Reforming the international refugee protection system

Keep the Refugee Convention but break the link between the place where the application is made and the place the refugee is protected

I attended an event at the Social Market Foundation a few months back at which Professor James Hathaway gave a presentation on a proposal for reform of the international refugee protection system. A new briefing by the Social Market Foundation which draws parallels between Hathaway’s proposal and the tentative, outline plans for an asylum deal between the UK and EU by the Labour Party has provided a useful prompt to write it up.

Professor James Hathaway is one of the leading scholars of international refugee law. He has been an unflinching advocate for refugee rights throughout his long career. He writes clearly and speaks brilliantly. His Twitter commentary is always astute and on-point. He’s an inspiration. He was also generous enough to provide some nice remarks for my refugee law textbook.

So when Hathaway advocates reform of the refugee protection system, it’s worth listening.

The Hathaway proposal

In short, as Jonathan Thomas writes for the SMF, under Hathaway’s proposal, “the state where the asylum claim is made is merely the place at which the claimant enters the international asylum determination system.” To put it another way, the place where the asylum claim is made would not necessarily be the place where the refugee would be resettled, basically.

There are currently thought to be around 30 million refugees plus a further 6 million stateless Palestinian refugees. The rationale behind Hathaway’s proposal is that the current system, such as it is, does nothing to assist the vast majority of these refugees. Far too many end up residing for very protracted periods in camps; around 23.3 million refugees and other people in need of international protection are classified as being in a “protracted situation”, meaning they had been displaced for longer than five years. Meanwhile, only 114,300 refugees were resettled last year.

Essentially, it is only those refugees who have the resources to travel onward to seek asylum in a rich country who can benefit from the Refugee Convention at present, and they must risk life and limb to do so. Meanwhile, rich countries are not prohibited by the Refugee Convention from doing everything they can to prevent entry by refugees.

A fortune is spent by those rich countries both protecting their borders and then processing the relatively few asylum claims that are made. Comparatively, very little money indeed is spent supporting the vast majority of refugees.

Hathaway proposes that the money currently spent by rich countries is diverted to poor countries to care propoerly for refugees for a set period of time. If after five years of their original flight a refugee has not returned home (around one in four refugees do currently return home within five years) then a refugee would be entitled to be resettled to a rich country.

The idea is that rich countries would gain by being able to remove refugees from their territory. This would eventually reduce or even stop major flows of refugees. Refugees eventually resettled to those rich countries would enter in a planned way, as for example with the Ukraine and Hong Kong schemes and the existing resettlement scheme, all of which have considerable public support.

Poor countries would gain by having refugee camps properly supported and paid for and by a guarantee that those refugee camps would be temporary. The camps would eventually be emptied through a far larger resettlement scheme than we’ve ever seen previously.

Refugees would gain by being guaranteed resettlement if they still want it after five years.

The only losers would be those refugees who hitherto have been able to travel. And also the smuggling gangs, who would see a marked reduction in business.

The prohibition on refoulement would remain in place, so that a lone refugee from a country without adjacent refugee camps could still try to reach a rich country to apply for asylum and avoid being sent anywhere they would be persecuted.

Don’t mention Rwanda…

Does this sound like the UK government’s Rwanda Plan to you?

The first thing to point out is that Hathaway’s proposal dates back to 1997. It long pre-dates the UK’s Rwanda Plan. The two ideas have very different geneses. They are animated by very different imperatives.

That said, they still look quite similar to me.

I think Hathaway would say that his proposal is different because it would be multilateral, part of a treaty framework and the safe third countries would not be permanently responsible for hosting refugees. Removal from rich countries would also only take place to actually safe countries, which Rwanda very strongly arguably is not for the reasons spelled out by the Court of Appeal. The refugee camps or accommodation in which refugees had to remain would be properly funded.

On an emotional, visceral level, my objection to the Rwanda Plan is that it involves forcing refugees onto a plane to a poor country with which they have no connection at all and in which they have no realistic cultural, social or economic future. And it is done to punish them in order to deter others.

A good litmus test for whether a refugee has been resettled in an appropriate way might be to ask whether they would be happy for their family members to join them. The answer with Rwanda is surely “no”.

Hathaway’s proposal addresses the second of these issues, at least to some extent. But if Hathway’s plan were to be implemented, it would still involve forcing refugees onto a plane to a poor country to which they have no connection. The fact that they would be resettled in five years’ time would probably be scant consolation to them at the point of removal.

I’m no moral philosopher, to put it mildly. But I’m uneasy about requiring individual refugees who do manage to reach a rich country to sublimate their own interests in favour of the greater good of other, unknown refugees.

Refugees are not a homogenous group. They come from all regions of the world and, as refugees, they share no common bond. There is no reason for them to have a sense of collective solidarity, perhaps other than to some refugees from their own country.

We may think, from a position of privilege and comfort, that it would be much better on a global scale, and taking humanity as a whole, to adopt Hathaway’s proposal. It clearly would be better! But it would also be pretty harsh on the individual refugee who tries to exercise their own judgment in their own interests.

Is this compatible with the Refugee Convention?

