Refugee Council Remote Controls: how UK border controls are ...

Refugee CouncilRemote Controls: how UK bordercontrols are endangering the livesof refugeesSile ReynoldsHelen MuggeridgeDecember 2008

Refugee CouncilRemote Controls: how UK bordercontrols are endangering the livesof refugeesSile ReynoldsHelen MuggeridgeDecember 2008

AcknowledgementsThe authors would like to thank the following peoplefor their contributions to this project and the report:Firstly, we would like to thank all our respondents. Inparticular we are grateful to refugees in the UK andTurkey who shared their experiences so openly withus. We hope this research goes some way to reflectingyour courage in such difficult circumstances.We are very grateful to members of our InternationalAdvisory Group who generously gave their time andexpertise; Elspeth Guild (Kingsley Napley Solicitors);Valsamis Mitsilegas (Queen Mary, University ofLondon); Phil Shiner (Public Interest Lawyers); JillRutter (ippr); Dave Corlett (Latrobe University);Louise Moor (Amnesty International); Gerry Simpson(Human Rights Watch); Amanda Shah (BID); BarbaraHarrell-Bond (Amera); Patricia Coelho (ECRE); JanShaw (Amnesty International UK); Louise Zanre(Jesuit Refugee Service); Judy Wakahiu (RefugeeConsortium of Kenya); Reyes Castillo (ACCEM);Javier Ramirez (CEAR); Gabor Gyulai (HungarianHelsinki Human Rights Committee); Katrine Camilleri(Jesuit Refugee Service); Agata Forys (HelsinkiFoundation for Human Rights); Jason Bergen(Oxfam); Anja Klug (UNHCR); Lord Alf Dubs; GaryChristie (Scottish Refugee Council); Mike Lewis(Welsh Refugee Council); and Omolade Oshunremi(Lewisham Refugee Network). We are especiallygrateful to Guy Goodwin-Gill (Oxford University),Chooi Fong and Thomas Gammeltoft-Hansen(Danish Refugee Council) for their contributions tothis report. Thank you also to Nick Oakeshott(Asylum Aid) for his kind assistance.Parlevliet and Alexander de Châlus in London, aswell as Xhemil Shahu and Mahmut Kaçan in Van forall their help and support.We would also like to thank our colleagues at theRefugee Council. Thanks particularly to GemmaJuma and Nancy Kelley for their hard work settingup the project, to Sarah Cutler for her guidanceduring the early stages, to Barbara Keating andHannah Ward, and to colleagues in the Policy andDevelopment and Communications teams for theirexpertise. Thanks also to Lisa Doyle, MeganMcCorriston and Kavita Brahmbhatt for theirvaluable research expertise and to Jonathan Ellisand Jonathan Parr for all their support. We wouldlike to say a huge thank you to Karl Torring and toGeorgina Pope for volunteering their time and skillsto the project. Finally, a big thank you to One StopServices in Leeds and London for all their help inaccessing respondents.We are very grateful to UK governmentrepresentatives who generously gave their time torespond to our questions and to assist us in settingup meetings in the UK and Turkey.Finally, we are particularly grateful to theorganisations in Turkey that enabled us to conductthe fieldwork; in order to preserve the anonymity ofthe respondents, we are not naming them. Wewould, however, like to thank the Helsinki Citizens’Assembly in Istanbul for their invaluable assistance,including contributing the foreward to this report.UNHCR in the UK and Turkey have been extremelyhelpful to us and we would like to thank Jacqueline2 Refugee Council report 2008

ContentsExecutive Summary 4Recommendations 7Foreword 10Chapter One – Introduction 12Chapter Two – Contextual Overview 15The legal dimensions 22Chapter Three – Visa restrictions and e-Borders 25Chapter Four – Outposted immigration officials 35Chapter Five – Carrier Sanctions 44A note on State Responsibility 50Chapter Six – Displacement onto dangerous routes and methods 52Chapter Seven – Refugees in permanent transition 59Non-Refoulement 70Case studies 72Annexe One – Interview Schedules 74Glossary 79Bibliography 81Remote Controls3

Executive SummaryThis report presents the findings of a one-year Refugee Council project, which examined theimpact of the UK’s border controls on refugees’ ability to escape persecution and findprotection. The project was guided by an International Advisory Group of leading NGOs,lawyers, academics and UNHCR, and fieldwork was undertaken in Turkey to review theimpact of border controls in a key transit country for refugees.Policy contextThe dramatic decrease in the number of refugeescoming to the UK over the last 20 years is notmatched by any decrease in conflict around theworld. In fact, the global number of refugees andthose displaced within their own country hasincreased. The Refugee Council is concerned thatthe plethora of UK border controls placed overseasand aimed at preventing irregular migration ispreventing refugees fleeing from their own countriesand getting to a place of safety.The Refugee Council believes that the UKgovernment needs to recognise that wherever itoperates border controls, or influences the bordercontrols of other States, refugees will be movingacross those borders because they need to escapefrom persecution and human rights abuses. In orderfor the UK Government to comply with its legal andmoral obligations, it must ensure that its bordercontrols do not result in refugees being unable toescape their countries of origin or being sent backto persecution. Such practice, known asrefoulement, is prohibited by the 1951 Conventionrelating to the Status of Refugees, to which the UKis a signatory.Key findings• The UK government’s ‘upstream’ migrationcontrols risk blocking refugees who are tryingto escape their country of origin or transit.This report focuses on the UK Government’sobjective of moving migration control as far‘upstream’ as possible in order to stop irregularmigrants reaching the UK. Since there is no legalway to travel to the UK for the specific purpose ofclaiming asylum, refugees are forced to travelirregularly in ‘mixed flows’, and hence encounter thesame border controls as other irregular migrants.This study explores the various overseas UK bordercontrols and their impact on refugees. The reportdemonstrates that a request for documentation isoften the first obstacle faced by a refugee trying toescape. Refugee respondents explained that theywere unable to obtain passports when their countrywas in a state of upheaval. To compound thisdifficulty, visas are required for many nationalities.Our research shows that the imposition of visas onnationals of countries such as Iraq, Somalia andZimbabwe make escape from persecutionextremely difficult.• Leading refugee law expert, Guy Goodwin-Gillhas provided a legal analysis for this report, inwhich he questions whether anything remainsof the right ‘to seek’ asylum in 2008, the 60thanniversary of the Universal Declaration ofHuman Rights.Today’s ‘rights-holders’ are faced with obstacles putin place by States to curb irregular migration.However, States bear responsibilities for actionstaken outside their territories. Most crucially,refugees should not directly, or indirectly, be sentback to a place of persecution or torture as a resultof the actions of UK officials at home or abroad. Adecade after the Human Rights Act, Goodwin-Gillconcludes that it is unclear whether the UK’sspecific human rights obligations are integratedsufficiently, or at all, into its migration and asylumpolicy and practice.4 Refugee Council report 2008

• The protection-blind use of technology inborder control ignores the needs of refugeeswho are forced to travel irregularly.The UK’s use of technology in the field of bordercontrol is also examined in this report. The RefugeeCouncil finds it remarkable and disappointing that inimplementing a sophisticated and expensive bordercontrol system, refugees’ protection needs havebeen entirely ignored. Our refugee respondentsexpressed a particular fear that the use ofbiometrics to ‘fix’ individual identity leaves no roomfor legitimate explanations for the use of irregulartravel by refugees, as provided for by Article 31 ofthe 1951 Refugee Convention.• Interception activities conducted by the UK’soutposted immigration officials and privatecarriers contain no safeguards for personswho may need international protection, andcould even lead to refoulement.The report considers the responsibilities ofoutposted immigration officials, whose work withairlines and government counterparts throughoutthe world aims to intercept irregular travellers ontheir way to the UK. Our research found thatoutposted UK immigration officials, as well as thegovernment and private sector actors theGovernment relies on to implement UK immigrationcontrols, are not tasked with nor trained in refugeeprotection. We found that immigration and airlineofficials have no knowledge of systematicprocedures to follow in order to identify refugeesand ensure that they are protected. The RefugeeCouncil is particularly concerned as these officialsenforce the UK’s border controls in refugees’countries of origin and transit, thereby heighteningthe risk of direct and indirect refoulement. The riskparticularly affects refugees in transit zones. We alsofound that there is no monitoring or publiclyavailable information, as to who is stopped, whetherthey are refugees in need of protection, or whathappens to them after they are intercepted.• Private carriers who are forced to operatemigration controls are not trained in refugeeprotection and are not sufficiently accountablefor actions which may lead to refoulement.Our research revealed that much of the UK’simmigration control is in practice carried out byprivate carriers such as airlines and securitycompanies contracted by airlines and other carriers.The threat of carrier sanctions on privatecompanies, including a £2000 fine per improperlyRemote Controlsdocumented passenger brought to the UK, meansthat individuals suspected of intending to claimasylum in the UK are classified as a threat andtherefore likely to be refused boarding. Identificationof such risky passengers is based on little morethan ad hoc profiling by carriers, and the use of ‘gutfeeling’ to intercept individuals suspected oftravelling irregularly or of intending to destroy theirtravel documents before arriving in the UK. Carriersshowed little awareness of basic refugee protectionprinciples, including the prohibition on refoulement.There is a lack of transparency surrounding privatecarriers’ immigration control activities. This makes itdifficult to guarantee that refugees’ lives are not putat risk.• There must be a solution to the needs ofrefugees in order to prevent irregular anddangerous travel to safety in Europe.As a result of our findings, we identified an urgentneed for safeguards to be incorporated into theUK’s border activities in order to protect refugees.At the same time, the Refugee Council believes thatthe UK government should explore measures thatcould proactively facilitate safe passage forrefugees.Secondary effects of border control• Stronger borders mean that refugees have totake greater risks to find safety.In Chapter Six of this report, we present our findingsthat strengthened border control displaces refugeesinto more dangerous routes and methods of travel.Refugee respondents described the life-riskingroutes they had to take in order to reach safety. Thefear of dealing with smugglers, travelling throughlawless zones and encountering border guards wasparticularly traumatic for vulnerable groups, such aswomen and children. Our research found that sincerefugees are compelled to leave their country, theUK Government’s overseas marketing campaigns,aimed at persuading individuals to ‘stay at home’,lacks relevance for them. Instead, the lack of safelegal routes means that refugees have to take evengreater risks to escape.• Refugees in countries that do not offeradequate protection are in a state of‘permanent transition’ and struggle to survive.Chapter Seven of this report describes what life islike for refugees in a country of transit. Turkey isone, but not the only, example of a country whererefugees can be described as being in permanent5

transit. Our research fieldwork revealed thatrefugees in Turkey live on the very edges of society,finding it difficult to survive. We heard accounts ofvulnerable refugees resorting to prostitution tosurvive, and lesbian and gay refugees living inunsafe communities. Overall, we were told by themajority of respondents that refugee integration wassimply not an option in Turkey.• NGOs and UNHCR are denied access to borderand transit areas where refugees areintercepted, sometimes resulting inrefoulement.The Refugee Council found it of extreme concernthat NGOs and UNHCR are routinely denied accessto individuals who are intercepted at the Turkishborder, within Turkey, and particularly in transitzones and in detention facilities. If NGOs or UNHCRhear of intercepted individuals at all, it is often ‘toolate’ as the individuals may have already been sentback to their countries of origin. As a result, ourrespondents felt that the protection of refugees wasnot always guaranteed, and they pointed to wellpublicisedrecent accounts of refugee refoulement.• Refugees who have to wait years in countriesof transit will search for their own durablesolution.In Turkey, our research revealed that refugees waitbetween two and ten years for a decision on theirasylum claim, then have to wait again to beresettled to a country where they can rebuild theirlives. As a result, some refugees seek a sustainablesolution themselves by moving on, irregularly, toreach sanctuary within the EU. Whilst the UK seeksto implement its objective of decreasing arrivals tothe UK by working in partnership with countriessuch as Turkey, we found that where refugeescannot enjoy protection, they will logically seek tomove on to a safe place.• International responsibility-sharing forrefugees is not best achieved by containingrefugees at the borders of the EU.The Refugee Council believes that internationalresponsibility-sharing does not mean containingrefugees at the EU’s borders. Rather, it requiresincreasing refugee protection standards and ensuringthat refugees are able to reach a place of safety.6 Refugee Council report 2008

RecommendationsThe Refugee Council would like to make the following recommendations which we believeare necessary to ensure protection safeguards in the context of the UK’s extra-territorialborder control.GeneralRefugee protection should be included as anintegral part of the UK’s border strategy.The UK government should consult with civil societyand UNHCR on the implementation of protectionsafeguards in the context of extra-territorialimmigration control.Visa Restrictions and e-BordersVisa requirements should never be imposed with theaim of preventing asylum seekers from reaching aState’s territory.The UK and other EU States should examine theirvisa policies regularly, and in emergency situationsshould suspend visa requirements to enable peopleto flee an area of conflict or severe human rightsabuse. In such emergency situations, theinternational community should suspend visarequirements simultaneously, in a spirit of burdensharing, for determined periods of time for nationalsexperiencing humanitarian crises.Negotiations with countries on the lifting of visarestrictions, in exchange for increased efforts tocontrol irregular migration to the UK and readmissionagreements, must include protection safeguards.Individuals should not be transferred to countriesfrom where they do not originate. Where, however,agreements are signed to return non-nationals, theyshould contain guarantees of full access to fair andefficient refugee status determination procedures,and protection against refoulement.The UK should explore the facilitation of legal travelfor those in need of protection, where encounteredRemote Controlsat Consulates in countries of origin or transit.Where aspects of consular activities are outsourcedto private contractors, such as processing visaapplications, the UK should ensure individuals withprotection needs are still able to access theConsulate.When considering the treatment of individuals whotravel without proper documentation, the UKshould take into account the lack of choice ofthose fleeing persecution, including where thereare no facilities for issuing passports within thecountry of origin, due to it being a country inupheaval or where certain profiles are illegitimatelydenied passports.The UK’s assessment of risk in the context of routesand nationalities should include the risks posed tothe individual, not just the State. This could involvean analysis of situations that may include refugeeflows, including where vulnerable groups could betravelling on dangerous routes.The identification of risks to individuals should beshared with outposted immigration officials andprivate carriers.Safeguards should be put in place to ensure thatwhere a false identity is used for the purposes offleeing persecution, the false identity is notelectronically ‘fixed’ as this could lead toinappropriate refusal of an asylum claim andpossible chain refoulement.Policy and practice should reflect that the fact ofbeing a failed asylum seeker does not mean that an7

individual will never have a legitimate refugeeclaim in the future.A risk assessment on the impact of e-Borders onrefugee protection should be conducted by UKBA.This should include an examination of safeguards toensure that data-sharing systems under nocircumstances allow for information on individualasylum applicants to be shared with countrieswhere an individual is at risk.Regular updates on the e-Borders programmeshould be disseminated and stakeholders in theNGO sector should be invited to input intodevelopments.The advantages and risks of Protected EntryProcedures (PEPs) should be fully explored by anindependent body.Outposted immigration officialsThe UK should put systems in place to ensure thatthe actions of its outposted immigration officials donot result in direct or indirect refoulement ofindividuals with protection needs.The UK should ensure agreements between the UKand third countries that allow UK immigration officialsto function on their territory are transparent. Theseagreements must contain clauses on UKresponsibility to respect the principle of nonrefoulementand should include measures to ensureaccess to protection wherever its immigration officialsconduct measures to control irregular migration.The UK should encourage host countries to allowintercepted individuals to have access to UNHCR,independent legal advisers and NGOs, in particularin transit zones.UKBA should ensure that regular independentmonitoring is carried out to ensure extra-territorialborder control is compliant with refugee protection,and in particular the prohibition on direct andindirect refoulement.The UK should provide easily accessible advice andguidance on the responsibilities of outposted borderofficials in respect of refugee protection. This shouldinclude procedural guidelines on what to do whenencountering a person in need of internationalprotection.Outposted UK immigration officials should receivetraining on international refugee and human rightslegislation and procedures.The UK should provide training to outpostedimmigration officials on the identification ofvulnerable individuals and how to meet their needs.UKBA must demonstrate that the activities of alloutposted immigration officials are implemented inaccordance with domestic equality obligations.The role of the ILO and ALO should be clarified anda list of activities and powers made publicallyavailable.Non-sensitive information with reference to generaltrends of persons stopped from coming to the UKshould be shared publically.Frameworks for working arrangements betweenALOs/ILOs, private carriers and host authoritiesshould include reference to the importance ofensuring the individual details of refugees are notshared with countries of origin or transit.UK and EU operational manuals for ILOs and ALOsshould include reference to refugee protection andpractical instructions regarding action to be taken ifa passenger expresses protection needs.ILO/ALOs should be fully aware of local institutionsand organisations that assist refugees and others inneed of international protection and refer individualson accordingly.The UKBA, in conjunction with UNHCR and NGOsshould explore giving ALOs the power to allowundocumented refugees safe passage to the UK incircumstances where they may be at risk. This couldinclude a hotline facility to support ALOs to use thispower when encountering an individual in need ofprotection.ALOs should keep records of the details ofintercepted persons, including whether theyexpressed protection needs.The remit of the Independent Police ComplaintsCommittee (IPCC) has recently been extended tocover matters of immigration enforcement. UKBAshould ensure that the IPCC also has oversight ofthe activities undertaken in the context of juxtaposedcontrols, in particular if these are rolled out to refugeecountries of origin and transit.8 Refugee Council report 2008

Carrier SanctionsRecords should be kept and made public as to thenumber and characteristics (age, gender, nationality,vulnerability) of persons who are intercepted,including whether any expressed protectionconcerns.Carriers should be encouraged by UKBA to seekguidance when they come across an individual whomay have protection needs.to adequate asylum procedures and guarantees thatrefugees will not be refouled.UNHCR and NGO access to individuals interceptedat air, land and sea border zones should be writteninto agreements the UK makes with countries inwhich it conducts extra-territorial immigrationcontrol. The presence of independent humanitarianorganisations in detention facilities at the border andinland should also be considered.UKBA should consider how to support carriers whocome across passenger who may have protectionneeds, including waiving fines.UKBA training for carriers should cover theirobligations under international refugee and humanrights legislation.Private carriers should be fully aware of proceduresfor the local system of referral to UNHCR,independent legal advisors and NGOs. Whereprivate carriers contract out interception functionsto private security firms, they must adhere toprotection safeguards.Where an individual is to be returned, a mandatoryreturn interview should be conducted to affordindividuals the opportunity to express protectionconcerns and to access independent legal advice.UKBA should encourage host countries and carriersto allow time for access to UNHCR, NGOs andindependent legal advisors.Displacement onto dangerous routesAll Interior Ministry and border control staff, incountries where the UK seeks to influence theoperation of national border control operations, shouldreceive training and awareness-raising on refugeeissues and on identifying victims of trafficking.Attention should be paid by outposted immigrationofficials and carriers to the needs of vulnerable groups,including vulnerability based on age, gender andsexuality.Refugees in permanent transitionThe UK should use its influence to increasestandards of refugee protection and respect for theprinciple of non-refoulement internationally.Where the UK is involved in interception activities inthe territory of a third country, it must ensure accessRemote Controls9

ForewordOktay Durukan, Refugee Advocacy and Support Program, Helsinki Citizens’ AssemblyIn 2007, asylum applications in the European Unionreached a 20-year low. Unfortunately, this is not areflection of the world becoming a more peacefulplace. Whilst Fortress Europe as a critical conceptappears out of fashion, over the last decade thevision of a heavily fortified, securitised Europeanborderline to protect Europe from unwanted ‘illegalmigrants’ has become a reality to an unprecedenteddegree. Although individuals escaping war andpersecution are supposed to be the exception tothe rule – the beneficiaries of legally sanctionedprotection and compassion – refugees are oftenforced to resort to the same irregular channels toleave their countries of origin and travel towardssafety. Despite this, Europe continues to devise andperfect a formidable arsenal of migration controltools and policies, which barely make exceptions forrefugees, and fail to take stock of Europeangovernments’ international legal obligations towardsindividuals in need of protection.Gone are the days when governments were solelyrelying on visa requirements and simple documentchecks at arrival. Europe is taking ‘the battle againstillegal migration’ further and further away from theactual European borders. Recent years have seenthe EU-wide development of a range of externalised‘non-arrival’ measures including sanctions onprivate carriers, posting of immigration liaisonofficers abroad and interception of boats ininternational waters and in ports of departurethrough cooperation agreements with governmentsin regions of transit. By ‘externalising’ and ‘subcontracting’migration control functions, EuropeanStates effectively shift responsibility for refugees tothird countries. Where they operate outside EUterritories, governments attempt to avoid theirhuman rights responsibilities and are subject tominimal scrutiny and accountability.Those refugees fortunate enough to reach Europeanterritories face an array of post-arrival, ‘nonadmission’measures meant to deter and divertpeople from seeking asylum in Europe. Thepractices range from the automatic trigger of‘readmission agreements’ for returning asylumseekers to so-called ‘safe third countries’,widespread use of detention for asylum claimantsand restrictions on access to employment andfamily reunification, to more insidious diversionmeasures such as the creation of legally fictitious‘international zones’ at airports and the frequentunlawful practice of ‘pushing back’ irregularmigrants apprehended in proximity to borders,without registering their presence, let alonescreening for protection needs.With the launch of the European Agency for theManagement of Operational Cooperation at theExternal Borders of the EU Member States,FRONTEX, the management of the EU’s externalborders seems more effective than ever. But doesEurope’s formidable migration control apparatusadequately and sufficiently differentiate betweenindividuals who may be in need of internationalprotection and other migrants? What is the price arefugee has to pay to access safety and protectionin Europe? This is a matter of life and death. Forrefugees, staying home is not an option. In theabsence of safe and legal ways to reach Europeanterritories, they are forced into dangerous andabusive situations, and are obliged to embrace theperils of life-threatening journeys and theunscrupulous services of smugglers and traffickers.10 Refugee Council report 2008

While too many individuals die in their attempt toreach safety in Europe, many others are indefinitelytrapped in regions of origin and countries of transit,struggling to survive on the compassion ofgovernments that lack the legal and administrativeinfrastructure and resources – and often the will – toextend them the protection they need and deserve.Turkey is indeed one such key country of transit,uniquely positioned as an EU accession countrysituated at the geographic and political margins ofEurope.Over the past five years, the Helsinki Citizens’Assembly (hCa) has been leading emerging effortson the part of Turkey’s NGO and human rightscommunity to promote and secure the protection ofrefugees who make their way to Turkey. hCa’s workin the area of refugee rights ranges fromcomprehensive legal assistance vis-à-vis the UnitedNations High Commissioner for Refugees (UNHCR)and the Turkish government, to monitoring andadvocacy activities aiming to improve policies andpractice affecting asylum seekers. Earlier this yearhCa became the first Turkish NGO to join theEuropean Council on Refugees and Exiles (ECRE)and immediately became involved in ECRE’sadvocacy focus on defending refugees’ access toEurope. We consider the Refugee Council’sProtection-Sensitive Borders Project as a verytimely and necessary intervention.persecution are denied access to safety at theEU’s frontiers.The reality is that the overwhelming majority ofviolations and instances of refoulement never cometo the attention of either the UNHCR or refugeeadvocates like hCa. In the absence of anyindependent monitoring bodies and an effectivejudicial review mechanism, it is hardly possible tospeak of any meaningful oversight of borderactivities. This out-of-sight-out-of-mind effect isarguably an outcome of a calculated secretivenessin the Ministry of Interior’s (MOI) operations, andTurkish border authorities’ hostile attitude towardsattempts by independent actors to monitor theirpractice. hCa and a handful of other human rightsNGOs struggle to overcome major capacity andresource issues as well as legal obstacles in theirquest to establish a significant monitoring presenceacross the country.I would like to thank colleagues at the RefugeeCouncil for initiating this very important project,which we believe provides a great opportunity forboosting advocacy efforts in the UK and beyond tomake Europe once again a safe haven for victimsof persecution.Europe’s failure to allow access to protection forrefugees has consequences. At a minimum, Europesets a ‘bad example’, particularly for States inEurope’s immediate neighbourhood. The fear ofbecoming a ‘dumping ground’ for migrants andrefugees motivates governments like Turkey toadopt similar indiscriminate migration controlmeasures aimed at keeping the ‘mixed flows’ ofmigrants and refugees at bay, and removing thosewho did manage to arrive back to countries oftransit and origin further to the east and south. Atworst, Europe proactively sets transit countries likeTurkey up as ‘partners in crime’, as gatekeepers ofFortress Europe expected to intercept and returnirregular migrants and potential asylum seekers atwhatever cost. On 23 April 2008 Turkish authoritiesforced a group of Syrian and Iranian nationals,including 5 UNHCR-recognized refugees, to crossthe Tigris river separating Turkey from Iraq. Fourpersons, including a refugee, were swept away bythe strong river current and drowned. Sadly thisincident is hardly an isolated affair. It is a tragicreminder of what happens when people escapingRemote Controls11

Chapter One – IntroductionBackground to the Protection SensitiveBorders ProjectFor the last 20 years, the numbers of people claimingasylum in Europe has been declining. The RefugeeCouncil has been increasingly concerned that thisdecline has not been accompanied by comparablefalls in global conflicts and human rights abuses. In2006, the Refugee Council became interested inexamining whether the UK’s border controlsoperating outside UK territory were denying refugeesaccess to the UK. It decided to designate itsvoluntary income to fund a Research and PolicyOfficer for one year to work on its ‘ProtectionSensitive Borders Project’, launched in August 2007.This research has benefited from, and is part of, anincreased recognition in human rights circles thatindiscriminate border control may render the humanright to seek asylum obsolete. 1 The RefugeeCouncil’s research was designed to address the gapin knowledge as to whether the UK’s increased andextra-territorial border control could actually preventan individual accessing asylum and, if so, whatcould be done to rectify this?MethodologyThe methodology employed in this project wasshaped by the nature of the subject matter: howrefugees navigate obstacles placed in their path inorder to access a place of safety is an elusivematter. This was reflected in the methodologyemployed in this project; for example the difficulty ofinterviewing a refugee who ‘did not make it’ to theUK combined with the sensitivity of researchingirregular travel due to refugees’ fears of backlash bysmugglers and/or being subjected to punitivegovernment measures. States are also reluctant toshare plans which involve State security and bordercontrol. These factors meant our research took anexperimental path.International Advisory GroupAn International Advisory Group of leadingacademics, NGOs, lawyers and refugee communityorganisations was established at the outset of theproject to steer the research and lend valuableexpertise in what is a complex field. Irregularmigration and refugees encompassesconsiderations that are humanitarian, legal,geographical and technical, and includes thedynamics of international relations and responsibilitysharing. The Advisory Group met twice andprovided regular input into the project via a virtualforum.Scoping ExerciseAn extensive scoping exercise was conducted toestablish lessons learned about the impact of extraterritorialborder control on refugees from existingresearch, including academic and NGOpublications. The exercise also looked wider toexamine UK government policies, discussions in theUK Parliament, policy documents from theEuropean Union and domestic and internationalmedia reports. With this understanding, it was thenpossible to identify gaps in publicly availableknowledge as well as key stakeholders whom wewanted to interview to find out more. Stakeholdersfell into four broad categories: refugees,government, NGOs/UNHCR and private carriers.Respondents were drawn from the UK and from ourchosen fieldwork country of Turkey.12 Refugee Council report 2008

Interview SchedulesFour questionnaires were designed to cover the fourcategories above in order to elicit information basedon the expertise of the respondents. 2 For example,we asked refugees about their personal experiencesof crossing borders, and we asked governmentofficials about the purpose and implementation ofborder control.The questionnaires were used as the basis for semistructuredinterviews including open-ended questionsto prompt the interviewee to give information relatedto their ‘on the ground’ experience. The advantage ofthis flexible approach was that a large amount ofrelevant data was gained, some of it sensitive. Thenature of the subject matter – escaping persecutionand being forced to travel irregularly and oftendangerously across a border – meant that it wasnecessary to build trust with respondents by assuringthem that the information they gave to us wouldremain confidential, and any quotes would beanonymised. We were unable to collect quantitativedata since figures as to how many persons areintercepted, sent back or allowed passage are notpublicly available.Field ResearchA research trip to a country through which refugeestransit to the UK gave us a broader picture ofaccess to asylum as an international issue, as wellas facilitating exploration into the border controlwith which we were most concerned – that which is‘exported’ by the UK and is being implementedoutside UK territory. The premise for our researchwas that in any mixed flow of people, there are likelyto be some who need international protection. Ourone base line was that the UK’s border controlsshould not in any way prevent that protection beingsought and received. 3In selecting a country for fieldwork, we consideredthe following criteria: the location of outposted UKimmigration controls; a country’s geographicalposition in relation to refugees who transit to theUK; likelihood of gaining information in a shortperiod of time overseas; the presence of localrefugee NGOs and UNHCR that could assist inmaking logistical arrangements during our researchtrip with our visit; and the security of the country.Turkey was selected as best fitting our criteria.Furthermore, as a country that borders both the EUand refugee countries of origin such as Iraq andIran, Turkey is also a country of refugee origin itselfas well as being a potential EU candidate country.Remote ControlsRespondents:RefugeesWhen designing the interview schedules, weprioritised the need to learn more from refugeesthemselves. In the context of researching access toasylum, this did not prove an easy task. Refugeeshad reservations about disclosing information aboutrisky journeys, often due to their sense of shame atbeing forced into taking irregular routes facilitatedby smugglers or traffickers. In certain cases, thejourney was a memory the refugee would ratherforget, since the experience included extremelydangerous border crossings, risking life and beingseparated from family.Interviewees were accessed through variouscontacts including NGOs, RCOs and the RefugeeCouncil One Stop Service as a way of identifyingrespondents by using ‘gatekeepers’. This entailedfollowing up leads from Refugee Council colleaguesand refugee community organisations as to whichrefugees were able and willing to share theirexperience of their journey from country of origin tothe UK. We were fortunate that four refugees fromrefugee community organisations in London andthree clients from the Refugee Council’s office inLeeds agreed to be interviewed, as well as eightrepresentatives from refugee communityorganisations in both London and Leeds. Weattempted to reflect different nationalities as well asconsiderations of immigration status, age andgender in the sample of interviewees. The maincriteria for interview participation was that theindividual was able and willing to talk about accessissues. Interviewees were guaranteed full anonymityand were compensated for their travel costs.Interviews with refugees in Turkey were facilitatedby the various NGOs we visited, as well as byUNHCR. We interviewed five refugees in Turkey. Thereason for the low number was that Turkish NGOsand UNHCR were our ‘gatekeepers’ and themselvesprovided comprehensive information aboutrefugees’ journeys and experiences. They wereunable to identify many refugee respondents for usto interview, as they believed most refugees inTurkey, a transit country, would not talk about theirintentions to move on to another country of asylum.In addition, NGOs and UNHCR shared concernsthat our interviewing refugees would lead theirclients to expect an increased service. NGOs werefurther concerned that refugees may believe thatparticipation in our study would have a positive ornegative effect on a pending refugee claim. Despite13

this, interviews with refugees in Turkey elicitedqualitatively rich data, and the grassroots expertisedrawn from NGO and UNHCR interviewssignificantly broadened our understanding of bordercrossing and the situation for refugees in Turkey.GovernmentWe identified government officials as keystakeholders, given their evident policy making andimplementation role in managing immigration andborder control. UK government representatives cooperatedwith our research as well as beinginterested in our study. We were pleased that UKofficials, based in the UK and Turkey, shared ourview that access to asylum in the context of mixedflows of refugees and migrants is a complicatedarea. The Refugee Council sincerely hopes toharness this interest and build on these relations inthe future. Unfortunately, Turkish governmentofficials were unavailable for interview, although theysignalled their interest in the project and theRefugee Council is seeking to work with them toensure our recommendations are disseminated andacted upon wherever possible.SummaryThe methodology used in this Project has entailedgathering a wide range of perspectives – ofrefugees, NGOs, UNHCR, private carriers andGovernment officials – on the issue of access toasylum. As a result, the Refugee Council believesthat the recommendations we have made in thisreport are both realistic and achievable.NGOs and UNHCROur research would have not been possible withoutthe support and expertise of NGOs, as well as theUNHCR in Turkey. Our interviews with themprovided a ‘big picture’ view of the situation inTurkey for refugees, including systematic difficultiesinvolved in getting to, and seeking asylum in,Turkey. On the UK side, we received input fromNGOs, including the European Council on Refugeesand Exiles, and the Immigration Law PractitionersAssociation as well as UNHCR’s London office viatheir representation on our Advisory Board. Inaddition, we were invited to present the Project’sinitial findings at an academic conference where webenefitted from multi-disciplinary input. 4Private CarriersWe interviewed private carriers, for example privateairlines, operating in Turkey as they play a crucialrole in immigration control. Since they are at risk ofbeing fined £2000 for every improperly documentedpassenger they bring to the UK, they carry outstringent checks and often refuse transit orboarding. We were warmly received by the carriers(mostly private airlines) and received a detailedexplanation of their role in immigration control andthe impact of this on the airline staff, passengersand the airline companies.1 Universal Declaration of Human Rights 1948, (Article 14 (1)),Paris: United Nations General Assembly. Everyone has theright to seek and to enjoy in other countries asylum frompersecution.2 see Annexe One on page 743 The Refugee Council recognises the rights of States tocontrol their borders and does not advocate that all refugeeswho encounter UK border control be brought to the UK.4 Modern Law Review seminar, Extraterritorial ImmigrationControl: Legal Challenges, Queen Mary Graduate School ofLaw, 13 June 2008.14 Refugee Council report 2008

