The fall of Kabul to the Taliban in August 2021, projected the refugee crisis back onto TV screens and into our consciousness. Given the United Kingdom’s moral and legal commitments to human rights, the question begs: legally and politically, what is the UK doing to aid the ever-growing refugee crisis? Moreover, is it enough? An examination of the situation reveals that the UK’s response is far from adequate. While significant efforts with aid and diplomacy have been made to ease the crisis abroad, this has not been enough to have a positive effect. Further, while domestically, legal structures exist to protect refugees with indefinite leave to remain in the UK, the process is onerous and exclusive. Rather, stronger legislative structures and better policy positions are needed.
What is the issue and why is it serious?
In the midst of the human and economic devastation of the COVID-19 pandemic, the harrowing images of devastation in Kabul brought back the world’s ever-growing refugee crisis into the collective consciousness, and to the forefront of policy debates once more. Indeed, the Afghan refugee crisis itself has been long looming.
Since the Taliban’s formation in the 1990s, their control over Afghanistan, and other parts of the Middle East, has fluctuated from a tenuous to tight hold. Yet, despite this fluctuation, the Taliban’s human rights atrocities have been ever-present. The Taliban is a Sunni Islamist nationalist and pro-Pashtun movement founded in the early 1990s. They initially ruled most of Afghanistan from 1996 until 2001, where a US-led military coalition launched attacks in Afghanistan, collapsing the Taliban regime by early December. During this 20 year interim, the Taliban were increasingly aggressively moving into many parts of the middle east. For example, suicide and complex attacks increased by 78 percent in Afghanistan in the first six months of 2015 compared with the same period in 2014[1]. The gravity and scale of these attacks increased where the Taliban staged a rapid advance and captured the capital of Kabul in August 2021, and Afghanistan feel to Taliban rule once more.
The Taliban's ideology has been described as hybrid of Sharia Islamic law based on Deobandi fundamentalism and militant Islamism. These beliefs involve a fundamental breach of a range of human rights including gender equality, to free from cruel and degrading treatment, and freedom of expression. For instance, under the Taliban’s rule, public executions and floggings are common, and women are mostly barred from working or studying.
It is clear that the reign of the Taliban has and is causing political, economic, cultural and social human rights devastation. In a briefing paper delivered to the House of Commons in September 20201, the UN warned in July 2021 that “Afghans face a potential humanitarian crisis”. Now, three months after the fall of Kabul, this crisis has indeed been actualised. The paper also detailed concerns about the effect of the conflict on women and children, the increasing numbers of internally displaced people, and the impact of Covid-19 and food shortages. In September, the UN Development Programme warned that Afghanistan may see a 97% poverty rate by mid-2022 if it experiences a significant interruption to international trade with all its partners[2]. Moreover, the crisis has also resulted in the mass displacement of vulnerable Afghans, rendering it a mass refugee crisis. The total population of Afghanistan is around 40 million, yet, by the end of 2020, there were 2.9 million Afghans already displaced[3] across the country. By mid-July, this rose to 3.5 million[4]. As at June 2021 there are roughly 2.5 million UNHCR-registered refugees [5] from Afghanistan globally, of which the majority—2.2 million—are being hosted by Iran and Pakistan.
While devastating, the displacement of Afghans is only but a small part of the much greater refugee crisis. Amnesty reports[6] that there are 26 million refugees globally, half of which are children.. These figures are a result of the copious number of other humanitarian crises which have resulted in refugee crises. For example, the Israeli-Palestine conflict (1948-) which has displaced at least 1.5 million Palestinian[7]; South Sudan (2013) which has displaced over 2 million peoples[8]; the Rohingya refugee crisis (2015) which has displaced at least 1.1 million [9]; as well as the Syrian Crisis (2011) due to the Assad regime. Syria has been the main country of origin for refugees since 2014, and at the end of 2019, there were 6.6 million Syrian refugees hosted by 126 countries worldwide.
The unfortunate reality is that in 2019, only half a per cent of the world’s refugees were resettled. Moreover, 85% of refugees are being hosted in developing countries. This inequity is clearly as a result of wealthy developed nations such as the UK not doing enough to help ease the crisis and take off the burden from poorer nations. As mentioned, the harrowing images of devastation in Kabul have once again brought the refugee crisis to the forefront of policy debates once more.
The UK abroad: what has the government done to assist the crisis overseas?
