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Are refugees from Syria really refugees in law?

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Monday: 3:30pm. Like most asylum lawyer geeks — you know who you are — I was hanging on every word of the Prime Minister when he made his announcement on how many Syrian “refugees” would be provided resettlement in the UK. He was at pains to distinguish between refugees and economic migrants, but in the end relied on a third category to address the current Syrian crisis. The moment he said that they would be granted Humanitarian Protection, my heart sank. Then I got angry; they are REFUGEES!

Since then, Monday afternoon saw Lord Ashdown in the Lords, warning of orphans being removed at 18 as he failed to recognise the difference between Unaccompanied Minors, who are only granted Discretionary Leave until 17 year and 6 months when they have not been granted asylum, or humanitarian protection, which is not the position in this case (Hansard).

But what did I expect? This announcement is from a Prime Minister who referred to human beings desperate to enter Fortress Europe as a “swarm” of migrants. Not only was this despicable reference to what were human beings, and not insects, fleeing what I as an asylum lawyer refer to as ‘persecution’ (more on that later), but a clear emotive reference to cushion what we now know as a battle currently being lost against net migration. It has additionally taken politicians, and also an ignorant media, weeks to correct the reference to “illegal migrants”, replacing the term with “refugees”, primarily due to the shocking picture of 3 year-old Aylan Kurdi. This graphic image was finally taken as evidence of the plight of those fleeing the collapse of another State, rather than being ‘illegal migrants’ taking away ‘our’ jobs.

Cameron’s statement to Parliament was that these ‘refugees’ would be granted Humanitarian Protection is incorrect. A refugee is a refugee, and is granted refugee status, not Humanitarian Protection. Refugee status is a status our Supreme Court this June held is not a question of discretion, it is a question of evidence (TN (Afghanistan) [72]).  Humanitarian Protection, is a status conferred on those who do not qualify for refugee status, as the future harm they will be exposed to does not engage in any of the 1951 Refugee Convention reasons. Dear Prime Minister, Asylum Law 101. The definition of a refugee is someone who

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owing to a 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 to, or owing to such fear, is unwilling to avail himself of the protection of that country.

The definition of Humanitarian Protection relates to serious harm, which is primarily defined by Article 15 c of the 2004 Qualification Directive:

serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

The cries of horror of those fleeing Syria (in this instance) are to escape ISIL and/or Assad. ISIL is not internationally recognised as a state. It is an invading army, determined to impose by force their fundamentalist interpretation of Islam. Those captured must adopt the ISIL interpretation of Islam, or they will die. This unarguably engages ‘religion’ as the Refugee Convention reason, as the actual religious belief of the victim, or the belief ISIL perceives the victim as holding, is contrary to ISIL beliefs. This results in a real risk of serious harm based on the basis of religion. As they control part of the state, they clearly come within the definition of what constitutes an actor of persecution (Reg 3 (b) of the 2006 Qualification Regs). Consequently, on the ISIL victim analysis, these Syrians are refugees.

With respect to fear of Assad, failed asylum seekers who do not have links to the Assad regime, are, according to the still binding 2012 Country Guidance case of KB, afforded refugee status, based on the Refugee Convention ground of imputed political opinion.

So, as a matter of UK law, those fleeing Assad, ISIL or both are refugees. So, why only provide them with Humanitarian Protection?

The possible answer is that currently the Syrian Vulnerable Person Relocation Scheme, operated in conjunction with the exiting Gateway scheme, resulting in a derisory 216 Syrians resettled since January 2014, also provides only for grants of humanitarian protection, rather than refugee status. Monday’s announcement relies on the existing resettlement schemes. The grants to those who are in the camps, or in Jordan, Lebanon and Turkey, are made prior to entry into the United Kingdom. Paragraph 334 of the Immigration Rules only cover grants of asylum, where the individual is already in the United Kingdom, or at a port, seeking entry. Will resettled Syrians be able to seek an upgrade on, or after arrival?

Cameron was at pains to acknowledge these refugees, to what we as the British public could see on our screens, read in our newspapers, feel with our hearts, as victims of a human catastrophe. The reference by Chancellor Osborne on Sunday to acting with “a head as well as a heart”, was an attempt to alleviate the pain, which had turned to anger, we all felt. But this announcement of 20,000 Syrian refugees over the course of this Parliament (nearly five years) who from the migrant march wish to go to Germany, rather than UK, requires us to forget those stranded refugees in Calais, who do wish to be recognised as refugees in the UK.

Yesterday’s debate in Parliament highlighted the lacuna in the UK’s refugee policy, highlighting the fear of not stemming the flow. Yes, some Syrians, but also Eritreans, Afghans, Iraqis and other nationals from refugee producing countries, equally non-Christian, but with facial characteristics which are darker, do they frighten the UKIP voting public the Conservatives so fear, but wish to attract back into their fold? What will it take for our government to address the humanitarian crises in Calais, by giving sanctuary to these ignored refugees?

This week’s announcement will not stem the tide, it will not stem the criminal people smugglers who exist to address the lack of legal routes to enter the UK to claim asylum, or the adults who are not deemed vulnerable, who will risk life and limb to seek sanctuary in the UK. Until we start conferring refugee status to those we refer to as refugees, there is no hope of not only thinking with our heads and our hearts, but more importantly, with our conscience and international obligations.

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S Chelvan

S Chelvan

Dr. S. Chelvan is Head of Immigration and Public Law at 33 Bedford Row Chambers. Over the last 20 years, Chelvan has established a niche practice in protection and human rights claims. He is profiled in Band 1 in Legal 500 (2021) (Immigration, London Bar) - “His expertise in sexual-identity-related asylum claims is world-renowned”. Chelvan holds an LLM from Harvard Law School (2001, Kennedy Memorial Trust scholar), and was awarded a PhD in Law from King’s College London in June 2019 - his thesis was entitled: ‘At the End of the Rainbow: Where Next for the Queer Refugee?’. He tweets from @S_Chelvan.

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