2000 and 2005 to reach a 25-year low ofapproximately 8.4 million at the end of 2005(UNHCR, 2006c: 3). However, global refugeenumbers have been increasing over the past twoyears, and the latest estimates from UNHCR showthat by the end of 2007 there were 11.4 millionrefugees, the majority of whom had found asylum indeveloping countries, particularly in Africa and Asia(UNHCR, 2007b: 2). 9 Europe, on the other hand,while experiencing a significant increase in thenumber of international migrants, actually hosts onlya relatively small proportion of the world’srefugees. 10 At the end of 2007, this figure stood at14 per cent (approximately 1,580,000 refugees). TheUK now hosts less than 300,000 refugees,representing 2.6 per cent of the world’s refugees(UNHCR, 2007b: 8).Increasing numbers, decreasing sympathyIn the 1990s, increasing numbers of asylumapplications across Western Europe, accompaniedby decreasing rates of acceptance for refugee status,resulted in heightened hostility and suspicion towardsasylum seekers amongst sections of the media,politicians and the general public. 11 Terms such as‘bogus asylum seeker’ and ‘queue-jumper’ becameaccepted media and governmental language used todescribe a population that was increasingly beingassociated in public discourse with economicmigration, abuse of the welfare state and terrorism.In response to the perceived abuse of the asylumsystem by non-refugees and the domestic pressuresof negative public opinion, States have employed anumber of internal and external measures to ensurethat asylum seekers are deterred from reaching theUK. The Refugee Council notes that the UK’s harshinternal asylum policies such as detention, fasttrackingand reduced legal assistance for asylumapplicants, combined with external measures toprevent individuals even entering the territory, haveresulted in the dramatic fall in the numbers claimingasylum in the UK. Our concern is that thesemeasures have negatively affected not only nonrefugeesbut also refugees. This is supported byUNHCR in the following statement:“Unregulated migration can place serious strains onnational asylum systems and provoke public hostilitytowards all foreign nationals, irrespective of theirlegal status. It can also prompt the imposition ofrestrictive border controls which fail to make thenecessary distinction between prospective entrantson grounds of their need for protection, which leadto incidents of refoulement, thereby undermining theobjective of effective refugee protection.” (UNHCR,2007h: 5)What is interception?In this study we focus on the external measureswhich aim to prevent entry to the UK’s territory atthe earliest possible stage. The Refugee Council haschosen this focus because there are very fewstudies of such external border control measures,particularly in the UK context, and little publicscrutiny of their operation or impact.Border controls have adapted to modern forms of‘irregular’ travel. Hence the traditional understandingof border controls as something solely implementedat the State’s territorial border, at train stations andat airports by the State’s immigration officers, hasbecome a thing of the past. States have found thata more effective method of preventing irregulartravel to their territory is to target unwantedmigrants at the earliest point in their journey.Commentators now refer to ‘non-arrival measures’ 12 ,‘interdiction’ or more commonly, ‘interception’.‘Interception’, like the phenomenon it seeks totackle, appears to have no universally agreeddefinition but UNHCR has outlined a provisionaldefinition which proposes that interception includes:“all measures applied by a state, outside its nationalterritory, in order to prevent, interrupt or stop themovement of persons without the requireddocumentation crossing international borders byland, air or sea, and making their way to the countryof prospective destination.” (UNHCR, 2000b: 2)UNHCR’s Executive Committee subsequently refinedthe definition to refer only to active measures toprevent access to the territory, including:‘measures employed by States to:1. prevent embarkation of persons on aninternational journey;2. prevent further onward international travel bypersons who have commenced their journey; or3. assert control of vessels where there arereasonable grounds to believe the vessel istransporting persons contrary to international ornational maritime law;where, in relation to the above, the person orpersons do not have the required documentation orvalid permission to enter…’. (UNHCR, 2003d)16 Refugee Council report 2008

For the purposes of this study, the Refugee Councilconsiders interception in the broadest sense toinclude visa controls and the imposition of civilpenalties on carriers, such as airlines, that bring inimproperly documented migrants (carrier sanctions),and the more active measures such as interceptionand diversion by immigration officials posted inrefugee regions of origin and transit.Extra-territorial responsibilitiesThe Refugee Council notes that European Stateshave increasingly extended their border controlsfurther away from the external borders of Europeoutwards towards the high seas and onto theterritory of third countries. In Guy Goodwin-Gill’slegal analysis in The Legal Dimensions on page 23of this report, he states:“Non refoulement is precisely the sort of obligationwhich is engaged by extra-territorial action, for itprohibits a particular result – return to persecutionor torture – by whatever means, direct or indirect,and wherever the relevant action takes place.”ECRE has challenged the notion of a ‘legal blackhole’ and emphasised that States have to respectinternational and European refugee and humanrights law when conducting their extra-territorialactivities (ECRE, 2007). UNHCR has also stated itsview that, in international law, no distinction is madefor actions taken outside of State territory, nor forthe actions of those contracted by the State, whenit comes to deciding responsibility for respect forhuman rights (Brouwer and Kumin, 2004).The Refugee Council would like to see increasedtransparency and public accountability in respect ofout of sight border control in order to ensure thatthe UK’s extra-territorial controls do not result,directly or indirectly, in refoulement.UK Government prioritiesThe broad aims set out in the UK’s internationalpriorities are to reduce arrivals, increase returns andpromote the UK’s migration policies abroad.The UK Border Agency (UKBA) was launched on3 April 2008 as a shadow agency of the HomeOffice, uniting border, immigration, customs andvisa checks into one body. UKBA is now responsiblefor both border checks overseas (visas etc) as wellas deciding on refugee claims made in the UK.UKBA was established following a wide-rangingRemote Controlsassessment of the UK’s anti-terrorism efforts, whichclaimed that the first line of defence againstterrorism is overseas. 13 Consequently, UKBA ispresented as the latest measure to tackleinternational crime through border controls andmigration management.“UKBA… has been formed to respond quickly tonew threats to Britain’s security, to stay one stepahead of lawbreakers and protect the country 24hours a day. It is also backed up by world-leadingtechnology that tracks the people setting out onjourneys to UK ports and airports so that wantedcriminals can be arrested before they cross theborder.” 14The Agency includes more than 9,000 bordercontrol officers operating in the UK and across 135countries worldwide. UKBA’s strategy is to create asingle border intelligence service to bring togetheroverseas risk assessment units, airline liaisonofficers and customs and immigration intelligenceofficers based around the globe. 15In the 2007 strategy document ‘Managing GlobalMigration’ the government cited its intention tointroduce a ‘different doctrine of control’ andreferred to the creation of a new offshore border.The government aims to achieve its objective ofmanaging migration flows by:1. Acting as early as possible to prevent the arrivalof irregular migrants.2. Making use of the collection and analysis of data,intelligence and information to allow for a moretargeted response to migration flows.3 Cooperating with third countries through bilateraland multilateral agreements, the development ofcompatible systems and the common use of newtechnology (Home Office and Foreign andCommonwealth Office, 2007).The ultimate goal of the government is to takeborder controls ‘upstream’ to the earliest possiblepoint in the individual’s journey to the UK. Thiswould facilitate the identification of irregular moversand “stop or control them before they reach the UK”(Cabinet Office, 2007: 8). Early identification andintervention of irregular migrants is preferred by thegovernment because it is perceived to be moreeffective and cheaper than identification on, andremoval from, UK territory. Hence the governmentstatement:17

“it is better to prevent illegal immigrants fromtravelling to the UK, than to remove them once theyhave arrived.” (ibid: 56)This early interception will be conducted by theUK’s own outposted immigration officials present incountries of origin and transit. UKBA further plans to‘build the capacity’ of countries of transit and originto manage migration through the provision of trainingand equipment, as well as sharing practices. Itintends to set up a ‘rapid response system’ to deployimmigration specialists abroad to offer advice,support, and training to host country immigrationofficials. The impact on refugees of the UK’s bordercontrol efforts aimed at decreasing irregular arrivalswill be explored throughout this report.The UK views itself to be at the forefront of the useof technology in border control and is in the processof identifying ten key partner countries with which todevelop ‘biometric relationships’ to work on theirmigration agenda, including visa systems and datasharing.A detailed examination of the use of theUK’s use of technology in border control is includedin Chapter Three of this report.The inclusion of different government departmentsin immigration control is reflected in the cooperationbetween the Foreign and Commonwealth Office(FCO) and the Home Office on migration control. Inearly 2008, David Miliband, Secretary of State forForeign and Commonwealth Affairs, outlined theFCO’s strategic priorities, revealing the new focus onborder controls. One of the essential services of theFCO is now to:“ensure, through a robust migration and visa policy,that UK borders are… closed to those who mightcause harm or come here illegally” [and to]“promote with the EU and other partners effectiveinternational cooperation that supports the UK’sborder and migration objectives.” 16The Refugee Council is concerned at the lack of ahuman rights approach to border control, and inparticular the absence of refugee protection in plansfor stronger border controls.Europe’s bordersThere has been much media coverage of theattempts made by irregular migrants to get to the EUby boat, including their tragic death at sea. NGOshave highlighted human rights abuses occuring atborder posts as well as the risk of indirectrefoulement when EU States push migrants back tothird countries such as Libya and Morocco.Recommendations to identify and protect refugees inmixed flows are regularly being made at EU level.ECRE has published a comprehensive overview of theimpact on refugees of the EU’s approach to theprevention of irregular migration entitled ‘DefendingRefugees’ Access to Protection In Europe’, in which it:“urgently calls on EU countries to review and adaptall border management policies and operations inorder to ensure the full respect of the principle ofnon-refoulement at its external borders.” (ECRE,2007: 2)The Refugee Council fully endorses ECRE’srecommendations to improve refugees’ access toprotection in Europe. We would particularly highlightconcerns around the impact on refugees’ access toasylum of the EU agency responsible for operationalco-ordination of the EU’s external borders, knownas FRONTEX. In evidence given to a House of LordsInquiry into Frontex in 2007, the Refugee Counciland ECRE called for protection considerations to beincluded in its land, air and sea operations. 17 Wealso highlighted the seriousness of includingprotection safeguards in agreements with thirdcountries, some of which have records of humanrights abuses and a lack of respect for the principleof non-refoulement. In addition, we called for animprovement in data collection and for the profiles(nationality, age, gender etc) of interceptedindividuals to be made publically available.The future of European border controlThe Refugee Council anticipates increasedcoordination at an EU level in relation to bordercontrol and the formulation of agreements with thirdcountries. We hope that the European Commission’scommitment to ensure access for those in need ofprotection as outlined in its 2008 Policy Plan onAsylum is fully realised.“Legitimate measures introduced to curb irregularmigration and protect external borders should avoidpreventing refugees’ access to protection in the EUwhile ensuring a respect for fundamental rights of allmigrants.” (European Commission, 2008: 3)The EU’s agenda for the ‘external dimension’,including stronger financial and technical supportfor third countries that host large numbers of asylumseekers, the establishment of an EU resettlement18 Refugee Council report 2008

scheme, the expansion of Regional ProtectionProgrammes, and proposals for the examination ofProtected Entry Procedures (PEPs) is not a focus ofthis report. However, the Refugee Council wishes topoint out that it is supportive of the EU’s efforts toenhance protection in third countries and is inparticular supportive of an EU resettlement scheme.It is important that any attempt to manage refugeemovements must be in addition to, and not asubstitute for, safeguards that protect refugeesarriving spontaneously.UNHCR’s approachThe Refugee Council is pleased that UNHCR hasgiven a high priority to the protection of refugees inthe context of mixed migration movements(UNHCR, 2003f) and notes its concern that Statestend to address asylum pressures through‘undifferentiated’ interception practices (UNHCR,2007c). UNHCR’s approach to the issue as itevolves is explored below.EXCOM Conclusion on ProtectionSafeguards in Interception MeasuresIn 2003, UNHCR’s Executive Committee publishedits Conclusion on Protection Safeguards inInterception Measures (UNHCR, 2003d). TheConclusion calls for the safe and humane treatmentof intercepted persons with particular attention tothe special needs of refugee women and children. Itfurther calls for respect for the human rights of allintercepted persons, including the right to life andthe right to seek and enjoy asylum in othercountries. It recommends the training of all personsinvolved in implementing border controls, includingboth State and private actors, on the applicablestandards of international law and requiredprocedures. The need for durable solutions –integration, resettlement or return – for interceptedmigrants was identified.The Refugee Council notes that the Conclusionplaces responsibility for the protection needs ofintercepted persons on “the State within whosesovereign territory, or territorial waters, interceptiontakes place” and believes this must be viewed in thelight of the prohibition on indirect and directrefoulement which applies to States acting outsideof their own jurisdiction.UNHCR’s Ten–Point PlanIn July 2006, UNHCR presented a Ten-Point Plan ofAction on refugee protection and mixed migration.The Plan outlines a number of key areas in whichRemote Controlscomprehensive action is needed in order to addressprotection issues arising in situations of mixedmigration. Meant as a practical tool, UNHCR haspublished a number of Ten-Point Plans relevant tothe regional context – including Eastern andSoutheastern Europe. For countries such as the UKthat export their borders, the Refugee Councilwould welcome a toolkit addressed towardsprotection in the context of extra-territorial control.The High Commissioner’s dialogue onmixed migrationIn December 2007, the High Commissioner initiateda ‘dialogue’ on protection challenges within thecontext of mixed migratory flows and stated:“We must ensure that efforts to improve thesituation of refugees in developing regions are notused as a pretext by the world’s most prosperouscountries to dump protection problems onto Stateswith far fewer resources and much weaker capacity.Refugee protection in the South is necessary but itcan never be an alternative to asylum in the North.”(UNHCR, 2007i)UNHCR believes that international migration cannotbe controlled through interception measures andmigration management alone, but that acomprehensive solution must straddle policy areas,taking account of human rights, conflict resolution,reconstruction, environmental degradation anddevelopment. It has called on States to work togetheron a bilateral and regional level, to guarantee thehuman rights of migrants are protected and to offerviable alternatives to irregular movement, such asaccessible, legal migratory channels.‘Protection space’ within broadermigration flowsMore recently, UNHCR has abandoned the conceptof the ‘asylum-migration nexus’ and chosen toreplace it with the more straightforward notion of‘refugee protection and durable solutions in thecontext of international migration’ (UNHCR, 2008b).Anxious that the nexus concept reinforced amisplaced focus on the South-to-North movement ofpeople and neglected the role of the developingworld as host to the overwhelming majority of theworld’s refugees, UNHCR has sought to broaden theagenda beyond the key concerns of industrialisedStates. UNHCR appears keen, however, for WesternStates to acknowledge links between their actionsand the impact on neighbouring States.19

This new rhetoric allows UNHCR to incorporate intoits programme less traditional policy areas, in orderto advocate for a more comprehensive andintegrated approach. UNHCR now takes a morevocal stand on mixed flows that see refugeesmoving with other migrants, the mixed motivationsof migrants, the onward movement of bothrecognised refugees and asylum seekers, theprotection afforded to victims of trafficking, and theprovision of legal migration opportunities to preventirregular movement. According to Erika Feller, theAssistant High Commissioner for Protection, it is“really important for UNHCR to play a role in relationto the management of mixed migration situations byStates, because it will be to the detriment of refugeeprotection if we don’t… Our involvement is designedto make some space in the broader management ofthis problem, some space for protection.” 18Human rights of non-refugeesWhilst this study focuses on refugees, the RefugeeCouncil would reiterate that although a migrant maylack legal immigration status as a result of travellingirregularly, s/he is still protected by her or hisfundamental rights as a human being. ECREsupports this position and demands that UNHCRguidelines on the humane treatment of all migrants,as defined in the ‘Conclusions on ProtectionSafeguards in Interception Measures’, be taken intoaccount during interception activities (ECRE, 2004a).The Red Cross has echoed this concern about theinhumane and degrading treatment caused tomigrants, including children, and urges “allEuropean and bordering States to respect thehuman dignity of all migrants who are coming to andstaying in Europe for various reasons regardless oftheir ethnic origin, gender, religion, nationality orlegal status and according to applicable InternationalLaw and to ensure them a fair and humanetreatment” (Red Cross EU Office, 2006: 2).International Organisation for Migration(IOM) programme and prioritiesIOM is an intergovernmental organisation whose roleis to facilitate humane and orderly migration, whilealso reducing irregular migration which, it believes,constitutes a significant threat to States’ ability toimplement their migration control programmes.In many countries, IOM’s activities focus on returnand reintegration. IOM has been criticised by NGOs,such as Human Rights Watch, for its partnershipswith States that lack legal frameworks andinfrastructures for refugees and that have poorhuman rights records, including in relation tomigrants. Where no effective asylum regime exists,IOM’s critics assert that it is impossible to know ifthe ‘stranded migrants’ assisted by IOM do, in fact,have protection needs.IOM conducts information campaigns in countries oforigin and transit to promote repatriation, and towarn of the dangers of trafficking and irregulartravel. IOM also collects information on irregularmigration flows and carries out research into thedemand for irregular migration.Refugee Council believes that IOM shares withUNHCR a responsibility to ensure that humanitarianconcerns are taken into account by States in theimplementation of measures to control irregularmigration. We share Human Rights Watch’s concernthat IOM’s lack of a human rights based approachmeans that the migrants it encounters, includingrefugees, will not be afforded appropriateprocedural safeguards.Forced returns as a non-arrival policyThe Refugee Council notes that the UK government’sasylum policy is overwhelmingly focused on thereturn of those who have been refused asylum, andthe introduction of measures to limit the State’sresponsibilities to those who cannot return but havenot been granted status in the UK. The RefugeeCouncil has criticised the forced return of refusedasylum seekers to a number of countries that, evenby conservative estimates are considered unsafe,such as Iraq and Zimbabwe. The government hasdeliberately embarked upon such returns in order tosend a ‘message’ to deter future arrivals. TheRefugee Council believes that forced return shouldnot be used as a message to suggest to populations,that include individuals suffering persecution andhuman rights violations, that they should not leavethe country where they are at risk in order to seeksanctuary in the UK.Neglect for international obligations andresponsibility sharingThe Refugee Council believes that by preventingasylum seekers from reaching the UK, theGovernment is shifting responsibility for refugeesonto other countries, often those that are least ableto provide them with the protection they need. Asimmigration controls increase on some routes, theybecome impassable, and people seek new routes ofentry resulting in a displacement effect. This effecthas been recognised by the UK government 19 , but it20 Refugee Council report 2008

continues to intercept in States, such as Kenya,which border refugee-producing countries andalready host the majority of world’s refugees(UNHCR, 2007b). By preventing refugees fromleaving underdeveloped and poorly resourcedcountries, the UK increases the social andeconomic costs they are forced to bear (RefugeeCouncil and Oxfam GB, 2005). Displacing refugeesonto poor countries in the region undermines thenotion of burden-sharing upon which theinternational refugee protection system was initiallyconceived.SummaryThis chapter has outlined the context that refugeesfind themselves in when trying to obtain protectionin Europe. The research that is presented insubsequent chapters of the report explores theexperiences of refugees and those who work withrefugees, as well as agencies tasked with enforcingextra-territorial controls, in order to assess whetherour borders are protection-sensitive.5 Article 1 A(2) of the 1951 convention relating to the Status ofRefugees cites the reasons as: As a result of eventsoccurring before 1 January 1951 and owing to wellfoundedfear of being persecuted for reasons of race, religion,nationality, membership of a particular social group orpolitical opinion, is outside the country of his nationality andis unable or, owing to such fear, is unwilling to avail himselfof the protection of that country; or who, not having anationality and being outside the country of his formerhabitual residence as a result of such events, is unable or,owing to such fear, is unwilling to return to it.6. www.ecre.org/access_to_europe [accessed 31 October 2008].7 Figures sourced from online population database: UnitedNations, Population Division of the Department of Economicand Social Affairs of the United Nations Secretariat, 2006.Trends in Total Migrant Stock: the 2005 revision. [Online]Available at: http://esa.un.org/migration/index.asp?panel=1[accessed 27 October 2008].8 In 1960 refugees constituted only 2.9 per cent ofinternational migrants, increasing to only 7.1 per cent by2005. Source: Ibid, [accessed 27 October 2008].9 At the end of 2007, the Middle East and North Africa regionhosted a quarter of all refugees (approximately 2,700,000refugees) (UNHCR, 2007b: 7).10 In Europe, the number of international migrants hasincreased significantly, particularly in the 1990s. Between1970 and 2000, their numbers rose from 19 million to 33million, an increase of 14 million (IOM, 2005: 381). During thesame period, refugee numbers in Europe rose by only1.8 million (United Nations, 2006).11 According to UNHCR statistics, annual asylum claimsincreased from 13,000 in the 1970s to almost 700,000 by1992 (UNHCR, 1997 cited in Gibney, 2005: 5).Remote Controls12 According to Gibney “non-arrival measures” aim directly toimpede access to asylum (Gibney, 2005: 4).13 Website of the Prime Minister’s Office, 2007. Statement onsecurity by Gordon Brown to parliament. [Online] 25 July.Available at: www.number10.gov.uk/Page12675 [accessedon 28 October 2008].14 Home Office press release, 2008. Smugglers feel the force.[Online] 8 July. Available at:www.whitehallpages.net/modules.php?op=modload&name=News&file=article&sid=115394&mode=thread&order=0&thold=0 [accessed on 30 October 2008].15 Home Office press release, 2008. Launch of Britain’s newUnified Border Agency. [Online] 3 April. Available at:http://press.homeoffice.gov.uk/press-releases/launch-of-ukba[accessed on 30 October 2008].16 Foreign and Commonwealth Office, 2008. Better World,Better Britain. [Leaflet].17 For more information see Refugee Council and the EuropeanCouncil on Refugees and Exiles (ECRE), 2007. JointResponse to Select Committee on the European Union Sub-Committee F (Home Affairs): Frontex Inquiry. [Online]Available at: www.refugeecouncil.org.uk/policy/responses/2007/frontex.htm [accessed 17 November 2008].18 UNHCR. 2007. Q&A: Why UNHCR cares about migration flows.[Online] Available at: www.unhcr.org/cgi-bin/texis/ vtx/asylum?page=interview [accessed 28 October 2008].19 In February 2003, following the closure of the Sangatterefugee centre and the introduction of UK immigrationcontrols and detection technology in France, Home SecretaryDavid Blunkett stated “Of course we are alert to the potentialfor displacement”. Home Office press release, 2003.UK/French cooperation key to combating terrorism andillegal migration, 4 Feb.21

The legal dimensionsAny analysis of the UK’s extra-territorial border controls must be framed within an accuratelegal context in order to underline the obligations and responsibilities incumbent on the State.In order to achieve this, we asked Guy Goodwin-Gill, international legal expert and valuedmember of our project advisory group, to conduct an assessment of the UK’s obligationsunder international refugee and human rights law in relation to border control and access toprotection. We hope that this analysis will form a key contribution to the debate on migrationcontrol and will serve as a useful tool to legal practitioners, campaigners and policy makersseeking clarity on a much-disputed area of law.A legal analysisGuy S. Goodwin-Gill, Senior Research Fellow,All Souls College, Oxford, and Professor ofInternational Refugee Law, Oxford UniversityIn this 60th anniversary year of the UN GeneralAssembly’s Universal Declaration of Human Rights(UDHR), the status of one article in particulardemands attention. Article 14(1) declares that,“Everyone has the right to seek and to enjoy in othercountries asylum from persecution”. But despite muchinternational human rights law-making over the lastsix decades, the right to asylum, considered as anindividual entitlement rather than just the privilege ofthe State, remains very much where it was in 1948.Back in 1948, many States saw no need for a rightto asylum. The United Kingdom’s own proposals forthe UDHR contained nothing on asylum, and whenFrance nevertheless proposed text which wouldhave included the right to seek, and to be granted,asylum, the UK led the opposition. In its view, noforeigner could claim the right to enter a State,unless it were granted by treaty. To this day, thoughsome regional developments are helping to fill thegap, there is still no general treaty provision onasylum as a human right. 20Yet human rights and refugee law have themselvesdeveloped, governing many aspects of therelationship between the State and individuals withinthat State’s territory or within the jurisdiction, custody,or control of the State. Thus, treaty obligations orobligations which are binding as a matter ofcustomary international law, significantly limit a State’soptions when it comes to curtailing or obstructing themovement of people in search of refuge.The 1951 Convention and 1967 Protocol relating tothe Status of Refugees, now ratified by some 147States, provide positive endorsement of a refugeedefinition which, in the face of the challenges ofethnic and gender-based persecution, has provenitself flexible enough to encompass new groups ofrefugees. The Convention and Protocol also laydown the fundamental principles of refugeeprotection – freedom from penalties for illegal entry(Article 31); freedom from expulsion, save on themost serious grounds (Article 32); and, of course,freedom from refoulement, that is, return in anymanner whatsoever to a territory in which therefugee would be at risk of persecution.But there are gaps in the Convention protectionregime – grey areas, and matters on which theContracting States did not anticipate a need forregulation. For example, the Convention does notprescribe which of many possible transit Statesshould assume responsibility for deciding a claim torefugee status and asylum, while many Conventionbenefits, being oriented to successful settlement inthe country of refuge, have a strong, sometimesexclusive territorial focus. In this apparentlyunregulated area, States such as the UnitedKingdom, other EU Members, Australia, Canada andthe USA, can often be found engaged in operationsto curb irregular migratory movements, including(though generally without differentiating) thoseundertaken by people in search of refuge andprotection.Globalisation may not have brought conflict and theneed for protection to an end, but it seems certainlyto have enhanced the opportunities to travel furtherafield. The question is, whether anything remains22 Refugee Council report 2008

even of the right ‘to seek’ asylum. The measuresnow employed to obstruct asylum seekers, asoutlined in this report, raise critical questionsregarding the human rights obligations of Stateswhen acting outside their territory, and whetherindividuals in that uncertain no-man’s land calledtransit, are still ‘rights-holders’ and capable, at leastin principle, of claiming effective protection. Thisreport illustrates the very great practical difficultiesfacing asylum seekers today.In fact, however, developments in the internationallaw of State responsibility, coupled with those in thehuman rights field, permeate the range of activitieswhich States may engage in beyond their borders.‘Effective protection’ is not a legal concept as such,but a standard of compliance constructed with therefugee, the asylum seeker, human rights andsolutions very much in mind. 21 The background to thenotion is the general obligation of the State to respectand ensure the human rights of everyone within itsterritory or within its power or effective control.For the United Kingdom, this is well illustrated bythe recent House of Lords judgment in R (Al Skeiniand others) v. Secretary of State for Defence [2007]UKHL 26, where the Court held that those in the‘custody and control’ of the British armed forces inIraq were protected by the Human Rights Act andtherefore by the European Convention. Similarly, inR (on the application of ‘B’) v. Secretary of State forForeign Affairs [2004] EWCA Civ. 1344, [2005] QB643 – Afghan minors seeking protection in the BritishConsulate in Melbourne – the court again recognised,if not on the facts in the instant case, that the HumanRights Act was capable of applying to the actions ofofficials, for example, where there was an immediateand severe threat to the physical safety of individualsseeking refuge in diplomatic premises.As a matter of general international law, it isundisputed that the State is responsible for theconduct of its organs and agents wherever theyoccur. The International Law Commission’s articleson the responsibility of States for internationallywrongful acts make this abundantly clear. 22 Evenwhen it exceeds its authority or acts contrary toinstructions, the organ or agent exercising elementsof governmental authority acts for the State. 23In principle, international responsibility may beengaged wherever the conduct of its organs oragents (the military, the police, officials generally) isattributable to the United Kingdom, and thatRemote Controlsconduct breaches an obligation binding on the UK.To take the simplest example, the United Kingdommay no more torture foreign nationals abroad, thanit may ‘at home’. The 1984 United NationsConvention against Torture (CAT84) obliges a Stateparty to take effective measures to prevent torture inany territory under its jurisdiction, but also obliges itto establish jurisdiction over all acts of torture wherethe alleged offender is one of its own nationals.Non-refoulement is precisely the sort of obligationwhich is engaged by extra-territorial action, for itprohibits a particular result – return to persecutionor risk of torture – by whatever means, direct orindirect, and wherever the relevant action takesplace. 24 A State which intercepts a boat carryingrefugees on the high seas and which returns themdirectly to their country of origin violates theprinciple. The fact of interception – the taking ofcontrol and custody – establishes the necessaryjuridical link between the State and theconsequence. Equally, an intercepting State whichdisembarks refugees and asylum seekers in acountry which it knows or reasonably expects willrefoule them becomes party to that act. It aids orassists in the commission of the prohibitedconduct. 25 It is responsible, as is the State whichactually does the deed. Moreover, no State canavoid responsibility by outsourcing or contractingout its obligations, either to another State, to aninternational organisation or to a private agent suchas a carrier.Building on the refugee protection principle of nonrefoulement,Article 3 of CAT84 expressly prohibitsreturn to risk of torture in another State, just as thedoctrine established by the European Court ofHuman Rights around Article 3 of the EuropeanConvention on Human Rights (‘No one shall besubjected to torture or to inhuman or degradingtreatment of punishment’) has also underlined theabsolute nature of protection against torture,including against return to torture. As the GrandChamber of the European Court of Human Rightsunanimously reiterated this year, in Saadi v Italy(Appl. 37201/06, 28 February 2008), there are noexceptions to this principle, and States must findalternative means to deal with so-called securityrisks, which are compatible with the protection ofhuman rights.States party to the European Convention haveundertaken very distinct obligations – to protect theright to life, to prohibit and protect against torture,23

to protect life and liberty, to provide a fair trial, andto ensure respect for private and family life, amongothers. European human rights doctrine recognisesthat, depending on the facts, these individual rightsmay have a limiting impact on the sovereigncompetence of States to determine who may enterand remain in their territory. In addition, theEuropean Court of Human Rights has recognisedthat the European Convention can apply to States inrelation to extra-territorial activities, though there arelimitations, and that States cannot ‘contract out’ oftheir responsibilities, for example, by transferringgovernmental functions to an internationalorganisation, or a private company. The primaryresponsibility thus remains with the State.Other international obligations relevant to the policyand conduct of United Kingdom officials abroad canbe found in treaties, such as the 1965 InternationalConvention on the Elimination of All Forms of RacialDiscrimination (ICERD65), the 1966 InternationalCovenant on Civil and Political Rights (ICCPR66),and the 1989 Convention on the Rights of the Child(CRC89). Article 7 ICCPR66 provides protection notonly against torture, but also against cruel, inhumanor degrading treatment or punishment, while Article3 CRC89 declares that in all actions affecting children,‘the best interests of the child shall be a primaryconsideration’. In ratifying ICERD65, the UnitedKingdom undertook to eliminate and not to engage inracial discrimination. Indeed, the Race Relations Acts,with their foundation in the UK’s internationalobligations, were an important factor in the RomaRights case. 26 Here, in a challenge to UK prescreeningat Prague Airport, the House of Lords foundevidence of racial discrimination and racial profiling,contrary to British law and the UK’s treaty obligations.This case illustrates a number of legal issuesrelevant to the formulation of policy towards themovement of people in search of refuge. Even if theright to be granted asylum is still not formallyrecognized by States, nevertheless there are certainmeasures which States may not take in order tostop people from seeking asylum. Racialdiscrimination is prohibited, as are measurescalculated or which have the effect of exposing theindividual to the risk of torture, or cruel, inhuman ordegrading treatment or punishment.Clearly, however, the nature of airport liaison officerand similar operations in distant airports will notalways allow issues and solutions to be properlyidentified, including rights and the need forprotection. If the United Kingdom’s human rightsand refugee protection obligations are to be fulfilledeffectively and in good faith, more serious attentionmust be paid to the general obligation of co-operationand support which States have undertaken in regardto countries admitting or receiving refugees. As theTurkish representative put it at the 1989 UNHCRExecutive Committee meeting, the refugee problem,‘was such that it was no longer possible todisassociate international protection frominternational co-operation and assistance.’Human rights and refugee protection obligationssuch as those illustrated above are not contingent,but neither are they self-executing. The UnitedKingdom has committed itself to protect, and theHuman Rights Act is a clear legislative statement ofintent. A decade or so later, however, it is by nomeans clear that specific human rights obligationsand what they imply are integrated sufficiently, or atall, into policy and practice. In short, a human rightsculture throughout government seems to be stillsome way off.20 These developments include the EU's Qualification Directive,which links entitlement to a residence permit to recognitionas a refugee, and the extension of protection under humanrights instruments, such as the European Convention and theInter-American Convention on Human Rights.21 For more information on ‘effective protection’ see ChapterSeven on permanent transition.22 The ILC articles are annexed to UNGA resolution 56/83,‘Responsibility of States for internationally wrongful acts’,12 December 2001.23 See arts. 4-11 generally, and arts. 7, 9, in particular; abovenote.24 Goodwin-Gill, G. S. & McAdam, J., The Refugee inInternational Law, Oxford: Oxford University Press, 3rd edn.,2007, 244-53.25 Art. 16 of the ILC Articles on State Responsibility (above n.26), ‘Aid or assistance in the commission of an internationallywrongful act’, provides: ‘A State which aids or assistsanother State in the commission of an internationallywrongful act by the latter is internationally responsible fordoing so if: (a) That State does so with knowledge of thecircumstances of the internationally wrongful act; and (b) Theact would be internationally wrongful if committed by thatState.’ See also, Goodwin-Gill & McAdam, The Refugee inInternational Law, above note, 252-3, 389-90.26 R (European Roma Rights Centre) v Immigration Officer,Prague Airport (UNHCR Intervening) [2005] 2 AC 1, [2004]UKHL 55.24 Refugee Council report 2008