It can be stated that the policies adopted by the UK government towards refugee crises such as the Afghanistan Crisis seem to bear the intent to beneficially assist ease the crisis, although they ultimately are guided with the desire to develop a quick and cheap solution to divert public discontent away from themselves. This is to say that while efforts of aid and diplomacy have been made to ease the crisis abroad, the desire to do so has been lukewarm, and this has not been enough to have a positive effect in easing the refugee crisis, particularly in Afghanistan. Firstly, in regard to aid on Nov 25, 2020, U.K. Chancellor of the Exchequer Rishi Sunak announced the government would no longer be spending 0.7% of gross national income on official development assistance, despite a legal commitment binding the government to the target[10] .This has resulted in a £4.5 billion cut to the aid budget. In regards to Afghanistan, in early 2021, the UK pledged £155 million in aid, a reduction from the £290 million it delivered in 2019. Further, according to a Freedom of Information request by the Jubilee Debt Campaign the Treasury also plans to charge Sudanese debt cancellation to the aid budget, effectively causing a further £580 million cut in 2022. In addition, the UK has made cuts of £6.1 million of aid to conflict prevention and peace-building projects in Myanmar, Yemen, South Sudan, Nigeria, Central African Republic, Ethiopia, and Somalia [11].
It is unsurprising that as at August 2021 both funding calls from the UN Office for the Coordination of Humanitarian Affairs and UN refugee Agency for aid for Afghanistan were unmet by the UK. Rather, the UK had only provided US $20.6 million, or 3.8%, of the US $868 million called for by the UN OCHA. However, pushed by the opposition and the public, in September, the UK government announced £30 million in aid as part of a £286 million aid pledge to Afghanistan’s neighbours to support regional stability and help them respond to the arrival of refugees. Foreign Secretary Dominic Raab said: “This doubling of UK aid demonstrates our commitment to the people of Afghanistan to support a stable, peaceful future for the country. We call on others to follow our lead to ensure the most vulnerable Afghans receive the humanitarian assistance that they need. The new funding will build on previous support to Afghanistan which has already helped almost 10 million more children go to school compared with 2001, helped to reduce maternal mortality by more than 42%, and helped to clear more than 8 million landmines and other unexploded munitions.”[12] However, in July 2021, the UN stated that 18.5 million people, or nearly half of Afghan’s population, needed humanitarian support. It reported a third of the country was suffering from malnutrition. These statistics can be taken as evidence that there needs to be much more commitment from wealthy nations such as the UK, so really make a difference to the crisis
The UK has also made efforts in diplomacy, although again the apathy with which this was greeted has meant that it has not been successful. In October, PM Boris Johnson announced that the UK’s envoy held talks with the Taliban in Afghanistan. It was announced that the UK could help Afghanistan address the deepening humanitarian crisis and the need for safe passage for those who want to leave the country. While some aid has been delivered, it seems that the rest of the discussion is still filled with empty promises[13].
What current legal rights/ what is the legal status of refugees in the UK now?
While international and domestic legal structures exist to provide rights to Asylum seekers and refugees in the UK, the process of being granted refugee status is onerous, exclusive and unfair. Rather, stronger legislative structures and better policy positions are needed.
In regards to international structures to safeguard refugee rights, the UK is signatory to the 1951 Convention Relating to the Status of Refugees (the Refugee Convention). This means that while state sovereignty provides that the convention itself is not legally binding in UK law, the government has a strong moral obligation to uphold the Refugee Convention as a legal framework for the protection of refugees and asylum seekers.
The Refugee Convention itself builds upon Article 14 of the 1948 Universal Declaration of Human Rights, by broadening the criteria to grant asylum to include not just those fearing persecution on traditional political grounds but also those with a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group’[14]. However, the main shortcoming of the Refugee Convention is that it does not provide adequate protection for the position of asylum seekers applying for refugee status for governments such as the UK to follow. For instance, the only real protection for Asylum seekers can be found in Article 31 which prohibits states from imposing penalties on refugees who entered the country illegally, although only this is far from adequate.
Domestically, the UK has certain legal structures and processes which grant rights to Asylum seekers in the UK. Although, the processes to acquire adequate legal rights such as visas are too onerous, exclusive and unfair. refugee status is granted to those the Home Office recognises as refugees, as outlined in the refugee Convention. When a person achieves official refugee status, they are usually given leave to remain in the UK for up to five years, after which time they can apply for Indefinite Leave to Remain. After this, refugees may apply for British Citizenship. However, these processes involve many unfair hurdles which unfairly disadvantage vulnerable asylum seekers. For instance, when receiving refugee status, refugees are given 28 days to find new accommodation and apply for benefits. However, this is very difficult and often not possible for vulnerable refugees in such a short time. For instance, it is already extremely difficult for Department for Social Security tenants to find a property, and issues such as language and cultural barriers add an extra hurdle for refugees. These difficulties mean that often at this stage many refugees become homeless.