While I’ve used the world “reform” the refugee protection system, the argument is that this is entirely compatible with the Refugee Convention, which would remain in place. Rather, a new layer to the existing system would be added on top.

The Refugee Convention does not on its face require states to process asylum claims nor does it include a duty to allow refugees to remain in a territory they manage to reach. It is therefore possible for a country to remove an asylum seeker to a safe third country to have their claim decided there. Indeed, this is how the Dublin system works within the European Union.

The judges in the Rwanda case have so far proceeded on this basis. The issue still to be decided in the Supreme Court is not whether removal to a safe third country is lawful in principle but whether Rwanda is actually a safe country or not. Or, perhaps, how far judges should be permitted to review that question for themselves.

So Hathaway’s scheme is compatible with the Refugee Convention. One would expect as much given its progenitor, one of the leading scholars of and authorities on international refugee law.

Could it work?

I have my doubts about whether such a scheme would ever work in the way intended.

Clearly, there would be considerable obstacles to negotiating such a scheme in the first place. The whole Global Compact process launched in the aftermath of the Syrian and Venezuelan refugee crises has nothing concrete to show for it, as Hathaway himself has repeatedly observed.

Perhaps if the UK did proceed with the Rwanda Plan and other countries expressed an interest in participation either as senders or receivers, some sort of multi-lateral system might eventually, messily emerge that way.

Let’s say the hurdles can be overcome. What then? What would the system look like in practice?

As I’ve discussed on this Substack previously, one of my expectations for the implementation of the UK’s Rwanda Plan is that many refugees will evade the authorities. They will try to enter by clandestine means without ever reporting to the authorities. If they are detected, they will disappear unless detained.

That is not how things work at the moment. Refugees want to be detected once they are within the jurisdiction and they want to claim asylum. If the Rwanda Plan is implemented that would change.

The same would surely be true if Hathaway’s proposal were implemented. Individual refugees aren’t going to cooperate for the greater good of other utterly unknown, unrelated refugees. States would therefore not be able to make the savings that Hathaway anticipates, border security measures would remain in place and access to protection would be as challenging as it is today.

One of the premises of the scheme seems to be that the current proportion of one in four refugees will be able to and want to return home within five years. It is not clear to me that this figure would remain the same if there was a guarantee of resettlement to a rich country after five years.

I also find it difficult to imagine rich countries sticking to their end of the bargain. The scheme would have to prove very effective at preventing refugee flows for them to want to participate and I have my doubts about that. A country like the United Kingdom would also perhaps have less reason to participate because it might fancy its chances at just keeping refugees out in the first place or exporting them elsewhere on a bilateral basis without committing to any concomitant inward resettlement.

I’ve no doubt the current system works very badly for most refugees. Hathaway’s proposal is creative and it is consistent with the Refugee Convention. But it just doesn't seem very likely to work to me.

Have I got a better idea? No, I haven’t.

It is all very well for us to exhort rich states to do more and resettle a far greater proportion of refugees. But there’s no real incentive for them to do so. The past record of dismal failure speaks volumes for the prospects of future success.

The Refugee Convention isn’t great. It confers almost no rights on seekers of asylum. It imposes only very minimal requirements on states: basically not to refoule refugees into a situation of serious danger. Personally, though, I just cannot see a way forward beyond this failing system.

Is this what Labour is proposing?

Also in a word, “no”. With all due respect to Jonathan at the SMF, I don’t think Labour is proposing anything resembling Hathaway’s scheme.

As far as I can see, Labour is proposing potential participation in the European Union scheme that replaces the Dublin system. You can read a little about the EU proposals here and here, for example. As I understand it, the proposed system has two key elements. I have not been following this particularly closely, so I stand to be corrected on what follows.

Firstly, periphery states like Italy would be permitted to carry out more perfunctory returns at the border with some, perhaps theoretical, protection against the possibility of refoulement. The idea is presumably that this would reduce the number of refugees actually entering.

Secondly, interior states would commit to resettling (or at least assessing the claims of) those refugees who do enter the periphery states. Where an interior state is unwilling to offer resettlement places, it would make payments into a joint EU fund instead. Presumably that money would then be channeled to the periphery states to support their asylum systems.

There is nothing about this system that would improve access to asylum, unlike Hathaway’s proposal. And it would do nothing to help the vast majority of refugees around the world, or the poor countries in which they are currently hosted.

It is not clear how the UK might participate in this new EU scheme or on what terms. Unlike the Dublin system, the new scheme is not being negotiated with UK interests or participation in mind. But it is not hard to imagine that the UK could potentially offer resettlement places and/or payments on the basis that the UK would be permitted to return asylum seekers to France or to the EU.

If that were so, returns to France would have to be very rapid after arrival. The legal mechanisms for carrying out near-instant returns would look a lot like the Illegal Migration Act 2023: detention pending removal with a brief review of risk of breaches of Article 3 ECHR in order to comply with human rights law. But with France being the safe third country instead of Rwanda.

If the EU does become interested in something more akin to Hathaway’s proposal or the UK’s Rwanda Plan then Labour would no doubt be interested in participating. But that’s not on the table at the moment.