory registration by aliens on arrival, and repeated the obligation contained in the Act of 1793 to declare known aliens on board ship.²⁰

Both the 1826 and 1836 Acts contained milder penalties (fines or prison sentences) than preceding statutes and did not permit expulsion for failure to register. In 1848, a further law was enacted granting the government power to expel “when and so often as One of Her Majesty’s Principal Secretaries … [had] Reason to believe … that for the Preservation of the Peace and Tranquillity of any Part of this Realm it [was] expedient to remove therefrom any Alien”.²¹ The 1848 Act lasted only one year.²² In the period 1850 to 1905, no further aliens’ legislation of any significance was implemented.²³

This apparent reluctance in the latter part of the 19th century to add to the statute book lends support to the view that the much lauded liberalism of the 19th century extended to asylum and refugee policies. One historian notes that the British authorities from 1823 to the end of the century did not expel a single refugee from Britain.²⁴ While eminent politicians of the day openly supported a liberal policy, the Times newspaper carried occasional self-congratulatory articles on British asylum policy:

Every civilised people on the face of the earth must be fully aware that this country is the asylum of nations, and that it will defend the asylum to the last ounce of its treasure, and the last drop of its blood. There is no point on which we are prouder or more resolute. … We are a nation of refugees.²⁵

Unlike its European neighbours, Britain opened its doors to any refugee who wished to enter; there was no bar. Despite considerable external pressure, and accusations that England was harbouring unsavoury political activists, a “swarm of intriguers” and “heroes of barricades”,²⁶ the Br...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Tables
• Abbreviations
• Reported Case Law
• UK-Based Organisations Working on Refugee and Asylum Issues
• Contributors’ Biographical Details
• Introduction
• Section I – Law, Policy and the Determination Process
• Section II – Beyond the Determination Process