In regards to the Afghan crisis, the UK Home Office has announced a resettlement scheme for Afghans[15], which will involve settling 5,000 Afghan nationals at risk in 2021, and up to 20,000 in the longer term. In addition, the UK has committed to resettle former interpreters and other locally employed civilians[16]. Yet, remembering that there are millions of Afghans displaced, the UK’s commitment to only several thousand falls short.
In addition to hurdles within the resettlement process, the UK government has enacted laws which actually serve to derogate asylum seekers and refugee rights. For instance, justification for these policies have derived from sources of EU law, which have proven to operate unsatisfactorily to safeguard asylum seekers rights. Article 6 of the European Convention on Human Rights provides that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. However, the European Court of Human Rights have held in cases such as Grand Chamber in Maaouia v France (2000) that Article 6 does not apply to asylum decisions, on the basis that the right to asylum is not a ‘civil right’ within the meaning of Article 6(1). This has led the UK government to introduce fast-track procedures, non-suspensive appeals, and restrict appeal rights. For example, section 55 of the Nationality Immigration and Asylum Act 2002 empowered the Home Secretary to deprive asylum seekers of subsistence support where satisfied that they had failed to apply for asylum ‘as soon as reasonably practicable after the person’s arrival in the United Kingdom’. When this n came into force many asylum seekers were made destitute without money for food or shelter because Home Office officials determined they had failed to apply for asylum within 24 hours of their arrival. Significantly, this was regardless of the reason for the delay in each case. For example, the case of R v Secretary of State for the Home Department ex parte Limbuela[17], the House of Lords upheld the decision that policy of waiting until an asylum seeker’s destitution had reached the standard of inhuman or degrading treatment before reinstating support was itself in breach of Article 3 ECHR.
Further examples of the UK government using legal structures to derogate refugee rights is evident in the fact that the bill proposed for the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, included a clause ‘ousting’ the jurisdiction of the higher courts to judicially review the decisions of the Asylum and Immigration Tribunal. Nevertheless, the replacement of judicial review with a more limited form of statutory review has so far survived legal challenges. For instance, this was upheld by the Court of Appeal in F(Mongolia) v Secretary of the State for the Home Department[18].
However, the Human Rights Act 1998 does provide legal grounds to protect asylum seekers, mainly in relation to removals. For example, if an asylum seeker does not qualify for refugee status under the refugee Convention, the Human Rights Act enables the courts to prohibit removal where an asylum seeker’s return to their home country would otherwise result in a ‘real risk’ of ill-treatment or a ‘flagrant breach’ of any other Convention right. For example, the House of Lords reached this decision in Ullah v Special Adjudicator[19].
Overall, it can be concluded that despite the United Kingdom’s moral and legal commitments to human rights, their response to the ever-present refugee crisis is far from adequate. While efforts have been made in regards to aid and diplomacy, this has not been enough, and the Government should be adopting a policy in which they do all they can to help ease the crisis, rather than coming up with excuses for the cuts to the humanitarian aid budget. In addition, while some legal structures exist to protect refugees, theses themselves are far from adequate, and there needs to be reform on legislation which actively derogates refugee rights.
[1] https://www.dni.gov/nctc/groups/afghan_taliban.html#:~:text=The%20Taliban%20is%20a%20Sunni,from%201996%20until%20October%202001.&text=By%20September%201996%2C%20the%20Taliban,the%20Islamic%20Emirate%20of%20Afghanistan.
[2] https://commonslibrary.parliament.uk/research-briefings/cbp-9296/#:~:text=At%20the%20end%20of%202020,the%20displacement%20is%20largely%20internal.%E2%80%9D
[3] https://www.unhcr.org/ir/2021/08/16/unhcr-warns-afghanistans-conflict-taking-the-heaviest-toll-on-displaced-women-and-children/
[5] https://www.reuters.com/world/asia-pacific/un-readies-more-displaced-afghans-after-troop-withdrawal-2021-06-14/
[6] https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-migrants/global-refugee-crisis-statistics-and-facts/
[8] https://www.unrefugees.org/emergencies/south-sudan/#:~:text=The%20total%20number%20of%20South,Sudan%20are%20women%20and%20children.
[11] https://www.international-alert.org/statements/arbitrary-cuts-aid-downgrade-vital-peacebuilding-fragile-states/
[13] https://www.aljazeera.com/news/2021/10/5/british-pms-envoy-holds-talks-with-taliban-in-afghanistan
[14] Article 1A(2) as amended by the 1967 Protocol
[16] https://www.gov.uk/government/publications/afghan-relocations-and-assistance-policy/afghan-relocations-and-assistance-policy-information-and-guidance#:~:text=This%20is%20a%20new%20scheme,remain%20open%20and%20operate%20indefinitely.
[17] [2005] UKHL 66
[18] [2007] EWCA Civ 769
[19] [2004] UKHL 26