Conference of European States (Chapter 4)

It is now Wednesday morning 29 June 2016.  If you have read Chapter 3, you will know that I am here embarking on a highly speculative voyage of the legal imagination – but I believe that, if we are to make sense of the present European morasse over freedom of movement, we must do some generic thinking first, about the entire global framework for migration management […if you want to go back to chapter 3, the navigational arrows are at the foot of this text]. 

Let me emphasise that I am now addressing the drafting of a UK Migration Management Bill, to be drafted within all the constraints of the UK’s Treaty obligations and other prevailing legal norms, to go to the Westminster Parliament.  While this legislation would have to take account of any commitments given (by “treaty”) in the course of future Art.50 negotiations within the EU, none of this would be negotiated with the CES, if it were ever to be formed.  The UK would be exercising its sovereign right to control its own borders.

My starting point is this.  It appears to me that, in the years since 1950, the institution of the “sovereign state” has become the world’s dominant political entity, simply because it has resonated most closely with the peoples of the world.  This dominance must be fully acknowledged.  The “nation state” has expanded, in response to popular demand.  Even the Muslim insurgency of Da’esh claims “state” status for its Caliphate.  And billions of our fellow inhabitants now have firm ideas of what constitutes such “statehood”: the very concept carries with it powerful elements of sovereignty, nationality, territorial identity, and of governmental supremacy within each “state territory”.

It was not always thus.  In 1950, in the aftermath of the awful WWII “between states”, culminating in the brutality of Hiroshima and Nagasaki, many had severe doubts about the wisdom of using the “state” as the primary building-block of post-War order.  In 1951, as a teenage member of the UK’s UNA Youth section, I attended the first General Assembly of the United Nations which was held in Paris at the Palais de Chaillot.   The Youth Section (which I represented, as an “Observer”) was called “The Council for Education in World Citizenship”.  That title was no empty slogan: the genuine expectation was that the United Nations would generate new supra-national solutions which would overcome the causes of war between nations.  Inter-nationalism was not enough.

It has not turned out like that.  Nation states have thrived.  Indeed, the United Nations has been swamped by a membership of 193 sovereign states.  The UN is now almost completely ineffective, incapable of decisive action.  The UN has been crippled by the overwhelming success of the sovereign nation-state.   But it was in the early 1950s that the present supra-national institutions of Europe were first planned: they have their origins in the wave of post-War idealism which I well remember, and which characterized the 1950s.  I well remember the founding of the Coal & Steel Community, in the early 1950s – that grew into the European Economic Community, and the then European Union.  Since then, however, it is the “nation state” has clearly won the tussle for influence, among constitutional entities – it is now the “political institution of choice”, the world over.  Everybody wants to be a “citizen” of a state, indeed those who are without a patron-state are at a severe personal disadvantage – particularly as the “welfare state” has also gained traction during the same period, and citizens have come to be seen as “beneficiaries” of their patron-state.  Hence UKIP.  Hence the majority for BREXIT.  Hence Marie le Pen.

There is now no realistic alternative to accepting the “sovereign welfare state” as the principal constitutional building-block of this planet.  The problem for “Europe” is that the key supra-national institutions of the European Union are themselves a throw-back to the 1950s, and have been bypassed by more recent developments.  It is a process which I have lived through, step-by-step, since the age of 15.

• It is to the resolution of that dilemma that my “CES” proposals are addressed.

Thus it is that, as a left-wing political pragmatist, I argue for the right of every sovereign state to control its own borders, so far as that is possible in practice.  I say that all Europeans should recognize the powerful emotional forces that are at play in this debate, modify their institutions accordingly, and move on to decide how to give effect to this sovereign right.  Such a change would transform – at a stroke – the political climate throughout Europe.  In the formation of the CES, there would be no room for the “free movement of labour”.  Every grant of state citizenship and its attendant rights, every grant of residency, the issue of every work-permit, should be vested solely in the host-state, within the framework of its own laws and treaty commitments.

