26 September 1996 - 28 September 1996

The Treatment of Refugees and Asylum-Seekers

Chair: Chairman: Sir Brian Cubbon GCB

We began by agreeing, not without a tinge of regret, to forego any general discussion of what should be done to tackle the underlying causes of refugee flight and asylum-seeking. Governments should not be allowed to wash their hands of these causes, we knew, especially in the setting of their overseas-aid priorities; and there were temptations both for governments and voluntary organisations towards concentrating too heavily on the relatively clear-cut, well-understood and media-attractive tasks of relief rather than the less glamorous long-haul ones of root-cause remedy. Our conference was however designed and composed to address the specific problems of dealing with the results, which would always arise in some degree.

Not all of us were sure that the present degree was historically exceptional, but it was certainly large, with impulsions to move enhanced by greater ease of travel, fuller awareness of a wider world in which some people lived much better and enjoyed much better social welfare than others, and arguably also heavy pressure from rising populations. It was suggested that the movement of substantial numbers in response to general dangers of anarchy or conflict rather than deliberate persecution was straining the concepts on which current law and practice on refugee status and the grant of asylum rested; and we noted that failure to integrate minority groups fairly into existing state structures was in several instances posing to the international community awkward dilemmas about whether to accept refugees if that seemed to amount to acquiescence in ethnic cleansing.

The problems of refugees and asylum-seekers fell to be tackled, in most of our countries, amid ambivalent and awkward domestic attitudes. Ready sympathy for dramatic examples of individual misfortune existed alongside widespread general distaste - sometimes with a half-hidden racist strand - for large-scale influx of perceived aliens. The distaste was often further fuelled by concern for jobs in times of high unemployment, with the economic benefits which much migration had historically conferred now little acknowledged. Many Governments felt that asylum-seeking was drifting out of control; in an age when virtually no developed country allowed unrestrained immigration there had to be constraints. Resources - both for social welfare and indeed for the direct costs of immigration-control systems - were under pressure; there were potential risks, even if their extent was sometimes overplayed, to social stability and cohesion; and governments, though they could often (so many of us thought) do more to disseminate accurate information so as to puncture wild rumour, could not in the end outrun the limits of public acceptance. The result in practice during recent years, across most of the developed world, had been a significant narrowing of the concept of refugee protection, with a stronger and more sceptical propensity to keep marginal or doubtful applicants out, especially in respect of ethnic or religious groups which had no politically-powerful supporting constituency in the receiving country. It was evident in the discussions that a good many participants felt that the move away from generous protection-and-reception regimes had mostly gone too far; but all of us recognised that the tensions to be managed were real and the opposing considerations genuine. There were without doubt many fraudulent or otherwise unmeritorious claimants for asylum, and passive acquiescence in widespread abuse must in the long run have corrosive effects.

International practice still rested essentially on the 1951 Convention. Its content, many felt, was by now a poor fit with contemporary reality, for example in its primary focus upon situations of individual persecution. We were not wholly agreed on whether or not its deficiencies included inadequate provision for the exclusion of terrorists; but there was in any event no political prospect that a new agreement - especially one strengthening the protections available - could be successfully negotiated. If, as not all of us accepted, too few incomers were succeeding under the Convention’s terms, the fault might lie less with those terms than with methods of implementation that over-severely narrowed their effective ambit.

We looked at alternative techniques for helping those unjustly displaced or threatened. Special “safe havens” found few advocates; their record was generally poor, and they seemed to work at all only on a temporary basis and if backed by very strong external intervention or its credible threat. The concept of temporary protection (TP), still evolving but now widely used, offered better hope, though both its merits and its application varied considerably with particular circumstances. Some participants feared its use as a way of evading the proper application of the 1951 Convention and the due use of judicial process; but it was argued at least as strongly that TP had provided a safety-value against the breakdown of receiving-country control systems through overload (as with the massive outflow from Bosnia) and that it had provided protection to many who would not otherwise have secured it. We recognised that if - as generally in respect of the Bosnians - it was interpreted as temporary pending large-scale repatriation when conditions changed for the better, rather than temporary pending a more measured decision upon individual refugee status, awkward decisions were implied about when and by what criteria the necessary change of conditions was to be regarded as stably assured. Compulsory repatriation could not be wholly ruled out, for example in such settings as Vietnam and Rwanda; but it imposed a heavy responsibility upon repatriating governments to make their judgement prudently, to play some practical part in furthering the required change, and to monitor its maintenance. There might perhaps be a case for establishing international rules and international oversight, possibly involving the United Nations High Commission for Refugees (UNHCR), to govern these difficult issues.