Chapter Three – Visa restrictions ande-BordersCurrent UK border control policy is driven by a desire to move migration control as far‘upstream’ as possible. The goal is to identify irregular movements and “stop or control thembefore they reach the UK” (Cabinet Office, 2007: 8). Overseas border control activities are amajor element of the UK’s migration management programme, and over recent years theyhave moved closer to refugees’ regions of origin. This section will look at some of the mainborder control measures implemented by the UK in refugee countries of origin or transit, thathave made it harder for refugees to leave the country in which they face persecution and seekprotection in Europe.“By requiring a refugee to obtain proper traveldocumentation before fleeing his or her country toseek asylum in another country, States in factignore the very problems which give rise to theneed for refugee protection and, in effect, denythe possibility of asylum to some refugees.”(UNHCR, 2000a: 10)“They either come to Europe or die trying [...] theydon’t have another option.” (DF, RCOrepresentative London)“I had no choice, I could not have used theZimbabwean passport and come into the UK. Icouldn’t.” (KI, refugee, Leeds)Visa restrictionsThe UK maintains a list of countries whose nationalsare required to obtain a visa before travelling to theUK regardless of their reasons for wanting to enter theUK; these are known as ‘visa nationals’. In addition,for certain purposes, such as a family reunion,obtaining entry clearance is mandatory for all nonnationals.This allows the Government to conductchecks whilst the traveller is still in his or her countryof departure. At different points during the journey,through a combination of control measures includingairline liaison officers, carrier sanctions and portpolice, this traveller can be checked by a variety ofactors, positioned at key points, to decide if s/he isadmissible to the UK and to prevent entry ifnecessary. In this way, visa restrictions form thefrontline of immigration control and allow migrationmanagement to become detached from the physicalborder and to function efficiently at every stage alongan individual’s journey to the UK.Remote ControlsVisa restrictions allow States to screen outundesirable migrants, such as those seeking toconceal their identity for criminal purposes or thosewishing to claim asylum in the UK, while facilitatingthe entry of others. In April 2008, the Border andImmigration Agency, UKvisas and Revenue andCustoms were brought together to form the UKBorder Agency. Hence, the UKBA now operates avisa service issuing visas at UK Embassies, HighCommissions and Consulates abroad. EntryClearance Officers (ECOs) based in visa officesoverseas make decisions on visa or entry clearanceapplications.Visa regimes as way to control asylumnumbersThe UK’s visa restrictions do not apply uniformly toall foreign nationals but instead are informed by theState’s political, economic and historic ties. UKBAasserts that country visa regimes are normallyimposed where there is evidence of the systematicabuse of immigration controls by the nationals of aparticular country (Home Office, 2002). A glance atthe visa restrictions imposed over the past 20 yearssuggests that they have been used to stop potentialasylum seekers reaching UK territory:1. In 1987 the government imposed a visarestriction on Sri Lankan nationals following anincrease in the arrival of Tamil asylum seekers;2. In 1989 the government imposed a visarestriction on Turkish nationals in response to arapid increase in the arrival of Kurds;3. In 1992 nationals of the former Yugoslavia and in1994 nationals of Sierra Leone and the IvoryCoast were required to obtain visas to travel to25

the UK (Gibney, 2005; Sianni, 2003; Morrison andCrosland, 2001).The introduction in 2003 of a visa requirement forcitizens of Zimbabwe was in direct response to thelarge numbers of asylum seekers from the country.The measure was effective as the number of asylumseekers from Zimbabwe fell from 7,655 in 2002 to3,295 in 2003 (Home Office, 2004: 3). TheGovernment has cited this as an example of successin tackling ‘abuse’ of the asylum system, despite thefact that 2,240 Zimbabweans were recognised by theUK as Convention Refugees in the year before thevisa requirement was introduced (ICAR, 2006: 1).The Government does not hesitate in linking theimposition of Airport Transit Visas (ATVs) with areduction in asylum numbers. In 2005 it claimed that:“we have substantially increased the nationalitiesthat require visas just to pass through the UK. Thishas had a significant impact on unfounded asylumapplications.” (Home Office, 2005: 25)The Refugee Council believes that it is inappropriatefor the Government to use visa restrictions as amechanism to curb the arrival of refugees andasylum seekers. To use visas in this wayundermines the right to seek asylum and threatensthe international protection system.The visa waiver testIn 1991, the nationals of just 19 countries wererequired to obtain visas regardless of their reasonfor travelling to the UK; that number is now 108. 27 InJuly 2008, UKBA conducted a visa waiver test toreview all non-European countries against a set ofstrict criteria to determine the level of risk they poseto the UK in terms of illegal migration, crime andsecurity. Following the test, UKBA proposed newvisa restrictions for 11 countries, which wouldextend the ‘visa net’ over 80 per cent of the world’spopulation. 28 Two of the new visa countries,Malaysia and South Africa, are countries used byrefugees, including one of our respondents, toenable their irregular movement to the UK for thepurpose of claiming asylum. The Government nowintends to work with these countries over the nextsix months to reduce the risk they pose. 29We can assume, from the criteria used to judge therisk posed, that a country on this visa list will haveto, inter-alia, increase co-operation on thereadmission of its nationals from the UK and showadequate efforts to address ‘immigration abuse’,including ‘misuse’ of the asylum system. This use ofvisa restrictions in the development of relations withthird countries is not new. The EU and its individualMember States frequently promise to liberalise visarequirements for non-EU countries in exchange forreadmission agreements. 30 Such agreements whichfacilitate the return of nationals of the receivingState and third country nationals, including failedasylum seekers that have passed through thereceiving State, have serious implications for refugeeprotection. The Refugee Council believes that thirdcountry nationals should never be returned undersuch agreements and nationals should only bereturned where their life and safety are not at risk.Access to visasDuring World War II it was common practice toissue ‘protective passports’ or transit visas toJewish refugees, which either protected theirholders from harm pending emigration, or enabledthem to flee occupied territories. 31 In theory,humanitarian visas are available from UKConsulates. 32 The UK’s system is, however,extremely limited, in part because it requires theapplicant to have already left their country of origin(without which they could not be a refugee). Inpractice, humanitarian visas are not widely used andit is now impossible for an individual to enter the UKlegally for the purpose of claiming asylum. 33In some cases, refugees are not even able to leavetheir country of origin due to the passport or visarequirements of other States. The process ofobtaining a visa requires an applicant to present avalid passport as well as supporting documentationsuch as, in the case of a visitors visa, bankstatements, a letter from an employer and a letterfrom the sponsor in the UK. Most categories underthe immigration rules require the applicant to showthat they have an intention to return home at the endof their stay. By definition refugees cannot meet thatcriteria. Therefore even if they do have a traveldocument they are forced to lie about their intentionsin order to get a visa to come to the UK. Manyrefugees face a fundamental problem in that they areunable to approach State authorities to obtain traveldocuments and visas for fear of the risk this wouldpose to their lives. Where the State apparatus hascompletely collapsed, as in the case of Somalia, thereis no agency to issue passports. Our respondentsdescribed situations where they were deniedpassports due to targeted discrimination against aminority group, or corruption within State systems:26 Refugee Council report 2008

“I couldn’t [come with a passport] because in orderto get passport you should pass military service fortwo years, you should serve military service andaccording to our religion we won’t do this.” (SV)“When Saddam [was] president is no giving toanybody passport. Yeah, if somebody is rich man or heis in party, you know, is giving, or is in business. Butanybody, no is given passport.” (AD, refugee, Leeds)In some countries, such as Iran, women are unableto obtain travel documents without permission froma male relative, and some are thus forced to rely onforged documents to leave their country of origin.Those refugees who do have identificationdocuments are often obliged to leave them behindwhen they flee to the neighbouring country becausethey are in a rush to leave, are afraid that they willlose them, or suspect that they may robbed alongthe route.“someone who has run from a civil war they don’thave the time to carry all the documents they needto carry, some of them have been robbed on theroad while they were coming there. Most them don’thave any kind of documentation.” (DF, RCOrepresentative, London)Applicants will be refused a visa if they fail to meetthe requirements of the immigration rules, includingseeking entry for a purpose not covered by therules, failure to produce a valid passport or nationalidentity document, or the use of false documents.Unable to access the visa route legitimately and yetstill seeking a safe passage to the UK, somerefugees will be forced to submit a visa applicationunder false pretences. Those who apply for a visaand reveal, or who are suspected of having, anintention to seek asylum, will almost certainly havetheir application refused. One of our respondents,an elderly Somali woman who has refugee status inthe UK, attempted to gain entry to the UK byapplying for a visit visa at the British Embassy inEthiopia. She was repeatedly refused and eventuallyreached the UK after an extremely dangerousjourney that lasted two years:“In Ethiopia they […] give negative... I don’t know thereason, they give three times.” (SA, refugee, London)Visas as a deterrentIt is still unclear what impact visa requirements haveon irregular migration, but there is no evidence tosuggest that they deter refugees from travellingRemote Controlsaltogether. The European Commission has admittedthat it is not clear:“whether or not there is a direct link between theimposition of visa requirements and a slowing downof illegal immigration. On the contrary it seemsdifficult to prove a link between the lifting of visarequirements and a subsequent increase of illegalimmigration.” (European Commission 2004a: 13)Imposing visas on nationals of refugee-producingcountries may provide a short-term dip in asylumnumbers in the UK, but those numbers are likely torecover as refugees find alternative, irregular formsof migration in order to enter the country to seekprotection. Our research found that smugglersadapted quickly to the closing down of particularroutes and found new ways to reach the UK. One ofour respondents explained how quickly alternativeroutes were created when visa restrictions whereimposed on Zimbabwean nationals:“When the visa restrictions where imposed Istopped visiting the [migrants’] hostel ... I thoughtthere would be no new Zimbabweans arriving. Thenafter Christmas I heard rumours that there wereZimbabweans up there so towards the end ofJanuary I went back. I was amazed; there were a lotof new arrivals. They had all come through newdirections. I was amazed of how fast new routes hadbeen established by agents.” (SH, RCOrepresentative, London)As visa restrictions blocked the legal route toEurope, many of our respondents fled instead toneighbouring countries where they did not need avisa, including Kenya, Pakistan, Ethiopia, SouthAfrica, Syria and Turkey. As this report has alreadyillustrated, these countries not only host the majorityof the world’s refugees, but have been widelycriticised for their treatment of migrants, particularlythe lack of adequate procedures for providinginternational protection to refugees (RefugeeCouncil, 2003a; 2003b; ICMPD, 2007; HelsinkiCitizens’ Assembly, 2007).Upon finding themselves in a country that does notprovide adequate protection, our research findingsconfirmed that many refugees are forced intoirregular migration in order to find safety elsewhere.Some will continue on their route without documentsand forge a dangerous, clandestine path throughEurope, hidden under a lorry or concealed withincargo holds, dodging border controls along the way.27

“Most of them – I’m not saying everybody but Iwould say 92 per cent of them, they are with nodocuments.” (AA, RCO representative, Leeds)Others find a way to acquire false documentation,either buying a false passport for a country thatdoes not require a visa for the UK, or purchasing avalid visa using false supporting documentation.The market for forged documents within countriesbordering refugee-producing States is burgeoningand, according to UKBA, there are more forgedpassports in circulation than ever before. It appearsthat some refugees can use money and connectionsto purchase the necessary documentation to enablethem to travel to Europe and the UK in safety.“As Pakistan is totally corrupted you can buyeverything and you can sell everything – and that’s afreedom of corruption there. That’s easy for thoseagents to make any false documents.” (AFM, RCOrepresentative, London)By denying them a legal and safe route toprotection, the UK and other EU States are obligingrefugees to participate in illegal activities in order toreach a country in which they can claim asylum. Inso doing, these countries are feeding aninternational criminal industry that is based on thesmuggling of individuals desperate to leave thecountry of persecution (see Chapter Six).The case of Zimbabweans and passportsOur research discovered that Zimbabwean refugeesare reliant on Malawian and South African passportsin order to flee the region and seek protectionelsewhere. Corruption in the countries borderingZimbabwe means that refugees are able to falselyacquire documents, although pressure from the UKto improve document issuance and verification ismaking this more difficult. 34 Increased bordercontrols at South African airports have made itsignificantly harder for Zimbabweans to leave thecountry using a South African passport, as they arenow questioned and required to provide supportingdocumentation to prove their nationality.As the South African route becomes more difficult,Zimbabwean refugees are increasingly usingpassports from Botswana, Malawi and Zambia. If theysucceed in making it to the UK with the passport ofanother State, then they must prove they are not anational of that State or risk being returned to thatState by the UK Government, and eventuallyrefouled to Zimbabwe. UKBA frequently relies onthe fact that a Zimbabwean asylum seeker hasarrived on a Malawian passport in order to disputethe nationality, and hence the credibility, of theapplicant. Considered to be Malawian, their asylumclaim is rejected and they are returned to Malawi.Our research revealed that, rather than beingreturned to the UK, these Zimbabwean refugees areadmitted to Malawi, detained and charged by theMalawian authorities with the crime of acquiringfalse documents. They are then frequently refouledto Zimbabwe and little is known about their fate atthe hands of the Zimbabwean authorities.Destruction of documents and lack ofdocumentsA number of our respondents did manage tofraudulently acquire documents with the help of anagent who then took responsibility for the papersduring the journey. Upon arrival in the UK, the agentthen vanished, leaving the refugee withoutdocumentation.UKBA does not distinguish between refugees andother ‘high risk’ travellers attempting to enter the UKirregularly for the purpose of committing a crime.“The system of overseas checks, including the existingvisa regimes and the Airline Liaison Officer (ALO)network, allows border agencies to filter out high riskor inadequately documented individuals before theyarrive in the UK.” (Cabinet Office, 2007: 21)It has long been a criminal offence to seek toenter the UK in contravention of immigration lawsbut, in recent years, the Government hassignificantly increased the number of criminaloffences under which individuals may beprosecuted for irregular entry. Under Article 31 ofthe 1951 Refugee Convention, refugees shouldnot have any penalties imposed upon them as aresult of entering or being present in the UK incontravention of immigration laws if there is agood reason why they are/were unable to complywith those laws; and provided they presentthemselves to the domestic authorities withoutdelay. The Government introduced a defence forrefugees in Section 31 of the Immigration andAsylum Act 1999 but the scope of this defence ismuch narrower than the protection afforded underthe 1951 Refugee Convention. Under Section 2 ofthe Asylum and Immigration (Treatment ofClaimants, etc) Act 2004, it is a criminal offence “ifat a leave or asylum interview he does not havewith him an immigration document”. A number of28 Refugee Council report 2008

prosecutions have been brought where apassenger had failed to produce a valid passportat interview or on arrival, including wheresmugglers had destroyed or confiscated the traveldocument (both false or valid) on which thepassenger had travelled. Complying with theinstructions or advice of a smuggler, as some ofour respondents did, only constitutes a reasonabledefence if it is unreasonable in all thecircumstances to expect non-compliance. InOctober 2006, the Lord Chief Justice ruled 35 that aconviction under Section 2 would not apply if atno stage in the defendant’s journey to the UK dids/he use a valid passport. 36 However, if a validpassport was used at some stage of the journey,and it is not presented when required, perhapsbecause it has been destroyed or given back tothe smuggler, the offence may be committed.Furthermore, under Section 8(3)(a) of the 2004Act, UKBA decision makers and judges areobliged to consider whether failure to produce apassport without reasonable explanation maydamage the credibility of the asylum applicant.In the Refugee Council’s view, the failure to providea valid passport must not impact on the asylumclaim of the individual, and the prosecution ofasylum seekers under Section 2 is entirelyincompatible with Article 31 of the 1951 RefugeeConvention. Our objection to this treatment ofasylum seekers has been echoed by one of themost senior judges in England and Wales. LordJustice Sedley wrote:“As is obvious, many people fleeing persecutionhave no option but to travel on false papers. Anenactment which may have the effect ofprescriptively requiring a judge to disbelieve anindividual’s otherwise credible story, and so possiblysend them back to torture or death, is a seriousinvasion of judicial independence.” 37Risk Assessment Units at EntryClearance PostsUKBA is committed to targeting inadequatelydocumented travellers and is developing itsenforcement programme overseas. Risk AssessmentUnits (RAUs) are based in high-volume, ‘high-risk’posts, and work with the host country police to deterfraud and forgery by arresting those submitting forgeddocuments for visas. It is not known how many ofthose arrested wished to make a claim for asylum inthe UK, nor what has happened to them after theirarrest. UKBA intends to expand this programme toRemote Controlsother posts where fraud is common, bringing the totalto approximately 25 RAUs worldwide. 38Our research shows that it is often impossible, orextremely dangerous, for refugees to acquire thenecessary documentation from their own Stateauthorities or from UK visa offices, that wouldenable them to travel to the UK legally and safely.As this report has already indicated, it is wrong topenalise refugees for their irregular arrival in the UK.UNHCR has recognised the inherent difficulty 39 inacquiring documents for the purpose of travellinglegally to Europe and stresses that asylum seekersand refugees must not be liable to criminalprosecution or penalty for irregular entry or presencein the State. Whilst targeting the fraudulent use ofdocumentation is a legitimate Government aim, theconsequences for people fleeing persecution can bevery serious. These measures risk trappingpersecuted individuals within the country of origin,and exposing them to further human rights violationsor inhumane or degrading treatment.Technology and access to asylumWithin Europe, the UK is leading the way indeveloping technology to make visa applications amore secure tool for the purpose of monitoring andcontrolling immigration. The movement towards anelectronic system of border controls is largelymotivated by concerns about security, and is heavilyinfluenced by the conclusions of the US 9/11Commission (National Commission On TerroristAttacks Upon The United States 2004). Theconclusions attributed the failure to pre-empt 9/11,in part, to inadequate border controls and the reportsuggested that up to 15 hijackers could have beenintercepted at the border had more effectivesystems been in place. The Commission suggestedthat if the border control had been able to identifyfraudulent documentation the attack might neverhave happened.Establishing passenger identity, monitoring thatidentity through electronic surveillance and sharingintelligence between airlines and State authorities,have become the new tools of a border controlsystem focused on identifying high risk passengersbefore they reach UK territory, while also facilitatinglegitimate travel. The Home Office has described a“triple ring of border security” 40 that starts on foreignterritory, is reinforced at the border and thencompleted inside the country itself. Each of thesecheckpoints is an opportunity to expose fraudulentdocuments or track suspicious behaviour.29

BiometricsThe UK government first began collecting biometricsin 1993 to ‘fix’ the identity of asylum applicants inorder to reduce ‘abuse’ of the system. The Nationality,Immigration and Asylum Act 2002 41 allows the UK torequire people to provide biometric information whenapplying to enter or remain in the country. In February2004, new provisions were introduced to extend theGovernment’s fingerprinting powers. 42 In July 2003,the Home Office conducted a trial of compulsoryfingerprinting of visa applicants in Sri Lanka. 43 Theproject cost £1million and during six months 14,000sets of fingerprints were taken but only sevenundocumented asylum applicants were identified anda further two people were prosecuted for destroyingtheir passports after entering the UK. 44 Shortlyafterwards, UKBA ran a number of pilot projects,including Project Semaphore, 45 to test biometric visaissuance as part of a new system of electronic bordercontrols on a number of key routes in and out of theUK. The pilots allowed UKBA to check passengerdetails against border agency and police databases inthe UK, in order to highlight any suspect individuals.The pilots were considered a success 46 and theGovernment felt confident that biometric datacollection held the key to managing migration throughthe monitoring of individual identities.“biometrics… are now well established as the mostsecure way of fixing an individual to a uniqueidentity.” (Home Office, 2006: 6)e-BordersThe e-Borders programme was set up in 2004 asthe overseas element of the Home Office’s riskbasedsystem of identity management. Theprogramme consists of a multi-agency unit, thee-Borders Operations Centre (eBOC), which bringstogether staff from UKBA, Revenue and Customs,Serious Organised Crime Agency (SOCA) and thepolice. It was established with the intention ofcreating a single pool of information provided by air,sea and rail carriers, on suspect identities and riskyindividuals, including those who had committedimmigration offences, to be accessed quickly andeasily by authorised officers for the purpose ofdenying entry to unwanted migrants.The first threshold in the alert system is at the pointof visa issuance. The global collection of biometricdata from visa applicants was formally launched in2006 and has now been rolled out across 135countries covering around 75 per cent of the world’spopulation. All UK visa applicants, apart from thosebenefiting from a limited number of exemptions, 47 arerequired to provide biometric data (ten-digitfingerscans and a digital photograph) as part of theapplication process. This data is then cross-matchedagainst immigration databases in the UK to reveal ifthe applicant has already been fingerprinted, why andwith which identity. A Memorandum of Understandingbetween UKvisas and the National PoliceImprovement Agency in August 2007 also enablesvisa staff to check fingerprint data against criminaland counter-terrorist records (Cabinet Office, 2007).Applicants are scored against risk profiles in order toidentify a potential security risk, and comparedagainst a ‘watch list’ of suspects and previousoffenders. So far, more than 2 million sets offingerprints have been recorded. 48While travel is underway, eBOC currently collects thebiometric data from visa issuance points, along withelectronic Advanced Passenger Information (API)data and Other Passenger Information (OPI) directfrom carriers. This information is subjected to furtherelectronic background checks so that UK immigrationcontrol staff posted overseas can advise carriers notto board a suspect individual, even at the last minute.A passenger’s passport is swiped at the airport whenentering the UK in order to capture the biometric datastored in the visa. The individual’s record is retrievedfrom a database and the fingerprints are checked bythe system against those of the visa holder. Not onlyare passengers electronically monitored as they enterthe UK but, in the future, e-Borders will also recorddeparture information so that future visa applicationscan be informed by past compliance with immigrationrequirements. The Government hopes that e-Borderswill cover the majority of passenger movements by2009 and 95 per cent by 2011 (Home Office,2007a: 16).According to UKBA, biometric data collection allowsthe Government to ‘fix’ an identity at the earliestopportunity so that it can be referred to at anyfuture point. This emphasis on ‘fixing’ identity andthen ‘locking’ it to the individual passenger is key tothe e-Borders programme, as it supposedlyundermines efforts to travel irregularly on falsedocuments and makes it easier for the Home Officeto identify and remove migrants who arrive withoutany identification document at all.“New fingerprint visas are fast becoming our firstline of defence against illegal immigration. Byestablishing people’s identities beyond any doubtbefore they enter the UK we can stamp out multiple30 Refugee Council report 2008

applications and identity fraud – ensuring entry onlyto those who are welcome.” 49Effectiveness of e-BordersConfidence in the e-Borders system stems from theGovernment’s faith in technology and UKBA’s beliefthat the electronic system is grounded in the faultlessanalysis of ‘intelligence’. However, history has taughtus that whenever Governments invest in newtechnology to control their borders, smugglers andtraffickers soon find ways to circumvent them. Ourconversations with airline carriers in Turkey suggestthat the use of biometric identifiers is no exception.Their document handlers are increasingly confrontedwith top quality forged documents, includingpassports and visas, made using the latesttechnology developed by black market manufacturers.While demand continues there will always be a marketfor forged documents. As the technology developsthe cost will simply increase. An even greaterproportion of refugees will either be forced to paylarge sums to unscrupulous agents or be obliged tofind a cheaper, more dangerous route to safety.It is difficult to judge whether the introduction ofbiometric controls has had a significant impact onthe ability of refugees to acquire a visa. Visaapplications for 2007 were approximately five to tenper cent lower than the same period the previousyear. UKvisas stated that biometrics have had a shorttermimpact on demand in countries where they havebeen introduced, but that applications recovered toprevious levels within a couple of months. 50 There is noway of knowing how many of those who were refusedvisas were refused because it was suspected thatthey would later claim asylum in the UK. Thisinformation is not collected by entry clearance officers.Risks involved in fixing identity and e-Borders:Disputed nationalityThe requirement to provide a fingerprint may putsome refugees lives at risk. For example, one of ourrespondents told us that a Somali refugee is unlikelyto possess a valid Somali travel or identitydocument. He may have to use false documents toobtain a visa to enter the UK. If a Somali refugeehas used false Ethiopian documents to obtain avisa, and then makes an asylum application in theUK using his real identity, it is possible that he willbe identified by his fingerprint and presumed to beEthiopian. Such a case might be dealt with underaccelerated procedures and refused, with thepossibility that he may be removed to Ethiopia. Hemay then be vulnerable to expulsion from EthiopiaRemote Controlsand refoulement to Somalia. In the case of a refugeeforced to lie about his identity in order to fleepersecution, the fixing of an identity has a negativeeffect on credibility, which could lead to a refusalof asylum.Margin for errorElectronic border controls rely on biometrics toproduce a fixed identify for each passenger, but thereliability of biometric identification has beenchallenged (GCIM 2005). Fingerprint matching is notstraightforward, nor is it infallible and, like anybiometric identification system, it contains a highchance of false non-matches (where validindividuals are refused border entry because thetechnology fails to recognise them), and falsematches (where an individual is matched to anotherindividual incorrectly). 51 Even with a multicharacteristicbiometric system, using severalbiometric measures, this seriously undermines thereliability of biometric identification. The French DataProtection Authority CNIL investigated one of theEU-wide biometric databases that relies onfingerprint matching, the Schengen InformationSystem, and found that almost 40 per cent of thealerts were unlawful or wrong. 52 For an asylumseeker the unreliability of biometric techniquescould have significant impact. If a person is wronglymatched during the visa application process, s/hewould have little chance of proving that the £6million system is at fault.Data sharingAt the moment, biometric data is shared broadlyamongst UK Government agencies. TheImmigration, Asylum and Nationality Act 2006 (Dutyto Share Information and Disclosure of Informationfor Security Purposes) Order 2008 creates a duty onUKBA and the police, to share travel-related data oninternational passengers, crew and services if it islikely to be of use for immigration, police or certainsecurity purposes. UKvisas has recently indicated thatit will consider sharing enrolment facilities with EUpartners and, in the future, will explore plans to sharebiometric information with other countries. 53 UKBA isnegotiating access to Europol 54 , the secondgeneration Schengen Information System (SIS II) 55 andthe EU Visa Application System for furthercomparison of personal data. It intends to extend thisrelationship beyond Europe so that security,intelligence and law enforcement agencies in the US,Australia and Canada can contribute to immigration‘watch lists’ and compare details of passengers withtheir own databases (Home Office, 2007a).31

