Does 10 year ‘temporary refugee protection’ status breach the Refugee Convention?

One of the changes to immigration law made by the government in response to the sharp increase in small boat crossings was the creation of a ten year route to settlement for refugees. This followed the commencement of the Nationality and Borders Act 2022, although the change was wrought by an adjustment to the immigration rules. Primary legislation was not actually needed.

A new form of stay called ‘temporary refugee protection’ was introduced for asylum claims made on or after 28 June 2022 by refugees who arrive by irregular means. A refugee is granted an initial period of 30 months’ permission to stay and can then apply for settlement after ten years under the long residency rules.

Before this change, refugees had to wait for five years before they could apply for settlement. This had been government policy since, I think, 2005 or so. Between 1999 and 2005 (or so), refugees were granted settlement immediately when they were recognised as a refugee. Before 1999, refugees were granted one year of leave when recognised and could apply for settlement after that.

The most famous part of the Refugee Convention is the definition of a refugee in Article 1A(2). But there are many other articles which follow this and which set out the rights of refugees. Or, rather, set out the obligations of state parties to refugees. The Refugee Convention was only the second convention drafted and agreed after the Second World War and the transition to a rights-based international legal order was just beginning.

Article 34 of the Refugee Convention reads:

“The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”

This applies to all refugees, no matter how they arrived in the asylum state.

There is a powerful argument that requiring refugees to wait for ten years before they can apply for settlement and then a further year to apply for naturalisation and at that point charging them a cost greater than the cost of processing the application does not comply with either the letter or spirit of Article 34.

Some might say this does not matter in practice. There’s no point in having a right written down on paper unless it can be enforced. This is true. There is no “International Court of Refugees” to enforce compliance with the convention. The UN body charged with safeguarding refugees, the UNHCR, has no real teeth either.

But the United Kingdom has voluntarily incorporated the Refugee Convention into domestic law, at least partially. Section 2 of the Asylum and Immigration Appeals Act 1993 states that:

“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the [Refugee] Convention.” 

The ten year route to settlement is in the immigration rules. It is arguably contrary to the Refugee Convention. It is therefore arguably unlawful in domestic law.

It is not necessarily a bulletproof case. The words deployed in Article 34 of the Refugee Convention are potentially ambiguous. “As far as possible”, “facilitate” and “assimilate” all undoubtedly give state parties some wiggle room. But increasing the time to settlement from five years to ten years does seem to run contrary to even these ambiguous obligations.

This is also not an easy issue to litigate. The ideal case would be brought by a refugee who applies for settlement after, say, five years and is rejected on the basis they must wait for ten years. Given the waiting times for asylum decisions at the moment, it could be six or seven years before anyone reaches this stage. The alternative would be for an interested group to bring a case. In so doing they would face the problems and dilemmas of all strategic litigation cases. They might not have standing to bring a case, they would have to pay the costs of the other side as well as their own if they lost, and they lose the benefit of a compelling human impact angle if a case is brought in the abstract. Judges seem to have had quite enough of meddling charities and other interest groups.

Of course, non-compliance with the Refugee Convention also matters in principle irrespective of whether the rights of refugees are enforceable in a domestic court. As a matter of international law, any state, including the United Kingdom, should respect the obligations to which it has signed up.

There are moral and practical reasons as well. The United Kingdom likes to comment on the human rights records of other countries. It is hypocritical to do so while also in breach of one’s own international human rights obligations. Facilitating the assimilation and naturalisation of refugees is the right thing to do anyway, from both a practical and a moral perspective. The people we are talking about are recognised refugees and they should be helped to get on with their lives, not hampered by a series of short-term visas and an almost entirely illusory threat of deportation.

As I argued in a previous blog post, a shorter route to settlement is a win-win situation. The Home Office gives itself less work and genuine refugees also benefit.