The "terrorist threat" and the end of asylum

Frances Webber

After suffering displacement, immiseration and political repression at home, refugees who manage to get to Western Europe in defiance of all the laws, practices and barbed wire fences erected to keep them out now find themselves treated as criminals and terrorists.

Refugees have been equated with terrorists before: in the 1980s, the opening up of internal borders within Europe was predicated on fortifying the external borders against "drug traffickers, refugees, terrorists and other undesirables" (in the words of a Home Office memorandum).

In the early 1990s, the French cracked down on Algerian FIS (Islamic Salvation Front) activists, many of whom were rounded up and deported to poor African states such as Burkina Faso. When Tansu Ciller was Turkey's prime minister, she went around Europe buying arms and telling governments to ban the PKK (the Kurdish Workers' Party), which the German government did. In Britain, the PKK weren't banned in the 1990s, but Kurdish refugees were quite closely monitored. There were a number of famous raids on this Kurdish Community Centre under anti-terrorism legislation.

But in the aftermath of September 11th, it has become much easier to tar refugees with the "terrorist" brush, and to use the label to begin the process of closing down protection of refugees altogether. The 1951 Geneva Convention on refugees has never applied to people who can genuinely be described as "terrorists": the Convention excludes from protection anyone guilty of the sort of actions that create refugees.[1]

In Britain, the government has narrowed the definition of refugee and widened the exceptions to refugee status by reference to a broad definition of "terrorism" in the 2000 Terrorism Act. The Act defines "terrorism" so widely that it embraces street protest, and denies that there is such a thing as legitimate political violence in support of self-determination, although self-determination is held by the UN Covenant on Civil and Political Rights to be a fundamental human right.

Offences under the 2000 Act include supporting or inviting support for a banned organisation, which carries a maximum ten-year sentence; failing to report suspicions about others' activities; and wearing or displaying anything suggestive of support for a banned organisation. The Proscribed Organisations Order made under the Act banned a total of 21 organisations in Britain, including not only Al- Qaida but also organisations like the PKK and the Tamil Tigers, groups that started off at least as genuine liberation organisations and symbolise for hundreds of thousands of non-violent supporters the right to self-determination.

The 2000 Terrorism Act has had a huge impact on asylum seekers, particularly those from, for example, Algeria, Egypt, India, Sri Lanka and Turkey, whose fear of persecution is based on their support of a liberation movement in their country. If they tell the immigration officer of their support for what has become a banned organisation in the UK, they risk Special Branch investigation and possible arrest. If they don't, they have no asylum claim. Additionally, the banning of these organisations in the UK legitimates their own governments' ill-treatment of them in the name of counter-terrorism. The UK Home Office line on Kurdish, Tamil and Sikh appeals is that what these asylum seekers fear back home is prosecution, not persecution; their own government, it argues, is perfectly entitled to detain and investigate them and if in the process they are beaten or subjected to other physical brutality, well, that's a regrettable lapse but doesn't amount to persecution. (Other harsh reasoning for refusing asylum includes the twisted logic that survival itself proves the absence of risk.)

The argument that indefinite detention without trial of a political opponent is perfectly justifiable on national security grounds received even more impetus with the internment provisions of the 2001 Anti-Terrorism,Crime and Security Act (ATCSA). This authorises the indefinite detention of foreigners who are "suspected international terrorists" (according to a formula known only to Home Secretary David Blunkett and the MI6 intelligence agency) and who cannot be deported. To push this law through parliament, the government had to derogate from the right guaranteed by the European Convention on Human Rights and the UN Covenant not to be detained without trial. This can be done only if there is a "public emergency threatening the life of the nation". This derogation has now been in place for over a year, and about a dozen foreign nationals against whom there is insufficient evidence to charge with criminal offences have been detained ever since. Their status as suspected terrorists excludes them from having any claims to refugee status determined.

The climate created by these measures has infected the adjudicators and the courts. One of my cases involved a Kurdish man who had been arrested and tortured by Turkish police and charged (and convicted and sentenced in his absence) of support for terrorism after some friends who were in the PKK (its political, not armed, wing) stayed in his house for a couple of nights. The UK adjudicator, hearing his appeal, expressed her concern that as a "war criminal" he ought to be excluded from refugee protection.

The 2002 Nationality, Immigration and Asylum Act extends the exclusion from refugee status still further by providing that anyone convicted of a crime carrying a sentence of more than two years can be excluded from refugee protection as a "danger to the community". In addition, the climate of panic has also permitted the government to enact measures in the 2002 Act designed to segregate asylum seekers completely from the rest of society in "induction centres", "accommodation centres" and "removal centres". The purpose of this segregation and detention is to render asylum seekers invisible in society and to prevent them from integrating in local communities, so as to make their removal easier, an objective pursued single-mindedly and without any thought for the consequences on traumatised individuals or for the communities.

All these measures are part of the new national security culture permeating decision-making. The breadth of the definition of "terrorism", the creation of offences based on association with "proscribed organisations" rather than on actual involvement in illegitimate political violence, and the failure to distinguish between terrorism and non-violent political activity all contribute to the erosion of refugee protection.

The aim of all these measures is deterrence and exclusion of asylum seekers. It has nothing to do with threats of terrorism, and everything to do with the demands of globalised capital, for which the free movement of poor people is anathema. David Blunkett's predecessor as Home Secretary, Jack Straw, spoke of plans to export asylum processing altogether, as the Australian prime minister, John Howard, did when he prevented the ship, MV Tampa, with its humanitarian cargo of 400 Afghan refugees, from landing in Australia in September 2001 and sent it to the Pacific islands instead for refugee processing, later changing Australia's laws to legalise the process. Straw noted the potential of keeping asylum seekers in camps abroad and having their claims processed by the UN High Commissioner for Refugees (UNHCR), only allowing in to Britain those deemed by UNHCR to be genuine. He justified the plan by pointing out that this would redress a complaint campaigners have had for many years - that there is no legal way that refugees can get to the UK because of visa controls and carrier sanctions. But likely drawbacks include a tight annual quota and, eventually, summary refusal at the border and removal of asylum seekers who try to bypass the system.

The 2002 Act contains provisions to implement this process, with no appeal rights for those rejected by UNHCR. These camps could be a re-run in Pakistan, Turkey and Russia of the dreadful, overcrowded and squalid camps of Hong Kong where Vietnamese boat people languished for years waiting for refugee determination and resettlement.

Frances Webber is a barrister specialising in refugee and immigration law and active in the Campaign Against Racism and Fascism (CARF).

[1] The 1951 Geneva Convention is the foundation of international protection of refugees. It defines a refugee as someone outside their own country unable or unwilling to return owing to a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Convenion gives refugees residence and civil, economic and social rights in the country of refuge. In terms of security concerns, a person responsible for situations or events that produce refugees - someone who has committed war crimes, serious non-political crimes before arrival, or acts contrary to the purposes and principles of the United Nations - was always excluded from protection under the Convention. At the same time, under the International Covenant on Civil and Political Rights, and in Europe, under the European Convention on Human Rights, states are obliged not to send anyone to a country where they face a real risk of torture or inhuman or degrading treatment.

 

Click here to return to the main menu