The inter-operability of databases will allow lawenforcement authorities in the UK and beyond, toaccess immigration information for purposes otherthan migration control. The Refugee Council isconcerned about the potential for sharing data inthe future with countries of origin or transit whichcould pose a significant risk to asylum seekers andrefugees, should their details be shared with thirdcountries, particularly their country of origin. Eventhe European Commission, which has proposed acentralised database to store the biometrics of allEU travel document holders, has conceded thatfurther research is necessary to “examine the impactof the establishment of such a European Register onthe fundamental rights of European citizens, and inparticular their right to data protection.” (EuropeanCommission, 2004c: 8)Recent scandals relating to data security in the UKhave highlighted the dangers of collecting and storinglarge amounts of sensitive personal information. Mostof the criticism has focused on the difficultiesinvolved in securing large data stores and thepossibility of data being lost or stolen by criminalagents. A large database of biometric data couldbecome a risk to privacy through the disclosure ofpersonal information and the use of biometric datafor other purposes. 56 Airline check-in procedures willinvolve verifying the validity of travel documents, andairlines may then hold the biometric data. Currentlythere is no clear information of how this data isstored or used by any of the many private actorsinvolved. Templates containing the biometric dataand personal details of asylum seekers and refugeesare particularly vulnerable to abuse. If State agents inthe country of origin obtained this information,refugees and their families would be in danger.Protected Entry ProceduresIn 2002, NGOs called for the introduction ofexemptions from visa requirements for individualsfleeing persecution and human rights abuses, andbegan exploring the possibility of Protected EntryProcedures (PEPs) (Sianni, 2003: 26). PEPs entailthe suggestion that people at risk of persecutionmay approach consular authorities to apply for avisa. In determining eligibility for a visa,immigration officers should consider anindividual’s particular circumstances if it appearsthat they are at risk of persecution, whether theyare in their country of origin or whether they are ina neighbouring country. In exceptional,emergency cases, where it appears that someonehas an urgent need to flee persecution, visasshould be granted to asylum seekers seekingentry clearance at consular authorities.Procedures must be flexible, since people at riskof persecution may not be able to fulfil all theusual visa requirements, for example possessionof a valid passport, an intention to return to thecountry of origin, or sufficient money to cover thecost of their stay and return. Ultimately, visasshould allow entry to the territory for the purposeof accessing that country’s refugee determinationprocedure.SummaryThe UK, by using visa restrictions and the e-Bordersprogramme to strengthen the borders, is closing andlocking the doors to those seeking protection in theUK. Our research confirms that “the imposition of visarestrictions on all countries that generate refugees isthe most explicit blocking mechanism for asylum flowsand it denies most refugees the opportunity for legalmigration” (Morrison and Crosland, 2001). As thisreport will show in Chapter Six (Displacement ontodangerous routes and methods), visa regimes are oneof the primary reasons why asylum seekers and othermigrants must resort to the services of smugglers, usefalse documents and expose themselves to extremedanger and the possibility of interception andrefoulement. As the visa regime is harmonised acrossthe EU, the Refugee Council shares concerns that theentire region will become inaccessible for the purposeof seeking asylum (Brouwer and Kumin, 2004). Thissituation will only become more severe with theintroduction of new technology to support anddevelop the identity management element of the UK’sborder control programme.RecommendationsVisa requirements should never be imposed withthe aim of preventing asylum seekers fromreaching a State’s territory.The UK and other EU States should examine theirvisa policies regularly, and in emergencysituations should suspend visa requirements toenable people to flee an area of conflict or severehuman rights abuse. In such emergencysituations, the international community shouldsuspend visa requirements simultaneously, in aspirit of burden sharing, for determined periods of32 Refugee Council report 2008

time for nationals experiencing humanitarian crises.Negotiations with countries on the lifting of visarestrictions, in exchange for increased efforts tocontrol irregular migration to the UK andreadmission agreements, must include protectionsafeguards. Individuals should not be transferredto countries from where they do not originate.Where, however, agreements are signed to returnnon-nationals, they should contain guarantees offull access to fair and efficient refugee statusdetermination procedures, and protection againstrefoulement.The UK should explore the facilitation of legaltravel for those in need of protection, whereencountered at Consulates in countries of originor transit.Where aspects of consular activities areoutsourced to private contractors, such asprocessing visa applications, the UK shouldensure individuals with protection needs are stillable to access the Consulate.When considering the treatment of individualswho travel without proper documentation, the UKshould take into account the lack of choice ofthose fleeing persecution, including where thereare no facilities for issuing passports within thecountry of origin, due to it being a country inupheaval or where certain profiles areillegitimately denied passports.The UK’s assessment of risk in the context ofroutes and nationalities should include the risksposed to the individual, not just the State. Thiscould involve an analysis of situations that mayinclude refugee flows, including where vulnerablegroups could be travelling on dangerous routes.The identification of risks to individuals should beshared with outposted immigration officials andprivate carriers.Safeguards should be put in place to ensure thatwhere a false identity is used for the purposes offleeing persecution, the false identity is notelectronically ‘fixed’ as this could lead toinappropriate refusal of an asylum claim andpossible chain refoulement.Policy and practice should reflect that the fact ofRemote Controlsbeing a failed asylum seeker does not mean thatan individual will never have a legitimate refugeeclaim in the future.A risk assessment on the impact of e-Borders onrefugee protection should be conducted byUKBA. This should include an examination ofsafeguards to ensure that data-sharing systemsunder no circumstances allow for information onindividual asylum applicants to be shared withcountries where an individual is at risk.Regular updates on the e-Borders programmeshould be disseminated and stakeholders in theNGO sector should be invited to input intodevelopments.The advantages and risks of Protected EntryProcedures (PEPs) should be fully explored by anindependent body.27 This includes 51 countries whose nationals need a visa totransit through the UK – DATV. For more information seeHome Office. Visa and transit visa nationals. [Online]Available at:www.ukvisas.gov.uk/en/doineedvisa/visadatvnationals[accessed 21 August 2008].28 The countries are Bolivia, Botswana, Brazil, Lesotho,Malaysia, Mauritius, Namibia, South Africa, Swaziland,Trinidad and Tobago and Venezuela.29 Home Office press release, 2008. Results of Britain’s firstglobal visa review, [Online] 10 July. Available at:www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2008/resultsofBritainsfirstglobal [accessed 21 August 2008].30 In 2006, the EU and Russia signed agreements on visafacilitation and readmission of illegal immigrants. This wasfollowed, in January 2008, with the entry into force ofagreements on visa facilitation and readmission with Albania,Bosnia and Herzegovina, Montenegro, Serbia and the FormerYugoslav Republic of Macedonia. For more information seeEuropean Commission, Enlargement (News about “Visa”).[Online] (Updated 26 May 2008). Available at:http://ec.europa.eu/enlargement/press_corner/whatsnew/visa_en.htm [accessed 31 October 2008].31 In 1944, the Swedish legation in Budapest issued documentsto Hungarian Jews that bestowed upon the holderpresumptive Swedish citizenship, hence shielding them fromharm. It is estimated that this action saved the lives ofapproximately 50,000 people. For more information on theuse of ‘protective passports’ and visas during World War IIsee Noll, 2002.32 Although there is no provision in the UK Immigration Rulesfor someone to be granted a visa for the purposes of comingto the UK to claim asylum, the Embassy or Consulate couldrefer an entry clearance application to the UK Home Office, ifthe person was already outside of their country of origin,33

could demonstrate a prima facie case for Convention status,had close ties with the UK and could provide evidence thatthe UK was the most appropriate country of refuge.33 There are no official statistics recording UK practicesregarding protected entry procedures. Although there is noinformation on the number of people who request asylum atUK representations, it is estimated that ten cases are referredto the Home Office from representations abroad, per year. Ofthese, very few receive positive decisions on entry clearancefrom the Home Office. For more information on UK use ofprotected entry procedures see Noll, 2002.34 The UK has threatened to impose a visa restriction on SouthAfrica if it does not tackle the problem of irregular migrationthrough the country. For more information see Home Officepress release, 2008. Results of Britain’s first global visareview, [Online] 10 July. Available at:www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2008/resultsofBritainsfirstglobal [accessed 21 August 2008].35 Soe Thet v Director of Public Prosecutions [2006] EWHC2701 (Admin). [Online] Available at:www.bailii.org/ew/cases/EWHC/Admin/2006/2701.rtf[accessed 31 October 2008].36 For more information see Refugee Council, 2006.Convictions for failure to produce documents under Section2 of the Asylum and Immigration (Treatment of claimants) Act2004 – asylum seekers may have right of appeal. October2006. [Policy briefing] [Online] Available at:www.refugeecouncil.org.uk/Resources/Refugee%20Council/downloads/briefings/section_2_october_2006.pdf. [accessed21 August 2008].37 Verkaik, R., 2008. Asylum seekers put at risk by law, warnstop judge. The Independent, [Online] 2 July. Available at:www.independent.co.uk/news/uk/home-news/asylumseekers-put-at-risk-by-law-warns-top-judge-858323.html [accessed 31 October 2008].38 For more information see Memorandum submitted byUKvisas to the Select Committee on Home Affairs, FifthReport Session 2005-2006. Tackling Abuse of the VisaIssuing Operation. 27 February 2006. [Online] Available at:www.publications.parliament.uk/pa/cm200506/cmselect/cmhaff/775/775awe35.htm [accessed 21 August 2008].39 “Often it is impossible, or too dangerous, for a refugee toobtain the necessary travel documents from the authorities”.Source: Council of Europe and UNHCR, 2002. Proceedings:“Round Table Process” on carriers’ liability – Second expertmeeting on carriers’ liability, Topic B: Respect of thehumanitarian dimension. Brussels, Belgium 24 June 2002.40 Home Office press release, 2007. Border securitystrengthened by fingerprint technology. 9 October.41 Section 126 of the NIA 2002 empowers the Secretary ofState to require ‘specified information’ about an applicant’s‘external physical characteristics’.42 The Statutory Instrument allowing for the collection offingerprints from certain visa applicants and holders of 1951Convention Travel Documents came into force in February2004. See Home Office press release, 2004. Increased use ofbiometrics to tackle asylum abuse. 21 January.43 This followed new legislation under Section 126 of NIAA2002 which empowers the Secretary of State to requireapplicants for British visas or entry clearance to provide‘specified information’ about their ‘external physicalcharacteristics’.44 From Commons standing committee debate:www.parliament.the-stationeryoffice.co.uk/pa/cm200304/cmstand/deleg2/st040209/40209s01.htm and Home Office press release, 2004. Increased useof biometrics to tackle asylum abuse’. 21 January.45 Home Office, How we tested e-Borders. [Online] Available at:www.ukba.homeoffice.gov.uk/managingborders/technology/eborders/testingeborders [accessed 28 March 2008].46 Success has been measured in terms of the amount of datagathered and number of arrests: “‘Project Semaphore’ hasalready captured data on 21 million passenger movements,and issued over 9,000 alerts to the border agencies.... To dateover 800 arrests have been made.” (Home Office, 2007a: 16).47 People who are exempt from immigration control are notrequired to provide their biometric data. In addition, therealso exist certain categories of people that are subject toimmigration control but are not required to provide theirbiometric data, including diplomatic couriers and diplomatsvisiting the UK on the official business of their government.For more information on exemptions see:www.ukvisas.gov.uk/en/ecg/chapter548 Home Office press release, 2008. Results of Britain’s firstglobal visa review. 10 July.49 Home Office press release, 2007. Border securitystrengthened by fingerprint technology. 9 October.50 UKvisas, 2007. Entry Clearance User Panel Meeting. 25October 2007.51 Open letter to ICAO: A second report on 'Towards anInternational Infrastructure for Surveillance of Movement. 30March 2004. [Online] Available at:www.eff.org/files/filenode/rfid/icaoletter.pdf [accessed 8August 2008].52 For further details see Brouwer, E., (forthcoming) DigitalBorders and Real Rights; Effective remedies for third-countrynationals in the Schengen Information System (Immigrationand Asylum Law and Policy in Europe).53 UKvisas, 2007. Entry Clearance User Panel Meeting. 25October 2007.54 Europol is the European Law Enforcement Organisationwhich aims at improving the effectiveness and co-operationof the competent authorities in the Member States inpreventing and combating terrorism, unlawful drug traffickingand other serious forms of international organised crime. Formore information see Europol. Welcome to the EuropeanPolice Office. [Online] Available at: www.europol.europa.eu/[accessed 29 October 2008].55 The Schengen Information System (SIS), is a securegovernmental database system used by the participatingcountries of the Schengen Agreement ApplicationConvention (SAAC) for the purpose of maintaining anddistributing information related to border control and lawenforcement. For more information see the House of Lords,2007. European Union Committee, 9th Report of Session2006-07, Schengen Information System II (SIS II). 2 March2007. [Online] Available at:www.publications.parliament.uk/pa/ld200607/ldselect/ldeucom/49/49.pdf [accessed 29 October 2008].56 The collection, storage and analysis of biometric data iscurrently managed by commercial actors forming aconglomerate called ‘Trusted Borders’, including the largedefence contractor Raytheon. For more information see:Daon press release, 2007. Trusted Borders becomespreferred bidder for e-Borders contract: Daon to providebiometric software and services. [Online] December 2007.Available at: www.daon.com/news/2007/7_12_2007.html[accessed 28 March 2008].34 Refugee Council report 2008

Chapter Four – Outpostedimmigration officialsIn a further attempt to take immigration control closer to the source of the ‘problem’, EUMember States, including the UK, have been posting representatives in foreign countries forthe purpose of reducing irregular migration. These representatives take the form ofImmigration Liaison Officers (ILOs), Airline Liaison Officers (ALOs), juxtaposed controls 57 and,more recently, Migration Delivery Officers (MDOs). This section will explore the role andresponsibilities of the UK’s representatives posted overseas and examine the impact onindividuals seeking protection within the UK.“In some countries, efforts to control illegalmigration are failing to make a proper distinctionbetween those who choose to move and thosewho are forced to flee because of persecutionand violence. All too often, we see refugeesturned away at the borders of countries wherethey had hoped to find safety and asylum.”(Antonio Guterres, UN High Commissioner forRefugees, World Refugee Day, June 2008)Immigration and Airline Liaison OfficersIn the European Council’s definition, an ImmigrationLiaison Officer is “representative of one of theMember States, posted abroad by the immigrationservice or other competent authorities in order toestablish and maintain contacts with the authoritiesof the host country with a view to contributing to theprevention and combating illegal immigration, thereturn of illegal immigrants and the management oflegal migration”. 58 Although informal contactsbetween outposted national immigration officials hadbeen in place for some time, in 2004 the EU set up anetwork of Immigration Liaison Officers to coordinateimmigration control and is currently developing acommon manual in order to facilitate cooperationwithin the network (European Council, 2006).The term ‘Immigration Liaison Officer’ (ILO) refers toimmigration staff posted to Member States’diplomatic missions overseas, including within theEU and to countries of origin or transit for refugees.By 2006, the UK had ILOs in 14 locations covering26 countries including the Ukraine and Turkey(European Council, 2006). The term also coversMember State immigration representatives postedRemote Controlsto international airports abroad, more specificallyknown as Airline Liaison Officers (ALOs). The UKbegan posting ALOs abroad in 1983 and, as ofAugust 2007, has 34 permanent representativesposted in 31 locations as well as five additional‘floater’ and regional ALOs. Deputy ALOs providesupport in 12 locations. 59 In total the UK’s overseasimmigration network covers at least 126 countries. 60UK Airline liaison Officers were introduced to“address issues at nexus points for illegalmovements” (Cabinet Office, 2007: 39), and theywork with airlines in key locations for irregularmigration. The locations “are selected primarily onthe basis of the number of inadequatelydocumented passengers who have recently arrivedin the UK” and include key countries of origin ortransit for refugees, such as Kenya, South Africa,Pakistan, Malaysia and Egypt. 61Role and responsibilities of liaison officersAccording to the International Air TransportAssociation (IATA) Code of Conduct for ImmigrationLiaison Officers, 62 the purpose of a liaison officer isto ‘reduce the number of improperly documentedpassengers travelling from or through’ the country inwhich they are posted. The code explains thattypical activities include verifying documents onbehalf of national authorities, providing advice onrelevant legislation to host country authorities, anddelivering training on identifying false documents.An examination of the Draft Common Manualsuggests that their role extends beyond simplyadvising on appropriate documentation. ILOs arealso charged with gathering information on irregularimmigration trends and routes, including smugglingand trafficking, facilitating the exchange of35

investigative information between national authoritiesand enabling returns. There is a lack of transparencyregarding the role of immigration liaison officerswithin the migration control programme. There is alsoa lack of information on cooperation between ALOsfrom other Member States and with host countryimmigration officials, and reports on the activities ofALOs are confidential on the grounds of containing“sensitive information”. 63The ALOs’ more specific mandate is to reduce thenumber of inadequately documented arrivals (IDAs)in the UK. They do so by supporting carriers indischarging their responsibilites under Sections 40and 41 of the Immigration and Asylum Act 1999 (asamended), which obliges carriers to identify andintercept improperly documented passengers or riskincurring a civil penalty (for more information oncarrier sanctions see Chapter Five). As such, theyoffer advice to carriers on the acceptability ofdocuments presented for travel and whether or notthe airline is likely to be fined if they allowembarkation. Usually, carriers will alert the on-siteALO who, depending on their airport access rights,will appear in person to verify documents andadvise. This can be difficult when, as in the case ofTurkey, the ALO has not been granted access to theairport at all, and is instead based in anothercountry, in this case Greece. 64 On occasion, the ALOmay request an in-depth interview with thepassenger to establish how s/he acquired thedocuments presented.UK ALOs can also access the J-Vox mechanism, alarge database which contains risk lists from UKBA,police and customs, particularly regarding antiterrorism.If an ALO is aware of a passenger whosename appears on the database, they can release analert to carriers and other ALOs. UK ALOs submitmonthly activity reports with details on interceptionsincluding nationality and type of forgery, but they donot record the identity or biometrics of theindividuals they intercept. Regional managersconduct trends analyses on data relating toforgeries and interceptions, and this information isfed back down to ALOs, who may share it informallywith host country authorities and airline staff.ALOs and refugeesCurrently ALOs do not operate formal UKimmigration controls and they have no legal powersin a foreign jurisdiction. They have no power tocompel an airline to either accept or refuse apassenger, nor can they arrest or prosecute criminals.Their role is ‘purely advisory’ but it is reasonable toassume that carriers will follow this advice rather thanrisk a heavy fine. Our research found that advice toairlines to refuse embarkation was almost alwaysfollowed. In light of this, it is of concern that liaisonofficers are not aware of any responsibility to ensurethat individuals with protection needs are givenaccess to an asylum procedure.The European Council Regulation establishing theILO network (which, as stated earlier, incorporatesILOs and ALOs) does not include any specificmention of Member States’ international obligationstowards refugees and asylum seekers. Very littleemphasis is placed on training liaison officers orthose they work with to identify or respond to theneeds of refugees. Their own training is heavilyfocused on security and criminality in relation toborder checks, and touches on humanitarian issuesonly peripherally. 65 They are given some awarenesstraining on trafficking but are not taught the skillsrequired to respond to the needs of victims oftrafficking, particularly those wishing to seek asylum.In most situations, ALOs will refer any traffickingvictims to the local immigration authorities. Thetraining they provide to airline staff, authorities andhost country immigration services covers UKpassport and visa requirements, documentverification and forgery awareness, and does notinclude any content on international refugee andhuman rights legislation and procedures. It is unclearwhether this training includes profiling, althoughUKBA has stressed that it is not encouraged as theAgency prefers to focus on document validity ratherthan the intentions of the passenger.Between 2001 and 2007, the UK ALO networkprevented 180,000 people with inadequatedocumentation from boarding aircraft to the UK[Cabinet Office 2007]. It is not known how many ofthese people were in need of internationalprotection nor what their fate has been as aconsequence of being denied access to the UK.There is no indication that the responsibilities of anyimmigration liaison officers include a requirement toexamine the intercepted person’s reasons formigration or to address any need for internationalprotection. ALOs can conduct what they call‘assists’, situations in which they provide ad hocauthority to carry, for passengers who do not havethe appropriate documents but for whom there areextenuating circumstances. 66 Unfortunately thediscretion to allow boarding for improperlydocumented passengers does not stretch to36 Refugee Council report 2008

individuals seeking international protection. The IATACode of Conduct for ILOs states that wheneverILOs receive requests for asylum they should referthe applicants to the office of UNHCR, theappropriate diplomatic missions or a pertinent localNGO. 67 In practice, an ALO will, in most situations,refer any irregular passengers directly to localofficials who then take responsibility for handlingany request for asylum. ALOs may provide atelephone number for UNHCR, but where UNHCR isnot available no guidance is provided to ALOs onthe appropriate action to be taken, and they haveno power to intervene to ensure an asylum claimcan be lodged.Very little is known about how many of the‘inadequately documented passengers’ interceptedby UK immigration officers overseas had theopportunity to indicate their need for asylum, whatprocedures were followed, how many were referredto UNHCR or local asylum authorities and how manywere turned back and potentially refouled. Ourresearch suggests that UK immigration liaison officersare indeed involved in the interception of refugees,and that they may be contributing to the refoulementof people in need of protection. For example, one ofour Zimbabwean respondents described theexperience of a friend who tried to flee South Africaat the same time as him, but was intercepted by UKimmigration officials based in the airport.“they took him to the British embassy in Pretoriaand when he was there, there were South Africansthat were called in and only to find that... he isZimbabwean, he is a true Zimbabwean and thedocument is […] not genuine. And so he served acouple of months [in prison] and then he was facingdeportation and I don’t know at the moment whathappened to him… he was returned to Zimbabwe,that’s what most of South African governmentdoes.” (KI, refugee, Leeds)UKBA asserts that very few intercepted passengersare refugees 68 but it is difficult to verify this as ALOskeep no formal record of the number of interceptedpassengers who wish to or do claim asylum. Thelack of actual applications for asylum at the point ofinterception gives no indication of the protectionneeds of the intercepted migrants. Many do notarticulate their wish for asylum because they areafraid of repercussions either within the country oftransit or when they are returned to their country oforigin. Others choose not to claim asylum becausethey have been guaranteed passage by their agentRemote Controlsand will simply be able to use another route. Asconcluded by the Council of Europe and UNHCRExperts Roundtable:“It is impossible to be precise about the number ofrefugees who are denied escape due to stringentchecks by transport companies. The number isconsidered to be on the rise, however, not leastsince transport companies have been assisted byGovernmental liaison officers in verifying traveldocuments.” 69The ALO relationship with the host countryauthorities is just one of the factors preventing agreater role for ALOs in guaranteeing access toprotection. The relationship is often fragile andALOs are not inclined to disturb this by forcing theissue of access to asylum within the State, as theyrisk losing their vital airside access if they interferein the treatment of passengers. ALOs are notconcerned with the intentions of passengers andUKBA is reluctant to give them a greater role inensuring access to protection, as it is felt this wouldnegatively impact on their existing duties,particularly concerning their relationship with hostcountry authorities.Pre-clearance controls – the Pragueairport caseIn May, 2001 the UK began to implement ‘preentranceclearance immigration controls’ inagreement with the Czech government at Ruzyneairport in Prague. The controls consisted of UKimmigration officers conducting full checks ontravellers, including interviews, before theyboarded the carrier, in order to decide whether ornot a passenger was eligible to enter the UK. Aswith all immigration officers posted overseas,there was no requirement for them to do anythingif they recognised than an individual was in needof international protection from persecution. Onthe contrary, the operation sought specifically tohalt the arrival of Czech Roma asylum seekers,who had been coming to the UK in increasingnumbers by 2000. The Home Office claimed thatthe majority of these cases were unfoundeddespite recognising the persecution of Romacitizens within the Czech Republic. 70 As Czechcitizens did not require a UK visa for travel to theUK, passengers were stopped prior to boardingon the alleged grounds that they were notgenuinely seeking entry for the purpose stated on37

their valid travel documentation. The measuresproved very effective; 71 over 110 people wererefused leave to enter the UK during the period ofthe controls. During a legal challenge against theoperation, the Immigration Service justified theiractions by arguing that the UK is not obligedunder the 1951 Refugee Convention to considerapplications outside the UK, nor to facilitate travelto the UK for the purpose of applying for asylum.Despite criticism from the UK’s Independent RaceMonitor, the government maintained that the preclearanceoperation was not discriminatory.Although the House of Lords upheld theGovernment’s position that it is not obliged toconsider asylum claims outside its territory in itsjudgement on the case, the Lords concluded thatthe practice was ‘inherently and systematicallydiscriminatory’ against Roma.Testimony before the High Court challenge by theEuropean Roma Rights Centre revealed that mostof those stopped were Roma. 72 Such targeting islikely to be repeated in future, since the RaceRelations Amendment Act (2000) allows fordiscrimination in immigration, asylum andnationality functions on the grounds of nationalityor ethnic or national origin where this is requiredby legislation or ministerial authorisation.UKBA plans for ALOs and ILOsEvidence from UKBA suggests that the future ofUK border controls will include a greater focus on‘pre-check-in activities’ and targeting ‘potentialoffenders’ before they even start their journey. Theextension of the existing network of airline andimmigration officers is key to this goal. As early as2005, the Home Office announced that it intendedto invest £4million to extend the ALO network to atotal of 42 officers supported by a ‘fast response’team of 30 immigration officers, and to enhance ITsystems and technology. 73 It also wants to involveimmigration liaison officers in tackling criminalactivities in their host country by improving linkswith local law enforcement.There are plans to broaden the remit of ALOs andILOs to cooperate more with other agencies such asFRONTEX to detect smugglers and ensure that theyare prosecuted. The UK hopes to extend itscooperation with ALO networks in Europe andbeyond to exchange information, develop commonpositions in dealing with commercial carriers anddeliver joint training. Since 2001, British and ItalianILOs have worked together in Southeastern Europeto provide training to local officials and gatherintelligence on trafficking and smuggling (ECRE2007). UKBA also intends to explore the possibilityof posting Sea Carrier Liaison Officers at majormaritime ports around the world. Proposedlegislative change included in the Government’sdraft Immigration and Citizenship Bill will extend theexisting ‘advisory’ powers of liaison officers to allowthem to cancel visas or refuse permission forcarriers to bring foreign nationals to the UK. 74 Thesepowers will be very similar to those enacted by preclearanceofficers at Prague airport in 2001 (see textbox on page 37). The posting of officers at Pragueairport allowed the UK government to carry outimmigration checks on passengers seeking to cometo the UK before they boarded the aircraft, with theresult that many Roma asylum seekers were deniedaccess to protection in the UK. UNHCR issued astatement arguing that the practice “frustrate(d) theobject and purpose of the 1951 Convention contraryto the international legal principle of goodfaith…(and) rendered the 1951 Convention nugatory(as) it prevents provisions such as Article 31 or 33ever being engaged”. 75Measures to intercept irregular migrants in countriesthat do not fulfill their international legal and humanrights obligations towards refugees and asylumseekers, will deny refugees the right to seek andenjoy asylum from persecution and expose them tothe risk of refoulement (see chapter seven onpermanent transition). As Guy Goodwin-Gill hasalready explained in this report, States whichintercept refugees in a country that will, or is likely to,refoule them back to the country of origin, are equallyresponsible for the commission of a prohibited act.That responsibility is incurred wherever organs oragents, including ALOs and ILOs, conductimmigration controls functions on behalf of the State.Guy Goodwin-Gill outlines that the act of interceptionalone is sufficient to establish the jurisdiction of theUK and sustain responsibility for the subsequentrefoulement of the refugee.Migration Delivery OfficersThere are currently 20 Migration Delivery Officers(MDOs) posted to British Embassies in key locationsoverseas including Ethiopia, Kenya, the DemocraticRepublic of Congo (DRC), Sri Lanka, Pakistan andTurkey, as a joint FCO/UKBA initiative. The locationswere chosen on the basis of internal intelligence,primarily concerning the flow of migrants, both38 Refugee Council report 2008

egular and irregular in both directions, and allappear to be key countries of origin and transit forirregular migrants.There is still very little information availableconcerning the responsibilities of MDOs, as theyhave been tasked with investigating local migrationissues and defining their role accordingly. However,our research suggests that UK MDOs seek to exertpressure on countries near to the external bordersof the EU, in the hope of containing irregularmigration within the region of origin. Evidence wehave collected from MDOs based in Sudan, SouthAfrica and Ethiopia suggests that their main purposeis to promote compliance with UK migration law andidentify sustainable arrangements for the return offoreign nationals from the UK. They look at issuesrelated to managed migration including trafficking,routes and methods used for irregular migration,organised immigration crime and country of origininformation reports. Their work also includesanalysis of the political and human rights situationwithin the host country, in cooperation with UNHCR.MDOs are responsible for negotiating with hostcountry immigration authorities to influence theirdecision making with regard to migration policy andprogrammes, in order to promote the UK’s migrationmanagement priorities. This will include Memorandaof Understanding on returns and visa requirements.MDOs also examine the availability and use of validtravel documents within their region, and review theUK’s processes for accepting such documents.As a potential EU accession country, Turkey is innegotiations with the European Commission regardingits capacity for reception and integration and itsresponsibility towards the global refugee population.Turkey’s reluctance to lift the geographic limitationclause 76 and take over status determination for non-European refugees is a significant obstacle toaccession. A number of EU Member States have takenthis opportunity to influence the development ofasylum processes in Turkey in anticipation of eventualaccession. The UK is a very strong supporter ofTurkey’s accession to the EU and, through the UKMigration Fund, the government is active in developingmigration management and asylum reception capacitywithin Turkey. The Migration Fund has enabledUNHCR to conduct training for the Turkish Ministry ofInterior and military on refugee law, border monitoringand airport procedures including the return of thirdcountry nationals and safeguards against chaindeportation. The UK also sponsors the InternationalOrganisation for Migration (IOM) to provide training forRemote ControlsTurkish government officials on wider migration issuesincluding asylum, border management and migrationflows. Currently the UK is not directly involved intraining border guards but this may be a feature ofTurkey’s new border management project.The European Union is currently funding the UK andthe Netherlands to conduct a ‘twinning project’ incooperation with the Turkish authorities. The projectinvolves the construction of seven large asylumreception centres around Turkey. The UK is involvedin designing the management systems for use in thereception centres, as well as introducing operationalmodels and new technologies. According to the UKgovernment, the proposed reception centres willhelp Turkish authorities with contact managementand will mean that refugees will find it easier toaccess services, social support, and legal advice.Critically, they will also experience acceleratedprocedures for status determination and return totheir country of origin.At the time of writing, it is unclear whether thesereception centres will be open or will involvedetention, who will have access, and which legal andprocedural frameworks will apply. Many of ourrespondents voiced fears that these centres will act asremoval facilities, particularly considering theemphasis on return within the UK’s migrationmanagement programme and the detention andreturn model used within the UK and the Netherlands.By promoting its migration management programmein transit countries, with no regard for the level ofprotection afforded within that country, the UK isshifting responsibility for refugee protection onto theEU’s poorer neighbours. However, it is not sufficientfor the UK to transfer command and control to athird country in order to avoid application of itshuman rights obligations (see ‘A note on StateResponsibility’). The UK remains fully responsible forany human rights violations that take place during oras a result of these activities. This could includeviolations that occur as a result of the provision ofinfrastructure or finance, formal or informalagreements and working arrangements, joint patrolsand training, as well as support and advice toStates recognised as having a low standard ofhuman rights protection.Juxtaposed controlsThe 1991 Sangatte Protocol established reciprocalarrangements between Britain and France underwhich each State was permitted to operate full39