Within the CES, the UK Government (representing the UK sovereign welfare state) would thus have to formulate its own “migration management” policies.  For all the other members of the CES, the position would be the same.

Let me first clear the ground.  Although political posturing seeks to persuade us otherwise, it is literally impossible to “manage” all inward migration.  Not every migrant presents tidily at a Home Office, ready to cooperate.  Let me explain.  I want you to imagine yourself as a Home Office official, sitting in a small booth or office, confronted with a person “without papers”, without legal representation, speaking little or no English, afraid of anyone in uniform, and indeed reluctant to speak at all. The applicant may have been found by the Police, in a lorry on the M4, or cooking in a takeaway, without any status documentation.  There are migrants who simply slip into the UK informally, or come as visa-holders and overstay, who never take action to apply to the Home Office at all – they are simply classified as “irregular migrants”, and may not fall into any formal legal pigeonhole.  They are not likely to appear at the Home Office unless arrested by the Police and taken there.

Those appearing before you may just have learnt how to say “I want asylum” – which means that you are Treaty-bound to afford them a fair inquiry and hearing.  If you can satisfy yourself that you know what language the person is speaking, you can try to arrange an interpreter – it is rarely practical to keep a large team of interpreters near the office, and so you must provide accommodation for that person until you can arrange a future appointment, with an interpreter: if the person comes with children or other family members, the complications are multiplied.  The applicant may abscond before the interview appointment.  The administrative path can be difficult, and fraught with pitfalls.

But once all these hurdles have been overcome, the “Asylum Interview”  can begin.  There are then basic interrogatory hurdles to overcome.   “Where is your passport?  If you have none, have you ever had a passport?  If Yes, why do you not have passport with you?  Where are you from?  More specifically, which state do you come from?  What is your home-state, or “country of origin”?  How did you travel to England?   Where and how did you enter the country?”

(1)        One of the problems faced by “the system” (i.e. all organized “Western” states), is that of personal statelessness.  The very proliferation, since 1950, of a plethora of nation states has led to unprecedented levels of statelessness, throughout the world. Every nation state is free to determine its own rules for the acquisition of formal “nationality”, and that has resulted in a global wave of statelessness, now estimated by the UN Refugee Agency to have reached 65m people (if one includes internally displaced persons, who often have difficulty establishing their nationality).   Some of them are bound to end up in your office.  They are important, because if applicants for protection are genuinely stateless, it will be impossible legally to deport them, whatever your conclusions: it would be a breach of their human rights.  If they are truly “stateless”, then wherever they are sent, in an increasingly “managed” world, they will quickly be flown back to the UK. The stateless person is likely to stay in the UK, simply because no lawful deportation option is available to the Government.

• So: as a matter of diplomatic priority, the UK should negotiate (preferably within the UN) the establishment of an international forum for the judicial assignment of stateless applicants to their “most relevant and likely state”, with appropriate appeal rights. This problem cannot be allowed to mushroom further.  A UK Migration Management Act should include measures to reduce the systemic international problem of statelessness.

(2)        Difficulties of “proof”   Let’s assume that all “Point 1” problems have been overcome, i.e. that the applicant is definitely from country XZ and is definitely a citizen of the XZ State.  The next question are – “Do the circumstances (as established by the evidence) justify extending to the applicant the protection of the UK State?  What has actually happened to the applicant, and what future would s/he be likely to face, upon return to XZ State?  What is the evidence of current events in XZ?”    UK common law has developed a special legal solution to this difficult evidential problem. 

If the issues were of criminal liability in a UK Court, the test would be one of reasonable doubt   i.e. “Does the evidence establish beyond reasonable doubt that the Applicant was mistreated?”   Or if the same question were raised in civil proceedings (e.g. for damages) the question would be “Does the evidence establish on the balance of probabilities, that the mistreatment occurred?”   Neither test is appropriate for refugee claims – it is so difficult to know what actually happened, in a distant foreign country, months or years earlier, often in secret without witnesses. You would not be able to consult the XZ Authorities, because that might put the applicant in grave danger. And so UK common law has developed a modified test of the evidence in refugee cases, namely “Is it reasonably likely that the mistreatment occurred?”