We paused on the question whether it was useful or feasible to adopt a classification of which countries were to be regarded in principle as offering reasonable safety to their citizens (and so as prima facie not sources from which asylum-seekers would normally succeed). Though such categorisations might have some deterrent effect in support of a sceptical admission attitude, we saw both political difficulties in declaring them and only limited practical value, given that an individual should still be entitled to argue a special “1951” case in particular circumstances.

We discussed briefly also the concept of “safe third country” or “safe country of first arrival”. There was no doubt that some rules on the lines these implied were reasonable and indeed necessary - asylum-seekers could not be allowed simply to pick and choose where they would like to settle; but effective and fair implementation was not always easy. Asylum-seekers quite often concealed the route by which they had come by deliberately destroying the documents they must have possessed at previous stages of their journey; and there were sometimes legitimate worries about whether an individual removed to a country of earlier arrival would be allowed to rest there rather than undergo a series of further displacements. More generally, the “first safe arrival” rule raised the question of burden-sharing among candidate receiving states; it was arguable - for example in relation to some Central and East European countries - that states should not be forced by the accident of geographical location to bear an excessive proportion of the incoming load. Some participants urged that the whole issue of burden-sharing needed early and high-profile international attention, not least in case the total load surged higher yet.

As we turned more closely to the details of how individual cases were handled, we were reminded that in liberal democracies the actual deportation of rejected asylum-seekers, however logical in theory, was for several reasons - including sometimes the refusal of the “sending” country to take citizens back - often difficult in practice, especially when there had been substantial delay (for example because of overload on the adjudication system) in decision upon the application. Such difficulties increased the pressures against admission in the first place, and against extensive adjudication procedures. It was eloquently contended that in liberal democracies basic fairness and careful focus upon human rights had a value that should overtrump narrow considerations of cost; but some participants were minded to accept that in procedural management some trade-off between cost and thoroughness and some consequent risk of occasional harshness were inescapable. Several countries had summary procedures for rapid rejection of asylum claims judged to be plainly without merit. That said, considerable unease was voiced about operating such procedures in very stringent ways - for example, by not allowing even a few days of post-arrival grace for an incomer (perhaps under stress of disorientation, lack of system understanding, or linguistic difficulty) to lodge an asylum request. We heard disquiet expressed also, albeit not universally endorsed, about system features described as “humane deterrence” of asylum-seekers, such as severe restrictions upon welfare benefits, and about the incidence in at least one country of protracted detention (albeit only for a small percentage, and where real risk of absconding from the system was perceived or where necessary documents were not readily forthcoming from an uncooperative country of origin) in semi-penal conditions pending determination of status. Across almost the whole field of procedural arrangements we heard contrasting views - reflecting the real operational tensions - about the balances to be struck in deciding how to establish processes adequately fair both to the individual applicant and to the receiving country’s society and taxpayers. (One strand of fairly general agreement was however the desirability of closer harmonisation of procedures internationally.) On balance, though, the predominant current in our discussion seemed one of unease that countries were now tending to overreact to a small number of high-profile cases of undesirable entry and to overrate the risks of unfounded admissions as against those of inhumane rejections.

We touched briefly on the effect of visa systems in the management of asylum seekers. Several countries used such systems, sometimes operated partly within their embassies in the “sending” countries. But drawbacks were evident. Small embassy staffs might lack the required knowledge and expertise (though perhaps an experiment in inter-embassy cooperation, for example in the EU grouping, would be worthwhile?) Asylum-seekers with a strong case might not find it easy, under the unfriendly eye of their own authorities, to lodge and support an in-country application; and if they evaded a visa requirement the very fact of illegal entry - often involving untruth - might disqualify their claims.

The role and contribution of the UNHCR was a recurring feature during our exchanges. We acknowledged that as an agency under policy direction by the General Assembly, and beholden to donor governments for its resources, it could not be asked to behave as though it were an independent NGO-like entity of all-purpose humanitarian function; it should not be overloaded either with tasks appropriate to other agencies or with expectations (and we heard especial doubt expressed about its engagement in repatriation). But most of us regarded it nevertheless as an important instrument for highlighting and furthering the interests of refugees.