immigration controls on the territory of the other,otherwise known as juxtaposed controls. It initiallyonly applied to persons travelling through theChannel Tunnel with motor vehicles and allowed forpassengers to be arrested, detained and conductedto the territory of the state whose controls werebeing enforced. 77 It also provided that, wherepersons are refused entry or decide not to proceedto the other State, the State of departure must takethem back. 78 In May 2000, following an increase inundocumented arrivals and asylum claims by thosearriving by train, an ‘Additional Protocol’ gavepermission for pre-boarding immigration controls atEurostar stations in Britain and France. Article 4 ofthe Additional Protocol states that a request forasylum or other form of international protectionshould be examined by the State of departurewhere it is made either at immigration control orotherwise before the shutting of train doors. 79In 2001 juxtaposed controls were extended from theChannel Tunnel terminal at Coquelles to furtherlocations in France and Belgium. In July 2002, thedecision to close the Sangatte centre wasaccompanied by an announcement to establishBritish immigration controls at Calais and, later thatyear, French authorities began using Britishequipment at Calais to check for persons hidden inlorries. Section 141 of the Nationality Immigrationand Asylum Act (NIAA) 2002 empowered theSecretary of State to “make provisions for thepurpose of giving effect to an internationalagreement which concerns immigration control at anEEA port” 80 allowing for the development of frontiercontrols at sea ports. An agreement with France in2003 81 provided for the creation of control zones incommercial ports from which there is sea travelbetween the two States. Within these control zones,officials of the State of destination are permitted toenforce their immigration laws, including by arrest,detention and bringing of persons to their ownterritory. However, the State of departure isresponsible for applications for asylum or otherforms of international protection which are madeprior to departure. The Home Office wants to buildon the perceived achievements of existingjuxtaposed controls in order to share moreintelligence, take advantage of new technologies fordetecting people, and link their operations intodevelopments in e-Borders. However, increasedsurveillance is not cheap: controls based at Paris,Lille and Brussels cost £7,102,500 in 2005-06 and£8,492,000 in 2006-07. 82 Despite the cost, Franceand Britain have committed to an increase in thenumber of lorry checks at French and British ports.The French government has also promised anincrease in the number of French undercover officerstargeting gangs smuggling people into Britain. 83The purpose of juxtaposed controls is “to moveaspects of the UK border to ports across theChannel, to detect and deter potential clandestineillegal immigrants before they are able to set foot onUK soil, fundamentally altering the way the UKoperates at its border” (Cabinet Office 2007). TheGovernment claims that they have been successful.In Kent the number of illegal immigrants arrivingsince 2002 has reduced by 88 per cent. 84 During2006, 16,898 people were stopped attempting tocross ‘illegally’ into the UK from France andBelgium, and 6,801 were refused entry when theyhad reached UK territory. 85 It is claimed that 18,000illegal immigrants were stopped in trucks crossingfrom France to Britain in 2007. 86As with visa restrictions and liaison officers, it is notjust clandestine entrants that the Government isseeking to target with juxtaposed controls, and theHome Office has admitted that:“When, for example, Colombia and Ecuador wereincluded as visa States, this was directly in responseto an increase in the number of those nationalscoming directly to the United Kingdom in order toapply for asylum. A similar aim is present in thejuxtaposed controls in France, where asylumseekers are refused leave to enter.” 87It would appear that one express purpose of theabove measures is to prevent asylum seekers makinga claim in the UK. Even travellers with correctdocumentation and a valid UK visa will be stoppedfrom travelling to the UK if the immigration officersuspects that they may seek asylum. By preventingaccess, the government hopes to decrease theeconomic and political costs of the UK asylumsystem and to spare the expense of returning refusedasylum seekers to their country of origin.“The change that has made a difference today is theshifting of the border controls from England to theFrench coast. We have shifted the immigration andsecurity check and ensured that people will not gethere. Stopping people entering clandestinely has tomake more sense than trying to process them andsend them back whence they came.” 88The UK justifies the implementation of these40 Refugee Council report 2008

measures on the basis that refugees should seekasylum in the first country they reach. This policy isnot grounded in international law and ignores theimportance of community ties, cultural links and thesanctity of the family. Experts meeting under theauspices of UNHCR have stressed that anyarrangement to encourage asylum seekers to seekprotection at the first available opportunity “shouldtake account of meaningful links, such as familyconnections and other close ties, between anasylum seeker and a particular country […] Theprotection of the family as a natural and fundamentalgroup unit of society is a widely recognized principleof human rights” (UNHCR, 2003a: 2).Delegation of responsibility to privatecontractorsPrivate contractors in the port of Calais areauthorised to act independently without any UK orFrench officials present, and replace UK immigrationofficers for identified tasks, including searchingvehicles and detaining individuals. This delegationof responsibility for the implementation ofjuxtaposed controls raises fundamental questionsabout sovereignty and accountability. When UKofficials act on UK territory overseas, such as UKConsulates, they are within the scope of nationalsovereignty and under the mandate of internationallaw. This, in turn, empowers UK courts to monitorand scrutinise the acts of UK officials. However,when UK officials subcontract activities andresponsibilities to private companies they attempt toavoid engaging obligations under international andnational refugee and human rights law.SummaryThe Refugee Council is concerned that, in conductingborder control activities with no regard for protectionneeds, outposted liaison officers risk preventingaccess to safety for refugees. Furthermore, extraterritorialactivity may lead to direct or indirectrefoulement. This would clearly be contrary to theUK’s obligations as signatory to the 1951 RefugeeConvention and acts against the spirit of internationalresponsibility sharing.By preventing migrants from leaving their country oforigin, the UK exposes refugees to the veryauthorities they are attempting to escape. Suchactions also disregard article 13.2 of the UniversalDeclaration of Human Rights which states that“Everyone has the right to leave any country,including his own, and to return to his country”.Turkey is just one country within which UKRemote Controlsimmigration officials are posted and from whichrefugees originate. Sri Lanka, Ethiopia, DRC andSudan all host UK immigration officials and yet theirnationals continue to receive refugee status in theUK, reflecting the fact that they are countries fromwhich some individuals must flee in order to seekprotection from persecution.Our research found that outposted immigrationofficials fail to differentiate between different typesof unauthorised travellers attempting to enter theUK. They do not acknowledge the difficulties thatpeople fleeing persecution have in obtaining apassport or visa, nor the right of refugees not to bepenalised for entering a country of asylum illegally.There is further evidence to suggest that outpostedliaison officers have a direct effect on the ability ofrefugees to find protection in a safe country,whether or not they are in possession of valid traveldocumentation (Sianni, 2003).Furthermore, bilateral agreements with thirdcountries that allow UK immigration officials tofunction on their territory are characterised by theirlack of transparency and democratic oversight. It is,therefore, almost impossible to know whether theseagreements include provisions for access toprotection and whether outposted UK immigrationofficials have complied with these requirements.RecommendationsThe UK should put systems in place to ensurethat the actions of its outposted immigrationofficials do not result in direct or indirectrefoulement of individuals with protection needs.The UK should ensure agreements between theUK and third countries that allow UK immigrationofficials to function on their territory aretransparent. These agreements must containclauses on UK responsibility to respect theprinciple of non-refoulement and should includemeasures to ensure access to protectionwherever its immigration officials conductmeasures to control irregular migration.The UK should encourage host countries to allowintercepted individuals to have access to UNHCR,independent legal advisers and NGOs, inparticular in transit zones.UKBA should ensure that regular independent41

monitoring is carried out to ensure extra-territorialborder control is compliant with refugeeprotection, and in particular the prohibition ondirect and indirect refoulement.The UK should provide easily accessible adviceand guidance on the responsibilities of outpostedborder officials in respect of refugee protection.This should include procedural guidelines on whatto do when encountering a person in need ofinternational protection.Outposted UK immigration officials should receivetraining on international refugee and human rightslegislation and procedures.The UK should provide training to outpostedimmigration officials on the identification ofvulnerable individuals and how to meet theirneeds.the UK in circumstances where they may be atrisk. This could include a hotline facility tosupport ALOs to use this power whenencountering an individual in need of protection.ALOs should keep records of the details ofintercepted persons, including whether theyexpressed protection needs.The remit of the Independent Police ComplaintsCommittee (IPCC) has recently been extended tocover matters of immigration enforcement. UKBAshould ensure that the IPCC also has oversight ofthe activities undertaken in the context ofjuxtaposed controls, in particular if these are rolledout to refugee countries of origin and transit.UKBA must demonstrate that the activities of alloutposted immigration officials are implementedin accordance with domestic equality obligations.The role of the ILO and ALO should be clarifiedand a list of activities and powers made publicallyavailable.Non-sensitive information with reference togeneral trends of persons stopped from comingto the UK should be shared publically.Frameworks for working arrangements betweenALOs/ILOs, private carriers and host authoritiesshould include reference to the importance ofensuring the individual details of refugees are notshared with countries of origin or transit.UK and EU operational manuals for ILOs andALOs should include reference to refugeeprotection and practical instructions regardingaction to be taken if a passenger expressesprotection needs.ILO/ALOs should be fully aware of localinstitutions and organisations that assist refugeesand others in need of international protection andrefer individuals on accordingly.The UKBA, in conjunction with UNHCR andNGOs should explore giving ALOs the power toallow undocumented refugees safe passage to42 Refugee Council report 2008

57 The term ‘juxtaposed controls’ refers to the reciprocalarrangements between Britain and France under which eachstate is permitted to operate full immigration controls on theterritory of the other.58 Article 1 of Council Regulation (EC) No 377/2004 of 19February 2004 on the creation of an immigration liaisonofficers network.59 These figures are taken from UKIS Border Control, Freedomof Information Practitioner, Ref: IND-FOI-5423. [Letter](Response to Refugee Council Freedom of Informationrequest, 20 February 2007).60 These figures are data from 2005 as taken from: EuropeanCouncil, 2006. Draft Common Manual for Immigration LiaisonOfficers (ILOs) posted abroad by the Member States of theEuropean Union. (8418/06), Brussels: European Council.61 Home Office, 2006. The United Kingdom Airline LiaisonOfficer Network [brochure] May 2006.62 The Code of Conduct for Immigration Liaison Officers,October 2002, was prepared by the International AirTransport Association Control Authorities Working Group(IATA/CAWG) to promote cooperation between EU MemberState ILOs.63 UKIS Border Control, Freedom of Information Practitioner,Ref: IND-FOI-5423. [Letter] (Response to Refugee CouncilFreedom of Information request, 20 February 2007).64 Meeting with airline respondent, 13 May 2008.65 Airline Liaison Officer induction training guidance provided bythe Home Office on 20 February 2007 stipulates that ALOswill receive training on ‘relevant UK legislation to which theALO will be required to work when abroad, including DataProtection, Human Rights and Race Relations’.66 This could include British citizens who have lost theirpassports due to natural disasters such as the 2004 tsunamiin the Indian Ocean.67 For more information see IATA, 2002. A Code of Conduct forImmigration Liaison Officers. October 2002.68 This information was gained during meetings with UKBAofficials.69 Council of Europe and UNHCR, 2002. Proceedings: “RoundTable Process” on carriers’ liability – Second expert meetingon carriers’ liability, Topic B: Respect of the humanitariandimension, Brussels, Belgium 24 June 2002.70 European Roma Rights Centre & Others v. ImmigrationOfficer at Prague Airport and Secretary of State for the HomeDepartment, [2002] EWHC 1989, at 20 – 21.71 In the three weeks prior to introduction of the controls, therewere over 200 asylum claims at UK ports from the CzechRepublic. In the first three weeks after introduction ofcontrols, there were only around 20 asylum claims.72 During the period of July 2001 to April 2002, fewer than1 per cent of non-Roma Czech nationals were refused entry.In contrast 90 per cent of apparently Roma were refused.73 Home Office press release, 2005. UK borders furtherstrengthened with expansion of airline liaison officer network.[Online] 22 February. Available at:http://press.homeoffice.gov.uk/pressreleases/Uk_Borders_Further_Strengthened_?version=1[accessed 8 August 2008].74 Section 25(1)(d) of the Draft (partial) Immigration andCitizenship Bill, July 2008.Remote Controls75 Goodwin-Gill, G. Submission on behalf of UNHCR to theCourt of Appeal considering the case of the European RomaRights Centre and Others v. the Immigration Office at PragueAirport (…) C1/2002/2183/QBACF.76 This clause restricts Turkey’s obligations under the 1951Refugee Convention to individuals who become refugees asa result of events occurring in Europe. Refugee statusdetermination for non-European refugees is conducted byUNHCR. For more information see Chapter 7 on page 59(permanent transition).77 Article 10 of Protocol between the Government of the UnitedKingdom of Great Britain and Northern Ireland and theGovernment of the French Republic concerning frontiercontrols and policing, co-operation in criminal justice, publicsafety and mutual assistance relating to the Channel FixedLink Sangatte, 25 November 1991 (the Sangatte Protocol),Treaty Series No. 70 (1993) Cm2366.78 Article 18 of the Sangatte Protocol.79 Article 4 of the Additional Protocol to the Sangatte Protocolbetween the Government of the United Kingdom of GreatBritain and Northern Ireland and the Government of theFrench Republic on the establishment of bureaux responsiblefor controls on persons travelling by train between the UnitedKingdom and France, Brussels, 29 May 2000 the AdditionalProtocol), Treaty Series No. 33 (2002) Cm5586. For moreinformation see Ryan, 2004.80 Nationality, Immigration and Asylum Act 2002. (c.41), London:HMSO.’81 Treaty between United Kingdom and France concerning theImplementation of Frontier Controls at the Sea Ports of BothCountries on the Channel and North Sea, Cm 5832 (2003).The Treaty was given effect in Britain by the Nationality,Immigration and Asylum Act 2002 (Juxtaposed Controls)Order 2003 (SI 2003/2818).82 Written answer from Liam Byrne to Humfrey Malins, 23January 2008. [Online] Available at:www.theyworkforyou.com/wrans/?id=2008-01-23c.180330.h[accessed 31 October 2008].83 Wintour, P., 2008. Britain and France to take nuclear power tothe world. The Guardian, [Online] 22 March. Available at:www.guardian.co.uk/environment/2008/mar/22/nuclearpower.energy1 [accessed 29 October 2008].84 Home Office press release, 2007. £1.2 billion pledged tostrengthen off-shore border, [Online] 1 August. Available at:http://press.homeoffice.gov.uk/press-releases/e-bordersinvestment[accessed 26 August 2008].85 Parliamentary question to Meg Hillier, 24 October 2007.[Online] Available at:www.theyworkforyou.com/whall/?id=2007-10-24a.124.0&s=asylum#g129.3 [accessed 29 October 2008].86 Op cit. Wintour, P., 2008.87 Evidence by James Munro, Assistant Director of theImmigration Service to the High Court, European RomaRights Centre vs Immigration Officer at Prague Airport andthe SSHD, 08/10/2002.88 Hansard, 2002. Northern France. 2 December 2002: Column614. [Online] Available at:http://hansard.millbanksystems.com/commons/2002/dec/02/northern-france [accessed 31 October 2008].43

Chapter Five – Carrier SanctionsThe ability of UK immigration officials to monitor and control border points is constrained by thesheer volume of passengers, the number of embarkation points and the sovereignty of the Statein which the UK is seeking to implement its own border controls. The UK can be accessedthrough ports all over the world. UKBA perceives overseas air, land and sea ports with weak orlimited border controls as representing a significant risk to the UK’s migration managementprogramme as they are likely to be used by migrants seeking to reach the UK irregularly. Itwould be extremely difficult, and costly, for the government to post immigration officials at eachport so it relies on private carriers, such as airlines and ferry companies, to make decisions onthe authenticity of appropriate documents. This section will examine the role of private carriersin undertaking immigration control functions, and the impact of these controls on individualsseeking to enter the UK for the purpose of seeking asylum.“Carrier sanctions pose a threat to basicprinciples of refugee protection, the operation ofasylum procedures, procedural guarantees of afair process and to international cooperation inresolving refugee problems.” (UNHCR,Roundtable on carriers’ liability related to illegalimmigration, 2001)“Between the possibility to seek protection from aforeign state and the individual fleeing persecutionin his or her home state, the private transportcompany…[has now been] inserted.” (ElspethGuild in Gibney, 2005)A system of civil penalties for carriers that are foundto have transported irregular migrants is set out inthe Immigration and Asylum Act 1999 (IAA 1999).Under this legislation, a carrier is liable to acompulsory penalty of up to £2,000 where apassenger who arrives by air, land or sea requiresleave to enter Britain but fails to produce a valididentity document and, where applicable, a visa. 88 Inorder to avoid the fine, carriers must show that theyhave taken adequate steps to identify and interceptpassengers attempting to travel without validdocuments. As such, carriers often contract out thisfunction to security staff whose responsibility it is toidentify forged, stolen or false travel documents andvisas and to refuse boarding to anyone they suspectof having inadequate documentation.The carriers’ liability scheme was amended bySchedule 8 of the Nationality, Immigration andAsylum Act 2002 (NIAA 2002) which made it moreflexible; the Secretary of State now has discretionboth as to the imposition of the penalty and as to itslevel. There is also now a statutory right of appealagainst the penalties.From 2009, the Government’s ‘Authority to Carry’scheme will allow the UK to refuse a carrierauthority to bring passengers to the UK based onreal-time checks against Government databases.This will cover all passengers who do not passthrough a juxtaposed control. The system will allowcarriers to check the details of a passenger againstHome Office databases and receive instantconfirmation that they pose no known security orimmigration threat. Passengers will be checkedbefore take-off against UK watchlists, andpassenger data will continue to be processed andrisk assessed at JBOC 89 , during transit. Thegovernment is also encouraging carriers to copypassenger documents, especially on high-riskroutes, to assist with identification,re-documentation and removal.Scanning and detection technologyThe government has been developing technology toimprove detection at the borders, particularly theland and sea routes between northern France andthe UK. New detection technology (NDT) includingcarbon dioxide detectors, X-ray scanners andheartbeat monitors, is used in conjunction with dogteams and manual searches to intercept peoplehiding in lorries and other vehicles heading for theUK. In February 2005 UK equipment was beingused in Calais, Coquelles, Dunkirk, Ostend,Zeebrugge and Vlissingen. 90 The UK lends detectionequipment free of charge to ferry and port operatorsin Channel and North Sea ports that are consideredto be a high risk as departure points for irregular44 Refugee Council report 2008

migrants. In 2006 detection technology enabled theBorder and Immigration Agency (BIA) as it then was,to intercept 17,000 immigrants attempting to crossto the UK irregularly. 91 It is not known if any of thoseintercepted were in need of international protection.Training for carrier personnelTo assist carriers in meeting their obligations underliability legislation, UKBA provides training to airlinesand sea carriers, including guidance on visarequirements and forgery detection. It also operatesa 24-hour helpline providing on-the-spot advice onwhether boarding a particular passenger mightresult in a fine. In 2001, it was revealed that eachyear this line receives 50,000 calls. 92 TheInternational Air Transport Association (IATA), whichrepresents the global airline industry, has alsoprovided training to carrier personnel on detectionof fraudulent documents and produces the monthlyTravel Information Manual (TIM) which shows thevisa (including transit visas) requirements for everycountry. In Istanbul, one of our airline respondentsprovides training to its staff on document checkingand behavioural analysis. They also attend briefingsbefore the start of their shift to highlight anyconcerns or alerts that have been shared with theairline by ILOs around the world.Waiving chargesIn 2002, the Home Office produced guidance forcarriers on liability and charging procedures. 93 Theguidance states that charges are waived if thecarrier can show that it had taken all reasonablesecurity and searching measures to ensure that nounauthorised person was allowed to board itsservice. Fines will also be lifted if the documentsused to enter the UK are such convincing forgeriesthat the airline cannot be expected to identify them.UKBA has offered ‘approved gate check status’ to310 stations abroad where document checks areconsidered sufficiently professional and fines areusually waived. Since October 2003, 94 ferrycompanies have been obliged to use detectiontechnology provided by the government, and failureto do so can result in reduced access to UK ports.Airlines that fail to pay fines have been refusedpermission to use UK airports. 95Charges are also waived if, at the time of check-in,the person seeking to embark was either inimminent and self-evident danger of his or her life;had no reasonable means of obtaining thenecessary documents; the United Kingdom was, inthe circumstances, the only or clearly the mostRemote Controlsappropriate destination; and the carrier had noopportunity to verify his or her acceptability with theUnited Kingdom authorities. The recommendedcourse of action for the carrier is to contact thenearest UNHCR or UK representative or port ofarrival, to request guidance on how best to proceed(Home Office, 2002b).Where a charge has been incurred by a carrier inrespect of a person who is recognised as a refugeeunder the Convention and Protocol, it is theGovernment’s policy to refund or waive the charge.UKBA does make a commitment that in every casewhere refugee status is recognised, it alsodetermines whether liability to a charge wasnotified to a carrier in relation to that person’sarrival in the UK. However, applications for asylumtake several months or even longer to decideduring which time a fine is taken from the carrier. Acharge will only be refunded or waived in respectof a person who is granted full refugee statusunder the Convention and Protocol; this proceduredoes not apply to any person who is admitted forany other reason. This distinction betweenprotection statuses appears to be entirely arbitrary,and means that all improperly documentedpassengers who subsequently receive some formof subsidiary protection constitute a financialburden for carriers. Furthermore, our researchfound that one of the major international airlinesflying direct to the UK reported no knowledge ofthe refund in cases of refugee status. As a result,travellers suspected of intending to claim asylumwere frequently denied boarding.The transfer of responsibility toprivate actorsThe involvement of private actors, particularlyoverseas, makes it difficult on a practical level toensure compliance with international legalobligations. It follows that a person wishing to raisea legal challenge where there is a breach in thesecircumstances would face real obstacles. TheRefugee Council is concerned that the Governmenthas effectively transferred migration management toprivate actors who are not trained in national andinternational refugee and human rights law. In hislegal analysis for this report, Guy Goodwin-Gillnotes that when State responsibility arises ininternational law, this cannot be “contracted out”.Our research revealed that in their dealings withirregular migrants, private carriers are motivated bythree main factors:45

1 avoiding financial penalty;2 preventing security threats; and3 maintaining good public relations.Guy Goodwin-Gill points out that “the nature of theairport liaison officer and similar operations in distantairports will not always allow issues and solutions tobe properly identified, including rights and the needfor protection” (see page 24 of this report).Avoiding financial penaltiesBy making carriers financially accountable for thearrival of irregular migrants, UKBA has alignedimmigration requirements with the separatebusiness interests of carriers and has effectivelyprivatised migration management. Private airlines,more concerned with protecting their corporateinterests, such as maximising profit, are likely toprioritise the avoidance of a £2,000 fine irrespectiveof the protection needs of its passengers. Someairlines do not employ trained security staff toundertake checks because of the expense involved,which means that they must rely on general airlinestaff to do extra checks on top of their existingworkload. Confusion over ‘inadmissablepassengers’ can result in considerable cost to theairline in the form of delays to boarding, theoffloading of baggage, missed departure slots andcompensation to passengers.Airlines can also be subject to financial coercionfrom other actors, such as fines from the airportauthorities. For example in Turkey, havingintercepted an irregular passenger, one of the majorinternational airlines then finds itself under pressureto return that individual to the place of embarkationwithin 48 hours, or risk incurring further fines fromtheir national authorities. In light of this urgency, theairline’s priority is to hand over responsibility for theindividual as soon as possible. In most cases, thepassenger will be sent back to the country in whichthey boarded. This very often will not be theircountry of origin but would almost certainly increasethe risk of chain refoulement.Preventing security threatsOur research found that irregular passengers arealso considered a security threat, particularly onflights to the US, UK and Israel. Potential asylumseekers are considered an even greater risk due to,in the words of security staff responsible fordocument checks, “their desperate state of mindthat may lead them to take aggressive or threateningaction”. 96 Consequently, security staff are more likelyto deliberately deny boarding to an asylum seeker inan effort to reduce perceived risk to the airline andits passengers.Customer ServiceFinally, airlines place a great deal of importance oncustomer service and prestige, and our researchfound that they were keen to avoid long delays,endless security checks and suspicious questioningfor fear of antagonising passengers. As a result,airlines sought to make speedy judgements aboutthe validity of a passenger’s documents and thelikelihood of incurring a fine upon arrival. It isunlikely that, in the time allowed to make thisjudgement, the airline staff would have the time to“contact the nearest UNHCR or United Kingdomrepresentative or the United Kingdom port of arrival,for advice and guidance on how best to proceed”(Home Office, 2002b: 24), in order to verify whetherthe fine will be waived in respect of an improperlydocumented passenger in need of protection.Financial penalties, security risks and publicrelations concerns have made carriers morecautious about who they allow to board theiraircraft, and they have developed efficient andthorough immigration controls. These controlsinvolve more than simply reviewing the passport orvisa but also include behavioural analysis andprofiling. Our research found that security personnelcontracted by airlines rely more on behaviouralanalysis than document verification for the purposeof identifying irregular passengers and areinfluenced by guidance produced by the US onmonitoring and interviewing suspect individuals. 97Even if documents are valid, staff routinely attemptto identify passengers who are likely to destroy theirdocuments en route, including those who may wishto claim asylum upon arrival in the UK. Passengersmay be interviewed and, if considered suspicious,the airline may decide to take a digital photographof the individual and make copies of theirdocuments, which will then be sent to UKBA shouldthe passenger destroy the documents en route.Alternatively, the airline may confiscate thedocuments and give them to the cabin crew for theduration of the flight. If the suspicion is particularlystrong, the passenger may be denied boarding and,if in transit, may be returned to the country ofembarkation.By deliberately intercepting and refusing boarding toasylum seekers, private airlines are effectively46 Refugee Council report 2008

denying access to the UK asylum system,preventing people from leaving a country wheretheir life is at risk and undermining the fundamentalright to seek international protection. Of greatconcern is that security personnel send a monthlyreport, including the names of interceptedpassengers, statistics and trends to client airlinesand consulates. The collection and sharing of data,particularly with State representatives, highlights thevulnerability of refugees in the hands ofunaccountable private agents.Time restrictionsThe lack of adequate resources and time at thepoint of interception means that airlines employpractices that further threaten access to protection.Our research found that security and airline staffwere frequently unable to communicate withintercepted passengers and where no interpreterwas available, they would rely on ‘gut feeling’ and‘body language’ in order to make a decision aboutthe risk posed by a passenger. Our respondentsinformed us that most irregular passengers areidentified in transit, but that this is also where timeis most restricted and there is pressure on gate staffto complete boarding as quickly as possible. Thefines received by one of the major internationalairlines have all been from transit passengers, asstaff are not able to be as thorough with suchpressure on them.The Refugee Council is concerned that, underpressure to save time and avoid fines incurred as aresult of errors made at this key pressure point,airline staff are more likely to err on the side ofcaution and refuse embarkation. Rather thanalerting UNHCR or a UK immigration liaison officer,who may not be present in the port, our researchsuggests they will turn the passenger around andput him or her on the plane back to the point ofembarkation. This may involve returning a refugeeback to the country of origin and persecution or to acountry which will, in turn, refoule the refugee.Where airline staff intercept within the country oforigin, they deny refugees the right to leave theirown country in order to seek protection and furtherexpose vulnerable people to persecution, humanrights abuse and inhumane and degradingtreatment. Private carriers can not be heldaccountable for these violations but, as GuyGoodwin-Gill has explained in this report, the Stateretains responsibility for any acts which result in therefoulement of a refugee, even when those acts areoutsourced to a private carrier.Remote ControlsInterception: a success?Our research found that the government hassucceeded in assisting private carriers to comply withUKBA’s migration management programme. Oneairline explained that in the past two years only oneperson has succeeded in evading their immigrationcontrol mechanisms in place at Istanbul airport, whileanother airline reported a 98 per cent success rate.Unfortunately these figures fail to show the number ofrefugees caught within this net. Carriers do notpublish statistics on the number of inadequatelydocumented passengers they refuse to transport,and it is impossible to know the number of refugeeswho have been affected. 98 Given that many peoplefleeing persecution have to resort to using a falsepassport and visa, or to entering clandestinely,hidden within lorries or trains, refugees are likely tobe among those who have been denied boarding.Based on the nationalities intercepted by the airlinesinvolved in our research, we can assume thatrefugees are being prevented from accessing safetywithin the UK. In 2007, the Istanbul office of one ofour airline respondents refused 141 improperlydocumented passengers. Most of these were Turkishnationals, although they also reported interceptingIraqis and Somalis. Another airline also reportedintercepting passengers from refugee-producingcountries such as Afghanistan, Iraq and Iran.Asylum seekers appear to be a primary target of theUK’s carriers liability legislation. The governmenthas measured the success of carriers’ liabilitylegislation, and the use of detection technology toavoid incurring a fine, in terms of a reduction inasylum numbers in the UK:“The deployment of UK detection technology incontinental Europe has been a key measure inreducing asylum applications from 8,770 in October2002 to 3,610 in June 2003.” 99The carrier viewpointAirlines, and their representatives, have repeatedlyopposed efforts to encourage airline staff to take onthe role of immigration officers, particularly withregard to access to protection. Both IATA and theInternational Transport Workers Federation (ITF), 100 aglobal federation of transport unions, haveexpressed their objection to the responsibilities thathave been placed on their members.“IATA indicates that its members see immigrationcontrol as a matter that ought to be left in the handsof States, which have the expertise and jurisdiction47

to examine the credibility of asylum claims and theobligation to protect refugees.” (Brouwer andKumin, 2004: 10)A number of national airlines have objected to thesuggestion that their staff should engage inassessing which passengers have valid claims forasylum, arguing that such an assessment shouldtake time and careful investigation which is notpossible at check-in (Sianni, 2003). British Airwayshas described the challenge faced by airlinescaught between an awareness of the potentialprotection needs of its passengers and theconstraints of carriers’ liability.“Since 1987, British Airways has carried no less than400 passengers to the UK when we should not havedone and these passengers have been grantedrefugee status. Not a temporary leave to remain orwhatever, but a refugee status. Now there is a goodreason for granting passengers that status in the UK.That 400 we carried, how many have we deniedboarding that would have received refugee status hadthey gone through our checks? We do not know.” 101SummaryThe Refugee Council objects to the use of carriersanctions as a method of immigration control,particularly one that appears to target asylumseekers. Private carriers should not be responsiblefor making life and death decisions about whetherto allow an individual to leave one country and enteranother for the purpose of claiming asylum. Theairlines involved in our research did not show anawareness of refugee protection, had no systems inplace to respond to the interception of a refugee,provided no training on international refugee andasylum law or procedures, had no contact withUNHCR and no direct support from UK immigrationauthorities in assisting a passenger seeking to fleepersecution. Furthermore, our research revealed thatairline employees, keen to avoid financial penalty,may act in a discriminatory way, singling out‘suspicious’ persons on criteria such as race orgender, and denying them boarding. Airlinesindicated that profiling is a key feature of theirimmigration control activities and that the attemptedidentification of asylum seekers is already takingplace, further increasing the risk of refoulement.By shifting responsibility for immigration controlfunctions onto private actors, the UK appears to beseeking to overcome the constraints imposed byinternational rules concerning human rightsprotection and to distance itself, bothgeographically and legally, from immigration control.The airlines involved in our research all appealed forthe increased involvement of ALOs at the point ofinterception. The Refugee Council supports theargument that UKBA should take full responsibilityfor interception activities undertaken by a group orperson acting on the instructions, or under thedirection, of the UK Government. As we havealready established in Chapter Five (‘A note onState Responsibility’), the 1951 Refugee Conventionprohibits refoulement ‘in any matter whatsoever’,including as a result of functions delegated oroutsourced to private actors. The actions of airlinestaff, in response to advice given or pressureapplied by UK immigration liaison officials, issufficient to establish the responsibility of the UKGovernment. While UKBA continues to be directlyinvolved in interception within airports it mustprovide adequate support, particularly in transitzones, to assist airlines with assessments ofdocumentation and to take responsibility fordecisions regarding the embarkation of people withinadequate documentation who may wish to claimasylum. While most ALOs do enjoy unrestrictedaccess in the airports within which they have beenposted, some have been denied airside access orare posted outside the country altogether, as in thecase of Turkey. While this remains the case, the useof airline staff in the place of UK immigrationofficials must not absolve the UK government ofresponsibility for guaranteeing access to protection,and measures must be put in place to ensuredemocratic oversight, accountability and judicialremedy for the activities of non-State agents.RecommendationsRecords should be kept and made public as tothe number and characteristics (age, gender,nationality, vulnerability) of persons who areintercepted, including whether any expressedprotection concerns.Carriers should be encouraged by UKBA to seekguidance when they come across an individualwho may have protection needs.UKBA should consider how to support carrierswho come across passenger who may haveprotection needs, including waiving fines.UKBA training for carriers should cover their48 Refugee Council report 2008

obligations under international refugee andhuman rights legislation.Private carriers should be fully aware ofprocedures for the local system of referral toUNHCR, independent legal advisors and NGOs.Where private carriers contract out interceptionfunctions to private security firms, they mustadhere to protection safeguards.Where an individual is to be returned, amandatory return interview should be conductedto afford individuals the opportunity to expressprotection concerns and to access independentlegal advice.UKBA should encourage host countries andcarriers to allow time for access to UNHCR,NGOs and independent legal advisors.88 A case at the Court of Appeal – International Transport RothGNbH v Secretary of State for the Home Department [2002]EWCA 158, [2002] 3 WLR 344 – held that the nature of theScheme was incompatible with the carrier's right to a fair trailunder Article 6 ECHR and their right to the peacefulenjoyment of property.89 JBOC is the joint border operations centre; the multi-agencyoperational hub for the e-Borders programme. JBOC isevolving into eBOC, the e-Borders operations centrementioned in Chapter three on page 30.90 Hansard, 2005. Identity cards and passports (forgery). 4February 2005: Column 1150W. [Online] Available at:www.publications.parliament.uk/pa/cm200405/cmhansrd/vo050204/text/50204w07.htm#50204w07.html_spnew0[accessed 14 August 2008].91 Home Office press release, 2007. British and Frenchimmigration ministers pledge close cooperation on secureborder controls. [Online] 8 November. Available at:http://press.homeoffice.gov.uk/press-releases/secure-bordercontrols[accessed 14 August 2008].92 Dave Roberts, Deputy Director, Immigration Service, HomeOffice speaking at the Round Table on Carriers’ LiabilityRelated to Illegal Immigration. Brussels, Belgium, 30November 2001. Available online at: www.iru.org/index/cmsfilesystem-action?file=en_events_2001/Illegal2001.pdf[accessed 29 October 2008].93 For more information see Home Office, 2002b.Remote Controls94 4NI.co.uk, 2003. Ferries face £2,000 fine for carrying ‘illegalimmigrants, [Online] 6 October. Available at:www.4ni.co.uk/nationalnews.asp?id=20774 [accessed 30October 2008].95 Cameroon Airlines and Kyrgyzstan Airlines have been refusedpermits to land at UK airports because of non-payment ofcarriers liability fines for transporting inadequatelydocumented passengers. Hansard, 2004. Written Answers:British Airspace. [Online] 8 January 2004: Column 430W.Available at:www.publications.parliament.uk/pa/cm200304/cmhansrd/vo040108/text/40108w02.htm#40108w02.html_spnew8[accessed 14 August 2008].96 Quote from a meeting with airline security staff in Turkey inMay 2008.97 One of the national airlines involved in the research basedtheir monitoring and interviewing of passengers for UK flightson guidance produced by the Transport SecurityAdministration, a US agency that conducts securityoperations across the country’s transportation systems. Formore information see: Transport Security Administration.Welcome to who we are. [Online] Available at:www.tsa.gov/who_we_are/index.shtm [accessed 30 October2008].98 Since 2005 one of our airline respondents has beencomposing a monthly list of refused passengers including thename of the passenger, destination, nationality and reasonfor refusal. This list is then sent to the UK ALO based inGreece but it is not made publicly available.99 Hansard, 2003. Written Answers: Illegal immigration. [Online]21 October 2003: Column 555W. Available at:www.publications.parliament.uk/pa/cm200203/cmhansrd/vo031021/text/31021w21.htm#31021w21.html_sbhd0 [accessed31 October 2008].100 In 1992, the ITF Civil Aviation Section passed a resolutionthat called for the repeal of all carriers’ liability laws andcondemned “government policies and airline practices[which] are improperly pushing aviation employees into therole of policing immigration. Aviation employees are nottrained for such duties, nor should aviation employees beinvolved in any measures which jeopardise the internationalrights of asylum seekers.” International Transport WorkersFederation, 1992. ITF statement on air transport workersrefusing role as police auxiliaries against migrants. [Online]Available at: www.itfglobal.org/files/extranet/-1/738/Statement%20on%20aviation%20workers%20and%20deportees.pdf [accessed 31 October 2008].101 James Forster, Manager, Facilitation, Government andIndustry Affairs, British Airways speaking at the Round Tableon Carriers’ Liability Related to Illegal Immigration. Brussels,Belgium, 30 November 2001. Available online at:www.iru.org/index/cms-filesystemaction?file=en_events_2001/Illegal2001.pdf[accessed 29October 2008].49