• I favour the UK common law solution, and have no quarrel with it.  However, the “reasonable likelihood test” is difficult to apply, and demands real legal skills – which are often denied to applicants when challenging the Home Office, because asylum-applicants are often left without Legal Aid.  We should follow Scotland’s example, and insist that a lawyer taken on by a refugee with Legal Aid should stay with the Client until the end of appeal proceedings, and be properly paid.  In England and Wales, Legal Aid is commonly withdrawn from an asylum applicant before an appeal is submitted.  In any comprehensive UK Migration Management Act, these issues should be fairly and coherently resolved.

(3)        Managed Migration:  The large majority of applicants appearing before you will be those relying on a visa stamped in their passport, giving only limited room for miscarriage of justice – the applicant seeks to enter the UK to work, to discharge religious duties, or to study, or to visit family, or get medical treatment, and s/he will have applied for permission to a local UK Embassy, whose staff are well-placed to judge the accuracy and honesty of the application. These constitute the “Managed Migration” sector of Home Office’s work, with a comparatively low-level of malfunction.  Any new post-Brexit “points-based system” to regulate work-permits would fall within this procedural category.  It poses no systemic problems, as a matter of legal principle or practice.

• I will argue that this procedure should be used more extensively in future, for a wider range of cases, which should be included in a new UK Migration Management Act.

(4)        Asylum   Asylum-seekers fall into a distinctive and well-defined category of applicant: they have to make their case for UK protection under the specific terms of the 1951 UN Refugee Convention.  Once a person has claimed “asylum”, the Home Office is under a positive obligation to investigate fully the circumstances of the case, and if appropriate to make a grant of “Indefinite Leave to Remain”, bestowing on the successful applicant extensive welfare rights and benefits straight away, by operation of the 1951 UN Treaty.  To be successful, an asylum applicant must prove a “well-founded fear of persecution” by  home-state authorities, which would occur if sent back “home”.  The Judges over the years have insisted that “persecution” means some form of serious malevolence, targeted at the applicant personally or at category of people to which s/he belongs.  It is much more than social unpopularity or occasional verbal abuse.  It is not an easy test to satisfy before a civil servant or a judge.  But a successful asylum claim brings considerable certainty of outcome, because the 1951 Convention spells out in detail the rights of the applicant against the host state, if the claim is successful.

• These asylum proceedings are relatively well organised in the UK, but they cover only a small proportion of the applicants coming before the Home Office .  I do not suggest that legislation should interfere with current judge-made asylum law, which is developing satisfactorily.  Their principal failing (in England and Wales) is the unfair denial of Legal Aid for appeal tribunal proceedings.

(5)        Human Rights Claims  These are different from asylum claims (although a single case may raise both types of claim).  And they usually arise, not on arrival in the UK but on a deportation or removal order to send a migrant home – whatever the circumstances of his UK arrival or stay.  An example of this was the refusal of the UK and Strasbourg courts to permit the return to Jordan of Muslim preacher Abu Qatada in the 2011/13 period, who was threatened with judicial proceedings in Jordan which could have included evidence obtained by torture – which would have breached his human rights.  The preacher had lived legally in the UK for several years, and married here: he often preached inflammatory and provocative sermons, but had never been prosecuted.  Jordan then sought to extradite him for trial in Jordan, and he claimed that his Human Rights would be infringed if he were returned to Jordan.  That claim was upheld by the UK Courts on several occasions – until the State of Jordan finally gave acceptable assurances that he would be accorded a fair trial.  Other categories of Human Rights claims preventing a just deportation or removal from the UK [e.g breach of family rights (ECHR Art 8)] should be accommodated within a new UK Migration Management Act.  And the Act should spell out the legal consequences for the individual applicant of a successful Human Rights claim: I would argue that the applicant and his family should be entitled to the option of a five-year period of certain residence in the UK, to enable her/him to get on with life (and the family’s life) in the UK – but that would be a matter for debate.