Our debate as a whole brought home the complex diversity of the subject, and inescapably therefore reminded us of aspects to which we could not do justice. We managed to note only perfunctorily the importance of positive arrangements to integrate accepted refugees into their new settings. We were reminded briefly yet vigorously of the fact that even if governments often could not prevent refugee-creating crises they might well be able to do more, in cooperation, to make advance preparation for dealing with them. And by way of salutary envoi we were rightly reminded that whereas our conference’s focus had largely been upon movements as they impacted upon the developed countries, the greatest volume of refugee flow was of people in the less developed world not seeking entry to the West but concerned - amid falling levels of external financial assistance to refugees - simply to stay alive.

This report reflects the Director’s personal impressions of the conference. No participant is in any way committed to its content or expression.

Chairman: Sir Brian Cubbon GCB
Permanent Under-Secretary of State, Home Office 1979-88


Professor Anne Bayefsky
Director, Centre for Refugee Studies, York University, Ontario
Mr Raphael Girard
Assistant Deputy Minister, Operations, Citizenship and Immigration Canada
Professor Ian McAllister
Department of Economics, Dalhousie University, Nova Scotia
Professor E Diane Pask
Faculty of Law, University of Calgary, Alberta

Mr Philip Rudge
General Secretary, European Council on Refugees and Exiles

Mr Adrian Fortescue LVO
Secretariat-General of the European Commission

Madame Brigitte Hoibette
Secretary-General, Office Française pour la Protection des Réfugiés et Apatrides
Monsieur Hervé Masurel
Sous-Direction des Etrangers et de la Circulation Trans-Frontièrc, Ministère de I’lntérieur, Paris
Dr Catherine Wihtol de Wenden
Director of Research, Centre National de la Recherche Scientifique, Paris

Minister-Counsellor Dr Wolf-Ruthart Bom
Head of Department for Visas, Immigration and Right of Asylum, Foreign Office, Bonn
Professor Dr Rainer Münz
Professor of Demography, Humboldt-Universität zu Berlin

Dr Béla Jungbert
Director General, Office of Refugee and Migration Affairs, Budapest

Mr Tomasz Kuba Kozlowski
Head, Office for Migration and Refugee Affairs, Ministry of the Interior, Warsaw

Herr Roger Schneeberger
Head of Information and Press Secretary, Federal Office for Refugees, Bern

Mr Christopher Battiscombe CMG
Assistant Under-Secretary of State, Foreign and Commonwealth Office
Ms Eileen Bye
Solicitor; Detention Worker, advising Joint Council for the Welfare of Immigrants
Ms Sarah Collinson
Research Fellow (Associate), Royal Institute of International Affairs
Lord Dubs
Director, The Refugee Council, 1988-95 
Ms Stefanie Grant
Lawyers Committee for Human Rights, New York
Mr Nick Hardwick
Chief Executive, The Refugee Council
Dr Barbara Harrell-Bond              
Director, Refugee Studies Programme, University of Oxford
The Rt Hon Lord Lloyd of Berwick DL
A Lord of Appeal in Ordinary
Mr Edward Mortimer
Foreign Affairs Editor, Financial Times
His Honour Judge David Pearl
Chief Adjudicator, Immigration Appeals Authority
Mr Peter Randall S J
Jesuit Refugee Service UK
Mr Tony Rawsthorne
Deputy Director General (Policy), Immigration and Nationality Directorate, Home Office 

Mr Viktor Pobedonostsev
Adviser for the Secretariat of the Supreme Rada of Ukraine, Migration Problems Sub-commission, Kiev
Ms Yanina E Samborska
Assistant to Minister, Ministry for Nationalities and Migration

Mr Antonio Fortin-Cabezas
Senior Regional Legal Adviser for Western Europe, UN High Commission for Refugees

Jeanne A Butterfield Esquire
Director of Advocacy, American Immigration Lawyers’ Association
Dr Elizabeth G Ferris
Director, Immigration & Refugee Program, Church World Service and Witness Unit, New York
Mr Arthur C Helton
Director, Forced Migration Projects, Open Society Institute, New York
Professor Harold Hongju Koh
Professor of International Law and Director, Center for International Human Rights, Yale Law School
Ms Kathleen Newland
Senior Associate, Carnegie Endowment for International Peace  
The Honorable Phyllis E Oakley
Assistant Secretary for Population, Refugees and Migration, US Department of State