A note on State ResponsibilityThomas Gammeltoft-Hansen, Policy Analyst at the Danish Refugee Council and PhD Researcher at theDanish Institute for International StudiesWhen do activities carried out by immigration liaisonofficers incur a State legal responsibility underinternational refugee and human rights law? 102 SinceILOs take on a number of different functions, it may asa starting point be useful to distinguish between twodifferent situations: those where migration officersexercise direct authority vis-à-vis an asylum seeker orrefugee, and those where migration officers advise,direct or control either non-State entities, such ascarriers, or national authorities of another State.As regards the first instance, States must, as ageneral proposition, respect instruments like theEuropean Convention on Human Rights, theConvention Against Torture and core provisions ofthe 1951 Refugee Convention, most notably theprinciple of non-refoulement, wherever a Stateexercises jurisdiction. The reach of a State’sjurisdiction is not limited to its national territory butextends to all areas and individuals over which theState exercises effective control. One could,therefore, consider the juxtaposed controls schemeoperated by Britain at Calais, Dunkerque andBoulogne to constitute a sufficient degree ofexclusive and effective control over a specificgeographic area, to entail British jurisdiction andthus human rights responsibilities.Often however, migration officers do not exercisedirect authority, but rather act to advise or instructeither national migration authorities or private actors,such as airport security staff in enacting migrationcontrol. Despite the claims occasionally forwarded tothe contrary, it is important to emphasise that a Statecannot rid itself of human rights obligations byoutsourcing or delegating functions such as migrationcontrol. This is supported by the formulation chosenby the drafters of the 1951 Refugee Convention,prohibiting refoulement “in any matter whatsoever”(Art. 33). Secondly, the law of State responsibilityclearly dictates that the conduct of individuals orgroups is attributable to a State if that group orperson “is in fact acting on the instructions of, orunder the direction or control of that State in carryingout its conduct” or “exercising elements ofgovernmental authority”. 103 One may of course askwhether migration officers merely advising privatecarrier staff is enough to engage State responsibility.Combined with the operation of carrier sanctions,imposing hefty fines on any airline company bringingin unauthorised foreigners, there is a strong case thatactions of migration officers in relation to individualcases may suffice to establish such responsibility.In the case of migration officers liaising with thenational authorities of another State, the test issomewhat different. Unlike in the case of privateactors, the authorities of the host State will bedirectly bound by international refugee and humanrights obligations, regardless of the role played byforeign migration officers. The State posting migrationofficers may, however, also incur a responsibility incase rejection of onwards travel amounts torefoulement or other human rights violations. Again,the law on State responsibility stipulates that a State“which aids or assists another in the commission ofan international wrongful act by the latter isinternationally responsible for doing so” if that Statehas knowledge hereof and the act would be equallywrongful if committed directly by that State. 104 Thissets a broad principle by which migration officersmust pay full respect to international refugee andhuman rights obligations when acting to aid or assistauthorities of another State.50 Refugee Council report 2008

102 International Law Commission, 2001. Articles on theResponsibility of States for Internationally Wrongful Acts,UNGA resolution 56/83, 12 December 2001, Art. 8 and 5.See further the commentary by James Crawford, TheInternational Law Commission’ “Articles on StateResponsibility: Introduction, Text and Commentaries”,Cambridge: CUP, 2002.103 Ibid., Art. 16.Remote Controls51

Chapter Six – Displacement ontodangerous routes and methodsBorder controls are succeeding in reducing the number of irregular arrivals, including asylumseekers, to the UK. However, global asylum numbers are climbing. It would appear thatborder controls are simply making the routes used by irregular migrants more complicatedand more dangerous, while empowering new and unaccountable actors in the form ofsmugglers and traffickers. This section will explore some of the secondary effects of bordercontrols and the consequences for individual refugees forced to risk their lives to seekprotection in the UK.“It’s not a matter of choice of going which countryyou go but actually it’s a matter of survival, mostof them, yes probably maybe there’s 1 or 2number of people… want to come here, becausethey’ve got their connections and they’ve got theirfamilies living here and they would prefer to cometo here but actually the majority and actually themain aim of them actually is getting somewheresafe where they can live.” (DF, RCOrepresentative, London)“When people they come this country, they readyto die.” (AB, refugee, London )Displacement onto dangerous routesand methods:SmugglersAs border controls have become more sophisticatedand more widespread, legal and safe routes toprotection in Europe have been cut off. Routes havebecome more dangerous, more circuitous and morecrowded as refugees are driven to more desperatemeans to reach safety in another country.“it can be stated that increased border control has[…] an impact on migration routes, but less on thetotal numbers, as (potential) migrants tend to shiftthe routes, rather than deciding to stay at home...higher physical risks for smugglers not only affectthe prices of smuggling services, but also negativelyimpacts the treatment of the migrant by thesmuggler.” (ICMPD, 2007: 33)No longer able to flee quickly or easily, refugeeshave increasingly turned to certain members of theircommunity – experts in acquiring false documents,crossing borders clandestinely or bribingimmigration officials – to assist them in finding asafe passage to a country in which they can applyfor asylum.Our respondents relied heavily on what they called‘agents’ to arrange false documents and plan orlead the route to safety. These ‘agents’, or‘smugglers’ often offer the only route to safety forpeople experiencing persecution in their country oforigin. While refugees have very limited access toinformation on the international protection regime,smugglers dominate both as advisors andfacilitators. Some smugglers will be no more thanlocal traders or nomads motivated by humanitarianprinciples, while others will be members ofextended criminal networks. The latter may have nointerest in assisting a refugee to safety and mayadvise a long and costly journey to Europe insteadof asylum in a neighbouring country, in order tomaximise their profits. Established agents are oftenwell connected both with colleagues in othercountries and with transportation employees andimmigration officials within the country of origin.“The agencies might have sometimes someconnection in the airport and things like that, theybring people to the airport and they say, ok theyhave friend who probably let them in, people whoactually ease the access.” (DF, RCO representative,London)Smuggling is a growing industry. Research incountries of transit has found a thriving industry ofsmugglers and traffickers specialising in assistingrefugees to organise their departure. 104 Our RCO52 Refugee Council report 2008

espondents told us that where previously Afghanrefugees had to travel to Pakistan to locate anagent, for the past two years they have been able tofind them in cities along the border, within their owncountry. The continuation of conflicts andpersecution in refugee-producing countries and thelocation of border controls closer to these verycountries create a demand that feeds the smugglingindustry, and inflates the prices charged byunscrupulous smugglers.“It’s a big organisation, taking money, sometimeshiding the newcomers, the new people… they putthem in one house to wait for the trip and then totake those people from Istanbul to Izmir, to theborder, or to Edirne. They have to be in cooperationwith the people who know the borders, who knowthe way to go, who know exactly the security work.”(SS, NGO representative, Turkey)In an effort to maximise their profits, smugglersoften subject the refugees they are assisting tocrowded, unsanitary and dangerous transportation.“When I personally left Turkey to Greek it was 78people in the back of the lorry. I was with 77 people,it was 78 people all together.” (AA, refugee and RCOrepresentative, Leeds)“there is..., 20, 30, 50 people to one lorry... He isbusinessman, he is saving. If kill, if die, it’s not hisproblem…. I know too many is been killed or beendied, you know, somebody is put in freezer, youknow, some lorry’s freezer… somebody is died inlorry and somebody is died in sea.” (AD, refugee,Leeds)Our respondents described being threatened andbeaten by smugglers attempting to extract moremoney from them during the journey. One Iranianwoman was threatened with a knife on her way toTurkey.“I was very scared at that time, I was crying and Icouldn’t do anything.” (MA, refugee, Turkey)“When you are going to an agent and they taking youfrom Pakistan, from Afghanistan to another countryalways they asking “give me money, I need somemoney to take you from here to there”, if you not thenthey will say “ok, you stay here, when I got money Iwill take you.” (SR, RCO representative, Leeds)If they succeed in making it to a safe country, manyRemote Controlsrefugees then find themselves trapped within poorlypaid employment in order to pay back the debt totheir smuggler. Our research uncovered teenagechildren within the UK who are working long hoursto pay back agents who brought them here.“Mainly they do [work on the black market]. Tenhours, twenty more hours on the black market. Wehave large number of them coming to the class halfasleep. As they are working until 2am in the FriedChicken shop.” (AFM, RCO representative, London)The threat of capture by coastguards furthermotivates smugglers to mistreat, abandon or evenkill the migrants they are transporting.“I think it was two years ago, a few years ago it wasin a Baltic sea, between Poland and Lithuania, Ithink before the Swedish guard arrived to their shipto check, they got all them container dropped intothe water and a large number of Afghans has beenkilled. And just is inhuman, and they just to avoidany fine or any... they drop, deliberately.” (AFM, RCOrepresentative, London)“there is no normal way you can go from Somalia toget to Yemen that’s why there is a lot of […] peoplesmugglers who actually do not care the human lifeor anything, they wanted to take the money and […]they put them in the boats and sometimes whenthey are about 20kms away from the shore theychuck them away to the sea because they don’twant to be caught by the coast guards of Yemen. Alot of people actually are lost their lives, women andchildren, elderly people, all people.” (DF, RCOrepresentative, London)As border controls make detection more likely,smugglers simply take more risks to get their humancargo to the destination.“Europe spend a lot of money to give to coast guardsand the training in the sea to actually stop thosepeople to coming there. That’s why I think they takemore risks because these people-smugglers theydon’t care how they get there, how many people die.[…] what they actually worry about is to get themoney from these people… in any which way theywant to.” (DF, RCO representative, London)Dangerous land and sea routesThe danger involved in travelling irregularly toEurope was a recurring theme of our interviews withrefugee respondents in the UK and Turkey. Unable53

to fly due to the expense involved or the risk ofencountering border controls, most of ourrespondents travelled by land and by sea. Theseroutes were cheaper and easier to organise and,more often than not, the only option provided by thesmugglers. Unfortunately, they are also the mostdangerous routes to Europe.“we’ve got many people, even now are risking theirlives to go to, with a makeshift boat they go toYemen and actually many of them, majority of them[…] drown and die in the sea. A lot of peopleactually go and walk in the barren deserts fromEthiopia or somewhere where they go to Libya andthey’re risking their lives… to come to Europe. Andmany of them actually perish in the sea.” (DF, RCOrepresentative, London)Our respondents in Turkey described their journeyacross the mountains from Iran on horse, truck orfoot. They attempted to avoid the landmines andthe scanning lights of the Turkish and Iranianwatchtowers and described being shot at by Iranianand Turkish border guards. One Iranian refugeedescribed his experience:“I was very scared really because when I wascrossing the border I saw the towers, I saw thosetowers with big lights and I knew that there was avery big risk… We stopped three or four times onthe way, the men who were accompanying us said,hide your head or lie on the ground. We did this andI felt this danger.” (SV, refugee, Turkey)The border zones are often lawless areas, conflictzones or disputed territories. Our research indicatedthat there is a very high risk of kidnapping orphysical attack by gangs in Sudan, Eritrea, SaudiArabia and South Africa.“Since the introduction of the visa restrictions we havenot only seen a surge in agents providing services butalso gangs preying on refugees along Zimbabweanborders. They know that they are carrying valuables.”(SH, RCO representative, London)The land routes through East Africa involve long andhazardous desert crossings in overcrowdedvehicles, travelling at night to avoid border guards.Many refugees do not survive the journey.“The most dangerous route is between Sudan andLibya because there is no water, there is no foodstation there is no… just nothing. So what they do ispack, say forty to fifty people on the back of thisfour wheel drive, and they tell them not to pick upmany things so that they can put more people onthat, and if there is any problem with the car,because it’s sandy – and if it’s sandy theysometimes lose their way – they miss their way, theydon’t know, so they just drive around and they runout of fuel. So they say to them, ok we’ll comeback… and they never come back. And people diein groups – forty people at a time who die.” (AW,RCO representative, London)Our respondents told us stories of refugees killedwhile hidden beneath lorries or suffocated within theair-tight refrigeration trucks.“’Cos sometimes they put you, I don’t know howyou exactly to describe it but they put them underthe truck. They hid them somewhere there and thislorry’s driving maybe sixty, seventy mile an hour. Andthey’re just there. It is dangerous.” (AA, refugee andRCO representative, Leeds)The journey by truck or car is often followed by anequally dangerous sea crossing to Malta, Italy,Greece or Yemen.“Yes, when I was in the boat, because it wasSunday night I took that boat, Monday, Tuesday,Wednesday, Thursday, no water, no drink, no food,no nothing… we were four Somalian and another sixor seven Kurdish or Iraqi.” (SA, refugee, London)Encountering border guardsRefugees who survive the journey in barelyseaworthy boats or overcrowded cars encounter afurther danger in the form of border guards fromneighbouring countries, strategically posted at landor sea entry points along the route to the UK. Therisk of being beaten, shot at or killed by borderguards was a recurring feature of our respondents’journeys to the UK.“he give me two names of guys they die becausethey lost way and they went another way… in theSahara, they would go to Egyptian way, andEgyptian police when they saw, they shoot them.”(SA, refugee, London)“They say they came from Turkey to Bulgaria andthey said Bulgaria police beat us a lot, a lot and theywanted to kill us and they took all our money andthey said they broken our ribs.” (SR, RCOrepresentative, Leeds)54 Refugee Council report 2008

We interviewed a number of Afghan and Iranianrefugees who had taken the land route from Iran toTurkey. The border is a vast and mountainousterrain, and is patrolled by Iranian border guards,the Turkish military and the Jandarma – the Turkishrural police. The Turkish army is comprised of youngmen fulfilling their military service and turnover ishigh. The border is extremely militarised due toongoing conflict with the PKK, a proscribed Kurdishpolitical party, and conditions are hostile. Ourrespondents would not consider approaching aTurkish border guard for assistance along the routeor at the border point for fear of being shot.“maybe four or five years ago.... a group of peoplewere trying to cross the border, the Greek borderand then the Jandarma arrested them. They stay inthe Jandarma barrack for almost two weeks and dayand night they were beaten.” (SS, NGOrepresentative, Turkey)Some respondents encountered corrupt borderguards who demanded bribes or stole money ordocuments leaving refugees stranded and vulnerable.“They paying money, sometimes police taking alltheir money and they send them back not toAfghanistan, to somewhere in the countryside andthey will come back.” (SR, RCO representative,Leeds)During our research, we identified particularproblems with the lack of an adequate screeningprocedure at the Turkish border to identify refugees,and the absence of accommodation for interceptedmigrants while their status is determined. There areno interpreters at the border to determine the needsor requirements of those who the border guardsintercept, and border guards’ knowledge of refugeelaw and procedures is limited. As a result, borderofficials either engage in a repetitive transfer ofmigrants back and forth over the borders withneighbouring countries or they refoule migrants,directly and indirectly, back to their country of origin(see ‘Non-Refoulement’, on page 70).“That guy, more than ten times he try to come here.Two times he went to Iran... they took him back toAfghanistan two times. Then he came to Turkey,from Turkey he went to Greece and from Greecethey deported back to Afghanistan because Greecepolice arrested him in the water and they took himback to Turkey, Turkey to Iran to Afghanistan.” (SR,RCO representative, Leeds)Remote ControlsBorder controls as a deterrentThe Home Office is aware of the risks posed tomigrants who seek ways to evade UK bordercontrols. Border controls have become not only amechanism for preventing entry, but the secondaryeffects they cause, including the threat ofexploitation, physical danger and interception, arenow used to communicate a deterrent message andto prevent irregular migration in all its forms,including economic and protection-related.In 2006-07, the joint Home Office/FCO MigrationFund 105 spent £1.8million on overseas projects,including a number of campaigns directed atinfluencing migrants at the earliest possible point intheir journey to the UK: the point at which theymake the decision to leave their country of origin. Inearly 2007, the British High Commission ran apublicity campaign on illegal migration in Pakistan.Its aim was to warn Afghan and Pakistani men andwomen about the risks involved in irregularmigration, particularly the use of agents; to raiseawareness of UK enforcement activity; to encouragethe use of legal migration channels; and, ultimately,to reduce irregular migration to the UK. Thecampaign used TV, radio and newspaper adverts inUrdu and Pashto, and 20,000 posters weredistributed to schools, colleges, universities, railwaystations, bookshops and travel agencies throughoutthe country. Similar campaigns have been financedby the UK and run in the Punjab in India, and withthe involvement of IOM in both Vietnam andnorthern France.These marketing campaigns aim to build on thehighly visible nature of UK border controls in orderto act as a deterrent to any prospective irregularmigrants (Cabinet Office, 2007). They also aim toaddress some of the perceived ‘pull factors’ 106 suchas the availability of work or benefits and thepossibility of regularisation. 107 Home Officeevaluation suggests that these campaigns havebeen effective in raising awareness amongst theirtarget group, but there was no evidence of anydirect impact on the decision-making of migrants oron the numbers of irregular arrivals to the UK(Foreign and Commonwealth Office, 2008). In termsof this research, these information campaigns areparticularly significant as they reveal an underlyingassumption of the UK Government that all irregularmigrants are moving for economic reasons, and afailure to recognise the real motivations of refugeesmoving irregularly.55

Our research challenged the notion of ‘pull factors’and confirmed Home Office findings on themotivations of asylum seekers (Robinson andSeagrott, 2002) by revealing that the decision toleave the country of origin was primarily driven bythe need to escape persecution and the desire toreach a place of safety.“most of us when we leave our countries, we don’t –I’m especially talking about Iraq and Iraqis – theydon’t leave their country because they want moneyor something. They’ll leave their country becausemaybe persecution.” (AA, refugee and RCOrepresentative, Leeds)Some of our respondents described their perceptionof the UK as a safe and tolerant country that ismore likely to recognise their status as a refugeeand guarantee their protection. Others chose tocome to the UK, either to join friends or relatives, orbecause they were familiar with the language andculture due to a historical link between the UK andtheir country of origin. There is, for example, a longtradition of migration to the UK from Kenya and thenorthern part of Somalia, which were British colonialterritories, and once these communities in the UKwere established they served as a network for futurearrivals (ICMPD, 2007).For some respondents, networks of family andfriends provided assistance both before and duringthe journey. This assistance usually took the form offinancial support but there was also a considerableamount of information flowing back from relatives inEurope, to the country of origin. However, thereliability of information provided to asylum seekersby their social networks has been questioned(Koser and Pinkerton, 2002) and our researchsuggested that refugees can be misled by someof the information they had about the UK prior totheir arrival.“They get surprised, because the idea, theknowledge they had before about the UK, and thenthey come here and see things, it’s completelydifferent.” (AW, RCO representative, London)Many of our respondents fled their homes in a hurry,with little time to plan their route or consider theiroptions. Our research found that refugees had littleawareness of UK border controls and many knewnothing of the extent of the risks involved in irregularmigration. Most of our respondents placed theirtrust, and large sums of money, in the possession ofagents and relied on them to make the decisionsabout their route and their destination. This wasparticularly the case for our female respondents,who had very little control over their journey tothe UK:“Of course, he just keep telling me have to do thatway… I have to listen what he said, I have tofollow… if I’m worried, he say me I have to respectand listen him, I don’t have another option.” (AB,refugee, London)Respondents perceived the agents as having abetter understanding of border controls, of the risksinvolved in particular routes and of opportunities forsafe and uninterrupted passage. Agents appearedto usually make decisions about routes based onthe existence of contacts in transit countries and onthe nature of certain border controls. Theyfrequently have links to corrupt officials inembassies, airports or border posts, who eitherprovide the necessary documents or allow passage.“The agencies might have sometimes someconnection in the airport and things like that, theybring people to the airport and they say, ok theyhave friend who probably let them in, people whoactually ease the access.” (DF, RCO representative,London)“Also there is police, also they making money. Agenthave relationship with the police at the border. WhenI passed the border from Iran to Turkey there were alot of police and they didn’t tell us anything. When Iasked the agent “why police didn’t tell us anything”and they said “we are paying for police”.” (SR, RCOrepresentative, Leeds)Some of our respondents were offered a choice ofroute, usually based on how much they wereprepared to pay, and the level of safety was in directproportion to the cost of the journey. A flight fromPakistan to Europe including false documents cancost up to US$20,000, so many choose the moreeconomical, more dangerous route overland by lorrythrough Eastern Europe or the even cheaper andmore risky boat from Turkey to Italy or Greece.“So an agent... he will pass me to another agent tomake some money to get some commission... Thewaterway... from Greek to Italy cost up to 2,500 USdollars. But the lorry way cost up to 5,000 US dollars.”(AA, refugee and RCO representative, Leeds)56 Refugee Council report 2008

“Those who don’t have connections come by sea,the traffickers get money from these people andtheir families back in Iran sell everything they have.The less connected have to find more dangerousroutes.” (PN, RCO representative, London)The refugees we interviewed were very rarely givenmuch information by the agent about the route, thedangers and the risk of interception before settingoff, and the information they were given was oftendeliberately deceptive. Those that did have someidea about the dangers ahead were prepared totake that chance in order to reach safety.“you see women, most of the people who drown inthe sea, many of them are women, those womenthat are crossing the desert to Libya there arewomen and children in there. Some of them actuallyare heavily pregnant… a lot of people actually whocame to Italy by this makeshift boat was included bya heavily pregnant woman who actually gave birth inthere, in the boat during the journey. It’s notsomething actually that’s for this is women orchildren, or men or what, it’s everyone doing itbecause like I say for them it’s a matter of survivalso they don’t have nothing to lose. They’re riskingtheir lives and they know that many people actuallydied there in the sea, they know that and they say“Ok, yeah, I’ll take my chance”.” (DF, RCOrepresentative, London)“I think they know, they can imagine... but they stillhope that that journey would be safer than staying inAfghanistan because they believe there are someinstitutions in these countries and the most it couldget, they get sent to prison and they would explainwhy they are in this country, but not killed.” (AFM,RCO representative, London)Our respondents explained that refugees are noteven deterred by their own experience ofinterception and, having paid their smuggler for aguaranteed journey to the UK, they simply try againand again.“And the fourth or fifth time he tried again and hecame here because he paid, he said, I told him “howmuch money have you spent”, he said “no...onetime I paid for my journey to that person who wantto take me to England and he promised me, you willpay just one time, if you come back you don’t needto pay me, ok”.” (SR, RCO representative, Leeds)SummaryBy denying them a legal route to access protectionin a safe country, refugees are effectively pushedinto criminalisation, including having to pay bribesto visa officials, acquiring false documents or usinghuman smugglers. Our research has shown how,through assimilation into the international criminalnetwork, refugees become vulnerable to abuse andexploitation at the hands of smugglers.We were told innumerable stories of physical dangerand death as a result of the lack of safe routes toprotection in Europe. There is no shortage ofshocking data about the number of boatsintercepted in the territorial waters of MemberStates or bodies found at sea or on beaches. Manyirregular migrants, including refugees and people inneed of protection, will take ever greater risks in thesearch for new routes to avoid UK and EU bordercontrols. The NGO UNITED has documented almost9,000 deaths of people attempting to enter the EUin recent years. 108 Some of these deaths were, nodoubt, at the hands of smugglers, traffickers orborder police, others will have drowned, suffocatedor been crushed.The Government’s communication of these dangersfor the purpose of deterring prospective irregularmigrants indicates, yet again, that it does notrecognise the mixed nature of migration flows. Whilethis ‘message’ may succeed in preventing the arrivalof economic migrants, it will have little impact onthe decision-making process of refugees. Refugeesflee their country of origin by compulsion, not bychoice, and their destination is selected not for theeconomic or social benefits it offers, but becauseagents have determined where the refugee will betaken or because refugees are trying to reunite withfamily and community members. While noalternative exists, refugees will continue to entrusttheir lives to smugglers in the hope of findingprotection in the UK. Our research suggests thatunless the government provides legal and saferoutes for individuals seeking internationalprotection, border controls will simply exposerefugees to further exploitation, danger and death.Remote Controls57

RecommendationsAll Interior Ministry and border control staff, incountries where the UK seeks to influence theoperation of national border control operations,should receive training and awareness-raising onrefugee issues and on identifying victims oftrafficking.Attention should be paid by outposted immigrationofficials and carriers to the needs of vulnerablegroups, including vulnerability based on age, genderand sexuality.104 Moret, Joelle, Simone Baglioni and Denise Efionayi-Mader,2006. The Path of Somali Refugees into Exile. A ComparativeAnalysis of Secondary Movements and Policy Responses.Swiss Forum for Migration and Population Studies No. 46,Neuchatel: Swiss Forum for Migration and PopulationStudies, cited in ICMPD, 2007.105 In 2005 the Home Office and Foreign and CommonwealthOffice established the Migration Funds totalling £8 million.For more information see Foreign and Commonwealth Office,2008. Global Opportunities Fund, Annual Report 2006-2007,February 2008.106 For the purpose of this report, ‘pull factor’ refers to thecharacteristic of a particular country which may make itattractive to individual asylum seekers. This could include thelevels of acceptance of asylum seekers and the ways inwhich countries support refugees (Robinson and Seagroatt,2002).107 OM press release, 2007. Launch of new informationcampaign. [Online] 23 January. Available at:www.iom.int/jahia/Jahia/pbnEU/cache/offonce?entryId=12803 [accessed 31 October 2008].108 UNITED webpage, 2007. List of 8855 refugee deaths throughFortress Europe. [Online] 14 March. Available at:www.united.non-profit.nl/pdfs/actual_listofdeath.pdf[accessed 27 August 2008].58 Refugee Council report 2008

Chapter Seven – Refugees inpermanent transition: evidence fromthe case of TurkeyThe vast majority of the world’s refugees do not come to Europe or to the UK. Many arehosted within neighbouring countries or, if they have tried to move on further, may be trappedwithin transit countries such as Turkey, on the external border of the European Union. For theUK government, transit countries are a key target in its efforts to tackle irregular migration,and considerable resources are expended in order to ensure that migrants are intercepted inthese areas. The Refugee Council is concerned that migrants intercepted in transit countriesmay be forced to remain in countries that are not signatories to the 1951 Refugee Convention,that violate their rights and that deny them access to effective protection. This sectionexamines the consequences of efforts to contain refugees within their regions of origin, andthe significance of these measures in relation to the UK’s obligations under the 1951 RefugeeConvention and international human rights.The reality of refugee populationdistributionBy definition, a refugee must have crossed aninternational border in order to qualify for thisstatus. However, the vast majority of conflictgeneratedmovement happens within the bordersof the country of origin. The UNHCR estimatesthat there are some 26 million Internally DisplacedPersons (IDPs) in the world, and at the end of2007, its offices were providing assistance to 13.7million of these, an increase of almost one millionon 2006 figures (UNHCR, 2007b: 2). Those whodo make it outside their country of origin rarelytravel further than the neighbouring countries. Atthe end of 2007, approximately one third of allrefugees were residing in countries in the Asia andPacific region (3,825,000 refugees), mostly fromAfghanistan, while the Middle East and NorthAfrica region hosted a quarter of all refugees(2,721,600 refugees), primarily from Iraq. Europehosts only a small proportion of the world’srefugees; at the end of 2007 this figure stood at14 per cent (approximately 1,580,000 refugees).The UK now hosts less than 300,000, representing2.6 per cent of the world’s refugees (ibid: 7). Asthese statistics show, most refugees do not makeit to Europe but seek protection in neighbouringcountries. What these figures do not show is thenumber of refugees who have not registered withUNHCR within neighbouring or transit countries,due to their intention to continue onwards toanother country. These migrants are in theRemote Controlsminority and many of our respondents confirmedthat many do not make it further than the transitcountries in which they have stopped to rest, earnsome money and investigate the onward route. InChapter Six (Displacement onto dangerous routesand methods) we highlighted the significance offinancial resources for refugees seeking to travelto Europe, and the desperate measures thatpeople will go to in order to seek protection in asafe country. As this chapter will show, ourresearch found that some refugees are preventedfrom further movement by a lack of money, byimprisonment or refoulement by third countryauthorities, and by the border control efforts of theUK and other Member States.Durable solutions and permanenttransitionThe UNHCR has identified three ‘durable solutions’for the management of the global refugeepopulation: integration into the country of asylum,return to the country of origin or resettlement toanother country (UNHCR, 2003b). For somerefugees trapped within transit countries, none ofthese solutions is available and hence they aredescribed as being in a situation of ‘permanenttransition’. This chapter will use evidence gainedfrom our respondents in Turkey, both refugees andthe NGOs that assist them, to portray the extent ofthis problem and to identify the various elementswhich, when combined, result in denying access tomeaningful protection for some refugees in Turkey.59