• This would be a wholly new legislative initiative for the UK, and would be breaking new constitutional ground, moving into a sector hitherto retained within the scope of the Royal Prerogative.

(6)        Refoulement    This is part of the early 20^th-century body of refugee law, similar in character to a “Human Rights claim” above.  It became recognized, even before WWI, that if refugees were fleeing war or civil war or systematic oppression it would be wrong to send them back to the conditions that they were fleeing from.  Refoulement is a French diplomatic term, because French was still at that time a key language in diplomatic circles: it became illegal to refouler such refugees and the League of Nations developed this doctrine in the inter-war years.  But as a legal principle, it has a key defect: it identifies what must not be done, but says nothing positive about the refugee’s situation: a host country remains free to decide how to treat such refugees within their borders, what rights and benefits to accord to them.  That haphazard response is evident in the current treatment of the Syrian refugees in Europe, none of whom are “asylum-seekers”, but all of whom rely on the illegality of refoulement.

• The development of the doctrine of refoulement should form part of a new UK Managed Migration Act.

(7)        Motive of Self-Improvement   My own experience as an immigration lawyer confirms that the “desire for a better life” is a strong driving-force among young migrants, fuelled by TV, international news coverage, and conditions of real poverty and lack of opportunity “back home”.  Any new UK Managed Migration Act should provide for this form of “elective migration”, which is driven by positive aspiration, not by persecution or by war.

• This would be an entirely new “path-of-entry” to the UK, which has no present correlate.  I recognize that it would be for the UK Government to determine the size and other characteristics of “annual quotas”; also that there could be “waiting lists” carrying over from year to year; I think this should be considered a form of managed migration, and applications should be processed by UK Embassy staff, as with visas – this is where a new “points-system” would be introduced.
• We should develop the option of “citizen sponsorship”, and we should examine the experience of Canada, which has operated such arrangements: refugee and community organisations could be offered the option of guaranteeing to meet the marginal “state costs” (health insurance, costs of schooling) of an elective immigrant for a period of (say) three years, while the immigrant sought work.
• This would be a wholly-new departure for a European state.  But in my view, in a system in which each state unambiguously retained the right to manage immigration, economic success would accrue to those states which had the courage to plan for population growth and to welcome newcomers.  A modern developed state ought to be able to accommodate, each year, an increase of one-half of 1% in its population by immigration, and should plan accordingly. That is my personal judgment, and I recognize that the precise level of any such percentage would be fiercely debated.   Also, I think that English language training should be made universally available, at low charges, and local adjustment grants should be made to local authorities and agencies in areas of migrant settlement.

(8)        Climate change refugees   Finally, global migratory flows will in future be increased by climate-change.  We must all prepare for the inevitable displacement of population which climate-change will generate.  This challenge currently forms no part of our thinking about immigration, but the whole subject (and the need for a global system of reception quotas, with funds being made available to assist the poorer “reception states”) should be on the political agenda for a UK Managed Migration Act.

• I do not claim to have any answers on this front.  As with statelessness (Point 1 above) I suspect it will be necessary to proceed by way of United Nations initiative, and that will not be easy.  But the thinking should be starting now.

I believe that a management system along these lines would in principle apply to the citizens of other European member-states of the CES exactly as they applied to non-European citizens, although there would clearly be room for negotiation, and for some differentiation, on this point.

If any lawyer reading this would be prepared to work with me on this project, will you let me know?   Somebody has got to make a start….

Roger Warren Evans

Barrister-at-Law [Retired]

23 St Peter’s Road  Newton  Swansea SA3 4SB    Tel: 01792-366134   roger@warrenevans.net