Turkey is not alone in experiencing the phenomenonof ‘permanent transition’ and it has beendocumented in a number of other refugee contextswhere European border controls are active,including Ukraine, Tanzania, Kenya, Morocco andLibya, as we will show in this section.Access to refugee protection in the regionof originBefore we can even start thinking about durablesolutions, we must first address the fundamentalissue of whether refugees can access effectiveprotection in the countries within which the UK, andother EU Member States, operate border controls.In the absence of an internationally agreed definitionof ‘effective protection’, UNHCR has identified thefollowing critical factors for access to ‘effective’ or‘sufficient’ protection in the context of secondarymovers:A. The State must be party to the 1951 RefugeeConvention and/or its Protocol, offer access tofair and efficient procedures and present no riskof refoulement, both chain and direct;B. Protection from torture, the right to life andfreedom from arbitrary detention;C. A genuine prospect of an accessible durablesolution in or from the asylum country, within areasonable timeframe;D. Pending a durable solution, stay is permittedunder conditions which protect against arbitraryexpulsion and deprivation of liberty and whichprovide for adequate and dignified means ofsubsistence;E. The unity and integrity of the family is ensured;F. Specific protection needs of the affectedpersons, including those deriving from age andgender, are able to be identified and respected(UNHCR, 2003a).A 2003 European Commission Communicationbuilt on this definition and articulated a moredetailed concept of socio-economic well being thatit viewed as being central to the provision ofrefugee protection:“including, as a minimum, access to primaryhealthcare and primary education, as well asaccess to the labour market, or access to meansof subsistence sufficient to maintain an adequatestandard of living.” (European Commission2003a: 6)These standards have been criticised for failing togo far enough to ensure adequate protection andlivelihood for refugees (Human Rights Watch, 2003;Amnesty International, 2003). These commentatorsargue that for a State to be classed as offeringeffective protection it must respect the basic civil andpolitical rights of refugees, such as the rights tofreedom from arbitrary deprivation of liberty orproperty and guarantee legal status for the individual.In this section we will explore whether any of theabove conditions are met in some of the countrieswhere the UK and other European Member Statesimplement border controls, including Turkey, and theresulting impact on refugees and the countries oftransit in which they are hosted.Access to fair and efficient asylumprocedures and protection againstrefoulementThe ability to enjoy any of the durable solutions isentirely dependent on access to a fair and efficientasylum procedure. Unfortunately, many of the transitcountries within which the UK and other EUMember States implement border controls do notguarantee access to an asylum system, and havebeen criticised for their lack of respect for humanrights and their treatment of non-nationals. The UKhas ALOs based in Pakistan, United Arab Emirates,Bahrain, India, Bangladesh, Thailand, Malaysia, SriLanka and Jordan, none of which are signatories tothe 1951 Refugee Convention. Despite this, the UKand other EU Member States continue to applypressure on these and other transit countries toreinforce their border controls and better manageirregular migration through their territory. As a result,irregular migrants are caught within their borders,and may be denied access to protection. ABCDS,an NGO that assists irregular migrants in Morocco,has recorded the experiences of refugees living inthe woods of Oujda, unable to move onwards intoEurope and denied adequate protection withinMorocco. 109 Likewise, migrants intercepted in Libyaare routinely arrested and forcibly returned with noopportunity to express a claim for asylum.Furthermore, they are subjected to physical abuse,lengthy and arbitrary detention and, in some cases,death (Human Rights Watch, 2006).Many of our NGO respondents in Turkeyemphasised the difficulty refugees experience tryingto access the asylum process within Turkey. Whenan irregular migrant is caught, s/he will often bedetained, charged and held administratively in a60 Refugee Council report 2008

‘foreigners’ guesthouse’ or detention centre.Testimony collected by the Helsinki Citizens’Assembly (hCa), a Turkish NGO which assistsrefugees, shows that it is extremely difficult to makea claim for asylum from detention. The lack ofinformation on the asylum procedure in Turkey is asignificant barrier preventing intercepted refugeesfrom accessing protection. Asylum seekers are notcounselled on the asylum procedure, they are notoffered advice or information by the police and thereis a lack of interpreters. Once they have entered theasylum process, interpreters are provided byUNHCR and a limited amount of free legal aid isavailable through a range of NGOs and the TurkishBar Association.Our evidence showed that the lack of interpretersand legal representation became most serious whenrefugees were apprehended at the border or whileclandestinely travelling through Turkey. At thesestages, where independent legal representation andinterpretation is crucial, there seemed to be nosystem for referral either to lawyers, NGOs or toUNHCR. One respondent explained how the Turkishpolice often refuse to accept applications for asylumand provide false or misleading information aboutasylum procedures. According to a recent report bya Turkish NGO, 51 Afghan refugees were detainedby the Turkish authorities on the Aegean Coast inthe summer of 2007. Police refused to process theirasylum applications and instead began preparationsfor deportation. When the detainees refused tocomply, they were beaten (hCa, 2007). Ourrespondents informed us that the Ministry of Interiorrefuses to accept asylum applications from transitzones in airports as these zones are not consideredTurkish territory. One respondent in particular hadreceived a number of telephone calls fromintercepted refugees in the transit zone at IstanbulAtatürk Airport. Despite our respondent’s attemptsto prevent deportation by making applications to theEuropean Court of Human Rights, many of thosewho made contact were deported, or refouled,before their claim for asylum had been heard. In2007, two Iranians and three Sri Lankans weredeported from Istanbul Atatürk Airport without beingallowed to apply for asylum (hCa, 2007). UNHCR inTurkey informed us that they become aware ofattempts to claim asylum at the airport only once itis too late for them to intervene.The threat of refoulement was the most commongrievance reported to us by our refugee and NGOrespondents in Turkey.Remote Controls“It’s not good there, because I told you, just youcome to the police, you know, just touch you, he’staking you in prison and after put you border inIraq.” (AD, refugee, Leeds)Refugees in Turkey incur a significant risk ofrefoulement, either in detention or at the point ofinterception at the border and on the territory. TheTurkish rural police, the Jandarma, estimate thatthey intercept between 4-5,000 people every monthat the border and within Turkey. Most of these willbe returned to their country of origin or departurebefore they have had a chance to claim asylum.There is also evidence that Turkey has returnedasylum seekers without any attempt to assess theirrequirement for protection. 110“I was scared in Turkey… because they said if policecatch you they will send you back to Iran, they notgonna send you to Iran government and they willsend you by Kurdish people and Kurdish people, alot of Afghan people they killed, Afghan people theytook them money and they took them eyes and theybroken their hand and their legs and that was verydangerous, because I was very scared of Turkeypolice sell us back by Kurdish, Iran Kurdish peopleand they will kill us. That was very dangerous….They will sell, they give to them and they will takesome money from them.” (NMS, refugee, Leeds)There are also cases of refugees recognised byUNHCR being arrested, detained and repatriated bythe Turkish police. A few cases received mediaattention immediately prior to our visit: in April 2008,UNHCR publically criticised the return by force of agroup of Iranians, including five refugees, to Iraq.When denied entry to Iraq, the group was forced toswim across the river separating the two countriesand four Iranians drowned, including at least onerecognised refugee. 111 During 2007, a recognisedIranian refugee was deported while awaitingresettlement after being detained for failing toregister with the Turkish police. In the same year,another Iranian refugee was deported from theAlien’s Guesthouse in Ankara despite having anopen file with UNHCR. 112These examples display a lack of guaranteedrespect by the Turkish authorities for thecornerstone principle of refugee law, that of nonrefoulement.The fear of return to the country ofpersecution can work as a strong push factor awayfrom the first country of asylum, in this case fromTurkey. Indeed, our refugee and refugee community61

organisation (RCO) respondents in the UK explainedthat a refugee’s perception of safety within a transitcountry is a key feature in their decision to continueon to another country.“Turkey wouldn’t give them asylum. Turkey wouldsend them back straight away to Iraq and then ifyou’ve left the country because of political reason,because of any other reason then you would be reallyscared to go back. This is why a lot of people preferto pay 800 US dollars to an agent in Iraq.” (AA,refugee and RCO representative, Leeds)“the links that were there between South Africa andZimbabwe […], it was like, if you seek asylum into theSouth African authority you are like handing yourname back to the Zimbabweans. We knew all of that,we were advised, it’s not safe.” (KI, refugee, Leeds)As we have already explained in this report,assertions by the UK and other EU Member States,that refugees come to the UK as a result of ‘pullfactors’ are not grounded in any evidence base. Ourresearch suggests that the urge to leave the firstcountry of asylum and seek protection in anothercountry is motivated by a lack of adequateprotection within these allegedly ‘safe’ countries.Access to refugees in transit, detentionand border zonesCivil society oversight would provide someguarantee of access to protection within thirdcountries. Unfortunately, many of the countries inwhich the UK operates border controls and pursuesits migration management objectives, deny UNHCRand NGOs access to intercepted migrants, andborder control activities are far removed from publicscrutiny. In Turkey, UNHCR, local NGOs and legalrepresentatives are not permitted access to airporttransit zones or allowed airside and they haveextremely limited or ad hoc access to detentionfacilities. Access to airside transit zones is essentialas our research has shown that, in Turkey, whilemost irregular passengers are identified in transitrather than at check-in, there is no opportunity toclaim asylum and refoulement is reported. UNHCRhas been repeatedly refused access to the air andland borders in Turkey and there is no indicationthat independent humanitarian organisations arepresent within these zones. The Turkish landborders are heavily securitised due to high levels ofsmuggling and criminality, as well as ongoingconflict between the Turkish army and the KurdistanWorkers’ Party (PKK). The Turkish authorities arewary of allowing local and international NGOs orUNHCR access to the border due to the issue ofstate sovereignty. As a result, there is no civilsociety or humanitarian presence at the border.From 2006 to 2007, the government of theNetherlands funded a project to improve access toprotection and reception conditions for people whowere intercepted by the Jandarma in Turkey. Theproject intended to encourage the Jandarma toconduct screening for protection needs and to allowUNHCR to have access to intercepted migrants.Very few cases were referred by the police toUNHCR during the lifetime of the project. In total,2,800 people were covered by the project but lessthan 50 people were referred to UNHCR.Our research suggests that UNHCR and NGOaccess to airport transit zones, airside gate checkpoints, land and sea borders and detention facilitiesis vital. A number of EU Member States have alreadyparticipated in UNHCR coordinated bordermonitoring activities, involving the cooperation oflocal NGOs with national border guards. 113Unfortunately, in many transit countries relationsbetween NGOs and the national authorities are poor.In Turkey, for example, relationships between NGOsand local authorities are ad hoc and fragile in somecircumstances. Despite this, by allowing local NGOstaff, UNHCR representatives and legal practitionersaccess to the borders and to intercepted migrants,these projects have gone some way to ensuringtransparency of border control activities and maycontribute to guaranteeing protection-sensitiveborders.Protection from torture, the right to lifeand freedom from arbitrary detentionEvidence from our refugee respondents in Turkey andthe UK suggests that some refugees do not enjoyphysical protection in the first country of asylum.Continuing persecutionOne of the reasons for the perceived and/or actualcontinuing persecution in Turkey by government andnon-State agents from whom they fled is theproximity of the refugee to his or her country oforigin. A number of our Iranian refugee respondentsexpressed their concern about the close relationshipbetween the Turkish and Iranian governments. Theysuspect that there are Iranian spies within Turkey,some disguised as refugees, reporting back to Iranon the activities of high-profile political activists anddissidents. We were told about a similar situation inSouth Africa.62 Refugee Council report 2008

“Zimbabwe intelligence officials operate throughoutthe whole of the Southern African region. We havehad cases were Zimbabwean officials have arrestedindividuals on South African soil and brought themback in the boot of a car.” (SH, RCO representative,London)One particular respondent was tracked down inSouth Africa by Zimbabwean governmentrepresentatives and forced to flee to the UK in orderto reach safety.Violence within the transit countryOther respondents were afraid of physical attack bythe police within the transit country. We heard manycases of refugees being beaten or robbed by theTurkish, Greek or Bulgarian police.“the police officers now they are very very clever,not like before. Before openly they were againstmigrants and refugees… there was no protectingmigrants and whatever. And now, I don’t know, theyare clever, they wouldn’t arrest you on the street likethis, or hassle you but then… like evening, whenthey make patrols… they get information on thisperson, what he’s doing, he’s working, has money ormany people inside, then they go there, they makecontrol whatever… person they get, they take. Nowthey start to go in these so-called telephone office,the place where you have the cheap cheap calls. Sothey go there, they target people, they see so manypeople, they make control. And the most they takeforeigners people, they bring someone and theysearch them. If they find money, they take moneyand then they take them somewhere they freethem.” (SS, NGO representative, Turkey)During 2007, cases of physical violence by Turkishpolice against refugees included cuffing, gagging andbeating to enforce removal directions, robbery duringpolice raids, and the abuse of refugee children. 114 Wealso heard evidence of corruption and violence at thehands of the South African police.“The South African police are also very corrupt andoften rip people’s papers apart in order to receivebribes. If they are not sufficiently bribed they sendthem to Ndela (repatriation camp) […] I rememberone case a women that had been gang raped bySouth African officials in Ndela and then tried toescape to the UK.” (SH, RCO representative, London)Female refugees in Turkey are particularly vulnerableto abuse and suffer domestic violence, socialRemote Controlsexclusion and aggression from the local police.During 2007, around 65 asylum seekers andrefugees who had registered with UNHCR reportedsuffering sexual and gender-based violence while inTurkey, but only 20 complained to authorities(USCRI, 2008). Our NGO respondents in Turkeyinformed us that when women complain to thepolice about domestic violence, they are instructedto return home and make peace with their husband.They also explained that police do not provide anyprotection for women who are hospitalised as aresult of domestic violence. It is possible to moveabused refugee women to another city, or speed upresettlement, but this depends on the goodwill ofthe local government. Although there are shelters forwomen in danger in Turkey, we were informed thatthe social services will not assist women withpsychological problems or if they have been a sexworker. Many refugee women suffer frompsychological problems as a result of persecution inthe country of origin and the experience ofdisplacement, and yet they can find themselvesexcluded from mainstream support services. 115Turkish society is still very conservative, andhomosexuality is not tolerated in many of the satellitecities where refugees reside. Our NGO respondentstold us that lesbians and gay men are frequentlybeaten and killed. The police can be dismissive aboutsuch attacks and rarely follow up reports of violenceor abuse. One of our respondents described asituation when she was targeted by some local menbecause she is a lesbian. They presented themselvesas policemen and came to her home requesting herID card. They broke the door down and entered withguns. The police eventually arrived and arrested themen who were then sentenced to imprisonment. Ourrespondent was then threatened by their relatives andforced to retract her statement. Afraid that she wouldbe killed, she told the judge that she had lied and themen were released.Fear of attack by agents of persecution from thecountry of origin, by the host country police or by thegeneral public, is an important reason for thesecondary movement of refugees. If a transit countrycannot guarantee the physical safety of the refugees ithosts then it cannot be considered a ‘safe country’and it does not offer ‘effective protection’.Genuine prospect of an accessible durablesolution within a reasonable timeframeRefugees residing in key transit countries to the UKhave a current and outstanding fear of persecution.63

In Kenya, refugees from Somalia and southernSudan, the vast majority of Kenya’s refugeepopulation, are recognised as refugees on a primafacie basis. 116 Refugee recognition rates in Turkey arerelatively high. 117 While many of these refugees maylong to return to their country of origin, it is extremelyunlikely that this will be possible in some cases.Therefore the two remaining durable solutions,integration and resettlement, may offer the only realopportunity of a lasting outcome for many of therefugees residing in countries in the region of origin.As mentioned earlier, Turkey is one of the originalsignatories of the 1951 Refugee Convention and the1967 Protocol but it has retained the so-called‘geographical limitation’ clause. This clause restrictsits 1951 Refugee Convention obligations toindividuals who become refugees “as a result ofevents occurring in Europe”. 118 However, refugees inTurkey almost exclusively originate from a smallnumber of non-European countries, principally Iraq,Iran, Afghanistan, Somalia, Eritrea and other AfricanStates. As a result, the vast majority of refugeestatus determination is carried out in Turkey by theUNHCR. Certain profiles are recognised as refugeeson a prima facie basis, including individuals fromCentral and Southern Iraq; other profiles have near-100 per cent recognition rate such as Baha’is fromIran. Alongside the UNHCR procedure, non-European refugees must file a separate ‘temporaryasylum’ application with the Turkish government.The purpose of this parallel procedure is to decide,independently of the UNHCR assessment, whetheran individual has a legitimate need for ‘temporaryasylum’ in Turkey. In the vast majority of cases,UNHCR and the Turkish authorities reach agreementon who is recognised as a refugee and who is not.Our refugee and NGO respondents in Turkey wereconcerned about the long delays involved indecisions on applications for asylum, followed bylong waits for resettlement – neither with anyguarantee of a positive outcome. At the time of ourresearch trip in May 2008, asylum seekers whosubmitted claims in Ankara and Istanbul had to waita year for an initial asylum interview, while in Van thewait was approximately three months. According toevidence from refugees and NGOs in Turkey, a finaldecision on an asylum application takes from two toten years in the most extreme cases.“Another of my friends went three months ago toFinland with UNHCR and he stayed in Van for eightyears.” (SV, refugee, Turkey)This process can be delayed by difficulties obtainingcountry of origin information, translations or furtherinformation from relatives. We heard evidence fromone young woman who had been waiting elevenyears for a decision on her asylum claim andallocation of a resettlement place. Respondentsdescribed how asylum cases could be delayed,closed and reopened numerous times, and seemed tobe unclear as to the reasons for this. Some suggestedthat the Turkish office of UNHCR is struggling tomanage the caseload with insufficient resources. TheOffice has a caseload of 14-15,000 people, includinga large number of Iraqis whose cases were frozenwhile UNHCR carried out ‘enhanced registration’ toestablish where they were from.“I think most of problem about refugees is aboutUNHCR’s procedures, because for example it doneabout me, about January 2008, most of people whocame to Turkey when I came, I mean we were insame time and we thought that we will go to USAon same time, but all of them have been interviewedby the International Catholic Migration Commissionexcept me and my brother. I went to UNHCR andasked them what happened to my file, what’s thereason I’m not invited to interview. They said wesent your file to Ankara. I called Ankara, they saidwe didn’t receive your file, it’s in Van. I said where isthis file, it’s in the air. So, three months later I’vebeen invited to interview.” (SV, refugee, Turkey)Some of our refugee respondents in Turkeyexpressed disillusionment with UNHCR’s statusdetermination. There was a lack of clarity about thedecision-making process and refugees reporteddistrust and frustration due to unexplained refusals.Evidence submitted to the US Committee forRefugees and Immigrants (USCRI) suggests that onlyapplicants with legal counsel from one particularNGO had access to UNHCR’s detailed reasons forrejecting applicants. The rest received letters offeringonly general categories of reasons for denial.Our research found that the consequence of thisdelay and uncertainty is the gradual wearing downof refugees’ expectations and resolve. Disillusionedand with only limited funds remaining, somerefugees choose to move on irregularly.“Most of cases, people stay and get tired, and thenthey decide probably to go illegally. So manypeople. And then later on some cases are acceptedbut the people are not here, the people have left.”(SS, NGO representative, Turkey)64 Refugee Council report 2008

The Van office of UNHCR informed us that in thepast year they knew of approximately 20 cases ofrefugees who had submitted a claim to UNHCR, buthad continued on irregularly to Europe.Amongst the top ten major refugee hostingcountries, there are a number of States that havebeen repeatedly criticised for their treatment ofnon-nationals. 119 Aside from their poor humanrights standards, these countries have insufficientcapacity to host asylum seekers, they lack theinfrastructure necessary to guarantee ‘effectiveprotection’ and they conduct the forcible return ofpersons to places where they would face serioushuman rights abuses (Refugee Council, 2003b).Efforts to improve access to protection withinregions experiencing protracted refugee situationsincluding the Western Newly Independent States(Ukraine, Moldova, Belarus) and sub-SaharanAfrica (Great Lakes/East Africa) 120 have beenheavily criticised by NGOs for failing to ensureaccess to durable solutions. Critics haveresponded to Regional Protection Programmes 121 ,by accusing EU Member States of undermining thenotion of international solidarity and placing the“responsibility of refugee protection on countrieswhere responsibility, enforceability andaccountability for effective protection is likely to bediminished, weak or unclear” (AmnestyInternational, 2005; 3). Ukraine has been criticisedfor lacking an effective system of adjudication,reception and resettlement for refugees and doesnot offer an effective programme of integration ofrefugees into Ukrainian society (ECRE, 2006).Similarly, Tanzania has been accused of denyingadequate protection to refugees from the GreatLakes and reducing humanitarian assistance forBurundian refugees already present in the territory(Amnesty International, 2005).On the subject of access to protection in theregion of origin, UNHCR has concluded that:“It is equally clear that a good proportion of theworld’s refugees will be unable to find an earlysolution to their plight within their region of origin,and that the onward movement of refugees andasylum seekers will continue to take place whilestandards of living and levels of human securitydiffer so greatly from one part of the world toanother.” (UNHCR, 2006a: 60)IntegrationA significant proportion of our respondents, bothRemote Controlsrefugees and NGOs, claimed that refugees do notview Turkey as a country of asylum but as a transitcountry which offers the best possibility of beingresettled elsewhere. This view is reflective of Turkey’slegal position with regards to the 1951 RefugeeConvention and the ‘geographic limitation’ clause.Turkey assumes only a limited responsibility for non-European refugees and offers them the status of‘temporary asylum seeker’ while UNHCR undertakesstatus determination. Officially, ‘temporary asylumseeker’ status entitles refugees in Turkey to the samecivil and political rights as foreign nationals, subjectto possession of a valid resident’s permit. In practice,refugees experience difficulties enjoying these rights,including seeking access to court, marrying ordivorcing, accessing government services andeducation and freedom of movement.Although refugees in Turkey are not confined tocamps, they are required to reside in areas assignedby the Ministry of Interior. The Turkish authoritieshave implemented a system to disperse refugeesoutside Istanbul and Ankara and away from thecoastal tourist areas. Refugees’ access to healthcareand education is then reliant on their compliancewith dispersal to one of 30 ‘satellite cities’. Oncedispersed, refugees must report regularly – typicallythree times a week, or even daily – to the localpolice. Refugees who refuse to move and decide toremain ‘illegally’ within one of the major cities aredenied access to government support, are subject toheavy fines and are more vulnerable to refoulement.One of our NGO respondents told us that themajority of Iraqi refugees in Turkey, particularly theChaldean Christians, do not go to the satellite citiesand instead live in Istanbul ‘illegally’ in order to benear the Christian church and their faith community,and to work.Respondents outlined some of the negative impactsof being moved to satellite cities including racism,homophobia, a lack of personal security, povertyand distance from community links. Some satellitecities, such as Van, are small and remote and offerlittle in the way of legal employment. While NGOsand community support organisations do their bestto provide assistance to dispersed refugees, theyare often based in the major cities and can onlyrarely visit the areas of dispersal.In effect, this evidence suggests that non-Europeanrefugees cannot integrate officially in Turkey. Sincenearly all refugees in Turkey are non-European, theyare forced to live on the margins of society with no65

prospect of enjoying the rights and entitlements thatrefugee status should bring. As one respondent putit, refugees “have obligations, they don’t haverights” (SS, NGO representative, Turkey). In light ofthis, resettlement emerges as the only real durablesolution for them (see below).The clause preventing refugee integration is ananomaly that is unique to only four signatories tothe Convention: Turkey, Monaco, Congo andMadagascar. 122 However, a de facto lack ofintegration opportunities is seen in other countrieswhere the geographic limitation does not apply. In amemorandum to the House of Lords, the RefugeeCouncil outlined some of the hardships experiencedby refugees in Kenya, one of the key transitcountries in which the UK conducts border controls(Refugee Council, 2003a). In Kenya, refugees areconsidered a source of insecurity, environmentaldegradation and economic loss. They are frequentlyunable to obtain legal status and live under thethreat of physical harassment, detention,refoulement, and sexual violence.“It’s horrific and horrible… in Nairobi, the Somalisthe way they live there, it’s horrific. The Somalismost of them times are proud people but when yousee, a lot of them actually begging and things likethat, in a foreign country. It is very dangerous…there is many people feel, actually they say there isnothing worse than staying there.” (DF, RCOrepresentative, London)Most refugees in Kenya are forced to live in campswith no opportunity for self-sufficiency. According toUNHCR, the Dadaab and Kakuma camps in Kenyaare plagued by security problems including banditry,rape and murder. Women and children, in particular,are vulnerable to abuse, exploitation and sexualassault, especially when they go to fetch firewoodoutside the camps. 123 USCRI has launched acampaign to end this practice of ‘refugeewarehousing’ to enable refugees in countries suchas Thailand and Tanzania to access sustainableintegration opportunities.ResettlementThe global resettlement system was understood byrespondents to offer the only real possibility forrefugees to enjoy a durable solution. Currently anumber of States conduct selection missions toTurkey to offer resettlement, including USA, Australia,Canada and Finland. People with status areautomatically put forward for resettlement, and theyare then assessed by representatives from theresettlement country. States are under no legalobligation to resettle refugees and are entitled toapply their own selection criteria. 124 As a result,certain groups are more likely to be resettled and at afaster rate than others and no rights-basedexplanation is necessary. Often those whose personalsecurity is not considered to be at immediate risk, orthose suspected of being less able to integrate, arenot selected for resettlement. NGO respondents inTurkey described situations where certain familymembers (in many cases the younger ones) wereaccepted for resettlement whilst other familymembers, such as parents or grandparents, were ‘leftbehind’ in Turkey. It is clear that in somecircumstances, resettlement countries show littlerespect for the principle of family unity and underminethe validity of resettlement as a durable solution.Resettlement is not a durable solution for all non-European refugees in Turkey. On the contrary, it isnot an option for certain groups including Somalisfrom Yemen, Iranians ex-Iraq and Sri Lankans.Resettlement quotas are not large and allocationsare rapidly filled. 125 There is only limited resettlementto Europe so many refugees, particularly Iraqis andAfghans with family in Sweden and the UK, chooseto make their own way. 126For the UK government, resettlement is the preferredroute for refugees to reach safety in Europe. Ourresearch shows that it is presently an imperfectsystem, involving long delays, unhelpful selectioncriteria and expensive periods of economicinactivity. In any event, resettlement is not analternative to allowing access to asylum in the UK.Pending a durable solution, stay ispermitted under conditions which providefor adequate and dignified means ofsubsistenceThe long wait for asylum and resettlement decisionsis critically combined with harsh living conditions forrefugees in Turkey, including a near total absence ofany means of livelihood. Refugee respondents inTurkey repeatedly communicated their difficultiesrelating to financial assistance, social services andhealthcare. They have no realisable right to workand no State or UNHCR assistance to live on.Financial or in-kind support from NGOs is limited andrarely reaches beyond the major cities. For theextremely vulnerable, there may be access to Statefunds but these are dependent on the discretion ofthe provincial authority and the availability of local66 Refugee Council report 2008

Social Assistance and Solidarity Funds, which arenormally reserved for Turkish citizens. Most localauthorities do not allocate enough money for thepurpose of supporting refugees as they do notmonitor the numbers within their city. Hospitaltreatment is an expensive necessity for refugees,many of whom experience severe health problems asa result of persecution and flight. There is a longreferral process for claiming back money for healthservices and refugees require evidence from thepolice that they are registered with the authorities.UNCHR contracted hospitals and pharmacies toprovide a small number of recognised refugees withmedical services on an emergency basis. In certainsatellite cities the situation is not so bleak and somelocal authorities are working with UNHCR and localNGOs to improve living conditions for refugees. Forexample, UNHCR has run seminars, funded by theUK migration fund, to assist local authorities with thereception and integration of refugees.Refugees are required by the Turkish authorities topay residence fees of approximately US$300 perperson, every six months. Since, at best, they canhope to earn no more than 200 to 300 New TurkishLira (YTL) (approximately US$200) per monththrough irregular employment, this is an extremelyhigh price to pay for the chance of acquiring statusand resettlement. Refugees are subject to heavyfines if they move without authorisation or do notfulfil their obligation to report with the local police.Critically, refugees are barred from leaving Turkey,including for the purpose of resettlement, until fullpayment is made. A lot of families end up with finestotalling 5,000YTL and no income. The impossibilityof paying these fees was cited by the majority ofrespondents as weighing heavily on refugees andeven further delayed refugees’ ability to take upresettlement places.“we have severe economic problems because weshould pay... to police or another organisation, weshould pay something for being in Turkey, yearly Ishould pay $500... For those families that have moremembers, for example a family with 5 members it’svery huge amount of money. There is a family in Vanwho have been accepted by US and his flight datepassed, I mean he should fly to USA about onemonth ago but he couldn’t go because he wasowed to Turkish government, he was owed about$10,000, and how can find this money. He couldn’tgo but he is accepted by USA.” (SV, refugee, Turkey)With no income, no assistance, and no hope ofRemote Controlsspeedy resettlement, refugees are forced intoirregular working, exploitation and destitution.“there are many Iraq and Iranian refugees areworking, they are working as a construction workermost of them… daily a Turk person daily earn50YTL, but the employee of this construct job willpay to an Iranian person or Iraq person, 20YTL, lessthan half.” (SV, refugee, Turkey)“to survive here… you have to get work and onceyou don’t have a resident’s permit or working permitthen you have to accept those kind of simple works,I say simple because small wage. And you have toaccept any way they propose you… otherwise youcannot get some money for your rent, for your food,for whatever. And sometimes they working interrible, dangerous situation in undergroundfactories where, most of them they get accident.And there is no social security, there is nobody whocan help.” (SS, NGO representative, Turkey)Respondents further identified a causal link betweenthe lack of assistance and the costs of living, andthe risk posed to vulnerable groups who oftenresorted to prostitution as a means of survival.Female-headed households as well as lesbian andgay refugees are particularly at risk of experiencingeconomic and social exclusion due to their positionon the very margins of the refugee community.“it is, kind of the fact that a woman has to besupported by a man sometimes. When she doesn’tget… anything to do she cannot go to steal like aman, sometimes, can do. So she has to findsupport, support is always man who can use thesituation that she is weak and then she fall into thattrap, and she become forced girlfriend to someonejust to get where to sleep, to get food.” (SS, NGOrepresentative, Turkey)Prostitution amongst refugee women in Turkey isrelatively common as they have no alternativemeans of supporting themselves and their families.This form of work leaves women extremelyvulnerable to violence, they cannot access certainservices, such as women’s shelters, and it is veryhard to find accommodation.The long wait, coupled with the expense anddifficulty of living unsupported and the uncertaintyof the status determination process leaves manyrefugees feeling hopeless and desperate. Onerespondent described how she had given up on the67

asylum system entirely, including the possibility ofresettlement. Refugees are forced to find their owndurable solution and are vulnerable to smugglerswho offer them an alternative solution. For theequivalent value of two years residency in Turkey,refugees can pay a smuggler to take them directlyto Europe. For many this is a far more appealingprospect than years of poverty, insecurity andhopelessness.“one of my friends is about eleven years that he is inVan and he couldn’t go any other country. Abouttwo months ago he said, I have been certificate as arefugee by UNHCR and was very happy and hecouldn’t believe this…. He said... if I hadn’t thiscertification for six or five months later, if I couldn’tcatch this I would go to Europe illegally. I can’t staymore, I am eigthteen years old and I was here fromseven years old and up to now I am in Turkey and Iam losing my life and I can’t stay anymore. I will goto Europe near my relative in Sweden.” (SV, refugee,Turkey)SummaryAs we have already highlighted, the UK governmentbelieves that refugees should seek asylum in thefirst safe country they reach, despite the fact thatthere is nothing in international law that obligesthem to do so. Governments intent on restrictingaccess to their territory promote two verycontrasting images of the refugee with very differententitlements. Those who leave their region of originto seek protection in Europe, known as ‘onwardmovers’, are less entitled and less deserving ofprotection than the impoverished masses of ‘goodrefugees’ who stay in camps and urban slums indeveloping countries. States assume that ‘onwardmovers’ have chosen to leave the first country ofasylum for economic reasons, throwing intoquestion their claim for protection.under the burden of human displacement, povertyand environmental disaster.Refugees and asylum seekers who cannot findeffective protection, including not only physicalsafety, but some form of sustainable livelihoodwithin the region of origin will move on, in anirregular manner if necessary, to other parts of theworld, undermining any attempt to control ormanage global migration. In summary, whereprotection only amounts to ‘not being sent back’(where even that is sometimes in question), theRefugee Council holds that asylum cannot beconsidered fully enjoyed. Refugees who move insearch of protection, particularly outside their regionof origin, must not be penalised for or preventedfrom doing so.RecommendationsThe UK should use its influence to increasestandards of refugee protection and respect forthe principle of non-refoulement internationally.Where the UK is involved in interception activitiesin the territory of a third country, it must ensureaccess to adequate asylum procedures andguarantees that refugees will not be refouled.UNHCR and NGO access to individualsintercepted at air, land and sea border zonesshould be written into agreements the UK makeswith countries in which it conducts extra-territorialimmigration control. The presence of independenthumanitarian organisations in detention facilitiesat the border and inland should also beconsidered.Our research highlights the flaws of such anapproach by revealing the lack of effectiveprotection available in many of the countries withinwhich the UK operates border controls, resulting inonward movement. They include countries that arenot signatories to the 1951 Convention, that havepoor human rights records, that have no establishedasylum procedures and that only tolerate thepresence of refugees on a temporary basis (on thecondition that UNHCR will resettle them). Theconsequence of border controls implemented closeto regions of origin is to trap refugees inneighbouring countries that are already suffering68 Refugee Council report 2008

109 No Borders. Abcds: Statement. [Online] Available at:http://noborders.wikidot.com/abcds [accessed 27 August2008].110 In 2007, Turkey forcibly repatriated as many as 75 anddeported to third countries at least 123 asylum seekers thathad been intercepted travelling irregularly through thecountry. The Turkish authorities made no attempt to assesstheir requirements for protection. For more information seeUS Committee for Refugees and Immigrants (USCRI), 2008.World Refugee Survey. [Online] Available at:www.refugees.org/article.aspx?id=2114&subm=179&area=About%20Refugees& [accessed 31 October 2008].111 UNHCR press release, 2008. UNHCR deplores refugeeexpulsion by Turkey which resulted in four deaths. [Online] 25April. Available atwww.unhcr.se/en/news/press08/press_080425.html[accessed 30 October 2008].112 For more information see Helsinki Citizens’ Assembly, 2007.113 Between December 2006 to November 2007, the HungarianHelsinki Committee initiated a project entitled ‘Monitoringaccess of asylum seekers to territory and procedure atEuropean airports – exchange of experience and bestpractices’. The project involved cooperation betweenUNHCR, national border guards and local NGOs at six majorairports in EU Member States. Between August 2006 toFebruary 2007, UNHCR was involved in a tripartitearrangement between the Slovenian border police andGeneral Police Administration and a regional representative,the Legal Information Centre for NGOs, to improveunderstanding of police practices at the border and to ensurethe right of migrants to apply for protection.114 For more information on physical protection in Turkey see OpCit. USCRI, 2008.115 This information was taken from meetings with NGOrepresentatives in Turkey in May 2008.116 Refugees recognised on a prima facie basis are recognisedas a group and do not undergo individual statusdetermination. For more information see UNHCRStrengthening Capacity Project, 2005. Analysis of refugeeprotection capacity, Kenya. [Online] Available at:www.unhcr.org/protect/PROTECTION/429b1d3e2.pdf[accessed 31 October 2008].117 In 2007, UNHCR recognised 100 per cent of Iraqi asylumclaims and 88 per cent of Iranian claims. Overall therecognition rate was 85 per cent. For more information seeUNHCR, 2008. UNHCR Background note: protection ofasylum seekers and refugees in Turkey, May 2008.118 For an explanation of the legal context for the protection ofrefugees in Turkey, see Helsinki Citizens’ Assembly, 2007.119 According to UNHCR Global Trends 2007, Pakistancontinues to be the asylum country with the single largestnumber of refugees (2 million), the Syrian Arab Republic washost to 1.5 million Iraqi refugees, making it the secondlargest refugee hosting country at the end of 2007, and theIslamic Republic of Iran hosted close to 964,000 refugees.120 For more information on these efforts see EuropeanCommission, 2005.121 RPPS are designed according to the specific needs of thehost country, include a registration scheme for all persons ofconcern to UNHCR in the area, activities to improvereception conditions and assistance to the local communityhosting the refugees.122 UNHCR, 2007. States Parties to the 1951 Conventionrelating to the status of refugees and the 1967 Protocol.Remote Controls[Online] 1 November. Available at:www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf[accessed 30 October 2008].123For more information see UNHCR Strengthening ProtectionCapacity Project, 2005. Analysis of Refugee ProtectionCapacity, Kenya. [Online] April 2003. Available online at:www.unhcr.org/protect/PROTECTION/429b1d3e2.pdf[accessed 30 October 2008].124For more information on resettlement see ICMC, 2007.Welcome to Europe! A guide to resettlement: a comparativereview of resettlement in Europe. [Online] Available at:www.icmc.net/pdf/welcome_to_europe.pdf [accessed 31October 2008].125In 2007, the US resettled 2,040 refugees while Canadareceived 364 and Australia took 145. UNHCR, 2008.Background note: protection of asylum seekers and refugeesin Turkey, May 2008.126In the past 8 years, the UK has received, on average, only 10refugees per year from Turkey.69

Non-RefoulementThe principle of non-refoulement, the cornerstone ofinternational refugee protection, is enshrined inArticle 33(1) of the 1951 Refugee Convention:“No Contracting State shall expel or return(“refouler”) a refugee in any manner whatsoever tothe frontiers of territories where his life or freedomwould be threatened on account of his [or her] race,religion, nationality, membership of a particularsocial group or political opinion.”Although this principle does not entail the right ofthe individual to be admitted and granted asylum, itdoes establish a basic requirement to grantindividuals temporary access to the territory for thepurpose of examining their application forprotection. This protection applies not only torecognised refugees, but also to those who havenot yet had their status formally declared, inparticular to asylum seekers who should not beexpelled from the country until their status has beenfinally determined. This fundamental and nonderogablerule is applicable to all forms of forcibleremoval, including non-admission at the border, asstipulated by Article 3(b) of the Schengen BordersCode (Weinzierl, 2007). It applies not only in respectof return to the country of origin or former habitualresidence, but also to any other place where aperson has reason to fear threats to his life orfreedom.The removal of a refugee from one country toanother that will subsequently send the individualonward to the place of feared persecutionconstitutes ‘indirect refoulement’, for which severalcountries may bear joint responsibility. Obligationsunder the European Convention on Human Rights(ECHR) require that, prior to removing an individual,the state in question must first examine whether thereceiving country will forward the person on toanother state in which he or she would be exposedto human rights violations.It has been disputed whether non-arrival policiesbreach the principle of non-refoulement and otherobligations in international refugee and human rightslaw. Many States, including the US, have arguedthat they have no responsibility to guarantee theprotection of refugees who have not yet reachedtheir territory and that the provisions of the 1951Refugee Convention do not apply extra-territorially(Gibney, 2005; Hathaway, 2006). Such aninterpretation permits interception measures bytaking advantage of a purported gap in protectionthat exists while an individual is in transit. UNHCRadvises, on the contrary, that the prohibition onrefoulement does not contain any explicitgeographic limitation and applies wherever theState in question intercepts (and thereby assumessome degree of jurisdiction over) a person:“UNHCR is of the view that the purpose, intent andmeaning of Article 33(1) of the 1951 Convention areunambiguous and establish an obligation not toreturn a refugee or asylum-seeker to a countrywhere he or she would be risk of persecution orother serious harm, which applies wherever a Stateexercises jurisdiction, including at the frontier, on thehigh seas or on the territory of another State.”(UNHCR, 2007a: 12)Interception measures implemented by one State onthe territory of another, such as the posting of ALOsin a foreign airport or the use of visa restrictions and70 Refugee Council report 2008

carrier sanctions, would incur a corresponding dutyby the intercepting state to fulfil their human rightsobligations, as enshrined in international law (ECRE,2004a). Whether these measures directly violateArticle 33 or not, it is likely that they will increase therisk of direct refoulement and, as such, arefundamentally inconsistent with the humanitarianobject and purpose of the 1951 Convention and itsProtocol (Noll, 2002). Unfortunately, as we haveseen in the case of intercepted and diverted boatsin the high seas and territorial waters of thirdcountries, there is little evidence of how thisobligation translates into good operational practice.Remote Controls71

Case studiesCase study one: NMS, LeedsNMS is a 32-year-old Afghan refugee who arrived inthe UK in April 2008. He escaped Afghanistan byhiding in the back of a car. When he reached Iran hewas hidden in a cellar with others until it was safe towalk across the border to Turkey. During the night agroup of Iranians came to the cellar with guns andstole all their money and documents. They werewarned that if they complained, the smuggler wouldkill them.“When they took money from our pocket and theyalso say to us “don’t make any problems for thatother agent which is car driver because… in thefuture that will be very dangerous for you and forother Afghan people […] we spoke with anotheragent and we say to him, they took all our money,and he said “don’t make that complaint because fromsomewhere they deported you, you will come back tothis agent that will make problem maybe kill you.”He continued the journey by lorry from Istanbul tothe coast where he boarded a boat bound forGreece. The boat was small and massivelyoverloaded and experienced problems reachingGreece in the bad weather. For five days he wastrapped on the boat with 52 other people, as it wastossed about by the waves.“Was small, 52 we’ve been together… everybodycried a lot and we were scared and 17 people theybeen in coma… the weather was very hot and wecouldn’t find any water to drink… the waves werevery very high.”When he tried to seek rescue from the coastguardthe smugglers threatened him with a knife.“I spoke with the boat driver and I say to him“please come I can’t speak English, speak with thepolice” and he switch off the telephone… and hesaid “oh, they gonna put me for twelve years in thejail, in two hours we will reach Greece”, and for thatwe spent five days in the sea… a lot of time [Greek]police call to us and they ask us “where are you?We like to help you but we couldn’t find you whereare you”, because we couldn’t see everywhere,everywhere was water and for that they couldn’tcome and they couldn’t find us.”He eventually made it to Greece, then travelled in alorry across Europe to the UK. In total, the journeycost him US$23,000 and very nearly killed him.“Everywhere was very dangerous and when I fightedin Afghanistan that was better than that journeywhich I came here. I was very scared andeverywhere was very dangerous.”Case study two: SV, TurkeySV is a 25-year-old Iranian Baha’i who arrived inTurkey in 2004 with his brother, with the intention ofjoining the rest of his family and claiming asylum atthe UNHCR. The journey was long and dangerous;it took them 15 hours to cross the border by horseand on foot, running or crawling past Iranian andTurkish watchtowers.“I knew that if I go near this towers I will shooted bythem because these towers were exactly on theborder, and they are working over there and their jobis shooting every person.”Despite the risks involved in the journey, SV would72 Refugee Council report 2008

not approach a Turkish border guard for help forfear of being shot.“It was very dangerous because we knew that weshould hide ourselves from any Turkish soldiersbefore coming to Van… it’s possible that thesesoldiers shoot us while crossing the border becausewe are doing illegally… we knew that this isdangerous to go to claim asylum to the soldiers.”SV knew many cases of people who had beenintercepted crossing from Iran to Turkey and theirexperiences were a warning for anyone followingthe same route. One was beaten by Turkish guardsand dragged along the ground behind a horse, untilthey thought he was dead. SV’s cousin wasintercepted by Iranian soldiers and imprisonedwithout food or water for two days.Only two weeks previously, a friend of SV wasintercepted by Turkish police trying to cross theborder illegally from Iran. He was taken to court andtold that he would be deported. Neither his family,friends nor UNHCR were able to access him indetention and, without a translator to assist him, hewas unable to make a claim for asylum. He hasbeen deported to Iran and his whereabouts areunknown.Case study three: SA, LondonSA is a 46-year-old Somali refugee who fled herhome ten years ago due to the ongoing conflict.She wanted to come directly to the UK because herchildren were already here, and she did not want totake the risk of travelling irregularly across twocontinents.“My mind it was here because my children they washere, yeah, I never ask somewhere else.”She applied for a visa to enter the UK while she wasin Ethiopia but her application was repeatedly refused.“In Ethiopia they told me you have to your child askyou… my son, he ask but they give negative... Idon’t know the reason, they give three times.”The only option she felt remained was to travel onto Sudan where she crossed the Sahara desertovernight into Libya.“It was so difficult but that is the Sahara, is so big,you can’t imagine what is the difficulties there, it’sso dry… how many people died… during myjourney not one died but on the way, you saw, onthe way the people died on the floor, there arebones, there are these things.”From Libya she took a small boat to Italy with 15other people, then travelled up through Europe tothe Netherlands, where she was able to get a boatto the UK. She was returned to the Netherlands bythe UK authorities but made another attempt to joinher family, trapped in a lorry on a small,overcrowded boat. Bad weather made the crossingimpossible and the boat was stuck in the dock forfive days.“it was Sunday night, they told me tomorrowmorning you get to UK 8 o’clock but… because itwas windy we stayed there. Sunday there, Monday,Tuesday… inside the lorry, we don’t have water, wedon’t have nothing inside and we feel scared thatwhen you go out you can’t come inside the lorry.And Thursday night about 9 o’clock and is come UKabout 1 o’clock like this. I was really sick […]. I goout, I say, no I can’t stay inside any more.”It took SA two years and US$2,000 to reach safety– and her family – in the UK.When her children left Somalia the journey wasmuch easier and cheaper.“that time it was easy, no, not like today. It was $100I think, the journey, but now $2,000, $3,000…everywhere is increasing… Before they didn’t lookvery well and, you know, and every country now has,yeah, border guards… it’s harder now. My childrenwhen they come to here, I pay one man, I give himmoney, they took them from Somalia to here,nothing problem.”Remote Controls73

Annexe One – Interview SchedulesUK based refugees1. Demographics and background information2. Routes and methods used2.1 When you left your country of origin, didyou know that you were coming to the UK?2.2 What route did you use to get to the UK?2.3 Did you choose the route?2.4 If you did not choose the route, who did?2.5 Can you tell me a bit about your journey?2.6 Did you come directly from your country oforigin or through a transit country?2.7 (If s/he come through a transit country) Howlong did you spend there?2.8 Did you receive UNHCR refugee statusoverseas before coming to the UK (not aspart of a resettlement programme)?2.9 Were you selected for resettlement?2.10 Did you feel that your life was in danger atany point during your journey to the UK?2.11 Did you arrive in the UK with any ID/travelpapers?2.12 If s/he did arrive with papers:a. What sort of papers? (passport/visa)b. If it includes a visa: What sort of visa?c. Where did you get the visa?d. Did you have to submit any biometricinformation for the visa?e. Was it necessary to use false informationto obtain it?f. Did you use your own passport? (was itfalse/use someone else’s)2.13 If s/he didn’t arrive with papers:a. Why didn’t you have any papers whenyou arrived in the UK?2.14 If s/he had a passport but didn’t arrive witha visa:a. Why didn’t you have a visa?b. Were you refused a visa?c. Was there a delay in getting the visa?2.15 How did you feel about travelling to the UKwithout the authorised papers?2.16 Did you rely on a network of some sort toget to the UK?2.17 Are you aware of networks in the UK whichassist the journey of family members/co-nationals to the UK?2.18 How long did your journey to the UK take?2.19 How much did the journey cost?2.20 Was this your first attempt to get to theUK?3. Experiences of border controls/interception3.1 Did you encounter any border controlofficers on your route to the UK?3.2 Did anyone in the airport check yourdocuments or biometric data before youboarded a flight to the UK?3.3 How were you treated by airline staff?3.4 Were you ever refused boarding by anairline?4. Refugee perspective on potential solutions4.1 What do you think the UK governmentcould do to make their border controlsmore sensitive to the protection needs ofindividuals like yourself?4.2 If you could, what advice would you give tosomeone from your country who is about to74 Refugee Council report 2008

flee persecution and considering coming tothe UK?UK immigration officials based overseas1. Background informationInformal discussion about ILO/ALO to gathersome background information.1.1 What is your title/role?1.2 How long have/were you been based in thehost country?1.3 Why were you posted there?1.4 Have you been based anywhere else –where?1.5 What is your professional background?2. Details of the job and responsibilities2.1 What does your job involve – can youexplain to me what you do on a day-to-daybasis?2.2 How much contact do you have withmigrants?2.3 How do you deal with migrants that areattempting to travel irregularly – how areborder control measures implemented inpractice?a. Is there access to legal advice,healthcare, translation, support agencies?2.4 Do you think that these measures havebeen successful?a. How do you measure success – whatcriteria do you apply?2.5 What is your perception of protectionissues within this context?a. Have you received any training?b. What procedures are in place to dealwith this?c. Have you ever encountered an asylumseeker?2.6 Are there any protected entry procedures inplace so that refugees can be issued ahumanitarian visa for entering the UK?3. Relationship with other agencies3.1 How do you coordinate with other UKagencies such as the police?3.2 How do you coordinate with otherinternational agencies, such as INTERPOL,FRONTEX?3.3 How do you coordinate with therepresentatives of other EU Member Statesin the host country and/or other countries?Remote Controls3.4 What sort of relationship do you have withthe host country authorities?a. How much do you cooperate on bordercontrols?3.5 How much coordination do you have withprivate carriers? What sort of relationshipdo you have?3.6 Are there any ‘high risk’ carriers?a. How do you decide who is ‘high risk’?b. How do you deal with them?4. Data gathering and sharing4.1 What sort of data do you collect on theirregular migrants that you intercept?4.2 Do you publish this data i.e annual reports?4.3 How do you share this data with other UKagencies and databases?4.4 How do you share this data with otherinternational agencies and databases, suchas EURODAC and other EU MemberStates?4.5 How do you share this data with hostcountry authorities?5. ILO/ALO perspective on potential solutions5.1 What do you think the UK governmentcould do to make their border controlsmore sensitive to the protection needs ofirregular migrants?Turkey NGO1. Details of NGO and client base1.1 Informal discussion about the NGO to getsome background information.1.2 How many refugees are there in [ ]?1.3 Where are the refugees that you assistfrom?1.4 What is the gender ratio?1.5 Do you deal with any vulnerable refugeessuch as women-headed households,unaccompanied minors, victims of tortureor trauma, people with disability/illness?1.6 Has the profile of the refugees you assistchanged over time?1.7 Do you have any access to refugees indetention?1.8 Do you have access to refugees in transit?a. Do you ever get calls from the transitlounge? How would you respond – what isthe process?75

1.9 How much freedom do you have toconduct your refugee support activities?2. Routes and methods used2.1 Do your clients talk to you about the routesand methods they have used to flee theircountry of origin?2.2 What geographic routes and methods dothey use?2.3 Do they have any control over this journey?a. If yes, why do they choose thisroute/method?b. If no, who makes the decision?2.4 How do these routes/methods differbetween clients?2.5 How do refugees from northern Iraq enterTurkey and what happens to them onarrival?2.6 Do your clients usually come directly fromtheir country of origin or through a transitcountry?a. If they come through a transit country,how long do they tend to spend there?b. Why would they stay there for thatperiod of time?c. Do they claim asylum there?2.7 Have these routes changed over recentyears?2.8 Do your clients travel alone or with thecompany or assistance of others?2.9 Can you tell me anything about smugglingagents and networks within and beyondTurkey?2.10 Can you estimate how many of your clientstravel with ID/travel papers of some sort?a. What papers do they have?b. Did any of your clients use false papersto get here?c. For the ones that don’t have papers –why don’t they have papers?2.11 Can you estimate how many of your clientstravel with a visa?a. What sort of visa?b. Where did they get the visa?2.12 Can you estimate how many of your clientstravel without a visa?a. Why don’t they have a visa?2.13 How long is the average journey to Turkeyfor your clients?2.14 How much would this journey cost?a. How do they find the money for this?2.15 Have the methods used to reach a safecountry changed over recent years?2.16 Do your clients talk about the dangersinvolved in their journey?2.17 Are you aware of any particular difficultiesexperienced by vulnerable groups such aswomen, children or the elderly, during theirjourney?2.18 What would happen to an individual whoattempted to enter Turkey in anunauthorised manner?3. Conditions in Turkey (questions apply to refugeeswith and without UNHCR status)3.1 What is the RSD process like in Turkey?3.2 How effective is the resettlement process?3.3 How do your clients supportthemselves/their families while they are inTurkey?3.4 What sort of support do they receive andfrom whom?3.5 What rights do they have?3.6 Do they experience any threats to theirphysical safety, either from Turkish orexternal agents?3.7 How does the local population respond tothe presence of refugees in satellite cities?3.8 How does the local/regional governmentdeal with the presence of large numbers ofrefugees in their area?4. Future plans4.1 Do your clients talk to you about theirfuture plans i.e to stay in Turkey or toleave?4.2 What do most of them intend to do?4.3 Where do they intend to go?4.4 What routes/methods do they tend to useto get out of Turkey? Can you give mesome examples/anecdotes?a. What are some of the risks involved?4.5 How much would a journey like this costand how do they fund it?4.6 Other than UNHCR resettlement, are thereany legal routes for refugees to leaveTurkey?4.7 Do any of your clients with UNHCR refugeeor ‘mandate’ status choose to leave Turkeybefore they are resettled?4.8 How long do your clients tend to stay in76 Refugee Council report 2008

Turkey before leaving?4.9 Do your clients rely on a network of somesort during their journey?4.10 What service does this network provide?4.11 Have you encountered clients who havemade multiple attempts to transit throughTurkey on their way to the UK or anothercountry?4.12 The situation in Turkey and other transitcountries has been described as a‘bottleneck’ due to the number of irregularmigrants forced to remain but with theintention of continuing on to Europe. Howwould you describe the situation?5. Experiences of border controls/interception5.1 Have your clients ever talked to you abouttheir experiences of border controls duringtheir journey?a. How were they treated/what happenedto them?b. Do you know of any cases ofrefoulement?5.2 What would happen to an individual whoattempted to leave Turkey in anunauthorised manner?5.3 Have any of your clients ever tried to claimasylum in an airport?5.4 How were clients treated by airline staff?5.5 Were any clients refused boarding by anairline?6. Perspective on potential solutions6.1 What do you think the UK governmentcould do to make their border controlsmore sensitive to the protection needs ofindividuals like your clients?Private carriers1. How do you implement border control measures?a. What sort of border control measures?b. Who has overall responsibility for bordercontrol?c. Who implements border controls on theground?d. Where does it take place?e. How do you respond when you encounter anirregular migrant?f. Do they have the opportunity to appeal/seeklegal advice?g. What is your response if they wish to seekasylum?Remote Controlsh. Is there any discretion?2. How have your border control responsibilitieschanged over time?a. Have you been receiving morepressure/demands from national bordercontrol authorities? How has this manifesteditself?b. How have you responded to thesedemands?3. What networks do you rely on to undertakeimmigration control?a. Airport Chaplains or other faithrepresentatives?b. Airport staff?c. Immigration staff from UK and host country?(ALOs/ILOs)d. Civil society, NGOs, legal advisors?e. International aviation networks?4. What is your relationship with national ALOs andILOs?5. Do you keep any records on irregular passengersintercepted by your staff?a. What sort of information do you record?b. How do you use/share this information?6. Which routes are particularly risky for you withregard to irregular migration?a. Why? Who is using that route?b. What do you do to mitigate against this risk?7. What are your main priorities/concerns withregard to border controls?8. Do particular airports have different procedures?a. How does the airline cooperate with airportstaff?b. Are certain airports less conscientious aboutborder controls?c. Are certain airport/immigration staff more orless diligent? Is corruption a problem?9. What impact has increased responsibility forborder controls had on your ability to provideyour services.10. How do you feel about being responsible forimmigration control activities?a. How have staff adjusted to the newexpectations/role?b. What is the position/attitude of the industryunion/association?11. What is your experience of carriers’ sanctions?a. From which State?b. How much did you pay?c. What were you required to do: return or77

forward transport?d. Is there any remedy/relief from fine if theperson enters the asylum system or getsstatus?e. What is required to become an ‘authorisedcarrier’ and is this realistic?f. How do you feel about obligations underCarriers’ Liability legislation?12. What is your awareness of protection issueswithin the context of border controls?a. What are your responsibilities towardsrefugees/asylum seekers? How do you meetthese responsibilities? How this beimproved?b. Are your staff trained on immigration andrefugee law and policy? Can we see atraining manual/schedule? Can we have avisit to see border control staff at work?c. How do your staff respond when theyintercept someone that they suspect may bea refugee? Do they have discretion to allowembarkation?d. Who do/can you refer to for assistance indealing with refugees?13. What would you find helpful in dealing withirregular migrants and in meeting the obligationsunder carriers’ legislation?a. What assistance from other agencies wouldbe useful?78 Refugee Council report 2008

GlossaryRefugeeArticle 1(2) of the 1951 Convention relating to theStatus of Refugees and its 1967 Protocol defines arefugee as a person who:“[…]owing to a well-founded fear of beingpersecuted for reasons of race, religion, nationality,membership of a particular social group, or politicalopinion, is outside the country of his nationality, andis unable to or, owing to such fear, is unwilling toavail himself of the protection of that country; orwho, not having a nationality and being outside thecountry of his former habitual residence as a resultof such events, is unable or, owing to such fear, isunwilling to return to it.”For the purpose of this report, we use the term‘refugee’ to describe any person who meets thecriteria set out in the 1951 Refugee Convention,something which necessarily occurs before thes/he gains formal recognition as a refugee(Hamood, 2006).Asylum seekerAn asylum seeker is someone who has left theircountry of origin and submitted an application to berecognised as a refugee but is still awaiting formaldetermination of their status. Article 14 of theUniversal Declaration of Human Rights establishesthe right to seek asylum.MigrantIn this report, the term ‘migrant’ includes all personswho move temporarily or permanently to anothercountry, including labour migrants and refugees,unless otherwise specified.Remote ControlsIrregular migrationIn this report, we use the term ‘irregular migration’rather than ‘illegal migration’ as it is less of a valueladenterm and more accurately reflects theexperiences of migrants who may, during onejourney, move in and out of formal regularity andirregularity (de Haas, 2007). Most ‘irregular migrants’enter destination countries legally, but becomeirregular by breaching the terms of their visa byoverstaying or working illegally. At the same time,many migrants who enter a country illegally canacquire legal status through some form ofregularisation (for example marriage or work). Wewill use a definition of irregular migration thatfocuses on the actual process of internationalmovement: “crossing borders without properauthority, or violating conditions for entering anothercountry” (Jordan & Düvell 2002 cited in de Haas,2007: 4). As such, we will focus more on ‘irregularentry’, also known as ‘clandestine entry’, rather than‘irregular stay’.InterceptionInterception has been defined by UNHCR as“encompassing all measures applied by a Stateoutside its national territory in order to prevent,interrupt or stop the movement of persons withoutthe required documentation crossing internationalborders by land, air or sea and making their way tothe country of prospective destination” (UNHCR,2000b: 2). This term is used interchangeably withsimilar terms including ‘interdiction’, ‘non-arrival’ or‘non-entrée’ measures and ‘extra-territorial bordercontrols’.Carrier sanctionsUnder the Immigration and Asylum Act 1999, the79

UK introduced a system of civil penalties to imposeon carriers that are found to have transported aninsufficiently documented passenger (a passengerwho does not have a proper passport orauthorisation to enter that country). In addition to afine of up to £2,000 per irregular passenger, carriersare also responsibile for accommodation,repatriation and other related costs. In order toavoid the fine, carriers must show that they havetaken adequate steps to identify and interceptpassengers attempting to travel without validdocuments.Airline Liaison OfficerUK Airline Liaison Officers (ALOs) are based inairports around the world, and work directly withairlines to reduce the number of inadequatelydocumented arrivals in the UK. ALOs supportcarriers in discharging their responsibilities underthe carrier sanctions regime, in order to avoidincurring a fine. They assist carriers by offeringadvice on the acceptability of documents presentedfor travel, and whether or not the airline is likely tobe fined if they allow embarkation.Refoulement is “return in any manner whatsoeverto a territory in which the refugee would be at risk ofpersecution” (see ‘The legal dimensions’, page 22).Trafficking and smugglingThere is a significant difference between ‘humantrafficking’ and ‘people-smuggling’ and the termsshould not be used interchangeably. Traffickingdescribes the irregular movement of people eitherwithin or across borders, for the purpose of financialgain. It is inherently coercive and exploitative,involving the threat or use of force and the abuse ofpower over individuals. 128 Smuggling also involvesthe illegal facilitation of border crossing but, inprinciple, it involves willing parties and does notimply the same level of abuse and exploitation astrafficking. 129 It is important to recognise that thedistinction between the two experiences sometimesblurs: people who may have willingly sought theservices of a smuggler in order to cross a bordermay become exposed to serious human rightsviolations along the way, and may even findthemselves the victims of traffickers when they aretrapped in exploitative labour in order to pay theirtransportation debt.128For a full definition see United Nations, 2000. Protocol toPrevent, Suppress and Punish Trafficking in Persons,Especially Women and Children, supplementing the UnitedNations Convention against Transnational Organized Crime,UNGA Res. 55/25, 15 November 2000.129For a full definition see United Nations, 2000. Protocolagainst the Smuggling of Migrants by Land, Sea and Air,supplementing the United Nations Convention againstTransnational Organized Crime, UNGA Res. 55/25, 15November 2000, [Smuggling Protocol], art. 3a.80 Refugee Council report 2008

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As a human rights charity,independent of government, theRefugee Council works to ensure thatrefugees are given the protection theyneed, that they are treated withrespect and understanding, and thatthey have the same rights,opportunities and responsibilities asother members of our society.This report can be downloaded atwww.refugeecouncil.org.uk240–250 Ferndale Road London SW9 8BBT 020 7346 6700 F 020 7346 6701www.refugeecouncil.org.ukBritish Refugee Council, (commonly called the Refugee Council) is a company limited by guarantee registered in England andWales, [No 2727514] and a registered charity, [No 1014576]. Registered office: 240-250 Ferndale Road, London SW9 8BB,United Kingdom. Copyright British Refugee Council (known as Refugee Council).